Martin Bldg. Co. v. Imperial Laundry Co.

• Decision Date: 27 June 1929
• Docket Number: 6 Div. 379.
• Citation: 220 Ala. 90,124 So. 82
• Parties: MARTIN BLDG. CO. v. IMPERIAL LAUNDRY CO.
• Court: Alabama Supreme Court

124 So. 82

220 Ala. 90

MARTIN BLDG. CO. v. IMPERIAL LAUNDRY CO.

6 Div. 379.

Supreme Court of Alabama

June 27, 1929

Rehearing Stricken Oct. 17, 1929.

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by the Martin Building Company against the Imperial Laundry Company to enjoin a nuisance. From a decree denying relief and dismissing the bill, complainant appeals. Reversed and remanded.

Nesbit & Sadler, of Birmingham, for appellant.

Harsh &amp Harsh, of Birmingham, for appellee.

GARDNER J.

The complainant to this bill owns a 12-story office building in the city of Birmingham, known as the Martin Building, located on the northwest corner of Fourth avenue and Twenty-Third street. To the east of this building and within about 100 feet thereof, respondent operates a laundry with a steam boiler using soft coal as a fuel, and from the smokestack there is emitted considerable amount of smoke and soot which complainant insists finds its way into a large number of its offices, thus endangering the health and comfort of its tenants, causing a loss of some of the tenants and a threatened loss of others. Complainant, after requesting of respondent, without avail, an abatement of this condition filed the present bill seeking injunctive relief to this end. Upon consideration of the cause for final decree on pleadings and proof, the chancellor denied relief and dismissed the bill, from which decree complainant prosecutes this appeal.

A discussion of the evidence would serve no useful purpose. Suffice it to say the testimony has been read and studied with much care. While there is some evidence tending to the contrary, yet we are of the opinion that the decided weight of the testimony establishes the averments of the bill to the effect that a large quantity of smoke finds its way into complainant's offices directly from respondent's smokestack, which, it seems, is the height of complainant's eighth story. The boiler is fired with from four to six shovels of soft coal every 20 or 30 minutes, respondent using 2 or 3 tons of coal each day, or an average of about 80 tons a month. Each time it is so fired black smoke is emitted from the stack lasting from 30 to 45 seconds. When the wind is from the east this smoke is blown directly into the offices facing in that direction. One of complainant's witnesses testified: "I have seen a continuous stream of smoke from the stack of the Imperial Laundry to my window. I have seen it so thick you would hardly see the stack from the window. *** It has happened three or four times a day if it was blowing in the right direction." Others testified to like effect, and it is without dispute that complainant has lost one tenant (Montevallo Coal Company) occupying several of the offices, on account of this smoke, and others threaten to leave for like reason.

While smoke is not classified as a nuisance per se, yet it may constitute a nuisance so imperiling the comfort or health of those on the premises invaded by it as to call for injunctive relief at the hands of a court of equity. 46 Corpus Juris, 688; Rouse & Smith v. Martin, etc., 75 Ala. 510, 51 Am. Rep. 463; English v. Progress Elec. Co., 95 Ala. 259, 10 So. 134; Harris v. Randolph Lumber Co., 175 Ala. 148, 57 So. 453; Hundley v. Harrison, 123 Ala. 292, 26 So. 294; Romano v. B'ham Ry., Light & Power Co., 182 Ala. 335, 62 So. 667, 46 L. R. A. (N. S.) 642, Ann. Cas. 1915D, 776; Holman v. Athens Empire Laundry, 149 Ga. 345, 100 S.E. 207, 6 A. L. R. 1564; Campbell v. Seaman, 63 N.Y. 568, 20 Am. Rep. 567; McCarty v. Natural Carbonic Gas. Co., 189 N.Y. 40, 81 N.E. 549, 13 L. R. A. (N. S.) 465, 12 Ann. Cas. 840; 1 Wood on Nuisance, § 505.

Our statutes (Code 1923) defining nuisances, merely declaratory of the common law (First Ave. Coal & Lumber Co. v. Johnson, 171 Ala. 470, 54 So. 598, 32 L. R. A. [N. S.] 522), read as follows:

9271. "A nuisance is anything that worketh hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful does not keep it from being a nuisance. The inconvenience complained of must not be fanciful, or such as would affect only one of a fastidious taste, but it should be such as would affect an ordinary reasonable man."

9274. "Nuisances are either public or private. A public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals. A private nuisance is one limited in its injurious effects to one or a few individuals. Generally, a public nuisance gives no right of action to any individual, but must be abated by a process instituted in the name of the state. A private nuisance gives a right of action to the person injured."

In Dixie Ice Cream Co. v. Blackwell, 217 Ala. 330, 116 So. 348, 58 A. L. R. 1223, speaking to the question here presented, the court said: "In general, home owners and occupants, as well as all others must endure, without legal recourse, all of those petty annoyances and discomforts ordinarily and necessarily incident to the conduct of those trades and businesses which are usually a part of municipal life, and which are more or less essential to the existence and comfort and progress of the people. *** But there are limits to this rule, and, as said in the well-considered case of Hundley v. Harrison, 123 Ala. 298, 26 So. 295: '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."'

And it was further stated in the opinion that conditions there considered as to cinders, soot, and smoke would constitute actionable

nuisance even in a business district.

In this jurisdiction we recognize, in cases seeking injunctive relief, the "comparative injury doctrine," not universally accepted. Brede v. Minnesota, etc., Stone Co., 143 Minn. 374, 173 N.W. 805, 6 A. L. R. 1092. As said by this court in Clifton Iron Co. v. Dye, 87 Ala. 468, 6 So. 192: "But it is not every case of nuisance, or continuing trespass, which a court of equity will restrain by injunction. In determining this question, the court should weigh the injury that may accrue to the one or the other party, and also to the public, by granting or refusing the injunction."

That a public utility was involved was considered by the court in English v. Progress Elec. Co., supra, and in Nevins v. McGavock, 214 Ala. 93, 106 So. 597, the denial of the writ was rested largely upon the question of public convenience or necessity. It is well established also by out authorities that negligence ordinarily is not an element of an actionable nuisance. Harris v. Randolph Lumber Co., supra; Shelby Iron Co. v. Greenlea, 184 Ala. 496, 63 So. 470; Town of Vernon v. Wedgeworth, 148 Ala. 490, 42 So. 749.

The right of complainant as owner and landlord to maintain a bill of this character is well established. East v. Saks, 214 Ala. 58, 106 So. 185. No specific rules for determination of questions of this character are attempted to be established, only general principles declared, and each case determined upon its own facts in the light of these principles. Dixie Ice Cream Co. v. Blackwell, supra; Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A. L. R. 1016.

The Court of Appeals of New York, in Natural Carbonic Gas Co.'s Case, supra, 189 N.Y. 40, 81 N.E. 549, 13 L. R. A. (N. S.) 465, 12 Ann. Cas. 840, considering a similar question, used the following language which meets with our approval and is in accord with the previous decisions of this court:

"The law relating to private nuisances is a law of degree, and usually turns on the question of fact whether the use is reasonable or not under all the circumstances. No hard and fast rule controls the subject, for a use that is reasonable under one set of facts would be unreasonable under another. Whether the uses of property to carry on a lawful business, which creates smoke or noxious gases in excessive quantities, amounts to a nuisance, depends on the facts of each particular case. 21 Am. & Eng. Enc. Law, 2d ed. p. 692. Location, priority of occupation, and the fact that the injury is only occasional, are not conclusive but are to be considered in connection with all the evidence, and the inference drawn from all the facts proved whether the controlling fact exists that the use if unreasonable. If that fact is found, a nuisance is established, and the plaintiff is entitled to relief in some form. Unless that fact is found, or it is an inference of law from other facts found, no nuisance is established, even if the plaintiff shows that he has suffered some damage, annoyance, and injury. Those evils are at times incidental to civilized life, and the sufferer finds compensation in the arts and agencies of civilized society. ***

"The leading authorities in all jurisdictions hold that the question is whether the defendant makes a reasonable, or, as some judges express themselves, a proper, use of his own property. *** Trifling results are disregarded, for the courts proceed with great caution, and will not interfere with the use of property

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