Oehler v. Levy

• Decision Date: 18 June 1908
• Citation: 234 Ill. 595,85 N.E. 271
• Parties: OEHLER et al. v. LEVY.
• Court: Illinois Supreme Court

234 Ill. 595

85 N.E. 271

OEHLER et al.

v.LEVY.

Supreme Court of Illinois.

June 18, 1908.

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; Willard M. McEwen, Judge.

Suit to restrain a nuisance by Edward Oehler and another against Charles Levy. Decree in favor of the complainants was reversed by the Appellate Court as too indefinite for enforcement and remanded for a proper decree, and defendant appeals. Affirmed.Zach Hofheimer, for appellant.

Samuel B. King and Jule F. Brower, for appellees.

This was a bill in chancery filed in the superior court of Cook county by the complainants, Oehler and Reichhold, against the defendant, Charles Levy, to restrain Levy from maintaining a nuisance upon certain premises situated in the city of Chicago which belonged to him and which adjoined property owned by the complainants.

It appears from the pleadings and proofs that the complainants are the owners of a flat building, containing 10 flats, fronting upon South Lincoln street, in the city of Chicago, which flats, with the exception of one which is occupied by Oehler as a residence, are occupied as residences by tenants of the complainants; that the defendant is the owner of two lots immediately north of and adjoining the complainants' flat building, fronting upon the same street; that defendant's south lot is improved with a basement and one-story brick building, in which the defendant keeps the horses, about 20 in number, used by him in delivering newspapers for several of the companies publishing daily newspapers in the city of Chicago; that the defendant has in his employ 10 or 12 men engaged in delivering said newspapers; that the floor of the building above the basement is about five feet above the street level, which floor is reached by a driveway five feet wide, commencing at the street and extending to said floor at the front of the building; that the horses are kept in the building above the basement and the wagons in a building upon the adjoining lot; that the horses are harnessed in the building where kept and led or driven down said driveway to the street, where they are hitched to the wagons, which are run out upon the street for that purpose; that the defendant has suffered the building where said horses are kept to become filthy, and manure and urine to accumulate in and about said building in large quantities, from which noxious and offensive odors are given off, which enter said flat building and contaminate the air therein; that the horses during all hours of the night, in passing to and from the building where they are kept and while standing in their stalls, and by walking, pawing, and kicking, make a great deal of noise; that the men in charge of the horses, while handling the same, use loud, profane, and obscene language; that said driveway obstructs the free passage of pedestrians upon the street in front of the defendant's building; and that the offensive odors given off from the accumulated manure and urine in and about said building, the continued tramping, pawing, and kicking of the horses kept in the building, and the loud talking, profanity, and obscenity of the employés of the defendant render the flat building of the complainants unhealthy and undesirable as a place in which to live, and thereby the rental value thereof has been greatly reduced.

The trial court held that the complainants were not entitled to an injunction restraining the defendant from keeping horses upon the said premises, on the ground that the building of the defendant had been erected and used as a place for stabling horses prior to the time of the erection of complainants' flat building, but held complainants were entitled to have, and so decreed, the stable upon said premises kept in a sanitary condition, and to have the use of profane and obscene language by defendant's employés while upon the said premises discontinued. The defendant prosecuted an appeal to the Appellate Court for the First District, and the complainants assigned cross-errors. That court reversed the decree of the superior court upon the ground that the decree was so indefinite that it could not be enforced, and remanded the cause to that court, with directions to enter a decree perpetually enjoining the defendant from maintaining, or permitting to be maintained, on the property of the defendant, a stable for horses in such numbers or in such manner as to produce noise sufficient habitually to disturb the sleep or comfort of the dwellers in the building owned by the complainants, or so as to produce odors or gases deleterious to the health or comfort of the dwellers in said building, or to so conduct business on said premises as to cause, by the noise and loud talking incident thereto, habitual disturbance to the health, sleep, or comfort of said dwellers. From that judgment of the Appellate Court Charles Levy has prosecuted an appeal to this court, and errors and cross-errors have been assigned upon the record by the respective parties to this appeal.

HAND, J. (after tating he facts as above).

The first contention made by the appellant is that the Appellate Court erred in holding that he was guilty of maintaining a nuisance upon his premises. The evidence clearly shows that appellant was the owner of and in possession of the premises adjoining the flat building of appellees; that he kept upon his premises about 20 head of horses; that he failed to remove the manure and urine deposited by said horses upon said premises at such times and in as such a manner as to prevent offensive odors from arising therefrom, which penetrated the several flats in the building of complainants, and contaminated the air therein, and caused disease and sickness among the occupants of said building; and that the horses kept in said building, and the men who cared for and drove them, when in and about said building, made a great deal of noise in the nighttime, which prevented the occupants of said flat building from sleeping, and that the rental value of said premises, by reason of the misconduct of the defendant in the particulars hereinbefore pointed out, was greatly reduced.

In Wahle v. Reinbach, 76 Ill. 322, 327, it was said: ‘Whatever is offensive, physically, to the senses, and by such offensiveness makes life uncomfortable, is a nuisance.’ And in Wente v. Commonwealth Fuel Co., 232 Ill. 526, 533,83 N. E. 1052: ‘If a business is offensive to such a decree as to materially interfere with ordinary physical comfort, measured, not by the standard of persons of delicate sensibilities and fastidious habits, but by the habits and feelings of ordinary people, and the damages are of a nature which cannot be adequately compensated for in an action at law, a court of equity will grant an injunction.’ And in Chicago, Milwaukee & St. Paul Railway Co. v. Darke, 148 Ill. 226, 232, 35 N. E. 751: ‘It cannot be doubted that at common law mere noise in the immediate vicinity of the premises, and especially of the dwelling house of a landowner, may be of such character as to constitute an actionable nuisance, remediable by an action on the case for damages or by injunction.’ And in High on Injunctions (3d Ed.) § 780: ‘The use of a building adjoining plaintiff's in a large city, as a stable and...