Warren v. Cavanaugh

• Citation: 33 Mo.App. 102
• Parties: SAMUEL D. WARREN, Appellant, v. DANIEL CAVANAUGH, Respondent.
• Decision Date: 27 November 1888
• Court: Court of Appeal of Missouri (US)

33 Mo.App. 102

SAMUEL D. WARREN, Appellant, v. DANIEL CAVANAUGH, Respondent.

Court of Appeals of Missouri, St. Louis.

November 27, 1888

Appeal from the St. Louis City Circuit Court. --HON. JAMES A SEDDON, Judge.

AFFIRMED.

Smith P. Galt, for the appellant.

The quarry was not opened until the stone was reached and quarried, which was two months after the dwelling-house on lot 2 was erected and occupied. As the opening of the quarry and working it, within three hundred feet of the dwelling-house, without the consent of the occupant thereof was a violation of the city ordinance, and therefore illegal and wrongful, and was an irreparable and continuous damage to plaintiff's property, plaintiff can maintain an injunction to restrain it, notwithstanding the fact that he bought lot 2 and erected the dwelling thereon with the intent and purpose of stopping the proposed quarry. Jerome v Ross, 6 Johns. Ch. 341; Sparhaw v. Railroad, 54 Penn. 401; Aldrich v. Howard, 7 R.I. 87; Railroad v. Railroad, 69 Mo. and cases cited therein; Smith v. Lockwood, 13 Barb. 217.

Boyle, Adams & McKeighan, for the respondent.

The law is well settled that courts of equity will not, by injunction or otherwise, restrain the doing of a thing which is not a nuisance per se or at common law, but which is only unlawful or a nuisance by reason of an ordinance or regulation of city or town. Village v. McFarland, 33 Mich. 72; Trustees v. Moore, 34 Wis. 450; Mayor v. Thorne, 7 Paige 261; Phillip v. Allen, 44 Pa.St. 481. Appellant did not and does not rely on the stone-quarry in question being a nuisance in fact, but bases his right to an injunction solely on the ordinance, and successfully objected at the trial to the respondent showing that the quarry had not been, and would not become, a nuisance. If the appellant had desired to base his action on a claim that the respondent's quarry was or would become a nuisance in and of itself, it was necessary for him to have set forth the facts and circumstances which made the quarry such a nuisance. Adams v. Michael, 38 Maryland, 123. Equity will not restrain the keeping of an unlicensed dramshop, although the keeping of it is a public nuisance. State ex rel. v. Walsburg & Uhrig, 14 Mo.App. 413. A nuisance cannot be abated in a private suit, or be enjoined against, except so far as the plaintiff is specially damaged. Gay v. Tel. Co., 12 Mo.App. 485. A court of equity will not enjoin that which is made a nuisance by the policy of the law. Sparback v. Railroad, 54 Pa.St. A court of equity does not grant so harsh and rigorous a remedy as injunction upon mere speculative results. The injury must be a substantial and not a technical or speculative one. Bigelow v. Bridge Co., 14 Ct. 565. The appellant does not bring himself even technically within the ordinance. The respondent had begun to open his quarry before appellant's shanty had begun to be removed. A court of equity will not grant an injunction where a summary remedy is provided by law for the abatement of an alleged nuisance by municipal authority. 1 High, sec. 745. This power is expressly granted to the mayor of the city by subdivision 6 of section 26, p. 1526, Revised Statutes, Scheme & Charter.

OPINION

PEERS J.

This is a proceeding to enjoin the defendant from opening and working a stone-quarry on certain lots in the city of St. Louis, as the opening and working, as alleged in the petition, is without the consent in writing of the occupant of either of the two dwelling-houses owned by plaintiff and situated within three hundred feet of said proposed quarry, and without the defendant having obtained permission from the city of St. Louis so to do, by proper ordinance, and the same will be an irreparable injury to plaintiff's lot 2, which adjoins another lot upon which plaintiff's dwelling-house is situated, and also to other real estate belonging to plaintiff, and is and will be a violation of sections 372 and 373, of city ordinance No. 14,000, approved April 12, 1887, as follows:

" Section 372. Hereafter no stone-quarry shall be opened or brick-kiln located, or soap-factory, slaughter house, bone or rendering factory erected, within the distance of three hundred feet of any dwelling-house, built and inhabited before such opening, location or erection, without first having obtained permission so to do from the municipal assembly by proper ordinance. Any person, company of persons, firm or corporation, violating any or either of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof be fined not less than one hundred, nor more than five hundred dollars.

Section 373. It shall not be lawful for any person, company of persons, firm or corporation, to work a stone-quarry, or operate a brick-kiln, or carry on a soap-factory, slaughter-house, bone or rendering factory, opened, located or erected, after the passage of this article, within the distance of three hundred feet of any dwelling-house built and inhabited before such opening, location or erection, without the consent in writing of the owner and occupant or occupants of every such house. Any person, company of persons, firm or corporation, violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than twenty-five dollars for each and every such stone-quarry, brick-kiln, soap-factory, slaughter-house, bone or rendering factory worked, operated or carried on without such consent."

The answer was as follows: " Now comes the said defendant and for answer denies each and every allegation in the plaintiff's petition contained. Said defendant states that after he had bought the premises referred to in plaintiff's petition for the purpose of opening a stone-quarry, and had taken possession of, located, and opened a stone-quarry on the same, the plaintiff, contriving and intending to interrupt and prevent defendant from the said lawful use of said premises, all of which was well known to plaintiff, purchased and had conveyed to him lot 2 of Ewing's subdivision of lot 14, described in the petition herein, and built a cheap structure or shanty thereon at a cost of not to exceed fifty dollars, into which he put a tenant for temporary purposes, which shanty defendant says is less than three hundred feet from his said quarry. Defendant says that said purchase of land by plaintiff and said erection of said shanty and the putting of a tenant therein were all done and continued by plaintiff in bad faith to make a colorable habitation and occupation temporarily for the purposes of this suit, and to prevent, if possible, defendant from enjoying the use of said premises for the specific lawful objects for which he purchased them, and for a purpose not constituting a nuisance in law or equity, and which, if in violation of an ordinance of the city of St. Louis, an ample remedy at law is provided by authority conferred by law on the city authorities of St. Louis to abate the same." Wherefore having fully answered said defendant asks to be hence discharged with his costs.

The reply was a general denial to new matter set up in the answer.

There is scarcely any dispute in the testimony, and the facts appearing in the record are as follows: The last of June 1887, plaintiff heard that Farrelly was about buying lots B., E. and C. for the defendant to open a stone-quarry on; plaintiff, knowing that a stone-quarry would depreciate the value of his residence property situated south of said...