Robichaux v. Huppenbauer , 258 La. 139 ( 1971 )

SUMMERS, Justice.

Plaintiffs are two neighboring property owners and two tenants all occupying dwellings near defendant Huppenbauer’s horse stable located at 1618 Annette Street in the city of New Orleans. This suit was brought to • permanently enjoin defendant from operating the stable or keeping horses on the premises. After trial, judgment was rendered enjoining defendant as prayed for. On appeal to the Fourth Circuit the judgment was affirmed. 231 So.2d 626. On defendant’s application we granted certiorari limited to the contention that the Court of Appeal erred “in applying a positive injunction totally prohibiting defendant’s operations, instead of limiting them in scope or manner.” 256 La. 64, 235 So.2d 94.

Defendant uses the stable in connection with his business of providing horse drawn carriages for hire by tourists in the historic French Quarter or Vieux Carre Section of the city. The stables are about one mile from the French Quarter. These carriages are vestiges of a bygone era adding color and character to a section which is one of the city’s outstanding attractions to visitors and tourists. Fifteen men are employed in the business of maintaining the horses at the stables and driving the carriages. The stable has been in operation for many years, even beyond the memory of the participants at the trial.

The lot, where the stable is located and where the horses are kept, has a frontage of 32 feet on Annette Street and runs 90 feet back into the block. All but 15 feet of this front portion is occupied by a dwelling house in which one of defendant’s employees resides, the fifteen foot strip being used as a driveway. Behind this front portion the lot widens to 64 feet and extends back an additional 100 feet into the block. The horses are principally stabled, fed, washed and exercised on this 64 by 100 foot section.

For a short time prior to acquiring the stables in July 1968, defendant kept horses there under arrangement with the owner. When he acquired the property in August 1968, however, the Director of the Bureau of Public Health Sanitation, Charles J. Miramon, filed an affidavit charging violations of city ordinances regulating the harboring of rats and the removal of manure. At that time, according to Miramon, the stable did not comply with the standards prescribed by the Bureau, and it was a health menace.

Later, in September and October 1968, while these charges were pending in the Municipal Court, defendant’s stable was inspected by James Bryant and Harold Clark, Sanitarians in the Bureau of Public Health, who found the stable free of any condition violative of the city’s ordinances or their regulations. On the basis of these inspections, the charges were dismissed.

This suit for injunction was then filed and the case was tried on February 27, 1969, resulting in the injunction. Plaintiffs’ petition charges that the use of the premises at 1618 Annette Street as a stable results in the deposit of manure on the lot which is responsible for nauseous odors, flies and insects and creates a stench, all of which infest the neighborhood and permeate the houses nearby.

At the trial, plaintiffs’ witnesses, who lived very near the stable, some as close as four feet, testified that from eight to eighteen horses are kept there. Rats and flies, particularly horseflies, breed in the manure and urine deposited by the animals. These pests are prevalent on the lot and swarm onto the adjoining property endangering the health and destroying the peace and tranquility of plaintiffs’ homes. Noxious odors remain in the neighborhood. At times the horses drop manure on the street and sidewalk as they move to and from the stable. And when it rains the manure runs from beneath the gate of the horse lot onto the sidewalk and into the gutters in front of the nearby houses. The departure and arrival of the carriages, waste disposal vehicles and the animals cause noises and disturb the plaintiffs’ sleep and repose.

Plaintiffs rely upon Article 669 of the Civil Code to support their claim that the nuisance resulting from the stable should be abated. That Article must be read with' Articles 666, 667 and 668.¹ Article 666 declares that the law imposes upon the proprietors various obligations towards one another, independent of all agreements. Those obligations are prescribed in subsequent articles of the Code. • Article 669, upon which plaintiffs rely, provides:

If the works or materials for any manufactory or other operation, cause an inconvenience to those in the same or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place.

Regrettably the present version of Article 669 deleted “the other different inconveniences which one neighbor may cause to another” which appeared in the corresponding article of the Code of 1808. If this omitted language had been incorporated in Article 669 we could say that all of the inconveniences complained of in this case are covered by Article 669. As it is, however, only one of the several grounds alleged as a basis for the injunction — -nauseous smells — is mentioned in the Article. We would prefer to say that smoke and smell are merely illustrative, but in view of the omission in the present Code of any reference to “other inconveniences” serious doubt must be entertained that smoke and smell are mere illustrations of inconvenience. The implication from the change is that the Article’s effect must be confined to smoke and smells. What the Article means, as we understand it, is that no servitude is imposed upon the neighboring properties insofar as smoke or nauseous smells are concerned, those matters being left to the regulation of the police or custom.

Thus, whereas Article 667 and the articles which follow impose reciprocal servitudes or restraints upon neighboring properties respecting the making of works which may damage a neighbor, Article 668 makes it clear that while the liberty to do what one pleases on his own ground does not mean that a neighbor may be damaged, some inconvenience may result to a neighbor from the use of one’s property which the law does not reprobate. The Article illustrates by referring to buildings which impair a neighbor’s light as being a mere inconvenience a property must expect to suffer from a neighbor’s free use of his own.

In substance the Article relied upon only partially applies here — to nauseous smells —and then only to the extent of declaring that, as to this, no servitude is established by the Code on neighboring properties, resort being necessary to police regulation or custom to ascertain the extent to which nauseous smells must be endured. Cf. Planiol, Vol. 1, Nos. 2906, 2908; Aubry et Rau, Property § 194 et seq.

The principle is clearly stated in Aubry et Rau, supra, as follows:

Although in principle it is not prohibited to cause nuisances to a neighbor by noise, smoke, gases, steam, radiation, tremors, dttst or odor, such a damage becomes illegal when the source exceeds certain intensity. Until then no claim is possible for one cannot expect to live in a group without causing some inconven- • ience to neighbors.

Despite the apparent failure of these articles to deal explicitly with the standards to be followed in operations which may cause inconvenience tn neighboring property or the failure of these articles to more comprehensively enumerate the “other inconveniences”, they have nevertheless been employed by this Court together with the common-law theory of nuisance to grant relief where a use of property causes inconvenience to a neighbor.

The existence of a remedy under the city’s health ordinances, as here, does not deprive the affected neighbor from bringing an action in damages before the Courts. Pendoley v. Ferreira, 345 Mass. 309, 187 N.E.2d 142 (1963); Aubrey et Rau § 194 et seq.

Thus the principle is enunciated in the cases that within reasonable limits the individual citizen has to submit to some annoyance and inconvenience from the legal exercise of the rights of others. Courts, therefore, will require strict proof that the activity carried on is of sufficient intensity, annoyance and inconvenience that he who causes it has created a nuisance which must be abated. State ex rel. Violett v. King, 46 La.Ann. 78, 14 So. 423 (1894).

Thus noxious smells, rats, flies and noise may constitute an actionable nuisance although produced and carried on by a lawful business, where they result in material injury to neighboring property or interfere with its comfortable use and enjoyment by persons of ordinary sensibilities. McGee v. Yazoo & M.V.R. Co., 206 La. 121, 19 So.2d 21 (1944).

Nuisances by their nature are nuisances per se or at law, and nuisances per accidens or in fact. A nuisance at law or a nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Nuisances in fact or per accidens are those which become nuisances by reason of circumstances or surroundings.

In the case of a nuisance per se, the thing becomes a nuisance as a matter of law. Its existence need only be proved in any locality and the right to relief is established by averment and proof of the mere fact. But whether a thing not a nuisance per se is a nuisance per accidens or in fact depends upon its location and surroundings, the manner of its conduct, or other circumstances. In such cases, proof of the act and its consequences is necessary. Borgnemouth Realty Co. v. Gulf Soap Corporation, 212 La. 57, 31 So.2d 488 (1947). See also 39 Am.Jur., Nuisances, § 11; 66 C.J.S. Nuisances § 3.

A stable used for horses and other animals is not a nuisance per se. Simonetti v. Carlton, 17 Ala.App. 105, 82 So. 553 (1919). Whether any particular stable is or is not a nuisance is essentially a question of fact, in the determination of which, the stable’s location, its construction, and the manner in which it is conducted are elements to be considered. Hill v. Battalion Washington Artillery, 143 La. 533, 78 So. 844 (1918); Oehler v. Levy, 234 Ill. 595, 85 N.E. 271 (1908); Taulbee v. Miller, 225 Ky. 516, 9 S.W.2d 296 (1928); Francisco v. Furry, 82 Neb. 754, 118 N.W. 1102 (1908).

Hence a stable in close proximity to a residence, in a residential section of the city, and kept in such a condition that it is unsanitary, and from which noxious and offensive vapors, fumes, smells, odors, and stenches arise during a period of twelve months, and enter into and spread and diffuse themselves over the adjoining residential property, is such a nuisance as will sustain an action. Simonett v. Carlton, supra.

The record satisfactorily demonstrates, and it is conceded, that the maintenance of defendant’s stable is not prohibited by any law, property restriction or zoning regulation, and it is not a nuisance per se on this account. The record also supports the conclusion that the stable is a nuisance because of the manner in which it is operated. However, we have not been shown that it is impossible to maintain this horse lot and stable in such a manner as to free it from the complaints which the plaintiffs make, therefore we will not abate the business entirely. Francisco v. Furry, 82 Neb. 754, 118 N.W. 1102 (1908). Instead we will permit defendant to continue his operations under the following mandates, restrictions and injunctions:

Spray ground and premises generally and thoroughly with a disinfectant and deodorizer, approved by the local health authorities, at such intervals as may be prescribed by those authorities.

Dispense rat poison at strategic locations about stables, sheds and bins and renew weekly.

Feed bins should be covered and so constructed as to deny rodents access to feed.

Remove all manure and other waste daily.

Limit the number of horses using the lot and stables to ten.

Keep the premises properly drained to prevent water from standing there.

For the reasons assigned, this matter is remanded to the trial court where an injunction, mandatory and prohibitive, shall issue against defendant without delay in accordance with the mandates and restrictions enumerated above. The judgment, order and decree so issued shall prescribe compliance therewith by defendant within two weeks, failing in which he shall be subject to punishment for contempt of court, all in accordance with law. The right of plaintiffs to renew their complaints if compliance by defendant proves unavailing to abate the nuisance is reserved. Tucker v. Vicksburg S. & P. R. Y. Co., 125 La. 689, 51 So. 689 (1910); Hill v. Battalion Washington Artillery, 143 La. 533, 78 So. 844 (1918).

BARHAM, J., concurs and will assign written reasons. HAMLIN, J., dissents, being of the opinion that the result reached by the Court of Appeal is correct. TATE, J., dissents and assigns written reasons.

1 . La. Oivil Code arts. 666, 667 & 668:

Art. 666:

“The law imposes upon the proprietors various obligations towards one another, independent of all agreements; and those are the obligations which are prescribed in the following articles.”

Art. 667:

“Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

Art. 668:

“Although one be not at liberty to make any work by which his neighbor’s buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.

“Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbors’s [neighbor’s] house, because this act occasions only an inconvenience, but not a real damage.”