Hundley v. Harrison

• Decision Date: 06 June 1899
• Citation: 123 Ala. 292,26 So. 294
• Parties: HUNDLEY v. HARRISON ET AL.
• Court: Alabama Supreme Court

26 So. 294

123 Ala. 292

HUNDLEY v. HARRISON ET AL.

Supreme Court of Alabama

June 6, 1899

Appeal form chancery court, Madison county; William H. Simpson Chancellor.

Bill by Oscar R. Hundley against Daniel T. Harrison and others. From a decree in favor of defendants, complainant appealed. Reversed.

Tancred Betts and Oscar R. Hundley, for appellant.

R. W Walker, for appellees.

HARALSON J.

Bill filed by the appellant, Hundley, to enjoin a private nuisance.

A public nuisance, according to the authorities, affects the community at large, or some considerable portion of it, such as the inhabitants of a town, and the person therein offending is liable to a criminal prosecution. A private nuisance affects only one person or a determinate number of persons, and is the ground for civil proceeding only. 16 Am. & Eng. Enc. Law, 926; 1 Wood, Nuis. §§ 14, 15.

Nuisances per se have been defined to be such things as are nuisances at all times and under all circumstances, irrespective of location or surroundings, as things prejudicial to public morals, as disorderly houses; or dangerous to life, as powder magazines, or nitroglycerine works; or injurious to public rights, as obstructions to highways and navigable streams. 16 Am. & Eng. Enc. Law, 937; 1 Wood, Nuis. §§ 24-27.

Mr Wood lays down the rule as to private nuisances, which seems to be consonant with reason and authority, to be, that a man may do an act on his own land which is not unlawful or wrong,-not using it in such manner as to injure another, for he may not so use his property as to injure another. "When he sends onto the lands of his neighbor noxious smells, smoke, etc., then he is not doing an act on his own property only, but he is doing an act on his neighbor's property also; because every man has a right, by the common law, to the pure air and to have no noxious smells sent on his lands, unless, by a period of time a man has, by what is called prescriptive right, obtained the power of throwing a burden on his neighbor's property." 1 Wood, Nuis. § 556.

The same author again, in section 562 of his work, says: "In the case of noisome smells, as with nuisances from smoke or noxious vapors, the stenches must be of such a character as to be offensive to the senses, or as to produce actual physical discomfort, such as materially interfere with the comfortable enjoyment of property within their sphere. It is is not necessary that the smells should be hurtful or unwholesome, it is sufficient if they are offensive, or produce such consequences, inconvenience or discomfort, as to impair the comfortable enjoyment of property, by persons of ordinary sensibilities,"-such as people generally, in the absence of proof to the contrary, will be presumed to have. "A smell that is simply disagreeable to ordinary persons, is such physical annoyance as makes the use of property producing it a nuisance, whether it be hurtful in its effects or not." 1 Wood, Nuis. § 563; 16 Am. & Eng Enc. Law, 948; Campbell v. Seaman, 63 N.Y. 568, 20 Am. Rep. 567.

Referring to our own decisions, in line with these authorities, it has been said: "Anything constructed on a person's premises which, of itself, or by its intended use, directly injures a neighbor in the proper use and enjoyment of his property, is a nuisance." Grady v. Wolsner, 46 Ala. 381.

Again in English v. Motor Co., 95 Ala. 264, 10 So. 134, it was said: "It is difficult, if not impracticable, to formulate a rule accurately defining the acts or facts which will constitute a nuisance under any and all circumstances. We shall not make the attempt. As a general proposition, it may be said, that any establishment erected on the premises of the owner, though for the purpose of trade or business lawful in itself, which, from the situation, the inherent qualities of the business, or the manner in which it is conducted, directly causes substantial injury to the property of another, or produces material annoyance and inconvenience to the occupants of adjacent dwellings, rendering them physically uncomfortable, is a nuisance. In applying this principle, it has been repeatedly held, that smoke, offensive odors, noise or vibrations, when of such degree or extent as to materially interfere with the ordinary comfort of human existence, will constitute a nuisance." To the same effect see Rouse v. Martin, 75 Ala. 515.

The doctrine has been invoked by appellee in this case, that an injunction should not be granted until the thing complained of has been declared a nuisance by the verdict of a jury in an action at law; the exception being as stated, when the proof is clear and convincing and the apprehended injury is vast and overwhelming. But we apprehend the rule has by recent decisions been extended no further than,-as was declared in English v. Motor Co., supra,- that "a case must be proved which establishes the necessity of a preventive remedy,-a case within that class of cases of irreparable and continuous injury which can be adequately redressed only by injunction; and in all cases, where the right is doubtful, and the exercise of the power would interfere with industries of public utility, it becomes the duty of the court to abstain from interfering. In such a case the proof should be clear and convincing and the power should be cautiously and sparingly exercised." Kingsbury v. Flowers, 65 Ala. 479.

In the well-considered case of Campbell v. Seaman, supra, it was said that an injunction was formerly and prior to Lord Eldon's time, "rarely issued in the case of a nuisance until plaintiff's right had been establish at law, and the doctrine which seems now to prevail in Pennsylvania, that this writ is not a matter of right but of grace, to a large extent prevailed. But now, a suit at law is no longer a necessary preliminary, and the right to an injunction, in a proper case in England and in most of the States, is just as fixed and certain as the right to any other provisional remedy. The writ can rightfully be demanded to prevent irreparable injury, interminable litigation and a multiplicity of suits, and its refusal in a proper case, would be error to be corrected by an appellate tribunal."

In Nininger v. Norwood, 72 Ala. 277, the same doctrine is announced. It was there said: "The jurisdiction of the court to enjoin the erection, or the continuance of private nuisances, compelling their abatement, at the instance of the party aggrieved, is well established. *** There is, in the contemplation of the court, a very just distinction between injuries in their nature temporary and fugitive, and injuries permanent, continuous, constantly recurring. In reference to temporary injuries, the intervention of the court may depend upon the adequacy of legal remedies. But, when the injury is permanent, continuous, constantly recurring, there may be a remedy at law, but its inadequacy is obvious. The court of law cannot restore the party complaining to the condition in which he was before the wrong was done, and in which he has the legal right to remain." It was added, referring to the facts of that case: "Nor, if the right of complainant is clear,-if as a matter of law, the lands of the defendants are burdened with the servitude claimed,-is it essential that, as a condition precedent to the interference of the court, the right should have been establishd by a verdict and judgment at law. Substantial, actual injury has resulted, and there can be no necessity for sending the party to a court of law, for the determination of a mere legal question, compelling submission to the wrong during the pendency of the action."

We have stated the foregoing principles that we may apply the facts of the case in hand to them.

The bill shows, that complainant is the owner of a lot in Huntsville which fronts on Franklin street, improved by him at a cost of about $3,000, in the erection thereon of a two-story brick building, the lower story being divided into two offices, fronting on said street, with a front and rear room, each, one of them occupied by complainant and the other by Mr. Betts, his tenant, as law offices. The second story was designed for a photograph gallery, and is occupied as such by Mr. Collins, another tenant of complainant. Since complainant improved his property, the defendants purchased a lot running from the public square back in the rear of, and...