Washington Lodge, No. 54, I. O. O. F. v. Frelinghuysen , 138 Mich. 350 ( 1904 )

Grant, J.

(after stating the facts). One ground of complaint is that by means of fans in the window of the hotel kitchen, opposite the complainant’s building, disagreeable odors are forced into the alley, and across it into the rooms of the complainant.

The covered passageway does not cause these unpleasant odors. If forcing them from the kitchen into the alley is a nuisance to the complainant or to others, it can easily be abated by the erection of a ventilator or some other means. The defendant may be compelled to abate the nuisance of obnoxious odors, but should not be compelled to take down this passageway, at irreparable damage to property, even though it may, to some degree, tend to retain in the alley the odors which are emitted from the kitchen, when the wind is in a certain direction. This ground of complaint can therefore be eliminated from the case.

The other ground for complaint is that the passageway interferes to some extent with light and the free circulation of air in the alley, thereby affecting the ventilation of the rear of the complainant’s building. The first story of its building is occupied as a dry goods store, whose occupant does not complain; the second story, for offices and rooms for society purposes in the rear. The third floor is used entirely for society purposes, and on the fourth floor there is a hall in front, committee rooms, and dining room, with a kitchen in the rear. In the rear are also situated toilet rooms, water-closets, and an ash chute. The upper stories are occupied mainly for meetings in the evening. In the winter time the windows are closed, and the ventilation is not affected by the passageway.

The complainant, through its officers, were fully informed of the character of this building at the time plans were made for its erection, and while it was being erected. Defendant, by petition, applied to the common council for permission to construct this passageway across.the alley, and permission was granted. It was placed at a sufficient height to permit the passage underneath of fire engines and all ordinary vehicles which could be used in the business of those whose property abuts upon the alley. The then president of the complainant expressed his approval of the erection of the hotel. It is manifest that the officers of the complainant desired its erection. It supplanted an old building three or four stories high. It was believed that it would increase the value of the complainant’s and other property in the vicinity, and that it did so is beyond question. It was then known that upon the land east of the alley was to be erected the hotel, with its offices, sleeping and dining rooms, and that across the alley was to be located the kitchen. There is no room for a kitchen in the building on the east of the alley. If compelled to tear down this passageway, it would mean virtually the abandonment of the property as a hotel, and cause large and, irreparable damage. It is not constructed for or adapted to any other purpose. Complainant’s property is assessed at 137,000, while that of the defendant exceeds in value several times that amount.

For 12 years the complainant kept silent and acquiesced in the erection and continuance of this structure. Only when the defendant was about to extend this superstructure one story in height on the south of the present structure did it make complaint. It evidently did not then make complaint because the additional structure proposed would create any additional injury, for it evidently does not. It creates no greater interference with light or the circulation of air than does the old one.

This case is controlled by the principle enunciated in Edwards v. Mining Co., 38 Mich. 49, where the court said:

“An injunction is not a process to be lightly ordered in any case. Where the effect will be to present to the owners of a valuable mill the alternative either to purchase complainant’s lands at his own price, or to sacrifice their property, any court having the power to order it ought very carefully to scrutinize the case and make sure that equity requires it. In theory its purpose is to prevent irreparable mischief. It stays an evil the consequences of which could not adequately be compensated if it were suffered to go on.” Citing many authorities.

In that case the mining company had erected a large ■stamp mill—probably not so expensive as the hotel property in question here—upon a stream running through Mr. Edwards’ land, or land that he purchased after the mill was erected. The stamp sand was carried downstream and deposited upon his land. It was held that equity would leave him to his remedy at law.

Lord Camden, in Smith v. Clay, Ambl. 645, decided in 1767, and more complete report in a note to Deloraine v. Browne, 3 Brown’s Ch. 633, in 1792, said:

“A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands where the party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive and does nothing.”

The complainant’s claim is that the defendant must now tear down her passageway, ruin her property for the purpose for which- it was constructed, and cause her irreparable damage, in order that it may obtain a little light and air. The proposition does not appeal with any force to a court of equity and conscience. Complainant should have spoken sooner. It will not be heard to now invoke the conscience of a court of equity, but will be left to its remedy, if it has one, in a court of law.

This disposal of the case renders it unnecessary to determine the question of the rights of abutting property holders in the alley. No other property holder is here complaining, and it does not appear that any other one can possibly be damaged by this passageway.

Decree affirmed.

The other Justices concurred.