Griffin v. Hubbell

• Citation: 11 N.E.2d 136,212 Ind. 684
• Decision Date: 23 November 1937
• Docket Number: 26873.
• Parties: GRIFFIN et al. v. HUBBELL et al.
• Court: Supreme Court of Indiana

11 N.E.2d 136

212 Ind. 684

GRIFFIN et al. v. HUBBELL et al.

No. 26873.

Supreme Court of Indiana

November 23, 1937

Appeal from Steuben Circuit Court; Edgar W. Atkinson, Special judge.

Conn H. L. Smith and G. Kenneth Hubbard, both of Angola, and Mountz & Mountz, of Garrett, for appellants.

Maurice McClew, of Angola, for appellees.

TREMAIN Judge.

It is averred in the complaint that the appellants and appellees are the owners of adjoining lots fronting on the east side of North Wayne street in the city of Angola, the appellants' lot being to the south; that Angola is a city of the fifth class and is governed by a mayor and common council; that in February, 1927, the common council adopted an ordinance regulating and controlling the establishment of public garages and filling stations.

Section 1 provides: '* * * That no public garage or filling station shall hereafter be built, created, erected or located on any real estate or city lot abutting on East Maumee Street, West Maumee Street, North Wayne Street or South Wayne Street in the city of Angola, Indiana, without a building permit therefor having been first obtained from the said city.'

It is provided that no permit shall be issued until a majority of the resident owners of real estate residing in the city block, in which the public garage or filling station is proposed to be located, shall file their consent, in writing with the clerk of the city that a permit for the building erection, and location of such public garage or filling station be granted. Section 3 prescribes a penalty for violation of the ordinance. Section 4 provides: 'Any building raised, converted, or land or premises used in violation of any provisions of this ordinance or requirements thereof is hereby declared to be a common nuisance.'

It is averred that the appellees began the construction of a residence upon their lot in the fall of 1935; that thereafter the appellants began the construction of a public garage and filling station on their adjoining lot within a few feet of appellees' dwelling; that the construction of the building was in progress for some time before the appellees learned the purpose for which it was to be used; that as soon as they learned that it was the intention to use it as a public garage and filling station, the appellees began this action for a restraining order and injunction; that appellants are threatening and will, unless enjoined, use said building as a public garage and filling station to the great and irreparable injury of the appellees; that appellants did not secure a permit from the common council of the city to erect said building; that if it is used as a public garage and filling station, it will interfere with and prevent the reasonable use and enjoyment of appellees' dwelling.

The complaint asked that the defendants be restrained and enjoined 'from using and operating the building being constructed * * * as and for a public garage and gas station, or either of them.' The complaint is verified.

The appellants' demurrer to the complaint for want of facts was overruled. A trial by the court resulted in a judgment in favor of appellees. Appellants' motion for new trial was overruled. The grounds assigned were that the judgment of the court is not sustained by sufficient evidence, and is contrary to law.

The evidence discloses that the appellants owned lot No. 6 and the appellees owned lot No. 7 in Batterson's addition to the city of Angola; that said lots were located as described in the complaint; that each had a 66-foot frontage on North Wayne street and were 240 feet deep; that another street extended along the south side of the appellants' lot; that at and prior to the commencement of this action there were located on the appellants' lot a dwelling in which he and his family resided, and a frame garage east of the residence; that appellants' residence fronted on the side street as well as on Wayne street; that the appellees' lot was vacant until he began the erection of a dwelling in the fall of 1935; that the residence was not completed at the time of the filing of this action in May, 1936; that early in the spring of 1936 the appellants began the erection of a one-story brick and terra cotta tile garage approximately twenty by twenty feet; that said garage adjoined appellants' residence on the north and west, and the north side of the garage was thirteen feet from the south side of the appellees' residence; that both the residence of appellees and appellants' garage were in process of construction at the same time; that the garage had capacity for two cars, and extended five or six feet west of the residences; that there was a door opening between the appellants' residence and the garage; that an ell extended from the garage across a portion of the west front of appellants' residence; that the north side of the garage was provided with windows which faced the appellees' residence; that there was a basement under the garage and appellants' residence. The evidence is not clear as to the purpose of a stairway from the floor of the garage to the basement, or as to the intended use of the pit in which the stairway was constructed.

There is no proof that the building had been used at any time, or was to be used, as a public garage and filling station. It appears that the appellees were apprehensive that it would be so used, and that such use would be annoying to them and constitute a nuisance. The only proof in the record concerning the nature or use of the building is the application for a building permit, filed by the appellants with the common council in November, 1935, asking that they be granted a permit to erect a filling station and two-car garage, twenty feet long and twenty feet wide, with a nine by six foot wing, and one story high, to be erected of brick and blocks, the costs thereof to be $300. Also, the appellee James Hubbell,...