Ensign v. Walls

Carr, J.

Defendant herein has for some years past carried on at 13949 Dacosta street, in the city of Detroit, the business of raising, breeding and boarding St. Bernard dogs. Plaintiffs are property owners and residents in the immediate neighborhood. Claiming that the business conducted by defendant constituted a nuisance as to them and their property, plaintiffs brought suit for injunctive relief. The bill of complaint alleged that obnoxious odors came from defendant's premises at all times, that the continual barking of the dogs interfered with and disturbed plaintiffs in the use and enjoyment of their respective properties, that the premises were infested with rats and flies, and that on occasions dogs escaped from defendant's premises and roamed about the neighborhood. Defendant in her answer denied that her business was conducted in such a manner as to constitute a nuisance, and claimed further that she had carried on the business at the premises in question since 1926, that she had invested a considerable sum of money in the purchase of the property and in the subsequent erection of buildings thereon, and that under the circumstances plaintiffs were not entitled to the relief sought.

On the trial of the case testimony was offered on behalf of the parties tending to substantiate their respective claims as set forth in the pleadings. Plaintiffs' witnesses testified to conditions of such character as to clearly constitute a nuisance. On the other hand, defendant and her witnesses claimed that the business was well conducted and was not so obnoxious in character as to interfere with plaintiffs or other residents in the neighborhood in the use and enjoyment of their homes. The trial judge inspected the premises of the defendant, and it appears from the record that his observations confirmed, in many respects at least, the proofs offered by plaintiffs with reference to the existing conditions. Decree was entered enjoining the carrying on of the business at the location in question after the expiration of 90 days from the entry of the decree, and requiring defendant to abate, within the period of time stated, the nuisance found to exist.

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Defendant further insists that she has acquired a prescriptive right to continue her business at its present location because she operated it without interference from plaintiffs of their predecessors in title for a period of more than 15 years prior to the burning of the present suit. . . .

. . . It has been repeatedly held that the right to continue a use of the property of another may be acquired by exercising such use adversely for a period equal to the statutory requirement for acquiring property or property rights by adverse possession, even though the use during the prescriptive period is of such character as to constitute a nuisance. In the case at bar, however, defendant has not used, in any tangible way at least, the lots surrounding her property in the neighborhood. . . .

The conclusion may not be avoided that whether the right to continue a nuisance of the character here involved may be acquired by prescriptive user has not been definitely settled in this State; nor is it necessary that the matter be determined in the case at bar. Assuming that such right may be acquired in a case of this nature, it was incumbent on defendant to establish that during a period of 15 years prior to the bringing of the present action her business was conducted in the same manner and with the same results, insofar as the rights of other residents and property owners in the neighborhood were concerned, as at the time of the trial. . . .

In Matthews v. Stillwater Gas & Electric Light Company . . . it was said:

". . . It would seem that the general current of the authorities is to the effect that a prescriptive right to maintain such a nuisance may be acquired. But, if so, the rule is more theoretical than practical, because of the inherent difficulties in establishing such a right by proof. All the authorities, however, agree that the burden of proving such a right is upon him who asserts it; also, that the right is restricted to and measured by the user. Therefore, to constitute an adverse user requisite to sustain the right, it must be shown that the user, during the entire statutory period, has produced an injury equal to and of the character complained of. Otherwise expressed, the injury complained of, in order to be barred by a prescriptive right, must have been continued in substantially the same way, and with equally injurious results, for the entire statutory period. Crosby v. Bessey. . . ."

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An examination of the record in the instant case establishes that defendant did not show that during the entire period during which she claims the prescriptive right was acquired her business was carried on in the same manner, to the same extent, and with the same results insofar as the resulting injuries to others were concerned, as at the time of trial. Even if a right to maintain a nuisance of the character herein involved may be acquired by prescriptive user, defendant failed to sustain the burden resting on her. On the contrary, defendant contended that no nuisance, injurious to the plaintiffs or their predecessors in title, existed at any time during the course of her operations. Plaintiffs' proofs, which the trial court accepted as the basis of the decree entered, did not supply the omission. Under any aspect of the situation, defendant's claim that she has acquired by prescriptive user the right to continue the nuisance found by the trial judge to exist cannot be sustained.

The record discloses that the plaintiffs, or the majority of them at least, have moved into the neighborhood in recent years. In view of this situation it is claimed by defendant that, inasmuch as she was carrying on her business of raising, breeding and boarding dogs on her premises at the time plaintiffs established their residences in the neighborhood, they cannot now be heard to complain. Such circumstance may properly be taken into account in a proceeding of this nature in determining whether the relief sought ought, in equity and good conscience, to be granted. Doubtless under such circumstances courts of equity are more reluctant to restrain the continued operation of a lawful business than in instances where it is sought to begin in a residential district a business of such character that it will constitute a nuisance. The supreme court of Pennsylvania in Wier's Appeal . . . declared the commonly accepted rule as follows:

"There is a very marked distinction to be observed in reason and equity between the case of a business long established in a particular locality, which has become a nuisance from the growth of population and the erection of dwellings in proximity to it, and that of a new erection threatened in such a vicinity. Carrying on an offensive trade for any number of years in a place remote from buildings and public roads, does not entitle the owner to continue it in the same place after houses have been built and roads laid out in the neighborhood, to the occupants of which and travellers upon which it is a nuisance. As the city extends, such nuisances should be removed to the vacant grounds beyond the immediate neighborhood of the residences of the citizens. This, public policy, as well as the health and comfort of the population of the city, demand. . . . It certainly ought to be a much clearer case, however, to justify a court of equity in stretching forth the strong arm of injunction to compel a man to remove an establishment in which he has invested his capital and been carrying on business for a long period of time, from that of one who comes into a neighborhood proposing to establish such a business for the first time, and who is met at the threshold of his enterprise by a remonstrance and notice that if he persists in his purpose, application will be made to a court of equity to prevent him."

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In Rohan v. Detroit Racing Association, . . . plaintiffs sough injunctive relief to abate an alleged nuisance. Defendants insisted that the relief should be denied because plaintiffs had moved into the neighborhood after the operation of the race track, of which plaintiffs complained, had begun. Commenting on this claim, it was said...:

"Defendants argue that, as plaintiffs established their residence in close proximity to the State fair grounds and have acquiesced in the operation of the race track for many years without complaint, they are not now entitled to equitable relief. However, we cannot agree with this contention, as the record indicates that during the several years preceding the present suit plaintiffs were subjected to increasing annoyance, unpleasantness, and nuisance through the operation of the race track and barns and the conduct of persons employed about the track. The testimony is uncontradicted that plaintiffs were subjected to flies and insects attracted by the horse stables; that they were annoyed by the horse barns; that they were subjected to loud noises and profane language; that the operation of the horse barns and the conduct of employees created a continuous fire hazard: and that patrons of the race track parked their automobiles so as to interfere with traffic in the street and to block plaintiffs' driveway. While a race track is not a nuisance per se, the record is convincing that the track and barns have been operated in such a manner as to subject plaintiffs to a common or private nuisance which should be abated."

In Campbell v. Seaman, . . . the court enjoined the operation of a brick manufacturing plant on the ground that it was a nuisance. The plant was established a number of years previously, before neighboring residences were constructed. In rejecting the claim that equitable relief should be denied because of such circumstance, it was said:

"One cannot erect a nuisance upon his land adjoining vacant lands owned by another and thus measurably control the uses to which his neighbor's land may in the future be subjected. He may make a reasonable and lawful use of his land and thus cause his neighbor some inconvenience, and probably some damage which the law would regard as dammum absque injuria. But he cannot place upon his land anything which the law would pronounce a nuisance, and thus compel his neighbor to leave his land vacant, or to use it in such way only as the neighboring nuisance will allow."

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Defendant cites and relies on prior decisions of this Court in each of which consideration was given to the circumstance that the parties seeking relief had established residences near the business the operation of which was sought to be enjoined. That such a circumstance may properly be considered in any case of this character in determining whether equitable relief should be granted is scarcely open to question. However it is not necessarily controlling. Looking to all the facts and circumstances involved, the question invariably presented is whether the discretion of the court should be exercised in favor of the parties seeking relief. In the case at bar the trial court came to the conclusion that the nuisance found by him to exist ought to be abated, and that such action was necessary in order to protect the plaintiffs in their rights and in the use and enjoyment of their homes. It may be assumed that new residences will be built in the community in the future, as they have been in the past, and that in consequence the community will become more and more thickly populated. This means of course that the injurious results of the carrying on of defendant's business, if the nuisance is not abated, will be greater in the future than it has been in the past. Such was obviously the view of the trial judge, and we cannot say that he abused his discretion in granting relief. On the contrary we think his conclusions were fully justified by the record.

Defendant also argues that the further carrying on of the business should not have been enjoined but rather that the court should have regulated its future operation in such manner as to "eliminate claimed objections." No specific suggestions are offered, however, as to the manner in which the result suggested can be accomplished. In view of the nature of the business it seems apparent, if defendant is permitted to continue it on her premises, the same conditions will necessarily attend its carrying on as the trial judge found existed at the time of the hearing before him. The record does not indicate that any suggestion was made during the course of the trial that the offensive features of the business could be avoided by any reasonable means. Rather, defendant insisted that plaintiffs' rights were not invaded by her acts, that no nuisance existed, and that plaintiffs were not entitled to the relief sought.

A similar question was raised in Mitchell v. Hines, . . . where the operation of a piggery was enjoined. In rejecting defendant's claim as to the character of the relief to be granted, it was said:

"The court of equity is reluctant to bar the operation of a lawful business and will not do so if a remedy may be applied to the nuisance incidental thereto. However, tests do not show any satisfactory means of carrying on a large-scale garbage-feeding piggery. Trowbridge v. City of Lansing. . . . No method of feeding garbage to pigs on a commercial scale, as is here the case, in a manner that will not constitute a nuisance has been disclosed by the proof."

The decree of the circuit is affirmed. . . .