Kirkman v. Handy
| Decision Date | 31 December 1850 |
| Citation | 30 Tenn. 406 |
| Parties | KIRKMAN v. HANDY. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
This bill was filed in the chancery court at Nashville. There was a demurrer to the bill, which was disallowed by the chancellor (Cahal), and on the hearing there was a decree for a perpetual injunction. The defendant (Handy) appealed.
E. H. Ewing, for the complainant; Meigs, for the defendant.
This bill was filed to restrain the defendant from proceeding to erect a livery stable in the city of Nashville, upon the ground that such stable would be a nuisance to the neighborhood.
The bill, in substance, alleges, that the complainant is the owner of two valuable brick dwelling-houses, fronting on Cherry street, in one of the best neighborhoods in the city of Nashville; that said houses have rented, the one for $450, and the other for $400, per annum, to persons of the best class of the population of the city, who occupy rented houses. That the defendant some weeks before the filing of this bill, commenced the erection of a building on a lot adjoining the houses of complainant, to be used as a public livery stable, the walls of which are within one or two feet of the walls of his houses, and fronting on Cherry street, on a line with said houses. That the building is far advanced towards completion, and that the defendant does not himself propose to keep said livery stable, but to rent it out to such persons as usually keep livery stables, and to such persons as will necessarily make a nuisance of it; that a livery stable in such a neighborhood is, from its very nature, a nuisance, by reason of the “filth, flies, persons, carriages, and animals,” that it will gather about it; that it will diminish the value of the income of his property one-half, and change the character of his tenants; that the neighborhood is opposed to the erection, but the defendant, with full knowledge of the character of the neighborhood, and of the strong opposition of complainant and others, has persisted in his purpose; that no formal notice was ever given to the defendant to desist from the erection of said stable; that complainant delayed filing his bill in the hope that he would voluntarily desist, and in order to see clearly, from the character of the building, that it was really designed to be used as a livery stable. The complainant alleges that the erection of said stable will occasion an injury to his property, by the diminution and loss of rents, which will be irreparable, and prays that the defendant may be perpetually enjoined from further proceeding in the erection of said building, and from using the same as a livery stable. An injunction was granted, and on the hearing of the cause before the chancellor, was made perpetual.
Upon well established principles, we are of opinion, that the case stated in the bill does not warrant the interposition of a court of equity, at least until after a trial at law shall have been had, establishing the erection complained of to be a nuisance. After the complainant standing by and suffering the building to be erected, and before it has been applied to the use for which it was designed, so as thereby to ascertain whether or not, in point of fact, it will turn out to be a nuisance, and before any trial at law, we think it would be a strong and wholly unwarranted exercise of jurisdiction, to grant a perpetual injunction.
We have been referred to no case in which a stable of any sort, whether public or private, wherever situated, has been held to be ipso facto a nuisance. The case of Dargan v. Waddill (9 Ired. 244), was an action on the case for a nuisance, in erecting stables so near the dwelling-house of the plaintiff, as, by the noise, offensive smell, etc., to render the plaintiff's house uncomfortable to live in, and thereby much impair its value. The stable was erected for the use of the defendant's hotel, which was situated on a corner lot of a public square, in the town of Wadesboro', and the stable was on a lot immediately between the lot on which the hotel stood, and the plaintiff's dwelling.
The court, in that case, held the stable to be a nuisance, because of the manner in which it was constructed and kept. But it is said by the court, and, we think, correctly, that stables in a town, are not, like certain other erections, necessarily and prima facie nuisances, that they may be both harmless and useful, but “if they be so built, so kept, or so used, as...
To continue reading
Request your trial
-
Gus Blass Dry Goods Co. v. Reinman
...livery stable becomes a nuisance. Durfey v. Thalheimer 85 Ark. 544, 109 S.W. 519; Dargan v. Waddill, 31 N.C. 244, 9 Ired. 244; Kirkman v. Handy, 30 Tenn. 406; Shiras v. Olinger, 50 Iowa Keiser v. Lovett, 85 Ind. 240; St. James' Church v. Arrington, 36 Ala. 546; Phillips v. Denver, 19 Colo. ......
-
Crabtree v. City Auto Salvage Co.
...Law, 20 Tenn. 123. While we have found no Tennessee case dealing with the precise question involved here we note that in Kirkman v. Handy, 30 Tenn. 406, 54 Am.Dec. 45, it was held that a livery stable in a town is not, in itself, a nuisance; but if it be so constructed or so kept as to dest......
- Paine v. Gupton