Morris v. Roberson , 137 Ky. 841 ( 1910 )

Opinion op the.Court by

Chiep Justice Barker

Reversing.

The appellee (plaintiff below) instituted this action in the Pulton circuit court to recover damages from the defendant (appellant) for creating a nuisance near appellee’s residence. The answer controverted all of the allegations of the petition, thus completing the issues. A trial of the case resulted in a verdict for $500 damages in favor of the appellee. Prom the judgment based on this verdict, this appeal has been prosecuted.

The facts are these: The appellant, N. G-. Morris, owned a lot of land in Pulton, Ky. Of this he sold to the appellee, L. C. Roberson, a part, upon which to erect a dwelling house. Afterwards Morris on his own property, but nearer the street than Roberson’s dwelling house, erected a blacksmith shop, which he leased to one L. C. Parsley, who carried on the business of blacksmithing in the building. It is not contended that there is anything in the deed which prohibits Morris from building on the remainder of his land in any way he chooses. The petition seems to rest plaintiff’s cause of action upon the fact that the blacksmith shop was so erected with reference to the street as to cut off plaintiff’s view; there being no allegation that the blacksmith shop as operated created a nuisance. The allegation of the petition is as follows: “That by erecting said building his shop has created a nuisance, and has damaged the plaintiff’s property in the sum of $1,000.” Inasmuch as there was no stipulation in the deed forbidding the vendor to use the remainder of his property in any way he chose, the vendee cannot complain that his vendor erected a shop upon his own lot which obstructed the vendee’s view. In the case of Ray v. Sweeney, 14 Bush, 1, 29 Am. Rep. 388, this court held that the English common-law doctrine of ancient lights does not prevail in this country, and in the opinion it is said: “But no case can be .found, in this country at least, in which it has been held that by the sale of a vacant lot in a town or city the vendor parts by implication with the right to build upon his adjacent vacant lot so as to obstruct windows or doors placed by his vendee in a house erected on his lot.”

All of the evidence introduced by appellee of conversations had with, or oral statements made by, appellant prior to the making of the deed, are incompetent under the well-settled rule that oral statements made prior to a written contract are not admissible to vary the writing signed by the contracting parties, in the absence of an allegation of fraud or mistake.

The remaining question, then, is whether or not the blacksmith shop as operated was a nuisance. This court held, in the case of Marrs, etc., v. Fiddler, etc. 69 S. W. 953, 24 Ky. Law Rep. 722, that a blacksmith shop was not per se a nuisance, although erected in the residence portion of a city or town. The same doctrine was recognized, if not expressly decided in the cases of Peacock, etc., v. Spitzelberger, etc., 29 S. W. 877, 16 Ky. Law Rep. 803, and Hyden v. Terry, 108 S. W. 241, 32 Ky. Law Rep. 1198. In Albany Christian Church v. Wilborn, etc., 112 Ky. 507, 66 S. W. 285, 23 Ky. Law Rep. 1820, we held that a stable or barn erected in the business portion of a city was not a nuisance in itself. If a blacksmith shop is not per se a nuisance, then it must follow that, if it is operated as blacksmith shops ordinarily are, a nuisance is not created by the operation, becau.se, if the ordinary operation of a blacksmith shop creates a nuisance, of necessity it results that such shop in itself is a nuisance. There was no evidence in this case tending to show that the blacksmith shop under discussion was not operated in the usual manner. It was not shown, for instance, that it was operated at night, or that unusual noises were made, or that there was any greater accumulation of filth than is the ordinary result of the operation of a blacksmith shop. This being true, the evidence failed to show that the operation of the shop was a nuisance.

But, if the evidence had shown that the shop was so operated as to create a nuisance, the appellant would not have been responsible. The record shows without contradiction that appellant built the shop and rented it for a term to one L. C. Parsley, a blacksmith by trade, who carried on his business there. If Parsley in the operation of the shop created a nuisance, the landlord would not be responsible for this, but an action would lie against the tenant in favor of any one injured by his wrongful conduct.

It results, therefore, that the plaintiff neither stated a cause of action against the defendant in his petition nor did he establish one by his evidence, and the motion of the defendant for a peremptory instruction at the close of the evidence should have prevailed.

For these reasons, the judgment is reversed for further proceedings consistent with this opinion.