Moore v. Johnson
| Decision Date | 04 December 1928 |
| Docket Number | No. 51.,51. |
| Citation | 245 Mich. 173,222 N.W. 120 |
| Parties | MOORE v. JOHNSON. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Gratiot County; Edward J. Moinet, Judge.
Suit by Eva Moore against Cecil Johnson. Judgment for defendant and plaintiff brings error. Affirmed.
Argued before the Entire Bench.
Mathews & Greene, of Ithaca, for appellant.
Charles H. Goggin, of Alma, for appellee.
This is a suit in assumpsit to recover damages which the plaintiff alleges she has sustained by reason of injuries to her property resulting from a nuisance for the maintenance of which the defendant was responsible. A jury tried the case and rendered a verdict in favor of the defendant. The plaintiff reviews by writ of error. For many years Mrs. Eva Moore, the plaintiff, owned and occupied as a dwelling the premises known as lot No. 10 of James Kress addition to the city of Alma, Mich. This property fronts east on Park avenue. Next south of it is a corner lot belonging to the defendant which facts Superior street on the south. This lot is 72 feet by 165 feet, and was vacant prior to 1920. At that time the defendant caused to be constructed upon his lot a brick building 70 feet wide and 155 feet in length; the same being located adjacent to the sidewalk lines on each of the two streets. The front 30 feet is used for a showroom incident to the business of a Ford sales agency, and the remainder of the building is used for automobile storage and a commercial garage. The rear or northerly end of this building is 10 feet from the north line of the lot and 26 1/2 feet from plaintiff's dwelling. There are large windows in this end of the garage which during the summer time are kept open for ventilation. The service entrance is on the Park avenue side and about 20 feet from the northeast corner of the building. The gist of Mrs. Moore's complaint is that this building as constructed shuts off the view from her dwelling towards Superior street and interferes with the ventilation and sunlight on the southerly side of her residence; that the business carried on at the garage produces great and unbearable noise in and about her residence both day and night; that offensive and poisonous odors, smoke, and gases are discharged from defendant's premises which render her property undesirable for residence purposes; that cars, trucks, and tractors coming to this garage produce a noisy and congested condition in the street adjacent to plaintiff's property and create a litter, commotion, and dangerous condition; and that the sidewalk and street adjacent to the garage are besmeared with grease and oil, and disabled and dismantled vehicles at the rear of defendant's premises render the same unsightly-all to the damage of plaintiff's property. From the time the defendant's building was completed, it has been used as a salesroom and garage by him or his tenants. At the time this suit was started the sales agency and garage were operated by the Rademacher Motor Sales Company, which occupied these premises as lesse.
The plaintiff sought to have this case submitted to the jury under her claim that the construction of the building itself as a garage in a residential locality might be found to be a nuisance. This contention is stated in the appellant's brief as follows:
The trial court refused to submit the case to the jury on this theory, and instructed the jury:
‘That the mere erection of the building to be used as a garage did not constitute a nuisance;’ and the operation of a garage ‘can only become so (a nuisance), when operated in such an unreasonable and unusual manner, different than public garages are usually operated, that it may become a nuisance.’
Numerous assignments of error are based upon this holding of the court. It becomes important to consider whether the property in this locality is primarily residential. It is entirely free from building restrictions. Much space is devoted in the record and briefs to setting forth the conditions surrounding these lots and bearing upon the question as to this being a strictly residential locality. No attempt will be made to review the details of the record, but it is sufficient to say it conclusively appears that the locality is not strictly and exclusively residential. Superior street, on which de...
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...250 Mich. 665, 231 N.W. 57; a small coal yard, Daugherty v. Ward, 240 Mich. 501, 215 N.W. 526; a commercial garage, Moore v. johnson, 245 Mich. 173, 222 N.W. 120. In the following cases injunctions were issued to abate a nuisance: The storage of 20,000 gallons of gasoline in tanks in a stri......
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...231 N.W. 57 (1930); a small coal yard, Daugherty v. Ward, 240 Mich. 501, 215 N.W. 526 (1927); a commercial garage, Moore v. Johnson, 245 Mich. 173, 222 N.W. 120 (1928).' Sommers v. Detroit, 284 Mich. 67, 71, 278 N.W. 767, 768 As to whether plaintiff has properly pleaded a claim that the tob......
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