Albany Christian Church v. Wilborn

66 S.W. 285, 112 Ky. 507, 1902 Ky. LEXIS 190

• Court: Court of Appeals of Kentucky
• Decided: January 22, 1902
• Status: Published

Opinion

Opinion of the court by

JUDGE HOBSON —

Affirming.

Appellee, Wilborn, is the owner of a lot in the town of Albany adjoining on tbe north the lot on which the Christian church stands. He proposed to build on his lot, 27 feet from- the church, a private stable, 45 feet long, 32 feet wide, and 14 feet high to the plates. Appellant Perkins owns a lot on the south side of the church, on which is a stable 41 feet from the church, iand between it and the church is his privy. Perkins also owns residences on the opposite side of the street. The church and Perkins brought this suit to enjoin appellee from.' erecting his stable, on the ground that the use of the stable would create an offensive odor, which would impair thé use of the church property for purposes of worship; that in warm weather it would cause an accumulation of flies, which would disturb the congregation; that it would increase the hazard from fire to the church building, which was a wooden structure; that the stable would front on the'Street, and would cause an obstruction of the sidewalk, from the placing of wagon bodies, vehicles, wheels, etc., in front of it; and that the noise from the stock, and the feeding of them, would disturb the congregation; and that these things would greatly impair the value of Perkins’ property on the opposite side of the street. The defendant filed an answer in which he controverted the allegations of the petition, and, in addition, alleged affirmatively that lie proposed building tbe stable for his private use; tbat be kept only one milch cow and bis team, wbicb would not be in tbe stable more than one-third of tbe time; that be was stripping all of tbe cracks, making it almost air-tight and with solid doors; putting up separate stalls for each animal, so tbat no noise could be made by tbe stock; tbat be would put in a plank floor, and keep tbe stable clean, and the sidewalk free from obstruction; that there would be no lights kept or used in tbe stable, and that it was bis purpose to -keep it so that there would be no noise, odors, .or disturbances from flies. Tbe affirmative allegations of the answer were not controverted. Proof was taken on both sides, and on final bearing tbe learned circuit judge dismissed tbe petition. ' ,

Tbe proof shows tbat appellee is a teamster by trade; tbat be runs several wagons, in wbicb be hauls for others, keeping from four to ten horses and mules. He had bad a smaller stalble On this lot for some years, which be tore down when be began tbe erection of tbe one in contest.

In 1 High, Inj., section 742, tbe rule is thus stated: “When tbe injury complained of is not per ,se a nuisance, but may or may not become so according to circumstances, and when it is uncertain, indefinite, or contingent, or productive of only possible injury, equity will not interfere. Thus tbe erection of a wharf, a railroad bridge, a planing mill, a livery stable, or a turpentine distillery will not be enjoined where tbe injury is only a possible and contingent one.” In Dargan v. Waddill, 31 N. C., 244, 49 Am. Dec., 421, Chief Justice Ruffin said: “It is true tbat a stable in a town is not, like a slaughter house or a sty, necessarily and prima facie a nuisance. There must be places in towns for keeping the horses of the' people living in them or resorting thither, and, if they do not annoy others, they are both harmless and useful erections. But on the contrary, if they be so built, so kept, or so used as to destroy the comfort of persons owning and occupying adjoining premises, and impair their value as places of habitation, stables do thereby become nuisances.” In Kirkman v. Handy, 11 Humph., 406, 54 Am. Dec., 45, the court said (refusing, to grant an injunction in a case of this character): “We have been referred to no case in which a stable of any sort, whether public or private, wherever situated, has been held to be, ipso facto, a nuisance.” In St. James’ Church v. Arrington, 36 Ala., 546, 76 Am. Dec., 332, — ia case not unlike this, — the court said: “A private stable hear a church does not belong to the class of erections which are unavoidably and in themselves nuisances. That it may become a nuisance is, no doubt, true; but the question whether or not it will prove to be one depends in a great measure upon its proximity to the church, the manner in which it shall be built, the number of horses placed in it, and the degree of care with which it' may be kept. . . . Whenever it is legally ascertained that it has become a nuisance, a court of equity will protect by injunction any party injured thereby. But as in the present case it is yet uncertain, and remains to be ascertained from future events, whether or not the erection will become a nuisiance, there is no ground for an injunction arresting the further progress of the building, or its appropriation to the use intended. To same effect, see Keiser v. Lovett, 85 Ind., 240, 44 Am. Rep., 10, and cases cited. This subject was fully investigated by this court in Pfingst v. Senn, 94 Ky., 556 (15 R. 325) 23 S. W., 358, 21 L. R. A., 569; and it was there held that an injunction will not be granted against a threatened nuisance when the thing 'complained of is not such per se, but may or may not become so according to circumstances, and in- this case a number of previous cases are collected. The private barn or .stable which appellee was proposing to erect was not a- nuisance in itself. It was unobjectionable, unless it was so kept as to cause annoyance ór discomfort to the adjoining proprietors. If appellee kept in his barn stock in such numbers or in such’ manner as to inflict damage upon appellants, he would be liable; but be can not for this reason be enjoined from the erection of a building which might never be a source of injury to any one.

Judgment affirmed.