English v. Progress Electric Light & Motor Co.

• Decision Date: 05 November 1891
• Citation: 10 So. 134,95 Ala. 259
• Court: Alabama Supreme Court
• Parties: ENGLISH ET AL. v. PROGRESS ELECTRIC LIGHT & MOTOR CO.

10 So. 134

95 Ala. 259

ENGLISH ET AL. v. PROGRESS ELECTRIC LIGHT & MOTOR CO.

Supreme Court of Alabama

November 5, 1891

Appeal from chancery court, Mobile county; THOS. M. COLEMAN Chancellor. Affirmed.

Bill by Martha E. English and others against the Progress Electric Light & Motor Company to enjoin as a nuisance the operation of defendant's plant. Decree for defendant. Complainants appeal.

Gregory L. & H. T. Smith, for appellants.

Thos. H. Smith and Overall & Bestor, for appellee.

CLOPTON J.

Appellants invoke the interference of the chancery court to abate by injunction, as a nuisance, the electric plant maintained and operated by appellee in the city of Mobile. The remedy sought is preventive, and, incidentally, compensatory. An injunction for such purpose is not a matter of absolute right; but if, as has been said, it rests in judicial discretion, the exercise of such discretion is not without limitations, and is to be guided by the settled principles on which interference by the court, in such cases, depends. In considering whether or not an injunction should be granted regard must be had, on the one hand, to the right of every person to use his own property as his taste, desires, and interest may dictate; and, on the other, to the right of his neighbors to the comfortable and unmolested use and enjoyment of their property. No one should be restrained as to the use of his property, unless such use offends the legal rights of another. There are certainly instances of private nuisances, for which an action on the case can be maintained, yet insufficient by justify interference by injunction. This extraordinary and transcendent power should be exercised only when imperatively necessary to prevent multiplicity of suits, or irreparable injury, or continuous or constantly recurring grievances, when, from their irreparable nature, continuance, or frequent repetitions, the legal remedies are inadequate to afford full redress. While it is not essential that the injury should be strictly continuous, it must not be only occasional or accidental. Rouse v. Martin, 75 Ala. 510; 16 Amer. & Eng. Enc. Law, 959. The plant of defendant was first established in April, 1885, and was operated and used by Cawthorn and his associates for the purpose of lighting the dwellings and stores in the city of Mobile, until April, 1887, when they sold it to defendant, who has continued its operation, lighting the streets as well as dwellings and stores. The house in which complainants resided is a one-story frame house, having four rooms, with kitchen and servants' rooms, and is situated on a mound about 12 feet above the level of the street and the adjacent property. Many years ago the streets in that portion of the city were graded to the level of the wharves, and the adjacent property, except complainants', cut down to the level of the streets. Brick walls were built on the four sides of complainants' lot for the purpose of supporting the embankments. The bill avers that defendant has a contract with the city of Mobile, under which it lights the streets of the city with electricity every night that the moon is not shining, and for this purpose uses four large boilers and several large dynamos; the ends of the boilers projecting to within a few feet of the wall of complainants. It further avers that when the plant is in operation a dense smoke is produced, the soot from which, in certain conditions of the atmosphere, is frequently blown up and into complainants' house, and fills it, unless the windows are closed. Further, that the machinery, when in operation, frequently and at intervals makes a loud, palpitating noise, like the puffing of a locomotive when pulling a heavy train up grade, which noise is sufficiently loud to be heard 200 yards away; also frequently creates a severe vibratory motion, that shakes the surrounding buildings, and especially the building owned by complainants. The bill further avers that the noise, vibrations, and smoke are all made in the night-time, and frequently continue from early in the evening until nearly morning; that the noise disturbs the sleep of the occupants of the building, and the vibrations are so severe as to make the tableware upon the tea-table and the windows of the house rattle, the chairs and furniture in the house rock, and to shake the occupants when in bed. That such noise and vibrations not only interfere with the sleep of the occupants, but render them nervous, and make the houses undesirable as places of residence, even for those in health; and, in case of sickness, would so excite an invalid as to seriously affect speedy recovery, and in certain cases be seriously dangerous to life. The bill further avers that on several occasions portions of the machinery have burst or blown out, making a loud noise, greatly frightening complainants, causing them to run out into the street; that there is constantly thrown from said machinery steam in large quantities, and hot water, which runs down the gutters in front of and around the residence of complainants, to their great annoyance; that the proximity of said boilers and machinery greatly increases the risk from fire and the rate of insurance, also adding great danger from the explosion of the boilers and breaking of machinery. The answer denies these allegations of the bill; sets up the great utility of the business to the public; also that, if there were causes of complaint at the commencement of the business, they have been obviated by the application of scientific appliances, and that any inconvenience experienced by complainants could have been prevented with little effort; also that the acquiescence and fault of complainants induced defendant to invest a large sum of money in improving the plant.

It is difficult, if not impracticable, to formulate a rule accurately defining the acts or facts which will constitute a nuisance under any and all circumstances. We shall not make the attempt. As a general proposition, it may be said that any establishment, erected on the premises of one, though for the purposes of trade or business, lawful in itself, which, from the situation, the inherent qualities of the business, or the manner in which it is conducted, directly causes substantial injury to the property of another, or produces material annoyance and inconvenience to the occupants of adjacent dwellings, rendering them physically uncomfortable, is a nuisance. In applying this principle, it has been repeatedly held that smoke, offensive odors, noise, or vibrations, when of such degree or extent as to materially interfere with the ordinary comfort of human existence, will constitute a nuisance. Rouse v. Martin, supra. This principle has been applied to various kinds of factories and industries located in a city, including gasworks, and the production of light by the operation of a steam-engine and...