Reber v. Illinois Cent. R. Co.

• Decision Date: 04 January 1932
• Docket Number: 29599
• Court: Mississippi Supreme Court
• Parties: REBER v. ILLINOIS CENT. R. CO. et al

138 So. 574

161 Miss. 885

REBER v. ILLINOIS CENT. R. CO. et al

No. 29599

Supreme Court of Mississippi

January 4, 1932

Division B

1 NUISANCE.

Operation of roundhouse by railroad held not nuisance per se.

2 NUISANCE.

Whether operation of lawful business is nuisance in fact depends on surrounding facts and circumstances.

3 NUISANCE.

Test whether lawful business constitutes nuisance is reasonableness of conducting business complained of in particular locality and under circumstances of case.

4 NUISANCE.

Locality must be considered in determining whether roundhouse is nuisance.

5. NUISANCE.

Whether use of property in lawful business creating smoke or noxious gases in excessive quantities amounts to nuisance depends on facts of each particular case.

6. NUISANCE.

Injunction restraining lawful business as nuisance should not be granted, unless clear legal right has been invaded resulting in permanent and serious injury which cannot be adequately redressed by law action.

7. NUISANCE.

Occupant of house in factory district could not enjoin operation of roundhouse as nuisance and cause removal at expense of several hundred thousand dollars when complainant could move at small expense.

8. NUISANCE.

One occupying employer's house as incident to employment and as part of compensation had no such estate in residence occupied as entitled him to maintain suit to enjoin nuisance.

HON. V. J. STRICKER, Chancellor.

APPEAL from chancery court of Hinds county HON. V. J. STRICKER, Chancellor.

Suit by S. C. Reber against the Illinois Central Railroad Company and others. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Affirmed.

Watkins, Watkins & Eager, of Jackson, for appellant.

If a lawful business in fact is being operated so as to constitute a nuisance such as would unlawfully and unreasonably interfere with the rights of another, it need not be a nuisance per se to become a proper subject for a restraining order.

National Refining Co. v. Batte, 135 Miss. 819; McCarty v. Natural Carbonic Gas Co., 189 N.Y. 40, 81 N.E. 549, 13 L. R. A. (N. S.) 405; Helms v. Eastern Kansas Oil Co., 102 Kan. 164, 169 P. 208, L. R. A. 1918C, 227; Campbell v. Seaman, 63 N.Y. 568, 20 Am. Rep. 567; 20 R. C. L., par. 69, p. 454; National Refining Co. v. Batte, 135 Miss. 819; Munie v. Millner Brothers Tire & Vulcanizing Co. (no citation Ill.); Warren Mills v. New Orleans Seed Company, -- Miss. --, 4 So. 298; Yates v. Mo. Pac. R. R. Co. (Ark.), 269 S.W. 253, 38 A. L. R. 1434; Terrell v. Chesapeake & Ohio Ry. Co., 110 Va. 340, 66 S.E. 55, 32 L. R. A. (N. S.) 371.

The above authorities show conclusively that even though a railroad company be a public utility and conducted in a lawful manner, still if they are in fact so conducted as in fact to constitute a nuisance, then they are a nuisance per accedens, or, in fact, and this nuisance is the proper subject for an abatement order and certainly the injured party is entitled to redress by way of damages to the extent of the injuries sustained.

Smoke, soot and cinders when emitted onto property of another in unusual quantities or such quantities as to materially interfere with the comfort, convenience and well being of a person or ordinary sensibilities is a nuisance in fact.

National Refining Co. v. Batte, 135 Miss. 819; King v. Vicksburg Ry. & Light Company, -- Miss. --, 42 So. 204, 117 A. S. R. 749, 6 L. R. A. (N. S.) 1036; Baltimore & Potomac R. R. Co. v. Fifth Baptist Church, 108 U.S. 317, 27 L.Ed. 739; McCarty v. Natural Carbonic Gas. Co., 189 N.Y. 40, 81 N.E. 549, 13 L. R. A. (N. S.) 405; Holman v. Athens Empire Laundry Co., 100 S.E. 207, 6 A. L. R. 1564; 20 R. C. L. 443.

Noise alone, or accompanied with other elements if of such character and made at such time as to be productive of actual physical discomfort and annoyance to a person of ordinary sensibilities, is a nuisance in fact.

20 R. C. L. 445, sec. 60; Davis v. Sawyer, 133 Mass. 289, 43 Am. Rep. 519; Soltau v. Deheld, 2 Sim. (N. S.) 133.

The nuisance herein complained of is not such as that necessarily arises from the nature of a quasi-public business but results from the operation of an adjunct thereto and constitutes taking of appellant's property for which compensation must be made.

Chicago, etc., R. R. Co. v. First Methodist Episcopal Church, 102 F. 85; King v. Vicksburg Ry. & Light Co., 88 Miss. 456.

It is no defense to an action for the maintenance of a nuisance that the nuisance is created and maintained in an industrial section of the city.

Quinn v. American, etc., Mfg. Co., 141 A. 855.

The fact that a nuisance is being created by a modern business establishment, using best known methods, is no defense, if in fact a nuisance exists.

Baltimore & Potomac R. R. Co. v. Fifth Baptist Church, 108 U.S. 317, 27 L.Ed. 739; State of Michigan v. State of Illinois, 281 U.S. 178, 74 L.Ed. 799; Buckeye Cotton Oil Co. v. Ragland, 11 F.2d 231; Western Paper Co. v. Pope, 155 Ind. 94, 56 L. R. A. 899; Off et al. v. Exposition Coaster Co., 167 N.E. 782; Jordan v. United, etc., Cooper Co., 9 Fed., 144; Cogswell v. N. Y., etc., R. R. Co., 103 N.Y. 10, 56 Am. Rep. 7; Brown v. Milwaukee, etc., Railway Co., 227 N.W. 385; Helms v. Eastern Kansas Oil Co., 102 Kan. 164.

The fact that others in the same community are creating like nuisances is no defense, if in fact appellees are maintaining a nuisance.

Holman v. Athens Empire Laundry Co., 100 S.E. 207; Western Paper Company v. Pope, 155 Ind. 94, 56 L. R. A. 899; 20 R. C. L. 492, sec. 106; Davis v. Spragg, 79 S.E. 652, 48 L. R. A. (N. S.) 173.

Any occupant rightfully in possession of property may maintain an action for nuisance like the one upon which this complaint is based.

Lowe v. Prospect Hill Cemetery Association, 58 Neb. 94, 46 L. R. A. 237; Yates v. Mo. Pac. R. R. Co., 269 S.W. 353; Alabama & Vicksburg Railroad Co. v. Bloom, 71 Miss. 247.

If the ordinary use and occupation of the property is rendered physically uncomfortable and inconvenient, then these inconveniences and discomforts are proper elements of damage.

Yares v. Mo. Pac. R. R. Co., 269 S.W. 253, 38 A. L. R. 1434; Alabama & Vicksburg R. R. Co. v. Bloom, 71 Miss. 247; Baltimore & Potomac R. R. Co. v. Fifth Baptist Church, 108 U.S. 317, 27 L.Ed. 739; Berlin v. Thompson, 61 Mo.App. 234; Yazoo & Mississippi Valley Railroad Co. v. Sanders (Miss.), 40 So. 163, 3 L. R. A. (N. S.) 1119.

The evidence conclusively shows that appellant is not guilty of laches.

The same testimony which was introduced to show wilfullness on the part of the appellees also shows conclusively that this appellant has not been guilty of laches. Five years would not have been an unreasonable length of time, even though no demand had been made on this defendant to abate the nuisance, and we think and urge upon your Honors with all sincerity that in view of the above circumstances that this appellant can in nowise be said to be guilty of laches.

A. & V. Ry. Co. v. Inge, 22 So. 294; Howard County v. C. & A. R. R. Co., 130 Mo. 652, 32 S.W. 651; Mississippi Mills Co. v. Smith (Miss.), 11 So. 26.

May, Sanders, McLaurin & Byrd, of Jackson, and Burch, Minor & McKay, of Memphis, Tenn., for appellees.

This court has often held that, on appeal, if there is any testimony in the record on which the chancellor's decision on the facts can be based the decree will not be disturbed.

Heard v. Cottrell, 100 Miss. 42; Lott v. Hull, 104 Miss. 308; Lee v. Wilkinson, 105 Miss. 358; Bland v. Bland, 105 Miss. 478; Grace v. Pierce, 127 Miss. 831; Crump v. Tucker, 149 Miss. 711.

It is conceded that the roundhouse is not a nuisance per se, and the chancellor found that it was not a nuisance in fact.

The rule is that considering the location, the nature of the business, its manner of operation, the length of time it has been operated, the character of the neighborhood, the extent and frequency of the injury, the effect on the enjoyment of life, health and property, the court may, on all of the testimony, find as a matter of fact that a business is or is not a nuisance. And when all these things are considered, if he does find a business is a nuisance, damages may be allowed or the nuisance may be abated.

29 Cyc. 1156-57; 20 R. C. L. 444 et seq.; McCarty v. Natural Carbonic Gas. Co., 189 N.Y. 40, 13 L. R. A. (N. S.) 405; Holman v. Athens Laundry Co., 100 S.E. 207, 6 A. L. R. 1564; Demerest v. Hardman, 34 N.J.Eq. 469; Patterson v. Roxana Petroleum Co., 109 Okla. 89; Oliver et al. v. Forney Cotton Co. (Tex.), 226 S.W. 1094; Gilbert v. Showerman et al., 23 Mich. 448.

The foregoing authorities amply sustain our contention as to the true rule for determining whether a nuisance exists. Applying these rules to the testimony in this case, we say that the chancellor was eminently correct in his conclusions.

The same rule which applies to the creation of smoke, dust and kindred things applies to noise, and the true rule is that the noise must be unreasonable in degree. And the question of reasonableness or unreasonableness is one of fact to be determined by the trier of fact.

20 R. C. L. 445; Davis v. Sawyer, 133 Mass. 289, 43 Am. Rep. 519.

We do not contend that the fact that a factory or industry, or business is located in an industrial section of a city would alone constitute a defense to an action for maintaining a nuisance. What we do say and what we submit is the true rule is that location is one of the elements to be considered by the court in considering whether the conduct of a business is a nuisance.

The argument is made that the expense to the appellees to move the plant should not be a defense to the suit for injunction or abatement. We do not contend that it is an absolute defense, but we do say...