Rhymer v. Fretz
| Decision Date | 18 May 1903 |
| Docket Number | 350 |
| Parties | Rhymer v. Fretz, Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 27, 1903
Appeal, No. 350, Jan. T., 1902, by defendant, from decree of C.P. No. 1, Phila. Co., June T., 1902, No. 4511, on bill in equity in case of James L. Rhymer v. Tobias L. Fretz. Reversed.
Bill in equity for an injunction. Before BREGY, J.
The facts are stated in the opinion of the Supreme Court.
Error assigned was the decree of the court.
The sixth assignment of error is sustained, the decree is reversed, and it is ordered that the bill be dismissed at the cost of the appellee.
George E. Nitzsche, with him George F. Deiser, for appellant. -- If a nuisance, it must be either a public nuisance or a private one. Private citizens cannot come into a court of equity with a bill to restrain a public nuisance without averring special damages: Philadelphia & Gray's Ferry Pass. Ry v Philadelphia, 2 W N.C. 639; S.C., 11 Phila. 358; Rhea v. Forsyth, 37 Pa. 503; Hieskell v. Gross, 7 Phila. 317.
James S. Clifford, for appellee, presented no paper-book.
Before MITCHELL, FELL, BROWN, MESTREZAT and POTTER, JJ.
James L. Rhymer, the plaintiff, owns and resides on the premises at No. 1732 North Front street, in the city of Philadelphia. Pursuant to an ordinance of the select and common councils of the city, approved November 8, 1892, granting him permission Tobias L. Fretz, the defendant, erected a frame building to be used for religious purposes, on the lots at Nos. 1731 and 1733 North Front street, directly opposite the premises and residence of the plaintiff. By a subsequent ordinance, approved February 18, 1901, the ordinance of November 8, 1892, was amended so as to authorize Fretz to enlarge the frame building he had erected. After the defendant had begun the work, authorized by the amended ordinance, the plaintiff filed this bill against him as superintendent of Gospel Mission, 1731 and 1733 North Front street, to restrain him "from continuing the erection upon said premises of said frame structure." The bill avers that "since the erection of the original frame building upon the premises the Gospel Mission has been the resort of disreputable characters who congregate in the neighborhood and are a nuisance to the peace and safety of this neighborhood, various acts of nuisances have been committed within the past six months, and the frame structure has been partially diverted from its high religious purpose by the maintenance of a sawmill and wood yard, and for the purpose of operating the same, a boiler and engine are used." The reason assigned for the relief prayed for is found in the seventh paragraph of the bill and is "that the erection of said frame structure and the uses to which it is being put, viz: the working of a sawmill and wood yard and the operating of a steam boiler and engine will jeopardize the safety and endanger property in this vicinity from fire, and by reason thereof, together with the unlawful gathering of persons in the neighborhood will deprive himself (the plaintiff) and his neighbors of the full enjoyment and proper use of their property and home." The court below entered a decree "that a permanent injunction issue restraining the defendant from erecting the building authorized by the ordinance of 1901." The entry of this decree is the subject of the sixth assignment of error.
It is well settled law that a public nuisance cannot be suppressed or enjoined at the suit of a private individual unless he has sustained some damage or injury which is clearly special to himself and apart from...
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