Milling v. Berg

• Decision Date: 01 August 1958
• Docket Number: No. 337,337
• Citation: 104 So.2d 658
• Parties: S. T. MILLING and Palm Beach County Resources and Development Board, a Florida corporation, Appellants, v. Willard E. BERG and Mildred A. Berg, Appellees.
• Court: Florida District Court of Appeals

Page 658

104 So.2d 658

S. T. MILLING and Palm Beach County Resources and Development Board, a Florida corporation, Appellants, v. Willard E. BERG and Mildred A. Berg, Appellees.

No. 337.

District Court of Appeal of Florida, Second District.

Aug. 1, 1958.

Phil D. O'Connell, West Palm Beach, and Al J. Cone, of Miller, Hewitt & Cone, West Palm Beach, for appellant, Milling. Fisher, Dickinson and Prior, for appellant, Palm Beach County Resources and Development Board.

Kirk Sullivan, of Fulton, Sullivan & Burns, West Palm Beach, for appellees.

SHANNON, Judge.

Willard E. Berg and Mildred A. Berg, his wife, the appellees, were the plaintiffs below. They filed a complaint against S. T. Milling and prayed for a temporary injunction and final injunctive relief. The gist of their complaint was that the defendant was operating a boatyard in Riviera Beach in a manner which constituted both a public and a private nuisance, and alleged that it was a violation of the Ordinances of the Town of Riviera Beach. In their bill plaintiffs alleged that the boatyard was operated nights, Sundays and holidays, the employees, who ran defendant's boatyard indulged in loud talk, profanity, obscenity, loud and unnecessary noises, and in addition plaintiffs' property was constantly invaded by smoke, noise and fumes, which originated from the boatyard. The suit was filed on May 29, 1956, and the next day being a holiday, no one was in defendant's attorney's office, so that defendant did not see his attorney until May 31 at approximately eleven o'clock in the morning. A hearing for a temporary injunction was held at 3:30 o'clock P.M. that afternoon.

The chancellor granted a temporary injunction restraining, until further order of the court, the defendant from repairing, constructing and working upon any boat, barge or vessel with a metal hull except that defendant could complete his work upon the steel barge that was in the defendant's place of business, and he should so operate his boatyard so that it would not create dust and smoke which would invade the property of the plaintiffs; that the defendant could operate his boatyard from 8:00 o'clock in the morning until 4:30 o'clock in the afternoon Mondays through Fridays, and from 8:00 o'clock A.M. to 12:00 Noon on Saturday; that the defendant was enjoined from allowing his agents, employees and invitees to use loud, raucous and profane language upon the boatyard premises; and the order became effective upon the plaintiffs' posting a bond in the principal sum of $1,500. The defendant filed a motion to dismiss and a motion to dissolve, together with his answer, which motions were overruled, and the court entered a final decree on the date of August 13, 1956. The final decree conformed in all respects to the temporary injunction, except that under the final decree the defendant was allowed to work on steel boats. In the course of the proceedings the Palm Beach County Resources and Development Board was permitted to intervene. There is a point made in the appeal that the chancellor erred in his refusal of the proffered testimony of the intervenor.

On appeal defendant has set out five points, namely:

(1) The acts were not being committed nor threatened to be committed at the time of the decree;

(2) The evidence didn't show any public or private nuisance;

(3) The court erred in denying the defendants' motion to dismiss and dissolve the temporary injunction;

(4) The chancellor erred in refusing to set a larger injunction bond; and

(5) The chancellor erred in refusing to hear certain proffered testimony of the defendant, S. T. Milling, and the intervenor, Palm Beach County Resources and Development Board.

It appeared from the evidence that the boatyard operated by the defendant had been in existence since 1927 and that the plaintiffs purchased their property in 1941 and constructed their home and a tourist court on it. It also appears from the testimony that the boatyard had originally serviced and repaired wooden boats almost exclusively until the time that the defendant purchased the boatyard in 1949. At the time that the suit was filed the boatyard's work was about sixty per cent all steel barges and vessels.

The Town of Riviera Beach had passed in 1948 a zoning ordinance under which the use of the defendant's property was a nonconforming use. Also in the testimony was the fact that the boatyard was the largest one in operation between Jacksonville and Miami on the east coast. A considerable amount of testimony was taken and in almost all of it there were conflicts.

The defendant takes the position that the acts complained of were not being committed by the defendant at the time the suit was filed; that they were not being threatened by the defendant and hence, the chancellor was in error granting an injunction.

The defendant cites us to 4 Fla. Law Review, pages 572-573, wherein a correct rule of law was cited as follows:

'* * * Since it is well settled in this state that injunction is preventive only (Smith v. Davis, 22 Fla. 405, 1886) and ordinarily cannot be applied correctively, (Godwin v. Phifer, 51 Fla. 441, 41 So. 597, 1906) injunction will not issue if the acts complained of are past (Davis v. Wilson, 139 Fla. 698, 190 So. 716, 1939; Wilkinson v. Woodward, 105 Fla. 376, 141 So. 313, 1932; Drew Lumber Co. v. Union Inv. Co., 66 Fla. 382, 63 So. 836, 1913) and not continuous in nature (Smith v. Davis, 22 Fla. 405, 1886) and there is no showing of reasonable probability that such conduct will continue. ((City of) Jacksonville v. Wilson, 157 Fla. 838, 27 So.2d 108, 1946) Thus an injunction to restrain the holding of an election has been denied when the date fixed for the election passed before the determination of the suit to restrain. (McKinney v. County Com'rs, 26 Fla. 267 (4 So. 855; Id., Fla.), 3 So. 887, 1888).

'When a party seeks the aid of a court of equity by injunction, he must show not only clear legal or equitable right, but also a well-grounded apprehension of immediate injury. (Crawford v. Bradford, 23 Fla. 404, 2 So. 782, 1887) The Florida Court has said, 'To make out a case for an injunction, it must appear that there is at least a reasonable probability, not a bare possibility, that a real injury will occur if the writ is not granted.' (Davis v. Wilson, 139 Fla. 698, 705, 190 So. 716, 719, 1939) If the special and peculiar injury apprehended is doubtful of occurrence, the relief is generally withheld. (Hernandez v. Board of Com'rs, 114 Fla. 219, 153 So. 790, 1934.)'

The quotation undoubtedly states the correct law, but in the present suit the plaintiffs produced testimony, and apparently the chancellor must have believed the testimony, that the acts of the defendant were not related to the past primarily but were being done at frequent intervals up to the present time. It also appears that there was competent, substantial evidence that he had operated his boatyard on Sundays, before and after business hours; that he allowed particles of rust and other substances to be deposited on the plaintiffs' property including their automobile; that he allowed obscene and profane language to be used on his premises; and there was no reason to assume they would cease. Regardless of the defendant's contention that such things were not now occurring, the testimony of the plaintiffs that they had been committed, and were continuing to be committed, created a conflict of testimony upon which the chancellor based his findings of fact.

In his second point the defendant asks whether the evidence showed any nuisance, public or private, committed by the defendant, which justified injunctive relief.

The defendant cites, in support of his position, Thebaut v. Canova, 1866, 11 Fla. 143. However, the plaintiff cites the case of Pizio v. Babcock, Fla.1954, 76 So.2d...