Kyser v. Hertzler

• Decision Date: 11 June 1914
• Docket Number: 738
• Citation: 188 Ala. 658,65 So. 967
• Parties: KYSER v. HERTZLER.
• Court: Alabama Supreme Court

65 So. 967

188 Ala. 658

KYSER v. HERTZLER.

No. 738

Supreme Court of Alabama

June 11, 1914

Appeal from Law and Equity Court, Madison County; J.H. Ballentine Judge.

Bill by Frank Hertzler against J.A. Kyser. From an order overruling its motion to dissolve a temporary injunction, defendant appeals. Affirmed.

Betz &amp Betz and Lanier & Pride, of Huntsville, for appellant.

Z.I Drake and C.T. Grimmeth, both of Huntsville, for appellee.

GARDNER J.

The bill in this case was filed by the appellee against the appellant to abate a private nuisance. Temporary injunction having issued in accordance with the prayer of the bill motion was made to dissolve the same, which was overruled by the chancellor (the judge of the law and equity court), and, from this decree, the appeal is taken.

The bill alleges that the respondent has under his control and management, and does maintain a stable in Madison, Ala., where he keeps horses, and that the stable is in unsanitary condition, offensive, and prejudicial to the health of complainant's family. We quote the remaining portion of the second paragraph of the bill as follows:

"That said stable or barn is in close proximity to complainant's residence, and that the odor arising from said barn or stable is so offensive that complainant is deprived of the proper use of the free enjoyment of his home; that the said stable or barn is within about 30 feet of complainant's front porch, and the odor arising from said stable or barn is such that your complainant is deprived of the use of the free enjoyment of his front porch and sitting room, and that many times your complainant is compelled to close the windows next to said stable in order that the fumes arising from said stable may be kept from entering your complainant's house."

The third paragraph alleges that the said premises as maintained by respondent have been condemned by Dr. T.E. Dryer, health officer of the town of Madison, as a nuisance, and that his acts therein have been approved by the Madison county board of health.

The answer denies the material averments of the bill, except as to the location of the said stable with reference to complainant's dwelling. Respondent also avers that the stable had been there for 20 years, and has been used practically continuously for such period of time, and was there when complainant's house was built; that the use of the stable is a great convenience to respondent as he is a practicing physician, etc.

The stable was maintained by the respondent upon rented premises.

Affidavits were introduced on the hearing of the motion by both parties. We need not here consider these separately. To each we have given careful consideration. The following portion of the affidavit of complainant we find to be practically without contradiction:

"I own a home in which I now live with my family in Madison, Ala., and is the house referred to in my original bill of complaint, and I have lived in said house for more than eight years, and that the barn complained of in said original bill is situated about 30 feet, a little southeast of the front of my dwelling, and the end of said barn in which horses have been kept is next to my house, and has been used for such purposes since early spring of this year."

The house of complainant faces south, and this stable, it is stated, is almost in front of the dwelling, being a little east of south thereof.

Affidavits offered by complainant tend to show there have been no horses kept in the barn during the summer months during the last eight years, while those offered for respondent tend to show that horses have been kept in the barn during this time, yet they are not specific in denial of those of complainant, averring that horses were not kept there during the warm season of the year, nor as to the number of horses so kept there, and for what continuous length of time.

Affidavits for complainant tend to show that the odor from the stable was of such an offensive nature that he was to a great extent deprived of the use of his front porch, and was frequently compelled to close also the windows of the sitting room of his house. It is further shown that complainant procured the use of another stable for respondent, without charge, but that such was not availed of by the latter.

It is recognized as the rule that a private stable is not per se a nuisance. St. James Church v. Arrington, 36 Ala. 546, 76 Am.Dec. 332; 29 Cyc. 1181. It is also well understood, however, that:

It may "become a nuisance by reason of the manner in which it is constructed, kept, or used, or by reason of the location being improper or necessarily injurious to a neighbor." 29 Cyc. 1182, and authorities there cited.

"The law may be regarded as settled that where a business, although lawful in itself, becomes obnoxious to neighboring dwellings and renders their enjoyment uncomfortable whether by smoke, cinders, noise, offensive odors, noxious gases, or otherwise the carrying on of such business is a nuisance which equity will restrain. Nor is it necessary that the nuisance be injurious to health to warrant the interference." 1 High on Inj. § 772.

In Grady v. Wolsner, 46 Ala. 381, 7 Am.Rep. 593, it was 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."

The following from Wood on Nuisances (volume 2, § 597) is also in point:

"Not only may a livery stable become a nuisance by improper location and offensive or annoying results, but it is held that any private stable or barn may be so located with reference to the dwellings or places of business of others, and be so improperly kept and conducted, as to become an actionable nuisance. Even in the ordinary use of property, in its use for purposes that are regarded as incident thereto, a person is bound to prevent such use from becoming a nuisance to others if possible. A man has no right to erect a barn for the keeping of horses and cattle so near to his neighbor's dwelling as to disturb the rest of those residing there by the noises produced by the animals kept there at night, or to manage it in such a way as to permit offensive stenches to emanate therefrom and float over his neighbor's premises, to his serious annoyance and discomfort."

While ordinarily it is, of course, recognized that a man may do an act on his own place that is not unlawful, yet he is not permitted to use his own property to the injury of another. As quoted in the case of Hundley v. Harrison, 123 Ala. 297, 26 So. 294:

"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."

We have statutory definitions of nuisance, as in section 5193, Code of 1907, wherein it is said:

"A nuisance is anything that worketh hurt, inconvenience, or damage to another; and the fact that the act done

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