First Avenue Coal & Lumber Co. v. Johnston

• Decision Date: 02 February 1911
• Citation: 171 Ala. 470,54 So. 598
• Parties: FIRST AVENUE COAL & LUMBER CO. v. JOHNSTON.
• Court: Alabama Supreme Court

54 So. 598

171 Ala. 470

FIRST AVENUE COAL & LUMBER CO. v. JOHNSTON.

Supreme Court of Alabama

February 2, 1911

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Bill by T. F. Johnston against the First Avenue Coal & Lumber Company. Judgment for plaintiff and defendant appeals. Affirmed.

Gaston & Pettus, for appellant.

Thompson & Thompson, for appellee.

MAYFIELD J.

The bill was filed to abate an alleged nuisance. The nuisance is alleged to consist in the maintenance of a planing mill and a coalyard and bins in the town of Woodlawn, now a part of Greater Birmingham, Ala., in a residence portion of said town or city, and so near to the residence of complainant as to render the habitation thereof undesirable, unpleasant, and burdensome by reason of the great noise, vibrations, and dust caused by and attending the operation of these plants. The location of the plants is alleged to be just across the street from, and in front of, plaintiff's residence. It is also alleged that by the creation and emission of this coal dust, and these unusual noises and vibrations, in the operation of these plants, so located, complainant's family, his wife and daughters, are disturbed and made nervous and sick and sore, and caused to lose the comfort and rest of their home, which they would enjoy but for the alleged nuisance. The bill further alleges that the value of complainant's home is thus being destroyed, to his great damage in the sum of $5,000, by the maintenance of this nuisance; that these plants are the only industrial ones erected or operated in the immediate vicinity of this residence portion of the town or city, and that they were so located after complainant had built his residence at a great cost, to wit, $4,000 or more.

It is within legislative competency to declare certain property, or a certain place or business, a nuisance; that is, to enlarge the common-law category of nuisances. But this power, like most others, has its limitations. The exercise of this police power is an attribute of sovereignity. In the exercise of this authority the Legislature may regulate persons and property in all matters relating to the public health, the public morals, and the public safety; but always, of course within the provisions of the Constitution. As a rule whatever is contrary to public policy, or inimical to the public interests, is subject to the public power of the state. All the particular subjects to which this power may be applied have not been and cannot be certainly defined. It has been well said that this police power of the state or sovereign is the right of self-preservation and self-protection; and that it is to the state, as it is to the individual, the first and natural right. The state's power in this respect, however, is limited and confined by the constitutional provision that the citizen shall not thereby unreasonably, arbitrarily, or without due process of law, be deprived of his life, liberty, or property. The constitutional right of the citizen cannot be abridged or destroyed under the guise of police regulations. The Legislature, therefore, cannot, by its mere ipse dixit, make that a nuisance which is not in fact or in truth a nuisance, or akin thereto. That which has none of the elements or characteristics of a nuisance, that has no capacity or tendency to injure the public health, the public morals, the public safety, or the public interest, cannot be made a nuisance by the Legislature, under the guise of a police regulation declaring it such. State v. Chicago Ry. Co., 68 Minn. 381, 71 N.W. 400, 38 L. R. A. 672, 64 Am. St. Rep. 482; State v. Goodwill, 33 W.Va. 179, 10 S.E. 285, 6 L. R. A. 621, 25 Am. St. Rep. 863; Stehmeyer v. City Council, 53 S.C. 259, 31 S.E. 322; State v. Julow, 129 Mo. 163, 31 S.W. 781, 29 L. R. A. 257, 50 Am. St. Rep. 443. Neither can the Legislature make that not a nuisance which is per se such by merely saying that it is not or by attempting to legalize it, or to authorize the carrying on of the same, to the extent or to the end of exempting those persons so carrying it on from all liability for the consequences of that which is per se wrong and inimical to the public interests, or to the public good, the public morals, or the public health.

The Legislature, in such cases, might exempt those who carry on such a business from liability to the state, but not from that to individuals whose property or health was destroyed or injured in consequence of such per se wrong. This might be done under the laws of England, but not under the laws of America. See Goldsmith v. Tunbridge Wells Imp. Co., as reported in 16 Eng. Rul. Cas., 586-628, and Metropolitan Co. v. Hill, 16 Eng. Rul. Cas., 556-586, including notes thereto.

The Bills of Rights, or constitutional provisions in the nature thereof, in all the American Constitutions, serve effectually to prevent such legislation in the states or the United States.

The Supreme Court of Illinois, in the case of Laugel v Bushnell, 197 Ill. 20, 63 N.E. 1086, 58 L. R. A. 266, has classified nuisances as follows: "(1) Those which in their nature are nuisances per se, or are so denounced by the common law...