Rounsaville v. Kohlheim

• Decision Date: 28 February 1882
• Parties: Rounsaville et al. vs. Kohlheim.
• Court: Georgia Supreme Court

68 Ga. 668

Rounsaville et al. vs. Kohlheim.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1882.

[This case was argued at the last term, and the decision reserved.]

Nuisance. Equity. Damages. Injunction. Before Judge Underwood. Floyd Superior Court. March Term, 1881.

Reported in the decision.

Dabney & Fouche, for plaintiff in error.

Yancey & Dean; J. Branham, for defendant.

Crawford, Justice.

This bill was filed to enjoin the defendant from building a private stable on his own lot, in the city of Rome, adjoining that of the complainant's. The grounds for the application of the injunction were that large quantities of litter, manure and filth will be gathered in said stable; that swarms of flies and other insects, and vermin will be generated therein; that noxious vapors and foul stenches will be generated; that there will be an eternal stamping of horses and lowing of cattle in said stable; and if the defendant is permitted to locate and use, said stable at the place upon which he proposes to build it, the injury, inconvenience and damage to the property of complainants will be irreparable.

The bill was dismissed at the hearing for the want of equity, and the only question here is, was that error?

It was ruled in 9 Ga., 425, "That a livery stable within sixty-five feet of a hotel, which would result in the loss of health and comfort of the proprietor's family, and the loss of patronage to his hotel in consequence of the unhealthy effluvia arising therefrom, and the collection of swarms of flies, and the interminable stamping of horses therein, would operate as a nuisance, and that the landlord was entitled to an injunction to restrain its erection."

This ruling was made upon the refusal of the chancellor below to grant an injunction restraining the erection of the building. Upon the coming in of the answer in the same case, denying the main allegations in the bill, and setting up the fact of a removal of the plank floor, and that by the use of lime-water, and keeping the stalls neat and clean, as well as other precautionary measures, that there would he no damage to the complainant resulting from the said stable, the chancellor dissolved the injunction. This ruling by the chancellor brought the case again before this court, as may be seen in 10 Ga., 336, and itwas there held, "That the ad interim injunction should not have been removed, but should have been continued to the final hearing." Further, that "If upon the hearing the jury should be of opinion that this stable with its inmates and attendants is not a nuisance of itself, but that it may be kept in such manner as to make it unobjectionable, they will no doubt require that it shall be kept in this manner, or provide adequate protection to the complainant."

This same subject of building a livery stable again came before this court on the granting of an injunction to restrain its erection, and is reported in 20 Ga., 537. It was there held that to enjoin nuisances in the course of erection, that the evil sought to be remedied must not be "merely probable, but certain, " and Lumpkin, C. J., in the opinion, adds "inevitable." And further, that if "the establishment were properly kept, that instead of being certain that the stable would be a nuisance, the probability is it...