Appeal
from City Court of Birmingham; Charles W. Ferguson, Judge.
Action
by Enola M. Harris against the Randolph Lumber Company for
damages for maintaining a nuisance. Judgment for defendant on
demurrer, and plaintiff appeals. Reversed and remanded.
The
complaint is as follows:
Count
1: "The plaintiff claims of the defendant $5,000 as
damages, for that plaintiff is now, and has been for several
years preceding the bringing of this suit, the owner of lots
20, 21, 22, 23, and 24, in block 178, in the city of
Birmingham, upon which said lots there are situated seven
houses, which said houses are and have been occupied by
tenants of plaintiff, and which said property is located in a
residence section of the city of Birmingham, Jefferson
county, Ala. Plaintiff avers that within the past 12 months
defendant has maintained and operated a certain planing mill
and sash and blind factory on lots 5 and 6, in said block
178, which said planing mill is within very close proximity
to said residences, being not more than, to wit, 28 feet
distant from the nearest of said houses. Plaintiff avers that
said planing mill, in and about the operation and running
thereof, necessarily creates a noise of such volume and
character as to materially distress or discomfort the tenants
of plaintiff in the enjoyment and use of plaintiff's said
property as a residence, and to materially interfere with the
comfort, enjoyment, and use of said property by said tenants
as a residence. Plaintiff further avers that, connected with
said factory, defendant has a certain lumber shed, wherein
lumber is stored by defendant, on lots 1 and 2 in said block
and that only an alley of, to wit, 20 feet separates the
property used by defendant for its said business and the
property of plaintiff upon which said houses are located, and
that by reason of the close proximity and nature of said
business, and the extra hazard and risk thereby created, the
insurance rate on plaintiff's said dwelling is materially
increased, to wit, more than $100 per annum. Plaintiff avers
further, that at the time of the erection of said
manufacturing plant said section was a residence section, and
said dwellings were used for residence purposes, and that
defendant has had notice of the damage and injury sustained
by plaintiff incident to the operation of its said business.
Plaintiff avers that by reason and as a proximate consequence
of the defendant maintaining and operating said planing mill
factory, planing mill shed, and lumber in such close
proximity to said dwellings, the value of her residence
property has been greatly depreciated; that she has suffered
and sustained a loss in the rental value thereof, and has
been put to great expense in the payment of an increase in
the rate of insurance, which, but for the maintaining of said
business by defendant, she would not otherwise have incurred
and she has been greatly annoyed, and suffered much mental
and physical pain, to her damage in the sum aforesaid; hence
this suit."
Second
count: "Plaintiff adopts as a part of this count all the
words and figures of the first, from the beginning thereof
down to and including the words, 'that defendant has had
notice of the damage and injury sustained by plaintiff
incident to the operation of its said business,' where
said words first occur together in said count. Plaintiff
further avers that defendant has been requested to abate the
operation of said business and the use of said property for
said purpose. Notwithstanding said notice, and
notwithstanding the fact that defendant has knowledge or
notice of the injury and damage that the use of said property
for said purpose does and will cause plaintiff, yet defendant
has, with such knowledge of the probable injury that such use
by it of its said property will cause plaintiff to suffer
nevertheless wantonly maintained said business and used said
property as aforesaid. Plaintiff avers that by reason and as
a proximate consequence of the defendant maintaining and
operating said planing mill factory, planing mill shed, and
lumber in such close proximity to said dwellings, the value
of her residence property has been greatly depreciated; that
she has suffered and sustained a loss in the rental value
thereof, and has been put to great expense in the payment of
an increase in the rate of insurance, which, but for the
maintaining of said business by defendant, she would not
otherwise have incurred, and she has been greatly annoyed,
and suffered much mental and physical pain, to her damage in
the sum aforesaid; hence this suit."
These
counts were amended by inserting in each of said counts,
after the words "creates a noise," where said words
first occur together in said count, the following words:
"Which said noise is to the residence section
unreasonable, intolerable, harsh, loud, constant, and
discomforting, and." Also, by inserting in said counts
next after the words "such close proximity to said
dwelling," where said words occur together in said
count, the following words: "And of maintaining and
creating said noise and disturbing said tenants as aforesaid,
and of increasing the rate of insurance on plaintiff's
property."
Count
3: "Plaintiff claims of defendant $5,000 as damages, for
that plaintiff is now and has been for several years the
owner of lots 20, 21, 22, 23, and 24, in block 178, in the
city of Birmingham, upon which said property there are
situated seven houses, which are now and have been occupied
by tenants of plaintiff, and which said property is located
in a residence section of said city. Plaintiff avers that
defendant has maintained and operated a certain planing mill
and sash and blind factory in close proximity to said
residences, to wit, not more than 28 feet distant from the
nearest of said houses. Plaintiff avers that in and about the
operation of said mill, and sash and blind factory, defendant
has negligently or wrongfully caused noise, smoke, dust, and
soot to fall, go upon, and be on said property of the
plaintiff in such volume and character as to materially
distress or discomfort the tenants of plaintiff in the
enjoyment and use of plaintiff's said property as a
residence, and to materially interfere with the comfort
enjoyment, and use of said property by said tenants as a
residence, and which said noise, smoke, dust, and soot,
having invaded or fallen upon said residences and
plaintiff's said property, have materially interfered
with the comfort, enjoyment, and use of said property by said
tenants. Plaintiff further avers that in connection with said
operation of said plant defendant has negligently maintained
or placed a certain lumber shed, wherein lumber is stored by
defendant within, to wit, 20 feet of said houses, or some of
them, which said lumber is inflammable, and by reason of its
close proximity and nature, and the extra hazard and risk of
fire thereby created, the insurance rate on plaintiff's
said dwelling is and has been materially increased, to wit,
more than $100; and plaintiff avers that by reason and as a
proximate consequence of the...
