Deevers v. Lands , 220 Mo. App. 50 ( 1926 )

^* Corpus Juris-Cyc. References; Nuisances, 29Cyc. p. 1157, n. 32; p. 1166, n. 99, New; p. 1185, n. 76; p. 1187, n. 85; p. 1188, n. 89; p. 1219, n. 21; p. 1242, n. 99; p. 1244, n. 29; p. 1247, n. 48; p. 1250, n. 78. Plaintiff brought his suit in equity to abate and enjoin the maintenance of an alleged nuisance. The parties to the action are residents of the city of Cape Girardeau, Missouri, and plaintiff owns and occupies a residence on South Sprigg street, and the defendant, Lando, holds a contract for the purchase of a lot on South Sprigg street immediately opposite that of plaintiff's home, on which lot said Lando permitted defendants, Brown and Daume, to erect, maintain and operate a barbecue stand. The barbecue stand is the object of the attack. After a hearing the court entered the following decree:

"Now on this day, this cause having come on to be heard upon the pleadings and evidence adduced; and having heretofore been argued by counsel for the respective parties, and the court having duly considered the same with the evidence adduced doth find the issues herein joined for the plaintiff and against the defendants, George Brown, Martin Daume, and John Lando and that since March 19, 1925, the defendants George Brown and Martin Daume, have erected maintained and operated upon lot eight (8) in block three (3) of Giboney Houck's Fourth Sub-division, in the city of Cape Girardeau, county of Cape Girardeau, State of Missouri, described in plaintiff's petition and located directly across the street from the residence of said plaintiff, which he occupies as his home with his wife and children, a barbecue stand or lunch stand in a one story frame shack of the value of about two hundred dollars ($200); that the neighborhood in which said barbecue stand has been erected and operated by said defendants is otherwise used exclusively for residence purposes; that as a result of the operation of said stand by said defendants, smoke, gases, burning grease odors and fumes in great volume are almost daily generated and carried by prevailing winds upon the property and into the house of plaintiff to the serious discomfort of plaintiff and his family; that the defendants George Brown and Martin Daume cook or barbecue meats over an open bed of live coals upon which the grease from the meat drops and is burned, causing an offensive odor of burning grease to come out of said stand, which offensive odor is carried over and upon the premises of plaintiff and into his house, seriously injuring the health of plaintiff and his family and interferes with the reasonable comfort of plaintiff and his family in their own home, and that the cooking of meat and other food products in this manner and in this building constitutes a nuisance when conducted in a neighborhood used exclusively for residence purposes; that said stand is kept open by said defendants until about midnight each evening; that the stand is heavily patronized each evening until a late hour and the stopping and starting of cars cause noise and confusion of traffic on the street in front of plaintiff's house, preventing him and his family from sleeping until a late hour each night; that the location of said stand on the lot across the street from plaintiff's house materially reduces the market value of plaintiff's property; that the maintenance and operation of said stand by said defendants in the immediate vicinity of plaintiff's residence is a nuisance and deprives plaintiff and his family of the reasonable and comfortable enjoyment of their property as a home; that if said nuisance is not abated the health of plaintiff and his family will be seriously affected and plaintiff's property will be seriously and permanently damaged in value for use as residence property and that an adequate remedy cannot be afforded plaintiff in an action at law for damages.

"And the court further finds that the defendant, M.E. Leming, is the record owner of lot eight (8) in block three (3) of Giboney Houck's Fourth Sub-division in the city of Cape Girardeau, county of Cape Girardeau and State of Missouri, and that defendant John Lando holds a contract for the purchase of said lot from defendant M.E. Leming, which contains the following provisions:

``This lot is sold for residence purposes only and it is further agreed that no saloon or place of selling intoxicating liquors shall ever be erected or maintained on this lot, and that no part of said lot shall ever be used for a livery stable, public stock yard or slaughter house, and no dwelling shall be erected that costs less than one thousand dollars ($1000) when completed, and no part of which shall be nearer the front lot than twenty (20) feet, without the written consent of the seller;' that the said John Lando permitted defendants, George Brown and Martin Daume to enter upon the lot hereinabove described and to continue thereon for the purpose of erecting, maintaining and operating said barbecue stand over the objection of the plaintiff; that plaintiff in due time made demand upon defendants George Brown, Martin Daume and John Lando to cease the maintenance and operation of said barbecue stand which demand was by said defendants refused.

"The court further finds that the defendant, M.E. Leming had nothing to do with the erection, maintenance or operation of said barbecue stand.

"Wherefore, the premises considered it is ordered, adjudged and decreed by the court that the defendants, George Brown, Martin Daume and John Lando, their agents, servants and employees be and they are hereby enjoined, restrained and prohibited from the further maintenance and operation of a lunch stand commonly known as a barbecue stand upon the lot herein described or in the immediate vicinity thereof and that the building in which said stand is operated be removed from said lot and the vicinity of plaintiff's house, on or before the 1st day of March, 1926, and that plaintiff recover of and from said defendants, George Brown, Martin Daume and John Lando his costs in this behalf expended.

"It is further ordered, adjudged and decreed by the court that the defendant, M.E. Leming be relieved of liability herein and that he go hence without day."

After unavailing motions for new trial and in arrest of judgment the defendants, Lando, Brown and Daume bring this appeal.

After a careful examination of the testimony as disclosed by the record we are not disposed to disturb the finding of facts by the chancellor below as they appear set out in the decree, supra. Whilst there was conflict of testimony as to certain facts material to the issues herein, the weight of the evidence supports the finding of facts of the chancellor below, and after a careful review of all of the testimony as disclosed by the record we adopt the said finding of facts as our own.

It no longer needs citation of authorities in stating the rule as to private nuisances, courts of equity have the power to afford full and complete relief, provided it is clearly established that the private nuisance exists.

Plaintiff's action clearly seeks to abate a private nuisance as distinguished from a public nuisance, and therefore it is not necessary either to allege or prove any special damage. [Smiths' v. McConathy, 11 Mo. 517; Baker v. McDaniel, 178 Mo. 447, 77 S.W. 531.]

The corruption of the atmosphere by the exercise of any trade, or by any use of property that impregnates it with noisome stenches, has ever been regarded as among the worst class of nuisances, and the books are full of cases in which any use of property producing these results has been regarded as noxious and a nuisance, whether arising from the exercise of a trade or business, or from the ordinary or even necessary uses of property. [Wood, Nuisances (3 Ed.), sec. 561.] In section 10, the same author says: "No man is at liberty to use his own property without reference to the health, comfort or reasonable enjoyment of like public or private rights by others. Every man gives up something of his absolute right of dominion and use of his own, to be regulated or restrained by law, so that others may not be hurt or hindered unreasonably in the use or enjoyment of their property. This is the fundamental principle of all regulated cival communities and without it society could hardly exist, except by the law of the strongest. This illegal, unreasonable and unjustifiable use to the injury of another, or of the public, the law denominates a nuisance."

Concede that the operation of a barbecue stand is not a nuisance per se. However, when the prosecuting of a barbecue stand, though a business of itself lawful, is conducted in a neighborhood given over wholly to residences and renders the enjoyment of it materially uncomfortable by the smoke, noise or offensive odors produced by it, the carrying on of such business in that locality may be held a nuisance and restrained by injunction. See Ross v. Butler, 19 N.J. Eq. 294, where an exhaustive review of the principal cases is to be found.

"A man's home is his castle, and he should be as much entitled to protection against foul stenches, loud and unusual noises, and the torment of flies which cause physical discomfort and suffering as against the armed invader who would plunder and destroy. The difference is one of degree only." [McCracken v. Swift Co. (Mo. App.), 250 S.W. 953.]

In the case of Bielman v. Rys. Co., 50 Mo. App. 151, in the course of the opinion the court said:

"It is well understood that everyone has the right to the reasonable enjoyment of his own property, and so long as the use to which he devotes it violates no right of another, no one has a right to complain. But as to what is a reasonable enjoyment of one's property is determinable by the circumstances in each case. What would be lawful and reasonable in one case or in one locality would be unlawful and unreasonable in another."

And further on in the opinion speaks with approval of Craven v. Rodenhauser, 21 A. 774, as follows:

"The evidence fully justified the finding of the master that defendant's carpet-cleaning establishment was a nuisance. While such establishments are not necessarily nuisances, or nuisancesper se, they may yet become so by reason of their location. It is necessary to have carpets cleaned, and this involves a place where such work may be done, but care should be exercised to locate such establishments where they will cause the least annoyance to others. In this case the defendant selected a place immediately adjoining the complainant's house, and the dwelling was rendered uncomfortable by the dust and moths from carpets in the process of the cleaning. This was a nuisance of a very serious character. The appellants might have avoided this difficulty by selecting a different neighborhood for their operations."

And our supreme court in the recent case of Tureman v. Ketterlin, 263 S.W. 202, in which it was sought to enjoin the maintenance of an undertaking establishment in a residence neighborhood, said:

"An undertaking establishment is not a nuisance per se. The business of preparing dead bodies for burial is not only lawful, but indispensable. It may become a nuisance, however, from the manner in which it is conducted or because of the place at which it is maintained, and it is very generally held to be such when it intrudes itself into a strictly residential district." Citing authorities.

"The essential ground of such holding is that the maintenance of an undertaking establishment in a residence district tends to destroy the comfort, well-being and the property rights of the owners of homes therein."

In our judgment, in light of the evidence in the case and under the law of this state, defendants are guilty of a nuisance which it becomes the duty of the court to redress. However an examination of the decree discloses that the defendants, Lando, Brown and Daume are not only enjoined, restrained and prohibited from the further maintenance and operation of the barbecue stand, but that the building in which said stand is operated is ordered to be removed from said lot on or before a certain date. That part of the decree which requires the removal of the building from the lot is in excess of what plaintiff is entitled to under the record in this case. We accordingly affirm the judgment in all things excepting that requiring the removal of the barbecue stand from the lot, and order the cause remanded with directions to the trial court to enter a decree in conformity with our views herein expressed. Daues, P.J., and Nipper, J., concur.