Hayden v. Tucker

• Citation: 37 Mo. 214
• Parties: HENRY C. HAYDEN, Appellant, v. DANIEL M. TUCKER, Respondent.
• Decision Date: 31 January 1866
• Court: United States State Supreme Court of Missouri

37 Mo. 214

HENRY C. HAYDEN, Appellant,

v.DANIEL M. TUCKER, Respondent.

Supreme Court of Missouri.

January Term, 1866.

Appeal from Callaway Circuit Court.

This suit is a proceeding commenced by injunction in the Callaway Circuit Court by Hayden against Tucker to restrain a nuisance. A temporary injunction was applied for and granted. The nuisance consisted in the standing of jacks and stallions adjoining to the dwelling house and premises of plaintiff--the noise of animals being heard both day and night, and the exhibitions both in the covering of mares and jennets, and also while running at large in the lots, could be seen from the plaintiff's dwellings, as well also from the public highway; the trying pole and jackpit being in full view of the premises of the plaintiff, and could be seen from his windows, and also from the public highway. One of the stable lots run up parallel with, and cornered with plaintiff's front yard; and in the corner nearest to plaintiff's house, and in full view of the front of the house, was the point usually occupied by the jacks--denominated by the witnesses as “their stamping ground.” Plaintiff complained that by reason of the proximity of these lots, stables and animals, and concomitant fixtures and appliances--pit and pole--that the same was a nuisance; that he could not enjoy his property; that by the constant noise day and night, made by the jacks and stallions; the habits of such animals; their vulgar exhibitions, both in the lots, at the trying pole, and at the jackpit, the same was a nuisance which annoyed himself and family, and depreciated the value of his property to such a degree as to render it unfit for habitation, and therefore prayed that the same be perpetually enjoined.

The defendant in his answer denied that it was a nuisance; alleged that plaintiff had bought the property after the erection of the stables, and therefore had no right to complain.

The cause came on for trial at the April term, 1865, before the court, the Hon. G. H. Buckhardt presiding, upon the petition and answer, and evidence was introduced by plaintiff showing the distance and position of the stables, lots, trypole, and pit, from the dwelling house. The evidence offered by plaintiff showed that plaintiff's dwelling was but thirty-seven and a half feet from the lot next to the plaintiff's house; that plaintiff's garden run down to within a short distance of the stable, jackpit and trypole, and that the whole institution and performances could be seen from plaintiff's garden, back yard, and the back windows of his house, and also from the public highway leading past the plaintiff's house, upon which public highway two of these stable lots fronted; and that the animals generally, when in the lot, stood in the corner denominated the “stamping ground,” within fifty feet of plaintiff's front door, and in full view of his house; and that the stables were two hundred feet from plaintiff's house. It was also shown that the animals had been seen covering mares from the public highway. It was also proved that the lot upon which the dwelling house was built was bought for the purpose of building a dwelling house upon it before the erection of the stables. It was also shown that the dwelling house and stable were erected the same year, but the stable was built first. The ell of the dwelling house was built the same spring that the stable was erected, and the front in the fall of the year. It was shown, also, that before the erection of the dwelling house one stallion was kept at the stable, and that three Jacks and one additional stallion were brought there after the erection of the dwelling. Plaintiff also showed that the noise of the jacks was very annoying to the occupants of the house at all hours and times. By reason of the insufficiency of the fencing, the jacks would break through upon plaintiff's premises, and run up to his door.

The continuous character of the nuisance was shown by the offer of plaintiff of a certain sum, proved to be sufficient for the removal of the nuisance, and Tucker's refusal to accept.

Judgment being given for defendant, plaintiff appealed.

Dyer and Hockaday, for appellant.

There are three questions presented for the adjudication of this court.

I. Is the keeping of jacks and stallions, and standing them to mares so near to a public highway, and to the plaintiff's dwelling, that their noise could be heard and their performances seen from the premises and dwelling house, and the permitting them to run at large in lots annexed to the stable, adjoining to plaintiff's front yard, and within a few feet of his house, by reason of the habits of such animals--of their continual braying and noise, and obscene exhibitions and demonstrations--a nuisance? And, in addition to all this, suffering them to break through on to the plaintiff's enclosure and come up to his very door. It is, without doubt, a physical nuisance, a moral nuisance, a public nuisance, as well also a private nuisance, by reason of the particular injury to plaintiff. The Circuit Court erred in declaring that this did not constitute a nuisance. (2 Greenl. Ev., §§ 465-66; Smith v. McConathy, 11 Mo. 517.) Anything erected so near a dwelling house as renders it unfit for habitation is a nuisance. (11 Mo. 523; 3 Barb. 157; 9 Paige Ch. 576; Burr, 337; 3 Black. Com. 217; Bouv. Law Dic., Tit. “Nuisance.”)

Besides the noise, annoyance and obscenity of this nuisance, the evidence showed what is true in the experience of all persons acquainted with the nature of these animals, they are dangerous at times, and have been known to kill their keepers. Hence the necessity of legislative in tervention in our State to prevent such animals running at large. (R. C. 1855, p. 849.)

II. If it be a nuisance, then what is the appropriate remedy? Should it not be such as to afford complete and adequate redress? So long as the nuisance remains, an action on the case for damages does not afford redress, because there is continued depreciation of the plaintiff's property, a continued recurrence from day to day and hour to hour of the same annoyance. Even if, in an action on the case, a jury could properly estimate the damages, the relief would be compensation for the past injury, and not indemnity for the future. It would require a multiplicity of actions which would not only subject the plaintiff to the vexation of the continued nuisance, (which of itself is sufficient for the interference of equity by injunction) but also to vexatious litigation. If there is any case where a court of equity would be justified in interposing by injunction, it is a case like the present where no adequate damages could be assessed at law, and where the nuisance is not temporary but continuous. This is a criterion laid down by Judge Story in his Commentaries on Equity. (2 Sto. Eq. § 927; Mitf. Eq. Pl.; Attorney General v. Nichols, 16 Ves. 388; 18 Ves. 211; 2 Myl. & C. 123; 19 Ves. 617; 3 Myl. & K. 169; 12 Simm. 416; 1 Myl. & K. 154, 181; Adams' Eq. 154, 181; Jer. Eq. Jur. p. 309, § 1; 1 McL. 355; 6 Ves. 689; 6 Barb. 152; 7 Barb. 395; 9 Wend. 571.) These authorities also show that in case of doubt, a court of equity does not dismiss the bill, but directs a trial at law, and in the meantime restrains all injurious proceedings.

As the court below decided that there was no cause of action at all, of course there would be no relief by an action for damages, no more than by injunction. (Coker v. Birge, 9 Geo. 425; Soltean v. Deheld, 9 Eng. L. & Eq. 104; State v. Haines, 31 Me. [17 Shepl.] 65; Howard v. Lee, 3 Sand., S. C., 281; 3 Barb. 157; 7 Barb. 395; 6 Barb. 152.)

III. There is no priority of right in the defendant to bar plaintiff's action. Upon the facts he can claim no priority. Now, for the sake of argument, assuming the facts to be true that this abominable nuisance--a foul blot upon the social refinement of the village--an insult to public decency--located upon and in full view of a great public thoroughfare, daily and hourly traveled--so admitted by his plea of confession and avoidance, and fully established by the facts--does any length of time give him, par excellence, the right thus to insult public decency--thus to establish a public nuisance? The law is clear that every day's continuance is a fresh nuisance, and that no length of time will legalize a nuisance. It is a continual offence.

All the authorities concur that the improvement or extension of a town or village cannot be retarded or impeded by offensive trades and callings and that they must give way to the spirit of public improvement. (3 Barb. 157; 1 Den. 257-61; 3 Black. Com. 220; 2 Kern. 492; Cro. Eliz. 191; 1 Leon. 103; Staple v. Spring, 10 Mass. 74; Alexander v. Kerr, Rawle.)

It is not alone a nuisance to the public, but also a private nuisance, by reason of the special damage to the plaintiff in the enjoyment of his property, and also by its depreciated value. In fact the evidence showed that it could not be comfortably used and enjoyed as a dwelling-house at all. (Welton v. Martin, 7 Mo. 307.) There can be no doubt that plaintiff, who came in under King, succeeded to all his rights. (3 Barb. 160; 15 Wend. 526; Cro. Eliz. 402.)

Sheley and Boulware, for respondent.

I. That this being (if nuisance at all) a private nuisance, the chancellor will not interfere to enjoin unless it has been erected to the annoyance of the right of appellant long previously enjoyed. It must be a case of strong and mischievous necessity, or the right previously established at law, before the party is entitled to the aid of a court of equity (Van Bergen v. Van Bergen, 3 John. Ch. 282; Welton et al. v. Martin, 7 Mo. 307; Lexington & Ohio R. R. Co. v. Applegate, etc., 8 Dana, 300; White v. Booth, 7 Vt. 131; Robinson v. Pettinger, 1 Green, Ch. 57; Caldwell v. Knott, 10 Yerg. 209; Porter v. Witham, 17 Me. 292; Givin v. Melmoth, 1 Freem. Ch. 505.)

II. The property in this case being situated outside the corporate limits...