Dumesnil v. Dupont

• Decision Date: 02 February 1858
• Parties: Dumesnil <I>vs.</I> Dupont.
• Court: Kentucky Court of Appeals

Page 800

57 Ky. 800

Dumesnil vs. Dupont.

Court of Appeals of Kentucky.

February 2, 1858.

APPEAL FROM LOUISVILLE CHANCERY COURT.

Hamilton Pope, for appellant —

COPYRIGHT MATERIAL OMITTED

Fry and Field, on same side.

Bullitt & Smith, for appellees —

Judge DUVALL delivered the opinion of the court.

The appellant alleges in his petition that the defendants had erected, or were the owners, of a powder house situated on the Oakland plank road, within half a mile of the limits of the city of Louisville, within about three hundred yards of the appellant's residence, and but a short distance from his neighbor's houses. That large quantities of powder are kept constantly in the house; that no person is kept in charge of it, and it is liable to be fired or destroyed in various ways; that should an explosion occur, the family of appellant and those of his neighbors, would be greatly injured, if not killed, and their property destroyed; that they are greatly disturbed about the proximity of the powder house, and are seriously apprehensive of danger and injury; and he prays an abatement of the house as a nuisance, and for general relief.

The appellees, in their answer admit that they own, and are using the powder house for the purposes mentioned. They say it was built in 1853, and was used for the storage of powder until July, 1854, when they bought it for the same purpose, but without any knowledge that such use was objected to by any one. That they are merchants of Louisville, and furnish all the powder sold in that market, and keep in store only so much as will supply the demand of the public; that the supply of powder kept by them is a matter of great convenience to the public, and of advantage to the commerce of the city. That their magazine is well constructed, and is protected against accidents by secure fencing, lightning rods, and by the constant presence of a trusty man, whose sole business is to attend to it, and who alone is permitted to enter it; that it stands in a sparsely settled neighborhood, and that should an explosion occur, the danger of which is very remote and improbable, it would not seriously injure either the property or family of the appellant or his neighbors.

The proof sustains substantially the allegations of the answer, except as to the probable effects of an explosion, in regard to which the witnesses differ. It is proved that the appellant's house stands about 330 yards from the magazine; another residence 500 yards distant, another 300 yards, and a tavern house about 260 yards. No effort was made to show by the proof, any defect in the arrangement or construction of the building, or any impropriety in conducting the business. So that the only question arising upon the record is, whether this powder magazine is a nuisance, the abatement of which is within the jurisdiction of the chancellor.

The power and jurisdiction of courts of equity in cases of nuisance, whether public or private, cannot now be questioned. It has long been recognized and acted upon by the courts of England and of this country, and is said to be founded upon the ability of such courts to give a more complete and perfect remedy than is attainable at law. But in all cases of this sort, courts of equity will grant an injunction to restrain a nuisance, public or private, only in cases where the fact is clearly made out upon determinate and satisfactory evidence, for if the evidence be conflicting and the injury doubtful, that alone will constitute a ground for withholding this extraordinary interposition. (2 Story's Equity Jurisprudence, sec. 924, and the authorities there cited.)

In the case of the Earl of Rippon vs. Hobart, 1 Cooper's Sel. Cases, the principles which regulate and limit the jurisdiction of the chancellor in such cases, are thus stated by Lord Brougham: "If the thing sought `to be prohibited is in itself a nuisance, the court will `interfere to stay irreparable mischief without waiting `for the result of a trial. But where the thing `sought to be restrained is not unavoidably and in `itself noxious, but only something which may, according `to circumstances, prove so, then the court `will refuse to interfere. The distinction between `the two kinds of erection or operation, is obvious, `and the soundness of that discretion seems undeniable, `which would be very slow to interfere, `where the thing to be stopped, while it is highly `beneficial to one party, may very possibly be prejudicial `to none. The great fitness of pausing much `before we interrupt men in those modes of enjoying `or improving their property which are prima facie `harmless, or even praiseworthy, is equally manifest. `And it is always to be borne in mind, that the jurisdiction `of this court over nuisances, by injunction, at `all, is of recent growth, has not till very lately been `much exercised, and has, at various times, found `great reluctance on the part of the learned Judges, `to use it even in cases where the thing or the act `complained of was admitted to be directly and immediately `hurtful to the complainant. It is also `very material to observe, that no instance can be `produced of the interposition, by injunction in the `case, of what we have been regarding as an eventual `or contingent nuisance."

Various other authorities, to the same effect, might be cited, but it is unnecessary. It may now be regarded as the settled doctrine...