Dixie Ice Cream Co. v. Blackwell
| Decision Date | 29 March 1928 |
| Docket Number | 7 Div. 792 |
| Citation | 116 So. 348,217 Ala. 330 |
| Parties | DIXIE ICE CREAM CO. et al. v. BLACKWELL et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Calhoun County; R.B. Carr, Judge.
Bill in equity by Annie L. Blackwell and others against the Dixie Ice Cream Company and others. From a decree overruling a demurrer to the bill, respondents appeal. Affirmed.
Knox Acker, Sterne & Liles, of Anniston, for appellants.
John D Bibb and R.M. Woolf, both of Anniston, for appellees.
Appellants' view of the bill of complaint is that it does not sufficiently show that respondents' conduct of their business, in the manner set forth, is an unlawful disturbance of these complainants in the use and enjoyment of their neighboring premises. More specifically, the objections to the bill are, that it does not show that respondents are making an unreasonable use of their creamery plant, and does not show that the locality is not a business district, or that it is a district where it is improper or illegal or unreasonable to operate such a business as alleged.
The conflict between the rights of home owners on the one hand and of encroaching industry on the other, has existed immemorially in the course of municipal growth and change.
Cases similar to the one here presented have been frequently before the courts; and, while occasionally a court has undertaken to lay down very specific rules for their government and determination, the better view is that only general principles can be declared, and that each case must be determined upon its own facts in the light of those general principles. Rouse v. Martin, 75 Ala. 510, 51 Am.Rep 463.
In general, home owners and occupants, as well as all others, must endure, without legal recourse, all of those petty annoyances and discomforts ordinarily and necessarily incident to the conduct of those trades and businesses which are usually a part of municipal life, and which are more or less essential to the existence and comfort and progress of the people. First Avenue, etc., Co. v. Johnson, 171 Ala. 470, 54 So. 598; Euler v. Sullivan, 75 Md. 616, 23 A. 845, 32 Am.St.Rep. 420, 422. But there are limits to this rule, and, as said in the well-considered case of Hundley v. Harrison, 123 Ala. 298, 26 So. 295:
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