Iverson v. Dilno

• Decision Date: 05 December 1911
• Citation: 119 P. 719,44 Mont. 270
• Parties: IVERSON v. DILNO et al.
• Court: Montana Supreme Court

119 P. 719

44 Mont. 270

IVERSON v. DILNO et al.

Supreme Court of Montana

December 5, 1911

Appeal from District Court, Cascade County; J. B. Leslie, Judge.

Action for injunction by Louisa Iverson against Louis Dilno and others. From an order granting a motion to quash an order to show cause and refusing the injunction, plaintiff appeals. Reversed and remanded.

Cooper & Stephenson, for appellant.

H. S McGinley, for respondents.

HOLLOWAY J.

On May 24, 1911, this action was commenced by the plaintiff to secure an injunction, restraining the defendants from certain acts which, it is alleged, they have committed and threaten to repeat. An order to show cause was issued, and upon the return defendants moved the court to quash the order and refuse an injunction, on the ground that the complaint does not state a cause of action, or entitle the plaintiff to equitable relief. The motion was sustained, and plaintiff appealed from the order.

The complaint states that at the time this action was commenced and at the time the alleged wrongful acts were committed, the plaintiff owned and was operating "the Larson Boarding House," in the city of Great Falls; that she had 20 or more boarders and lodgers; that the defendant union caused to be prepared a banner, upon which was inscribed in large letters the following: "Larson's Boarding House is Unfair to Organized Labor. By Order of H. R. E. I. A. Local No. 1"--and acting under the direction of the union defendant Aaron carried such banner, and paraded back and forth in front of plaintiff's property. It is further alleged that the defendants Aaron, Dilno, Nelson, and Freeman, together with a large number of others--members and sympathizers of the defendant union--acting at the instigation and request of these defendants, have congregated in the immediate vicinity of plaintiff's place of business and upon the sidewalk, impeding travel, to the great annoyance of plaintiff and her patrons; that the acts of defendants were done for the purpose of driving plaintiff's patrons from her place of business, and disturbing and committing breaches of the peace, for the sole purpose of bringing her boarding house into disrepute and ruining her business. By the motion made in the court below the defendants confess the truth of these allegations, so far as they are well pleaded.

There is also an allegation with reference to the publication and distribution of a circular, but, as it relates to a transaction now wholly past, and there is not any allegation of a threat or intent on the part of defendants to repeat it, further consideration is not necessary, except to say that an injunction will not issue to restrain an act already committed. This is the general rule. If there are exceptions, they do not have any application to a case of this character.

1. There is not any allegation that the words inscribed on the banner carried by Aaron veiled a threat to plaintiff's business or to her or her patrons. In Lindsay v. Montana Federation of Labor, 37 Mont. 264, 96 P. 127, 18 L. R. A. (N. S.) 707, 127 Am. St. Rep. 722, we held that the mere publication of a circular which does not go further than to advise the public that a particular person, firm, or corporation is deemed unfair to organized labor will not be enjoined. So far as applicable the decision in that case is conclusive against the plaintiff here.

2. The Constitution of this state guarantees to every one the right to pursue happiness and to acquire, possess, and protect property in all lawful ways (article 3, § 3, Constitution of Montana), and this provision secures the right to peaceable possession and to free ingress to and egress from property. The rights thus secured cannot be invaded, unless the public health, morals, or safety, or the general welfare, require interference, or the owner is deprived of his rights by due process of law. As if to indicate in a measure the far-reaching extent of this constitutional guaranty, the Legislature has provided: "Anything which is injurious to health, of is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use use in the customary manner, of *** any public park, square, street or highway, is a nuisance." Rev. Codes, § 6162. And section 6, art. 3, of the Constitution, declares that the courts shall be open to every person, and a speedy remedy afforded for every injury of person, properly, or character, and that right and justice shall be administered without sale, denial, or delay.

If the allegations of this complaint are true, these defendants and their sympathizers, in congregating in large numbers in the immediate vicinity of plaintiff's property, impeding travel on the sidewalk and interfering with plaintiff and her customers in getting to and from her place of business, were committing a nuisance, within the meaning of section 6162, shove. That this is true is not open to discussion. If acts of the character of those described in this complaint are not comprehended by the section quoted, then it would tax human ingenuity to the limit to find a meaning for the language employed by the Legislature. And the definition of a nuisance given in our Codes is not an unusual one. It is, in fact, the definition generally accepted by courts, lexicographers, and law writers.

The word "nuisance" means that which annoys or gives trouble. Webster's International Dictionary. Blackstone defines nuisance as "anything that worketh hurt, inconvenience, or damage." 3 Blackstone Com. § 316. "That is a nuisance which annoys and disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncomfortable to him." B. & P. R. R. Co. v. Fifth Baptist Church, 108 U.S. 317, 2 S.Ct. 719, 27 L.Ed. 739. See, also, Durfee v. Granite Mt. Min. Co., 13 Mont. 181, 33 P. 3. In sections 2 and 3 of Joyce on the Law of Nuisances, and in the notes to those sections, will be found a large number of definitions of the term "nuisance," gathered from the decisions of courts and from the text-books, all of like tenor and similar to the definition given in our Codes.

So frequently have the courts been called upon to consider cases of the same general character as the one before us that a review of the decisions is unnecessary. They are quite uniform in holding that equity will interpose to protect one against such acts as are described in this complaint. We content ourselves with the citation of a few of the leading cases, some of which present facts much more extreme than those alleged in this complaint. The difference, however, is of degree, rather than of kind. Mackall...