Dixie Ice Cream Co. v. Blackwell , 217 Ala. 330 ( 1928 )

Appellants' view of the bill of complaint is that it does not sufficiently show that respondents' conduct of their business, in the manner set forth, is an unlawful disturbance of these complainants in the use and enjoyment of their neighboring premises. More specifically, the objections to the bill are, that it does not show that respondents are making an unreasonable use of their creamery plant, and does not show that the locality is not a business district, or that it is a district where it is improper or illegal or unreasonable to operate such a business as alleged.

The conflict between the rights of home owners on the one hand, and of encroaching industry on the other, has existed immemorially in the course of municipal growth and change.

Cases similar to the one here presented have been frequently before the courts; and, while occasionally a court has undertaken to lay down very specific rules for their government and determination, the better view is that only general principles can be declared, and that each case must be determined upon its own facts in the light of those general principles. Rouse v. Martin, 75 Ala. 510, 51 Am. Rep. 463.

In general, home owners and occupants, as well as all others, must endure, without legal recourse, all of those petty annoyances and discomforts ordinarily and necessarily incident to the conduct of those trades and businesses which are usually a part of municipal life, and which are more or less essential to the existence and comfort and progress of the people. First Avenue, etc., Co. v. Johnson,171 Ala. 470, 54 So. 598; Euler v. Sullivan, 75 Md. 616,23 A. 845, 32 Am. St. Rep. 420, 422. But there are limits to this rule, and, as said in the well-considered case of Hundley v. Harrison, 123 Ala. 298, 26 So. 295:

"Any establishment erected on the premises of the owner, though for the purpose of trade or business lawful in itself, which, from the situation, the inherent qualities of the business, or the manner in which it is conducted, directly causes substantial injury to the property of another, or produces material annoyance and inconvenience to the occupants of adjacent dwellings, rendering them physically uncomfortable, is a nuisance. In applying this principle, it has been repeatedly held, that smoke, offensive odors, noise or vibrations, when of such degree or extent as to materially interfere with the ordinary comfort of human existence, will constitute a nuisance."

See, also, Kyser v. Hertzler, 188 Ala. 658, 65 So. 967 (where numerous cases are reviewed); Rouse v. Martin, 75 Ala. 510,515, 51 Am. Rep. 463; English v. Progress E. L. M. Co.,95 Ala. 259, 264, 265, 10 So. 134; Ross v. Butler, 19 N.J. Eq. 294, 97 Am. Dec. 654; King v. Vicksburg R. L. Co., 88 Miss. 456,42 So. 204, 7 L.R.A. (N.S.) 1036, 117 Am. St. Rep. 749.

In a case like this it is not necessary to show that the locality in question is strictly residental in its character and uses. Indeed, the authorities very generally hold that the conditions here shown, as to soot, cinders and smoke, would constitute an actionable nuisance even in a business district. Euler v. Sullivan, 75 Md. 616, 23 A. 845, 32 Am. St. Rep. 420, 424; 20 R. C. L. 443, § 58.

Our conclusion is that the objections to the bill are not well taken, and that the demurrers were properly overruled.

Affirmed.

ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.