Coker v. Birge

• Citation: 10 Ga. 336
• Decision Date: 31 August 1851
• Docket Number: No. 45.,45.
• Parties: James Coker, plaintiff in error. vs. William S. Birge,defendant in error.
• Court: Supreme Court of Georgia

10 Ga. 336

James Coker, plaintiff in error. vs. William S. Birge, defendant in error.

No. 45.

Supreme Court of the State of Georgia

AUGUST TERM, 1851.

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In Equity, in Pike Superior Court. Dissolution of the injunction, upon the filing of the answer, by Judge Stark, at Chambers.

The bill alleged that complainant, on 12th day of November, 1850, purchased the Griffin Hotel, situated upon Broad-street, in the City of Griffin, Pike County, for the purpose of keeping open the same as a hotel, to which business it had been appropriated for several years previous; that the defendant, on or about the 20th day of the same month, commenced building, and is now actually proceeding to erect a livery stable, upon a lot contiguous to that upon which the hotel is situated, and only separated from the hotel itself by some sixty-five feet, and also fronting Broad-street. The bill alleges, that if the defendant is permitted to go on, and complete and occupy the said stable, " the injury to complainant and his family, as well as to his property, will be irreparable, and will inevitably result in the loss of health, comfort and happiness to complainant's family, and in the loss of patronage to his hotel, and in the ruinous diminution in the value of his property; all resulting from the unhealthy effluvia arising from the stable, from the collection of flies therefrom, and the interminable stamping of horses therein, the floor being laid of plank."

The bill prayed an injunction to restrain the defendant from erecting the stable.

The Court refused to sanction the bill, which decision was by writ of error, brought up and reversed by this Court, at Macon, February Term, 1851.

The bill was subsequently amended, charging that the defendant kept a jack in his stable, and let him to mares upon the premises, and in view of complainant's hotel; and, also, that the defendant, for the purpose of increasing the volume of manure produced in and about his stable, kept the stalls littered with leaves, thereby increasing the danger to the health of complainant's family and guests, and injuring his property.

In his answer, the defendant admitted all the material facts, upon which the equity of complainant's bill is founded, except that he had removed the plank floor from the stable. He admitted that he kept a jack upon the stable premises, but denied that he had ever, with his consent or knowledge, been let to mares, as charged in complainant's bill; although in his absence, on two occasions, such might have been the case. He denied that the injury apprehended from said stable, by complainant, to the health of his family, and the value of his property, would be realized, and that he intended to take precautionary measures to prevent the same, by sprinkling lime water, keeping the stalls neat and clean, &c.

Upon the coming in of the answer, affidavits being submitted to support the charges and statements in both the bill and answer, counsel for defendant moved to dissolve the injunction, which motion was sustained by the Court, and counsel for complainant excepted.

Moore & Alford, for plaintiff in error.

McCune & Ezzard, for defendant.

By the Court.—Lumpkin, J. delivering the opinion.

This was an application to Judge Stark, at Chambers, to dissolve an injunction.

The bill states, that the complainant, James Coker, became the proprietor of the Griffin Hotel, on Broadway, in the City of Griffin, on the 12th day of November, 1850; that the property is chiefly valuable from the fact of its being a hotel, and that it has been occupied and kept for that purpose since the year 1843, and that such was complainant\'s object in purchasing the property—the value of which is estimated at $3000 per annum. The bill charges, that the defendant, William S. Birge, about the 20th of November, 1850, commenced building a livery stable, with a plank floor, on a lot immediately west, and adjoining the premises of the complainant, which the defendant bought after the complainant went into the possession of the hotel—the said stable fronting Broadway, and running back parallel with the tavern—the object of the defendant being to keep and board horses.

The bill further alleges, that the defendant is keeping a jack in said stable, or on the stable lot, and that he permits him to be tried and let to mares on the premises, within view of complainant's guests, and of complainant himself and his family, from their apartments in the hotel. It further states, that with a view to increase the quantity of manure to be produced from the stable, the defendant is in the habit of littering the stalls with leaves, and complains that if the defendant be allowed to complete the buildings and appropriate them to the purposes contemplated, that the injury to the complainant and his family, as well as his property, will be irreparable; that it will result in the loss of health and comfort and patronage, and in a ruinous depreciation of the value of complainant's property, in consequence of the unhealthy effluvia that will arise from the stable and grounds, the collection of swarms of flies, and the interminable stamping of horses therein, and from the indecent noise and exposure of the jack; and that complainant requested the defendant to desist from erecting said...