Herring v. Wilton

• Decision Date: 22 November 1906
• Citation: 55 S.E. 546,106 Va. 171
• Parties: HERRING . v. WILTON.
• Court: Virginia Supreme Court

55 S.E. 546

106 Va. 171

HERRING .

v.WILTON.

Supreme Court of Appeals of Virginia.

Nov. 22, 1906.

1. Nuisance—Private Nuisance—Nature of Injury—Barking op Dogs.

The howling of dogs and the barking of puppies upon the premises of their owner, when they subject a neighbor and his family to great and continuous annoyance so that their rest is broken, their sleep interrupted, and they are seriously disturbed in the reasonable enjoyment of their home, constitute a nuisance which equity will enjoin.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Nuisance, § 23.]

2. Samb—-Abatement—Jurisdiction of Equity.

The jurisdiction of equity to abate by injunction a private nuisance resulting from the barking and howling of dogs, is not taken away by a town ordinance claimed to afford a remedy for whatever inconvenience may have been caused.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Nuisance, § 49.]

Appeal from Circuit Court, Rockingham County.

Bill for Injunction by one Wilton against George Herring. From a decree granting the injunction, defendant appeals. Affirmed.

J. B. Stephenson and H. W. Bertram, for appellant.

Sipe & Harris, for appellee.

KEITH, P. Wilton, the appellee In this court, filed a bill in the circuit court of Rockingham county, in which he states that he Is a resident of the town of Harrisonburg, and that contiguous to him is the property occupied by George Herring; that for three years past Herring has maintained on the lot on which he resides a kennel, about 100 or 125 feet distant from Wilton's residence, in which he is breeding dogs for sale, having at times as many as seven or eight, and rarely so few as two or three; that the dogs keep up an incessant barking, especially during the night, by which the complainant and his family are so annoyed and disturbed as to be prevented from obtaining such sleep and rest as health requires; that, by reason of the repitition of this nuisance, he has become extremely nervous, at times almost unfit to attend to business; that the health of his family is being seriously and permanently impaired, and they are being deprived of the use and enjoyment of their home; that he has complained to Herring, but is unable to obtain from him any permanent relief; and that complainant, impelled by the desire to avoid litigation between himself and a neighbor, has borne with the situation until he can no longer endure it without serious and permanent injury to the health of himself and his family. He further avers that Herring is without visible means to respond in damages to an action at law, and charges that any judgment against him commensurate with the damage sustained will be wholly unavailing. He prays that Herring, his agents, etc., may be enjoined from keeping upon his premises dogs causing the injurious noises and disturbances complained of; that the nuisance of the kennel may be discontinued and abated; and for general relief.

A temporary injunction was granted in accordance with the prayer of the bill, and at a subsequent day the defendant answered the bill, admitting that for a number of years he has been keeping a few dogs for his own pleasure, and for the profits derived from their sale, but denying that they have been creating a nuisance to the plaintiff and his family or that the dogs kept by him could have been a nuisance to any one in a normal condition of health and nerves. He denies that he has kept the number of dogs with which he is charged In the bill, and states in detail the number kept by him at various times. He denies that he is unable to respond in damages for any nuisance he may have occasioned; and finally claims that the plaintiff's annoyance is due to his nervous temperament, and asserts that neither the plaintiff nor any member of his family has ever been made ill or prevented from attending to business.

Upon these issues evidence was taken, and the case coming on to be heard, the circuit court perpetuated the temporary injunction; and Herring obtained an appeal from one of the judges of this court.

We think the weight of evidence establishes that plaintiff and his family were subjected to great and continuous annoyance and discomfort by the howling and barking of the dogs and the whining of puppies upon the premises of appellant; that their...