Mason v. Deitering
| Decision Date | 26 May 1908 |
| Parties | MASON et al., Defendants in Error, v. DEITERING et al., Plaintiffs in Error |
| Court | Missouri Court of Appeals |
Error to the St. Louis City Circuit Court.--Hon. Wm. M. Kinsey Judge.
AFFIRMED.
Judgment affirmed.
Stern & Haberman and George H. Moore for plaintiffs in error.
(1) A stable is not a nuisance per se. City v. Russell, 116 Mo. 259; State v. Beattie, 16 Mo.App. 141; Flint v. Russell, 5 Dill. 151. (2) Where the thing complained of is not a nuisance per se, and the allegations of the bill are denied, the preliminary injunction must be dissolved on motion to that end. Mygatt v. Gotchins, 20 Ga. 350; Chambers v. Cramer (W. Va.), 54 L. R. A 547. (3) The bill stated no cause of action. (a) Because equity has no jurisdiction to restrain a contingent or eventual nuisance. High on Injunctions, sec. 742; 14 Enc. P. & P., 1128; State v. Beattie, 16 Mo.App. 141; Hough v. Doylestown (Pa.), 4 Brews. 333; Flood v. Consumers Co., 105 Ill.App. 559; Alexander v Tebeau, 71 S.W. 427; Marrs v. Fiddler (Ky.), 69 S.W. 953; Albany Church v. Wilborn (Ky.), 66 S.W. 285; Pope v. Bridgewater (W. Va.), 43 S.W. 87; Duncan v. Hayes, 23 N. J. E. 25; Fisher v. Lakeside Co., 4 Oh. N. P. 329. (b) Because the erection of a building can not be enjoined where the use of the building is alleged to be the eventual or contingent nuisance. High on Injunctions, sec. 743; 14 Enc. P. & P., 1129; VanDeVere v. Kansas City, 107 Mo. 92; Dalton v. Railroad, 144 Ind. 121, 43 I. V. E. 130; City v. Rolling, 24 Oh. Cir. Ct. 82; Kirkman v. Handy, 11 Humph. 406; St. James Church v. Arrington, 36 Ala. 546; Keiser v. Lovett, 85 Ind. 240; Mayor v. Smyth (N. H.), 10 A. 700. (c) Because equity has no jurisdiction to enjoin the violation of an ordinance, unless the unperformed act complained of as violating the ordinance is a nuisance per se. Rice v. Jefferson, 50 Mo.App. 467; Warren v. Cavanaugh, 33 Mo.App. 107; State v. Uhrig, 14 Mo.App. 413; King v. Hamill (Md.), 54 A. 625; Sheldon v. Weeks, 51 Ill.App. 314; Gallagher v. Flury (Md.), 57 A. 672; Hagarty v. McGovern, 187 Mass. 479, 73 N.E. 536. (4) The injunction should have been denied. (a) Equity cannot restrain unperformed acts where their effects are controverted. Lester v. City, 169 Mo. 234; West v. Ponca, 79 P. 5 100. (b) There can be no injunction unless apprehended results are not merely speculative, but certain to ensue. Holke v. Herman, 87 Mo.App. 141; McDonough v. Robbens, 60 Mo.App. 159; Windfall v. Patterson, 148 Ind. 414, 37 L. R. A. 38; Atty.-Gen. v. Steward, 20 N.Y. 415; sec. 574, Rev. Ord., St. Louis; Harrison v. Brooks, 20 Ga. 537. (c) And though the apprehended results are certain, they must with certainty amount to more than mere offense to taste. Wade v. Miller (Mass.), 69 L. R. A. 820, 73 N.E. 849; Gossett v. Railroad (Tenn.), 1 L. R. A. (N. S.) 111; Pfingst v. Senn (Ky.), 21 L. R. A. 569; Dunning v. City, 40 Ill.App. 481.
Brownrigg, O'Brien & Mason for defendants in error.
(1) Even if it be true that a livery stable is not a nuisance per se, yet, if facts are alleged in a petition concerning a proposed livery stable setting forth its location with reference to the homes of the plaintiffs, its size, all the details of its construction, the location of its manure pit, the material of which its floors and stalls and the runways leading from the different floors are to be constructed, the manner of its proposed use and operation, the number of horses to be stabled therein; and if it is alleged as an issuable fact that the stomach of the horse and its excretions are the natural habitat of certain dangerous disease germs and that the dust and hairs necessarily set afloat in the air where a large number of horses congregate and are kept tend to spread and disseminate disease germs, and if there are other specific allegations of fact set forth in the petition, from all of which it appears that the erection of the structure and the carrying on the business as proposed will with reasonable probability endanger the health or materially interfere with the comfort of the plaintiffs occupying the adjoining premises, then such petition states facts sufficient to constitute a cause of action, and to justify equitable relief by injunction. Caskey v. Edwards, 128 Mo. 237, 107 S.W. 37; Holkea v. Herman, 87 Mo.App. 141; Hickory v. Railroad (N. C.), 53 S.E. 955; Bangs v. Dvorak (Neb.), 106 N.W. 780; Bank v. Sarlis, 129 Ind. 201; Griswold v. Brega, 160 Ill. 490. (2) Inasmuch as it appears from the allegations of the petition that the proposed business, in addition to being specially injurious to plaintiffs, is unlawful, and that it is proposed to carry it on in violation of a valid ordinance, such allegation is an additional ground sufficient to justify, if true, the granting of injunctive relief. Bangs v. Dvorak (Neb.), 106 N.W. 780; Hill v. City of St. Louis, 159 Mo. 159. (3) Inasmuch as the allegations of the petition showed that the structure in question was designed and adapted solely for the operation of a business which was unlawful and likely to constitute a nuisance, a case was stated which, if true, not only justified the court in enjoining the carrying on of the business but also justified the injunction against the erection of the structure. Attorney-General v. Blount (N. C.), 4 Hawk 384; Kaufman v. Stine (Ind.), 37 N.E. 333; Cline v. Kirkbride, 22 Ohio Cir. Ct. 527; Filson v. Crawford, 5 N.Y.S. 883; Coker v. Birge, 9 Ga. 425; Coker v. Birge, 10 Ga. 336; Cleveland v. Gas Co., 20 N.J.Eq. 201; Wolcott v. Mellick, 11 N.J.Eq. 204; Miley v. Ahearn (Ky.), 18 S.W. 529. (4) The noises, odors and the menace to comfort and health likely to result from the construction and operation of the stable described in the petition, constitute a nuisance. United States v. Luce, 141 F. 408; Aldrich v. Howard, 7 R. I. 87; Dargam v. Waddill, 9 Ired. 242.
This is a suit in equity. Plaintiffs sought and obtained injunctive relief against defendants, restraining them from erecting a livery stable, and defendants appeal. There are no abstracts whatever on file in this court and we are therefore precluded from examining the merits of the controversy. In these circumstances, it becomes our duty to examine the bill only to ascertain whether or not it is sufficient to support the judgment.
The bill is an extended document. It would incumber the opinion to incorporate it in full. When viewed from the present standpoint, after judgment given in affirmance of its allegations, it appears therefrom substantially that the several plaintiffs own residences in city block No. 3902 in the city of St. Louis; that the defendant Smith, city building commissioner, is about to issue to the other defendants a permit to do so, and the other defendants are about to erect a livery stable in said block within distances ranging from thirty to two hundred feet of the residences of the several plaintiffs, and this too, in violation of an ordinance of such city. The ordinance forbids erecting and maintaining a livery stable on any lot of ground in St. Louis unless permission so to do is first obtained from the municipal assembly by a proper ordinance in that behalf. It is averred that the plans and specifications for the contemplated stable are on file with the building commissioner, from which it appears the proposed building is to be a large three-story brick structure, seventy-six feet long and seventy-five feet wide and having floors of a hard substance, with numerous windows and apertures on the sides thereof adjacent to the residences of the several plaintiffs that it contemplated the keeping of sixty or seventy horses therein; that it will contain a large manure pit on the first floor, in which large quantities of manure will accumulate, which is to be emptied by shovelling the contents thereof through an opening into wagons in an alley immediately adjacent to property of the plaintiffs; that certain gutters along and adjacent to the rows of stalls for the sixty or seventy horses are to be constructed therein, which gutters are proposed to be frequently flushed with water so that the contents thereof will escape through traps located at the north end of the building; that numerous hostlers and stable-boys will be engaged thereabout, driving the sixty or seventy horses and vehicles over floors made of a hard substance, in and out, both by day and by night, thereby causing loud noises, etc.; that one of the principal means of ingress and egress thereto is through an alley paved with vitrified brick and immediately adjacent to the property of the plaintiffs, the passing over which occasions loud noises. It is further averred that the operation of such a stable with such a number of horses gives rise to and breeds the germs of various diseases which are dangerous to mankind, and likely to occasion disease and death; that the stomach of a horse is the natural habitat of the germ of lock-jaw and that the germs of such disease always exists in such quantities in places where horses are kept, as to greatly endanger the lives and health of persons in the vicinity thereof; that horses and their excretions and discharges give out and cause injurious and offensive gases which are revolting and deleterious to the health of persons; that the dust and hairs necessarily incident to the operation of such a stable are active and dangerous agencies for the spreading of diseases, and otherwise a means of continuous discomfort; that such stable and horses attract flies and other insects in large numbers which are also active agents for the spreading and transmission of disease, as well as a source of annoyance otherwise; that horses are subject to the glanders...
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