Gilbert v. Showerman
| Decision Date | 04 October 1871 |
| Citation | 23 Mich. 448 |
| Court | Michigan Supreme Court |
| Parties | William Gilbert v. Delos Showerman and Others |
Heard July 12, 1871
Appeal in chancery from Wayne circuit.
This suit was brought by William Gilbert against Delos Showerman Henry E. Champion and William R. Newkirk.
The facts are fully stated in the opinion.
Decree dismissing the bill affirmed with costs.
Ward & Palmer, for complainant.
C. J Reilly and Moore & Griffin, for defendants.
This is a bill to enjoin a private nuisance.
The complainant is owner of a city lot in the city of Detroit, covered by a four-story brick building, fronting on the south side of Jefferson avenue and extending to Woodbridge street. The lower story of the building he has been accustomed to rent as a store or warehouse, while the upper stories are occupied by him, with his family, as a dwelling-house, and the roof as a convenient place for drying clothes. His ownership has continued for twenty years or more. Adjoining his building, on the east, is another four-story brick building, and he avers that the defendants, being in possession thereof, have set up therein a steam engine and boiler, and put in other machinery and fixtures, and fitted the same up as a steam flouring-mill, and are running, and threaten to continue to run, the said mill with the power of said steam-engine and boiler, and to use the said building with the machinery therein as such mill. He further avers that the use of such building, as a mill, causes great injury, inconvenience and damage to complainant in the occupation and use of his said building, and endangers the safety of the building itself; that the motion of the machinery, in running said mill, shakes complainant's building, weakening the walls thereof and permanently damaging the same, and creates a rumbling noise and a trembling motion, that causes the doors, windows, crockery and any other fixtures or articles that are loose in complainant's dwelling-house to rattle continuously; that the fires of said boiler and steam-engine generate large quantities of soot and cinders, which are thrown out therefrom on the roof of complainant's said dwelling-house, and that the steam is thrown out from said boiler and engine, through the exhaust pipes, and condenses and falls thereon, keeping the same, and the air above it, foul and damp, and that flour collects about said mill, from the use thereof, and turns musty and sour, and poisons the air in, and about, complainant's said building. By means whereof complainant alleges that his dwelling-house is rendered uncomfortable, unhealthy, noisy and unfit for occupation, and complainant is deprived of the use of the roof thereof for the ordinary purpose of drying clothes thereon, and is hindered and prevented from renting his store and deriving gain and profit therefrom. Wherefore he prays a perpetual injunction to restrain the defendants from using their said building for such steam flouring-mill, and from using or running said steam-engine, boiler and machinery therein.
The case was heard in the court below on pleadings and proofs, and although there is some conflict in the evidence, there does not appear to be any serious difficulty in arriving at a satisfactory conclusion regarding the leading facts. The buildings mentioned as occupied by the parties respectively, are situated upon one of the main business streets of the city of Detroit, in a long block of continuous buildings which extend through to, and have a front upon, another business street of less prominence. All the buildings appear to have been constructed with a view primarily and mainly to occupation for business purposes, and the location not less than the nature of the buildings has caused them to be so occupied. The occupants are in the main merchants, but some manufactures are also carried on in the block, among which is the manufacture of tobacco, requiring heavy machinery moved by the power of steam. All the time a greater or less number of families have resided in the block, generally over stores and manufactories, but the tendency has been for families to give way to business, and at present but few remain; probably not more than would be found in almost any business block in a town of corresponding size. The defendants began converting their building into a steam flouring-mill very early in 1870, and had the mill in operation about the first of July in that year. The present bill was filed more than a year after the machinery was put in, and more than eight months after the mill was in operation; and it does not appear that while the improvement was going on, or afterwards, except by the commencement of suit, there was any remonstrance on the part of complainant. There can be no question that the mill causes annoyance to complainant and his family, and renders the occupation of his building, as a residence, less desirable, but we are not satisfied by the evidence that there has been any want of due care, or any willful disregard of the rights of their neighbors, in the manner in which the defendants have carried on their business, and there is strong showing that the mill was carefully constructed with a view to avoiding, so far as should be practicable, any annoyance or injury to others. We have no doubt the defendants put in their machinery in entire good faith, supposing they were legally and morally entitled to do so, and that it is not possible for them entirely to avoid causing some annoyance and discomfort to complainant, unless they discontinue wholly the use of their machinery. Whether the value of complainant's premises for business purposes is reduced by the proximity of the mill is a question we need not consider, though some evidence has been produced on both sides of it. For some kinds of occupation his building would undoubtedly be less valuable.
This we think, is a fair statement of the case; and the question which it presents is, whether the complainant, in consequence of the annoyance which the business of the defendants causes...
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Aufderheide v. Polar Wave Ice & Fuel Co.
...255; Peck v. L.H. & P. Co., 132 App. Div. 82; McCann v. Strang, 97 Wis. 551; Heath v. Mayor of Brighton, 98 L.T. (N.S.) 718; Gilbert v. Showerman, 23 Mich. 448; 2 Wood on Nuisances (3 Ed.) sec. 801. (6) When injury from fumes is only accidental and occasional, injunction will not lie. Joyce......
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Aufderheide v. Polar Wave Ice & Fuel Co.
...Pr. 255; Peck v. L. H. & P. Co., 132 A.D. 82; McCann v. Strang, 97 Wis. 551; Heath v. Mayor of Brighton, 98 L. T. (N. S.) 718; Gilbert v. Showerman, 23 Mich. 448; Wood on Nuisances (3 Ed.) sec. 801. (6) When injury from fumes is only accidental and occasional, injunction will not lie. Joyce......
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... ... upon the law to make that place suitable for his residence ... which was not so when he selected it." Gilbert v ... Showerman, 23 Mich. 448, ... Our ... own Supreme Court in Frost v. Berkeley Phosphate Company, 42 ... S.C. 402, 20 S.E ... ...
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Reber v. Illinois Cent. R. Co.
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