Snyder v. Cabell

• Citation: 1 S.E. 241,29 W.Va. 48
• Parties: SNYDER and others v. CABELL and others.
• Decision Date: 13 November 1886
• Court: Supreme Court of West Virginia

1 S.E. 241

29 W.Va. 48

SNYDER and others v. CABELL and others.

Supreme Court of Appeals of West Virginia.

November 13, 1886

Submitted September 13, 1886.

Syllabus by the Court.

There is no inflexible rule as to the joinder of parties in the court of chancery.

The general rule is that several complainants, having distinct and independent claims to relief against a defendant, cannot join in a suit, for separate relief of each. Nor can a single complainant, having distinct and independent claims for relief against two or more defendants severally, join them in the same bill.

The chancery court exercises a sound discretion in determining whether there is a misjoinder of parties, under the particular circumstances of each case.

Two or more persons owning separate and distinct tenements, whether they occupy the premises by themselves or tenants, may together with the tenants, where the tenements are lessened in value, or made materially uncomfortable as homes, by a nuisance which is a common injury to all the tenements and their residents, join in a suit to restrain such nuisance.

Where the prosecution of a business, of itself lawful, in the neighborhood of a dwelling-house, renders the enjoyment of it materially uncomfortable by noises alone, the carrying on of such business, while it produces such result, will be restrained by a court of equity.

A skating-rink erected within a short distance from a dwelling-house, and the noise from the skating and attending it was of such a character as to materially interfere with the comfort and enjoyment of the inmates of such dwellings was properly enjoined by a court of equity.

A bill was filed to enjoin the erection and operation of a skating-rink. The injunction was granted, and evidence taken, which showed that the use of said building as a skating-rink would be a nuisance; but the court, on motion, dissolved the injunction, but reserved the right to apply for a reinstatement of the injunction after the rink was in operation. A supplemental bill was filed, charging that the rink in operation, from the crowds and noise produced, was a nuisance. Answer was filed and proof taken, which showed that the rink was a nuisance; but on the final hearing the court refused to reinstate the injunction, but dismissed the original and amended bills. This court reversed both decrees, and reinstated, and made perpetual, the injunction.

Appeal from circuit court, Kanawha county.

Bill to enjoin the maintenance of a skating-rink.

Thos. L. Brown and E. B. Knight, for appellants.

Payne & Green, for appellees.

JOHNSON P.J.

The bill was filed in August, 1885, by the plaintiffs in the circuit court of Kanawha county to enjoin a threatened nuisance. The plaintiffs were A. C. Snyder, who owned a house on Washington street, and T. L. Brown, his tenant; Edward B. Knight, trustee, who held the legal title to a house and lot on the corner of Washington and Brook streets, for Sarah A. Sentz ; John W. Sentz, the husband of Sarah, who with his family resided in said house; and said Sarah, his wife, and Edward Penn, who owned a house, and resided with his family therein, on Washington street. The bill alleged that the defendants, Cabell Bros., in July, 1885, commenced preparations for building a large skating-rink on a lot they owned on said Washington street, in the city of Charleston; that the rink was to be constructed between the residences of said Brown and Sentz, that in size it was to be 60 by 100 feet; that it was to be constructed within 28 or 30 feet of the residences of said Brown and Sentz, and within a few feet of Washington street; that complainants served notice on them, shortly after they had commenced hauling material to build said rink, protesting against its construction there; that the erection of said rink would seriously impair the quiet, comfort, and enjoyment of the houses of said Sentz, Brown, and Penn, and boisterous crowds thereto night and day, and would deprive the said occupants of said respective premises of that enjoyment of their homes which they then and for a long time had, and that the annoyance and inconvenience to the said parties and their families, which will be brought about by the operation of said rink, will materially interfere with their ordinary comfort; that the noise caused by skating in the rink, and the music which accompanies exhibitions, all taken together, will seriously diminish the value of the said property belonging to complainants, and also the comfort and enjoyment of the same; that, in case of sickness in any one of the families of complainants occupying the premises aforesaid, the loud, boisterous, and continuous noise caused by the skating at such skating-rink, will materially interfere with the recovery of such sick person; that during the summer, when open doors and windows are essential to the health and comfort of a family, the noise of the skating would destroy the comfort of complainants, who reside on adjoining premises; that such damage to the property, and to the rest and comfort of complainants, will be irreparable; that the erection of such building, and its use as a skating-rink, would prove an unmitigated nuisance to the complainants; that, unless said defendants are restrained, they will erect such building, and use it for a skating-rink. The bill prayed for an injunction from using said building as a skating-rink. The bill is sworn to.

On the seventh day of August, 1885, the injunction as prayed for was granted. The defendants did not demur to the bill, nor did they in their answer object to the bill because of misjoinder of parties. The answer admits that the defendants intend to use said building, which they were erecting, as a skating-rink, but aver that that is not the only use to which they expect to devote it; that they propose to use it for fairs, festivals, exhibitions, lectures, and other similar entertainments. It avers that, before they received any notice from complainants that they objected to its use as a skating-rink, they had made their contract for its erection. It denies that the use of said building, as a skating-rink will interfere with the comfort, of complainants. The answer specifically denies such allegation of the bill which alleges that the noise from the skating or form the crowds or music, will materially interfere with the comfort of the plaintiffs. They say in their answer that skating-rinks are not nuisances pere se; that they are numerous all over the country, and in this state are recognized and legalized by statute; that they obtained a permit from the city council of Charleston to erect it, and if it is a nuisance it is the right and the duty of the city council to abate nuisances within said city. They say that it will be built with a double floor, with sawdust between the floors so as to deaden the sound, and make it less than with the ordinary floor; that if any inconvenience, annoyance, or injury does result to the properties of the plaintiffs, or to the enjoyment thereof by themselves and families, by reason of the use of said building as a skating-rink, it will only be such slight and incidental annoyance, inconvenience, and injury as result from the lawful and legitimate use of respondents' said property, and will be damnum absque injuria. They further aver that the principal objection that complainants have to the erection and use of said building as a skating-rink is that respondents are of that class of people commonly called "colored people," and that the colored people are to be admitted into the exercises in said building, but deny that will make it a nuisance. They aver "it would be inequitable and unjust to continue and perpetuate the injunction, and deprive them of the right to use their said building as a skating-rink, until it shall have been shown, by its use as such, that it is a nuisance; for, although respondents propose to use said building for other purposes than as a skating-rink, yet such uses, without its use as a rink, will not be remunerative to respondents, nor repay them the outlay and expenses to which they will be put, and respondents are persons of limited means, and not able to bear such loss."

Many depositions were taken, and respondents moved to dissolve the injunction. On the ninth day of October, 1885, the cause was heard on said motion to dissolve the injunction, and the court dissolved the injunction, and gave costs against the plaintiffs, but in the decree "reserved the right to complainants to have the said injunction reinstated whenever, if at any time, the use of said building as a skating-rink, or for any other purpose, shall become a nuisance to said complainants, or any of them; and the court directs this cause to bo continued and retained on tlie docket for that purpose."

On the twenty-fourth day of November, 1885, plaintiffs filed a supplemental bill, in which they alleged that, shortly after the decree dissolving the injunction was rendered, the said building was completed, and used as a skating-rink, and the same has been used as such nearly every day or night since, except Sundays; that the noise and disturbance created by said skaters, and the crowds that assemble at said rink, both day and night, and especially at night, are a very serious annoyance and disturbance to the plaintiffs Brown and Sentz and their families, and that the rest and sleep, and the quiet enjoyment of home, of said Sentz and Brown are disturbed, and interfered with by the running of said skating-rink, by the noise of the skates, and by the yelling and shouting of the audience, and by the crowds of people going to and from said rink, and by the boisterous crowds that assemble near said skating-rink, and by the music which sometimes constitutes a...