Summary
stating that for spite fence to be abatable nuisance, "it should be distinctly alleged, not only that the structure complained of is entirely useless to the respondent, and without value to his property, but also that it was maliciously erected for the purpose of injuring complainant in the use and enjoyment of his property," with "no foundation for any inference of utility or advantage, real or fancied" to defendant
Summary of this case from Obolensky v. TrombleyOpinion
6 Div. 543.
June 22, 1922.
Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.
Rudulph Smith, of Birmingham, for appellant.
In bills for injunction, all matters essential to complainant's right to relief must be shown with accuracy and clearness. 130 Ala. 584, 30 So. 568; 75 Ala. 368. Jurisdiction of equity to restrain nuisances will be exercised only when there is a strong case of pressing necessity. 75 Ala. 510, 51 Am. Rep. 463; 95 Ala. 259, 10 So. 134; 138 Ala. 597, 36 So. 178, 100 Am. St. Rep. 53; 173 Ala. 182, 55 So. 793. The motion to dissolve the temporary injunction should have been granted. 137 Ala. 657, 35 So. 30, 97 Am. St. Rep. 69; 104 Ala. 130, 16 So. 131; 176 Ala. 381, 58 So. 283, 40 L.R.A. (N.S.) 129, Ann. Cas. 1915A, 714; 106 Ala. 546, 17 So. 706. Respondent had the right to erect the fence for the purpose of excluding noises, vapors, and fumes from complainant's plant. 95 Ala. 267, 10 So. 134; 123 Ala. 292, 26 So. 294; 148 Ala. 490, 42 So. 749; 147 Ala. 384, 41 So. 907, 8 L.R.A. (N.S.) 226, 119 Am. St. Rep. 89, 11 Ann. Cas. 285; 182 Ala. 335, 62 So. 677, 46 L.R.A. (N.S.) 642, Ann. Cas. 1915D, 776; 188 Ala. 658, 65 So. 967; 106 Mich. 649, 64 N.W. 569, 58 Am. St. Rep. 511; 106 Va. 171, 55 S.E. 546, 7 L.R.A. (N.S.) 349, 117 Am. St. Rep. 997, 10 Ann. Cas. 66; 4 Ann. Cas. 373; 176 Ala. 381, 58 So. 283, 40 L.R.A. (N.S.) 129, Ann. Cas. 1915A, 714; 107 Mich. 444, 65 N.W. 275, 61 Am. St. Rep. 344.
Andress Coffman, of Birmingham, for appellee.
Motion to dissolve the temporary injunction was properly overruled. Code 1907, § 4535; 191 Ala. 310, 68 So. 149. The bill had equity, and injunction properly issued. 176 Ala. 381, 58 So. 283, 40 L.R.A. (N.S.) 129, Ann. Cas. 1915A, 714.
In Norton v. Randolph, 176 Ala. 381, 58 So. 283, 40 L.R.A. (N.S.) 129, Ann. Cas. 1915A, 714, we held that a "spite fence," as there defined, is a nuisance which may be abated by injunction from a court of equity.
To bring a case within the principle there announced, we said that —
"it should be distinctly alleged, not only that the structure complained of is entirely useless to the respondent, and without value to his property, but also that it was maliciously erected for the purpose of injuring complainant in the use and enjoyment of his property."
In Norton v. Randolph, supra, the structure complained of was erected by the respondent on a vacant and unused lot, and on the face of the pleadings, upon which alone the case was considered, there was no foundation for any inference of utility or advantage, real or fancied, to the respondent.
So far as the bill of complaint here exhibited is concerned, we think it very clearly contains equity in two distinct aspects: (1) (Within the requirements stated in Norton v. Randolph) as a bill to abate or prevent a malicious structure which is injurious to the complainant, and of no advantage or value to the respondent; and (2) as a bill to abate or prevent a dangerous nuisance. Whether or not, in either aspect, it is subject to any special ground of demurrer, is a question not now before us.
The old rule that a temporary injunction would be dissolved almost as a matter of course upon the sworn denials of the answer, if full and specific, has been changed by section 4535 of the Code, and —
"conclusions for or against dissolution of injunctions will and must under the statute be treated here on review as any other finding of fact * * * upon a defined issue." Nelson v. Hammonds, 173 Ala. 14, 55 So. 301; Franklin v. Long, 191 Ala. 310, 68 So. 149.
Therefore, although the motion to dissolve the writ, as for want of equity in the bill, was properly overruled, it must nevertheless be considered on the issues of fact presented by the sworn denials of the answer and the affidavits pro et con, viz.: (1) Whether the fence, as planned, would in fact serve any useful purpose for respondent and his family in the legitimate use and enjoyment of their home premises, or whether respondent in good faith believed it would so serve, and resorted to it for that purpose and not merely to injure complainant; and (2) whether, when completed in the manner shown, it would be so likely to fall against complainant's building, and injure it or its occupants, as to endanger their safety.
On the first proposition, we are more than reasonably convinced that the structure planned will be of some service to respondent in deadening the noises incident to the operation of complainant's plant on the lot adjoining, and that it will be of substantial service in securing the privacy of his premises against the close-up view of the numerous persons who will be employed in the adjoining building, or who will resort there in the course of its business operations. This being true, the court will not undertake to measure the quantum of the benefit that may result, and will decline to interfere, even though respondent's action is not unmixed with a spirit of retaliation and a purpose to injure complainant. In such a case, though damage may result, there is no legal wrong.
As to the second proposition, we are convinced that the structure which respondent shows he intends to build will not menace the safety of complainant's building or the security of those who may occupy it, at least not for a long time to come. If, after its erection it should appear to be, or should become, a dangerous nuisance, it will then be time enough to invoke the injunctive aid of equity. McHan v. McMurry, 173 Ala. 182, 55 So. 793.
On the record before us we think that the trial court erred in overruling the motion to dissolve an answer and proof, and a decree will be here rendered granting the motion and dissolving the temporary writ of injunction.
Reversed, rendered, and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.