State ex rel. Dema Realty Co. v. McDonald

• Decision Date: 25 February 1929
• Docket Number: 29609
• Citation: 168 La. 172,121 So. 613
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. DEMA REALTY CO. v. McDONALD et al

121 So. 613

168 La. 172

STATE ex rel. DEMA REALTY CO. v. McDONALD et al

No. 29609

Supreme Court of Louisiana

February 25, 1929

Rehearing Denied March 25, 1929

Appeal from Civil District Court, Parish of Orleans, Division D; M M. Boatner, Judge, acting for Walter L. Gleason, Judge.

Suit by the State, on the relation of the Dema Realty Company against Francis C. McDonald and others. A preliminary injunction was granted, and defendants were granted a suspensive appeal.

Affirmed.

Legier, McEnerny & Waguespack, of New Orleans, for appellants.

Deutsch & Kerrigan, of New Orleans, for appellee.

THOMPSON J. ROGERS, J., dissents. BRUNOT, J., dissents. O'NIELL, C. J., dissent.

OPINION

THOMPSON, J.

The relator owns certain real estate located at the corner of Baronne and Bordeaux streets in this city.

The defendants own the property No. 4803 Baronne street, which is likewise situated at the intersection of Baronne and Bordeaux streets, diagonally across from the property of plaintiff.

The defendants are now using, and have for a great many years used, their property as a retail grocery store. The property was so used long before the plaintiff acquired its property.

In March, 1927, the zoning ordinance No. 9651 was adopted which prohibited the establishment or maintenance of all businesses of every kind and character in a certain area therein defined, and providing that all businesses then in operation within said area should be liquidated within one year from the passage of the ordinance.

The area thus defined and established as a residential district included the property owned by the plaintiff and the defendants.

The defendant failed or refused to comply with the terms and conditions of the ordinance, and, the city having failed to take any civil action, the relator applied for a writ of injunction.

A rule nisi was issued, and on a hearing a preliminary injunction was granted.

The defendants were granted a suspensive appeal from that judgment.

It is alleged in the petition that the continuing violation of the ordinance is a constant public nuisance, particularly to relator, who owns the property before mentioned, and that the conduct of the said business by the defendants in violation of said ordinance deprives relator of the protection to which it is entitled thereunder, and is injurious and detrimental to the property rights of relator, in that the said acts depreciate the value of relator's property for residential purposes.

The first and primary defense interposed is by way of an exception of lack of interest and of no cause of action, in support of which it is argued that plaintiff has failed to prove that defendant's store is a nuisance, and has failed to prove that the plaintiff has been seriously damaged by the continued operation of the store.

In reply to the first contention we take it to be well settled that any business operated or maintained in violation or in defiance of a zoning ordinance is to be regarded as a public or common nuisance.

In the City of New Orleans v. Liberty Shop Case, 157 La. 26, 101 So. 798, 40 A. L. R. 1136, the business of dealing in ladies' wearing apparel in an exclusive residence district, in violation of a zoning ordinance, was held to be a public nuisance.

"The zoning ordinance in this case does not, in terms, declare that the proscribed business establishment shall be deemed a nuisance. But the declaration that the establishment is unlawful, and that the proprietor shall, on conviction, be punished by fine or imprisonment, etc., is the same as to say that the establishment shall be deemed a nuisance. Surely it would add nothing to the meaning or purport of such an ordinance, if in terms it declared that a business establishment in the residence district should be deemed a nuisance."

And in the State ex rel. Civello v. New Orleans Case, 154 La. 283, 97 So. 444, the court said:

"Aside from considerations of economic administration, in the matter of police and fire protection, street paving, etc., any business establishment is likely to be a genuine nuisance in a neighborhood of residences."

It will not do to say, therefore, that the operation of the store by the defendants after the time fixed by the ordinance for them to liquidate and to cease carrying on the grocery business within the residential district was not a common and public nuisance.

It is conceded by defendants that an action by the local authorities would lie to abate the grocery store as a public nuisance. Section 8, Act 240 of 1926.

In the Liberty Shop Case, referred to supra, we said:

"But, if the wrong complained of is injurious to property interests or civil rights, or if it is a public nuisance, either in the opinion of the court or in virtue of a statute or an ordinance making it a nuisance, the fact that it is also a violation of a criminal statute or ordinance does not take away the authority of a court of civil jurisdiction to prevent the injury or abate the nuisance."

We think we have clearly shown that the business of defendant continued in violation of the zoning ordinance is in fact and in law a public nuisance, and that the public authorities are vested with power to cause such nuisance to be abated.

The question then recurs, Has an individual owning residential property in the zoned district a right of action to abate such nuisance where the authorities have failed or refused to do so?

The rule is well settled and universally recognized that a public nuisance may under certain conditions and circumstances become a private nuisance -- public in its general effect upon the public -- private as to those who suffer a special or particular damage therefrom apart from the common injury.

Joyce in his work on Nuisances, p. 22, declares that there is no difference in principle between a condition which is called a private, and one which is called a public, nuisance; the constituents of both being the same.

"It is not the number who suffer which constitutes an exclusive test, but the nature of the right affected which determines whether private or public action will lie; for the fact that numbers are injured does not make the nuisance such a common one as to exclude redress by private remedy from a single individual."

"Nor is there in this respect any difference in the nature or character of the thing itself; that which is a public nuisance and which annoys the public generally or invades its rights, constitutes a private nuisance where an individual, or class of individuals, sustains as such, a special injury as distinguished from that sustained by the public, and redress in such case exists by way of private remedy."

The doctrine that a nuisance may be both public and private has been repeatedly recognized in the jurisprudence of this state.

In Blanc v. Murray, 36 La.Ann. 162, 51 Am. Rep. 7, it was said:

"If a nuisance is susceptible of being both public and private, and is so to such an extent that an individual right is violated, then the private remedy is permissible, even though the result might be to open the door to a multiplicity of suits."

In the case of Koehl v. Schoenhausen, 47 La.Ann. 1316, 17 So. 809, the court said:

"Such nuisances disturbing individuals in the enjoyment of their property injurious to their rights and interfering with their peace and comfort may be abated at the suit of the parties affected although the nuisances prohibited by law and the ordinance are within the police power to suppress."

Again, in Barrow v. Gaillardanne, 122 La. 588, 47 So. 891, it was said:

"The fact that a particular act constitutes a public nuisance does not deprive an individual who suffers a special injury therefrom from having recourse to a private remedy to have it abated."

The above case quoted with approval from Crescent City Live Stock & Slaughter House Co. v. Larrieux, 30 La.Ann. 798, as follows:

"The doctrine of our law is, and, so far as we know, without an exception, that a party whose rights are invaded may invoke the aid of the courts to prevent any act which, if done, would entitle him to damages."

It was at one time said (State ex rel. Blaise v. City of New Orleans, 142 La. 73, 76 So. 244) that business establishments could only be prohibited in residence districts from purely aesthetic considerations, since the city charter did not authorize the city to prohibit business...