Jackson v. Downey

• Decision Date: 16 June 1949
• Docket Number: 6 Div. 834.
• Citation: 42 So.2d 246,252 Ala. 649
• Parties: JACKSON et al. v. DOWNEY et al.
• Court: Alabama Supreme Court

42 So.2d 246

252 Ala. 649

JACKSON et al. v. DOWNEY et al.

6 Div. 834.

Supreme Court of Alabama

June 16, 1949

Rehearing Denied Oct. 20, 1949.

J. Paul Meeks and Ingram Beasley, of Birmingham for appellants.

Thos E. Huey, Jr., of Birmingham, for appellees.

SIMPSON, Justice.

The appeal is from a decree sustaining demurrer to the bill as amended, seeking to enjoin the Park and Recreation Board of the City of Birmingham from the development of a portion of McLendon (a city) Park by establishing thereon a baseball diamond, for the purpose of playing night hard baseball games, as a private nuisance.

The trial court sustained the demurrer and dismissed the bill and to sustain the decree it is contended by appellees that since the playing of night baseball is not a nuisance per se injunction would not lie until the operation of the field begins and is found to be a nuisance, because of the well-known principle that equity will not anticipate misuse of a projected structure or operation merely because it may become a nuisance.

It is, of course, conceded that if it is impossible for the court to ascertain until the construction has been completed and the operation of the works put into effect whether they will or will not constitute a nuisance, the writ will be refused in the first instance, or if reasonable doubt exists as to the probable effect either on proof or construction of the facts averred, equity will not intervene until tested by the actual use and the resultant facts. City of Tuscaloosa v. Standard Oil Co., 221 Ala. 670, 130 So. 186; Rouse v. Martin, 75 Ala. 510, 51 Am.Rep. 463.

But, 'where the consequences of a nuisance about to be erected or commenced will be irreparable in damages, and such consequences are not merely possible, but to a reasonable degree certain, a court of equity may interfere to arrest a nuisance before it is completed.' Code 1940, Title 7, § 1083; Higgins v. Bloch, 213 Ala. 209, 211, 104 So. 429.

On a careful review of the pertinent authorities, we have come to the conclusion that the learned trial court misapplied the pertinent doctrine for the reason that the bill does make out a case for injunctive relief, the facts averred being taken as true on a consideration thereof on demurrer. Higgins v. Bloch, supra; City of Selma v. Jones, 202 Ala. 82(7), 79 So. 476, L.R.A.1918F, 1020.

This court has recognized a distinction between a case where the averred facts are to be tested by demurrer and where the right to the injunction is considered after answer and a hearing on the evidence. And if the bill makes proper allegations of fact to show that the contemplated construction or works by reason of its location or other circumstances and conditions prevailing will be a nuisance per accidens and result in peculiar and continuing or recurring injury to the complainant, it states a case for injunction. Bloch v. McCown, 219 Ala. 656, 123 So. 213; City of Selma v. Jones, supra; City of Tuscaloosa v. Standard Oil Co., supra. See also Gillette v. Tyson, 219 Ala. 511, 122 So. 830.

So if the facts averred present such a situation that if proven equity will intervene to grant relief, the case should proceed to a hearing on the evidence for, as observed in the City of Tuscaloosa case, supra, 'complainant cannot be prevented from alleging facts in his complaint [to show a case for relief], but many times circumstances and the lack of evidence prevent proof of the matters alleged therein.' [221 Ala. 670, 130 So. 188.] And if after such hearing it should appear that the threatened injury is uncertain or indefinite or the use of the project only possible of injury--or that the public benefit is so largely to be served as to outweigh the inconveniences of the complainants as to render it imperious to locate the diamond at the designated place rather than elsewhere--then it would be proper to refuse the injunction, in limine, and await the future use of the project to determine, if desired by complainants, whether or not a nuisance is being maintained. 1 High on Injunctions, §§ 742-744.

But it seems obvious that a hearing on the facts will be necessary to determine whether this status exists as was ordered in the Bloch v. McCown and Gillette v. Tyson cases, supra, and as prevailed in the cases cited by appellee, such as Kirk v. McTyeire, 209 Ala. 125, 95 So. 361; Drennen v. Mason, 222 Ala. 652, 133 So. 689; City of Lynchburg v. Peters, 145 Va. 1, 133 S.E. 674; Green v. Garrett, Md., 63 A.2d 326.

The same argument as to the prematurity of action was made in the above-cited Bloch v. McCown case, but the court rejected the contention and, speaking through Mr. Justice Sayre, observed:

'It is suggested in the brief for defendant (appellee) that his place can only become a nuisance by reason of the future operation of his proposed business therein, and that complainant's application for relief is premature and should be deferred until such time as the court may be informed as to the manner in which defendant's business at the place in question will be conducted. This is to ignore the location and the court's common knowledge of the inevitable consequences to follow upon the conduct of the business which defendant proposes to carry on, however well conducted, not to mention the specific averments of the bill. And in this connection it was incumbent on complainant to consider whether, if he stood by, without protest or preventive action, and allowed defendant to construct his building, which, we may assume, would be peculiarly and...