Sommers v. City of Detroit

• Citation: 284 Mich. 67,278 N.W. 767
• Decision Date: 04 April 1938
• Docket Number: No. 143.,143.
• Parties: SOMMERS et al. v. CITY OF DETROIT et al.
• Court: Supreme Court of Michigan

284 Mich. 67

278 N.W. 767

SOMMERS et al.

v.CITY OF DETROIT et al.

No. 143.

Supreme Court of Michigan.

April 4, 1938.

Action by William H. Sommers and others against the City of Detroit and others to restrain the construction and operation of a garbage incinerator. From a judgment of dismissal, the plaintiffs appeal.

Affirmed.

Appeal from Circuit Court, Wayne County, in Chancery; DeWitt H. Merriam, Judge.

Argued before the Entire Bench.

Bratton & Bratton, of Detroit, for appellants.

Raymond J. Kelly, Corp. Counsel, John H. Witherspoon, Asst. Corp. Counsel, Duncan C. McCrea, Pros. Atty., and Garfield A. Nichols, Asst. Pros. Atty., all of Detroit (Oscar A. Kaufman, of Detroit, of counsel), for appellees.

SHARPE, Justice.

This is an action filed in behalf of property owners living in the vicinity of Davison avenue and the Detroit Terminal Railroad in the City of Detroit, in which they seek injunctive relief restraining the construction and operation of a 450-ton daily garbage incinerator. The record shows that in 1922 the City of Detroit erected upon this property a garbage transfer depot. The garbage collected in Northwest Detroit was conveyed in collection vehicles to this depot and there transferred to larger trucks and hauled outside of the city. At the time this transfer depot was located on this site, there was but one house erected in the immediate vicinity. When the present plant was being constructed, conditions had changed so that to the north of the plant there is located a foundry and a coal yard, and to the south and across Buena Vista avenue is a storage yard of the water board of the City of Detroit, while to the east and west are residential districts.

In 1925 a bill of complaint was filed by a group of residents living in the vicinity of the transfer depot alleging that this depot was a nuisance and asking for a permanent injunction restraining its operation. As a result of this bill of complaint an injunction was issued restraining certain practices of the employees, but no injunction was issued restraining the maintenance and operation of the garbage depot.

In 1926 the City of Detroit constructed a small incinerator on this site and the same has been used continuously since that time for the burning of rubbish. In 1935 a Public Works Administration project was entered into by Wayne county for the construction of the incinerator, and at the time of the filing of the present bill of complaint construction of the Davison avenue plant was begun and the sum of approximately $250,000 was spent for work done and contract commitments made.

The cause came on for trial and the trial court made the following finding of facts:

‘1. Garbage has been hauled to this site for 15 years and in most instances several years before many of the homes in the vicinity were erected.

‘2. The garbage collection area to be served by the incinerator is substantially the same as that served by the transfer depot.

‘3. The incinerator will dispose of the garbage at the plant and it will be unnecessary to again transport it through the streets, as is now done at the transfer depot.

‘4. The proofs disclose that the City contemplates the enactment of an ordinance compelling the wrapping of garbage, which, if enacted and enforced, will materially minimize any objectionable odors from collection vehicles.

‘5. There will be considerably more rubbish transported to the site with the new incinerator than at the present time as only a few loads of rubbish per day are disposed of now. The proofs show that the addition of rubbish and the mixing of the same with the loads of garbage will tend to minimize any objectionable odor emanating from the collection vehicle.

‘6. Ashes will have to be hauled from the incinerator to a dump. The ashes left from the burning process will amount to but a small percentage of the volume of material burned, will be quenched and not objectionable if properly handled. * * *

‘The plant is designed to include all of the facilities necessary to insure complete combustion of all of the material and to eliminate any possibility of smoke, odor or noxious gases. Provision is made for the proper handling of the material prior to and during its discharge into the furnaces and also the ash or residue remaining from the burning process. The plant is to be equipped with all of the mechanical features consistent with modern and sound engineering practice, such as an adequate ventilating system for the storage bins, the ash tunnel and, in fact, the entire building. Auxiliary fuel is provided for to insure complete combustion during wet seasons of the year. In fact it does not appear from the testimony that the design of the plant could be improved upon.'

The trial court held that the plaintiffs could not be harmed by the construction of such a plant and dismissed the bill of complaint. Plaintiffs appeal and contend that the building and operation of such a plant at the place above mentioned is a nuisance per se; that, where a nuisance per se is so definitely self-evident, an injunction should issue; and that the conveyance of garbage and rubbish through the streets and the concentration of the same in amounts of 450 tons per day constitute a nuisance per se.

Plaintiffs rely upon Barth v. Hospital Association, 196 Mich. 642, 163 N.W. 62, 64, where an injunction was granted to restrain the intended establishment of an insane hospital in a residential section of a city. We there said: ‘It would be folly to say that they would not be entitled to any relief until the asylum has been established. It must be conceded that the establishment of such an institution in close proximity to the residences of the plaintiffs, which are in a residential section of the city, would destroy the comfort, the well-being, and the property rights of the plaintiffs.'

During recent years we have had occasion to consider the subject of nuisances per se. The following cases were considered and declared not to be nuisances per se: A lumber yard and planing mill, Mackenzie v. Frank M. Pauli Co., 207 Mich. 456, 174 N.W. 161, 6 A.L.R. 1305; a public dance hall, People v. Schoonmaker, 241 Mich. 177, 216 N.W. 456; a stable where horses are kept, Shimberg v. Risdon Creamery Co., 215 Mich. 94, 183 N.W. 780; the business of selling and servicing automobiles, Lansing v. Perry, 216 Mich. 23, 184 N.W. 473; a gasoline filling station, Sandenburgh v. Michigamme Oil Co., 249 Mich. 372, 228 N.W. 707; a dry cleaning plant, Burdick v. Stebbins, 250 Mich. 665, 231 N.W. 57; a small coal yard, Daugherty v. Ward, 240 Mich. 501, 215 N.W. 526; a commercial garage, Moore v. johnson, 245 Mich. 173, 222 N.W. 120.

In the following cases injunctions were issued to abate a nuisance: The storage of 20,000 gallons of gasoline in tanks in a strictly residential neighborhood, Whittemore v. Baxter Laundry Co., 181 Mich. 564, 148 N.W. 437, 52 L.R.A.,N.S., 930, Ann.Cas.1919C, 818; the establishment of an insane hospital in a residential neighborhood, Barth v. Hospital Association, 196 Mich. 642, 163 N.W. 62; maintenance of...