Mygatt v. Goetchins
| Citation | 20 Ga. 346 |
| Decision Date | 30 June 1856 |
| Docket Number | No. 60.,60. |
| Parties | Charles Mygatt et al, plaintiffs in error. vs. Richard R. Goetchins, defendant in error. |
| Court | Supreme Court of Georgia |
In Equity, in Muscogee Superior Court. Decided by Judge Worrill, at Chambers, June 17th, 1856.
A bill was filed by Charles Mygatt, Philip T. Schley and Mary E. Fishburne, against Richard R. Goetchins, alleging that complainants are-all residents of the City of Columbus; that said Mygatt was the owner, on the ist day of January, 1856, of the south half of lot No. 237 in said city, upon which lot he has erected buildings worth, together with the lot, about $5,000; that he has, since the ist of January, mortgaged said lot to several persons, to secure debts amounting to $7,300; that on the 15th of May, 1856, he executed a quit claim deed to said premises to one Abijah Catlin (who is the mortgagee in the last mortgage executed to said lot), and in said deed warranted to said Catlin that no steam manufactory of any kind whatsoever should be built opposite and south of said premises, on lot No. 240 in said city, now occupied in part by defendant, and upon which a building used by defendant as a carpenter's shop now stands; that such is said Mygatt's pecuniary condition, it is uncertain whether he will be able to pay his just debts; and he is interested in the appreciation of said premises in value, in order to satisfy and pay off said mortgages; and further, that he occupies said premises as the tenant of said Catlin.
The bill charges that the said Schley has been, for many years, the owner of lot known in the plan of said city as No. 238, west of and immediately adjoining lot No. 237, upon which he has heretofore erected a brick residence and out-buildings, and where, for many years, he has resided; that his premises are worth $6,000, and have been heretofore constantly increasing in value.
The bill charges, that Mary E. Fishburne has, for years past, owned and resided upon lots 235 and 236, in said city, said lots being immediately north of and adjoining to lots 237 and 238, and worth, with the buildings thereon, $15,-000.
The bill charges that lot 240 is but the width of a street, some one hundred and--the south half of lot 237, and situate south of and facing the same on the opposite side of said street, and is one hundred and--feet from lot 238, and that said lots, 237 and 238, intervene lots 235 and 236, and said lot 240; that the Methodist Church is situated northeast of and some one hundred and--feet diagonally across said street from said lot 240; that the Odd Fellow's buildings are situate on the south part of lot 241, which adjoins lot 240, and that in the lower story of said buildings a public school is kept, and has been for years; that said lot 240, which is owned by defendant, has been heretofore occupied in part by defendant's carpenter shop, and in part by a small dwelling, but about the 1st of May, 1856, complainants learning that defendant contemplated erecting on said lot a steam manufactory (to be propelled by an engine of fifty-horse power), for the manufacture of sash and blinds, &c, caused a notice, signed by two of complainants and several others of the neighbors, to be served on said defendant (he being served May 7th), notifying him not to erect a steam manufactory of any kind on said lot 240, and that if he did, application would be made by the signers of the notice to enjoin him.
The bill charges, that if said steam manufactory is erected as proposed, it will result in very great damage, annoyance and inconvenience, as well as prove a great nuisance to complainants and all the neighbors, and to the public at large; that the character of defendant's business would not admit of the employment of an experienced engineer to manage theengine used, and there would be constant danger of explosion; that the smoke and soot arising from such fuel as is ordinarily used in the furnace attached to such engine, will be scattered all over the premises of complainants, without the possibility of preventing it and the sparks emitted, as well as the constant burning of fuel, and the fact that manufactories of the kind are filled with combustible matter, will render the property of complainants more liable to be destroyed by fire; that the continued noise made by letting off steam from the boilers, and by blowing the whistle attached to the engine and by the rolling, changing and working of the machinery, will subject the complainants to the greatest annoyance, and will be, in cases of sickness, an insufferable nuisance; that complainants, on account of the facts aforesaid, would, if said manufactory is erected, have to pay larger rates to insure their property aforesaid, and the same would be much depreciated in value; that the erection of said manufactory would tend greatly to disturb the congregation which worships in said Methodist Church, and to frighten horses tied in front of said church during service, and also to disturb the exercises of said public school—thus becoming a public nuisance.
(A plat is attached to the bill, showing that St. Clair Street separates lot 240 from the lots of complainants, and that the public buildings referred to are situated as already described.)
The bill charges that all the buildings near said lot 240 are private dwellings, except the public buildings referred to, and one grocery store situate on the northwest corner of lot No. 239.
The bill, after charging that defendant is proceeding to erect said manufactory, although well aware of the private and public injury it will occasion, prays that he be enjoined, &c.
The prayer of the bill was granted, and defendant filed his answer thereto.
The answer admits all the allegations in reference to theownership of the lots mentioned in the bill and their relative positions, with the qualification, that defendant believes that said quit-claim deed was made to Abijah Catlin (the brother-in-law of Mygatt and a resident of the State of Connecticut), without consideration, with a view to strengthen complainants\' application for an injunction, and with the statement that the manufactory proposed to be erected by defendant, will stand about 120 feet from Mygatt\'s residence, and the furnace and chimney 170 or 180 feet from said residence; that the building will stand upwards of 200 feet from Schley\'s residence, and the chimney and furnace about 300 feet therefrom, and that Mrs. Fishburne\'s lots will be about 400 feet from the chimney of said building, with houses between so that one can scarcely be seen from the other.
The answer admits that the Methodist Church is some 300 or 400 feet from defendant's lot., and that the Odd Fellow's building is located as described in the bill, and that a public school is kept in the lower part of it, but states that defendant does not intend to work his engine and machinery at night or on the Sabbath day; and therefore, denies that the congregation worshiping at said church, or the exercises of said school will be disturbed; it also states, that neither one of complainants is a member of said church or congregation, or of the Odd Fellows, and that one of the complainants endeavored, before said bill was filed, to induce the minister and some of the members of said church to join in the bill, which they refused to do; it denies the right of complainants to interfere in behalf of said church and O. Fellow's Hall, and...
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