Deevers v. Lando

• Decision Date: 29 June 1926
• Parties: R. J. DEEVERS, RESPONDENT, v. JOHN LANDO, GEORGE BROWN AND MARTIN DAUME, APPELLANTS.
• Court: Missouri Court of Appeals

285 S.W. 746

220 Mo.App. 50

R. J. DEEVERS, RESPONDENT, v. JOHN LANDO, GEORGE BROWN AND MARTIN DAUME, APPELLANTS.

Court of Appeals of Missouri, St. Louis

June 29, 1926

Appeal from the Cape Girardeau Court of Common Pleas of Cape Girardeau County.--Hon. Oscar A. Knehans, Judge.

AFFIRMED AND REMANDED (with directions).

Judgment affirmed and cause remanded.

Spradling & Dalton for appellants.

(1) The writ of injunction is not a writ of right, but a writ of grace and discretion and is always exercised by the chancellor with the utmost caution and only when necessity requires it. Peltzer v. Gilbert, 260 Mo. 500, 524; Johnson v. United Railways, 227 Mo. 423; Baker v. McDaniel, 178 Mo. 447. (2) Equity jurisdiction in nuisance cases is predicated on irreparable injury interminable litigation or lack of adequate remedy at law. Many cases will sustain an action at law, which will not justify relief in equity. Baker v. McDaniel, 178 Mo 447; Nuisances, 20 R. C. L. 479; Nuisances, 20 R. C. L. 473. (3) The burden of proof was upon the plaintiff to establish the existence of a nuisance and the injury therefrom, and to show "A strong and mischievous case of pressing necessity." Tanner v. Wallbrunn, 77 Mo.App 262; Baker v. McDaniel, 178 Mo. 447; Nuisances, 29 Cyc. 1244; Washb. on E. & S. (3 Ed.), 701; 1 High on Injunctions (3 Ed.), sec. 740; Nuisances, 20 R. C. L. 479; Randle v. Railroad, 65 Mo. 325. (4) The test of a nuisance is not injury and damage simply but injury and damages resulting from the violation of a legal right of another. Paddock v. Somes, 102 Mo. 226; Blackford v. Heman Construction Co., 132 Mo.App 157, 112 S.W. 287; Powell v. Brick and Tile Co., 104 Mo.App. 713; Marble Co. v. Gaslight Co., 128 Mo.App 96; Kirchgraber v. Lloyd, 59 Mo.App. 59; Wood on Nuisances (3 Ed.), sec. 880; Wood's Law of Nuisances (2 Ed.), 1015. (5) One who lives in a city is bound to submit to the consequences of trade carried on there and to the annoyances that unavoidably accompany business even though they injure the rental value of adjoining property for residence purposes. Gibson v. Donk, 7 Mo.App. 37; Van DeVere v. Kansas City, 107 Mo. 83; Marble Co. v. Gaslight Co., 128 Mo.App. 96; Nuisances, 20 R. C. L. 440. (6) The test of a nuisance is the effect that the matters complained of have on persons of ordinary health, normal or average sensibilities and ordinary tastes, habits and modes of living. Nuisances, 29 Cyc. 1192; Nuisances, 20 R. C. L. 382, 383; Beckley v. Skroh, 19 Mo.App. 75; Wade v. Miller, 188 Mass. 6, 73 N.E. 849. (7) The law protects only substantial and material rights and prevents only unreasonable, unwarrantable and unlawful invasions of another's rights. Kirchgraber v. Lloyd, 59 Mo.App. 59; Powell v. Brick and Tile Co., 104 Mo.App. 713; Berlin v. Thompson, 61 Mo.App. 234; Nuisances, 29 Cyc. 1191; Nuisances, 20 R. C. L. 382, 383, 443-444. (8) The appellants had an absolute right to the reasonable use of their own property and to reasonably conduct their own business in their own way. Harper v. Standard Oil Co., 78 Mo.App. 338; Berlin v. Thompson, 61 Mo.App. 234. (9) "Things which are not in themselves nuisances can only become such by some neglect in the manner or locality of their use." Harper v. Standard Oil Co., 78 Mo.App. 338. (10) The use of property which does not create a nuisance cannot be enjoined or a lawful structure abated merely because it renders neighboring property less valuable. Such is damnum absque injuria. Nuisances, 20 R. C. L. 479; Nuisances, 29 Cyc. 1195; Whitmore v. Brown (Me.), 9 R. L. A. (N. S.) 868, 872; Realty Co. v. Deere, 208 Mo. 66. (11) The appellants had a permit from the city to construct and operate a barbecue stand on this particular lot The stand was clean and sanitary and operated like any other barbecue stand. No neglect in the manner of operation is charged. The stand was therefore not a nuisance. Randle v. Railroad, 65 Mo. 325. (12) Smoke is not a nuisance per se. St. Louis v. Heitzeberg Packing Co., 141 Mo. 375; McGill v. Pintsch Co., 118 N.W. 786; St. Paul v. Gilfillan, 36 Minn. 298, 31 N.W. 49. (13) The smoke from the stand being the same as from an ordinary residence and less than from an ordinary residence with a furnace where coal was burned, and there being no soot, cinders, discoloration or other tangible injury, the smoke from the barbecue stand did not constitute a nuisance. St. Louis v. Heitzeberk Packing Co., 141 Mo. 375; Berlin v. Thompson, 61 Mo.App. 234; St. Paul v. Gilfillan, 36 Minn. 298, 31 N.W. 49. (14) Where the injury caused by smoke is inconsequential or temporary, injunctive relief will be refused and the injured person left to his remedy at law. Downing v. Elliott, 182 Mass. 28, 64 N.E. 201; Terrell v. Wright, 87 Ark. 213, 112 S.W. 211, 19 L. R. A. 174; Phillips v. Brick & Tile Co., 72 Kan. 643, 82 P. 787, 2 L. R. A. (N. S.) 92; Adams v. Michael, 38 Md. 123, 17 Am. Rep. 516; 6 A. L. R. 1582. (15) The odors and smells which constitute nuisances are those which repel and sicken, such as vile noisome odors or stenches. Smells which are appetizing and attractive to the public are not nuisances and have never been declared such. Swanson v. Bradshaw, 187 S.W. (Mo. App.) 268; Zugg v. Arnold, 75 Mo.App. 68; Whipple v. McIntyre, 69 Mo.App. 397; Beckley v. Skroh, 19 Mo.App. 75; Smith v. McConathy, 11 Mo. 517; Nuisances, 20 R. C. L. 423; Nuisances, 20 R. C. L. 425-427, 448-449. (16) Cooking or baking is not a nuisance per se, and the odor of cooking meat about the stand which made people hungry, advertised the place, and attracted the people passing along the street did not constitute a nuisance. Shroyer v. Campbell, 31 Ind.App. 83, 67 N.E. 193; Alexander v. Steward Bread Company, 21 Pa.Super. Ct. 526; Nuisances, 29 Cyc. 1166, 1170. (17) The provision in the contract for the sale of the lot stating that the property was "sold for residence purposes only" did not restrict the use of the property to such purpose. 1. It was a mere recital of the purpose of the sale and did not restrict the use of the property. Vendor & Purchaser, 27 R. C. L. 739; Contracts, 13 C. J. 538, sec. 502; Dawren v. Rayburn, 73 N. E. (Ill.) 364, 365. 2. The general term "for residence purposes" followed by the specific prohibitions limited the general term to the items prohibited. Kitchen v. Hawley, 150 Mo.App. 497; Miller v. Wagenhauser, 18 Mo.App. 11; Bolin v. Investment Co., 273 Mo. 257, 200 S.W. 1059. 3. The deeds executed pursuant to contract having this recital contained only the specific prohibitions and not this recital and is evidence that the same was a mere recital of the purpose of the sale. 4. Provisions restricting the free and untrammeled use of real property are regarded unfavorably and strictly construed, and viewed favorably to the free use of the property. Kitchen v. Hawley, 150 Mo.App. 497; Bolin v. Inv. Co., 200 S.W. 1059; Hutchinson v. Ulrich, 145 Ill. 336, 21 L. R. A. 391. 5. The provision fixing the value of a dwelling to be built did not control the value of a stand or its location. Vendor & Purchaser, 27 L. R. A. 751; Bolin v. Inv. Co., 273 Mo. 257. 6. The deed was offered and admitted solely to help show the stand to be located in a so-called residence neighborhood and not to establish restrictions. Appellants had no deed. (18) Even if the court found that the barbecue stand as constructed, maintained and operated constituted a nuisance the court should have given appellants a reasonable opportunity to abate the nuisance by changing the construction or operation of their stand, if that could be done, before permanently enjoining its operation. Mogel v. Society, 203 Mo.App. 335, 218 S.W. 704; Zugg v. Arnold, 75 Mo.App. 68; Blackford v. Company, 132 Mo.App. 157; Nuisances, 29 Cyc. 1249-1250; Nuisances, 20 R. C. L. 482. (19) A permit having been granted by the city for the building of the stand the court had no right to order the building abated and moved. The power to enjoin does not carry with it the power to destroy except when absolutely necessary to abate a continuing nuisance. Waggoner v. City of South Gorin, 88 Mo.App. 25; St. Louis, etc., Bank v. Kennett, 101 Mo.App. 370; Allison v. City of Richmond, 51 Mo.App. 133; Nuisances, 29 Cyc. 1250. (20) Appellant, John Lando, the lessor of premises was not liable for the nuisance, if any, created and maintained thereon by the tenants, Brown and Daume. Baker v. Gates, 279 Mo. 630, 216 S.W. 775; Gilliland v. Railroad, 19 Mo.App. 411; Grogan v. Foundary Co., 14 Mo.App. 587, and 87 Mo. 321; 2 Wood, L. & T. (2 Ed.), page 1283; 29 Cyc. 1203. (21) The mere fact that respondent lived closer to the stand than anyone else and noticed the odors and smoke more than his neighbors, did not give him any right of action. His damage, if any, was not different in kind, but only greater in degree than others. Respondent was not entitled to recover. Coombs v. Fuller, 228 S.W. (Mo. App.) 870; State ex rel. v. Sedalia, 241 S.W. 656; Van DeVere v. Kansas City, 107 Mo. 83; Realty Company v. Deere, 208 Mo. 66. (22) Appellants should have been permitted liberally to cross-examine respondent (plaintiff) and to show by him that this barbecue stand was operated like other such stands and also to cross-examine respondent about the smoke from the West End Fuel Company in order to bring out all the facts and for the purpose of affecting his credibility as a witness. Young v. Smith, 25 Mo. 341; Bank v. Richards, 119 Mo.App. 18; Israel v. R. R., 239 S.W. 81; McCoy v. Hill, 246 S.W. 582, 584 (3); Witnesses, 40 Cyc. 2486. (23) Even if the court found that the location and operation of the barbecue stand did violate the terms of appellant Lando's contract for the purchase of the lot upon which the stand was located, that fact alone would not constitute the building or business a...