Daniel v. Birmingham Dental Mfg. Co.

• Decision Date: 22 June 1922
• Docket Number: 6 Div. 543.
• Citation: 93 So. 652,207 Ala. 659
• Parties: DANIEL v. BIRMINGHAM DENTAL MFG. CO.
• Court: Alabama Supreme Court

93 So. 652

207 Ala. 659

DANIEL v. BIRMINGHAM DENTAL MFG. CO.

6 Div. 543.

Supreme Court of Alabama

June 22, 1922

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by Birmingham Dental Manufacturing Company against E. Daniel for injunction. From a decree overruling motion to dissolve temporary injunction, respondent appeals. Reversed, rendered and remanded.

Erection of a fence to exclude obnoxious odors and disturbing noises from automobile carburetor plant will not be enjoined, though its construction may be tainted with a spirit of retaliation.

The bill of complaint is filed for the prevention of an alleged nuisance by a writ of injunction.

The original bill averred: That the appellee, complainant, was the owner and in possession of a certain lot in the city of Birmingham, and had located thereon a building where it was and had been engaged for a long time in the manufacture of dental instruments, and that it was prepared to engage in addition thereto, in the manufacture of carburetors for automobiles, and that it had erected on its said lot a one-story building, properly arranged for the admission of light into said building and that light was necessary for the carrying on of its said business. That the respondent was the owner of the adjoining lot and that he was engaged, or about to be engaged, in erecting or about to erect a high fence which would interfere with the light coming into complainant's plant, and if he was permitted to erect same it would cause irreparable injury to complainant's said business. That the wall of complainant's building adjacent to respondent's lot was modern and did not in any wise interfere with respondent's health or the enjoyment of his property.

The equity of the bill is found in the third paragraph, which, as amended, is as follows:

"3. Complainant further represents that the said wall of complainant's said building adjacent to the said lots of respondent is modern and arranged with a number of windows which admit air and light into the said offices and building of complainant; that the said fence which the respondent is in the act of erecting is a solid board fence about 10 or 11 feet high and about 6 inches from the dividing line of the lots between complainant and respondent, and does not serve any useful purpose to respondent, nor add any value to the property of respondent; that it will be useless and also unsafe in that it is dangerous to the adjoining property of complainant by its liability to fall or be thrown over against complainant's said property, and thus cause damage thereto; and will also cut air and light from complainant's place of business at said place. Complainant further represents that, upon information and belief, and upon said information and belief avers that respondent is erecting the said fence for the purpose of vexing, annoying and injuring complainant from using air and light so necessary in the carrying on of its said business, or for the purpose of influencing complainant in securing a purchaser for his said lot, or for forcing complainant to purchase same."

Respondent demurred to the bill for want of equity.

The sworn answer, which was also made a cross-bill, praying for preventive relief against the alleged nuisance of complainant's business, after describing the character of the locality, and the acquisition and previous uses of the respective lots here concerned, proceeds with allegations as follows:

That after respondent purchased said lot and erected and occupied said dwelling house and about the 1st of March, 1921, the complainant, its agents, servants, lessees, or licensees commenced to carry on a business of what respondent was informed was testing carburetors for automobiles on the said lot of complainant; that such testing of carburetors was made by running the engines of automobiles at a very rapid rate of speed and was accompanied by very large noises or explosions and vile and obnoxious odors which caused great annoyance discomfort, injury, and inconvenience to respondent and the other members of his family in the use and occupancy of their said home on respondent's said lot, and that such testing of carburetors continued at very frequent intervals for several weeks; that about the 15th of May, 1921, complainant commenced the erection of an addition to its original building on said lot and when the bill in this case was filed had almost entirely completed a one-story addition to said building, which was so constructed that it occupied complainant's entire lot and the east wall of which was built on a line dividing complainant's property from that of respondent and extended back along said line a distance of 168 feet to an alley; that said wall is from 12 to 20 feet from the western wall of respondent's dwelling house; that the south part of said addition for about 40 or 50 feet appears to be an office being fitted up with furniture and fixtures usually used in the office of a business concern, and that there are a number of people constantly in said office building during the entire day, and that there will be a large number of people employed in said office portion, and constantly a large number of other people going to and from said building at all times; that the office portion of said building has six large glass windows, which front on respondent's lot, three of which look directly into the windows of respondent's house and the others look on the front porch and yard of respondent's house, thereby completely destroys the privacy and comfort of respondent's said house and lot as a home for himself and family; that adjoining said office portion of said addition and extending northward so as to cover the remaining portion of said lot, complainant's addition to its original building is built in the manner of a large manufacturing plant and that the same is equipped with machinery and appliances, and that complainant intends to carry on both in its original building and in addition thereto the business of manufacturing, assembling, and testing carburetors for automobiles on a large scale;...