J. A. Burditt and another v. Svante M. Swenson, 17 Tex. 489

Wheeler, J. It is not questioned that the allegations of the petition were sufficient to entitle the plaintiff to an injunction. And the revelations of fact, which the record contains, show that the plaintiff’s case was well supported by the proof. We cannot hesitate in coming to the conclusion, from the evidence, that the stable of the defendants was a nuisance. What constitutes a nuisance is well defined.

The word means, literally, annoyance ; in law, it signifies, according to Blackstone, “ anything that worketh hurt, inconvenience, or damage.” (3 Com. 216.) A private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements or hereditaments of another. (Id. 215.) As, if I have a way-annexed to my estate, across another man’s land, and he obstruct me iii the use of it by ploughing it up, or laying logs across it, and the like ; or if a man should erect his building, without right, so as to obstruct my ancient lights ; or keep hogs or other animals, so as to incommode his neighbor and render the air unwholesome. (Ib.; 9 Co. 58.) “ And by con- “ sequence it follows, that if one does any other act, in itself “ lawful, which, being done in that place, necessarily tends “ to the damage of another’s property, it is a nuisance ; for it “ is incumbent on him to find some other place to do that act, “ where it will be less offensive.” “ So closely (says Blackstone) does the law of England enforce that excellent rule of ' “ Gospel morality, of doing to others as we would they should “ do unto ourselves.” (3 Com. 218.) To constitute a nuisance, it is not necessary that the annoyance should be of a character to endanger health ; it is sufficient if it occasions that which is offensive to the senses, and which renders the enjoyment of life and property uncomfortable. (9 Paige, 516 ; 9 Georgia, 425, 428 ; 9 Iredell, 244.) Even that which docs but cause a well-founded apprehension of danger, may be a nuisance.

Thus, in Cheatham v.

Shearn it was held that a powder house located gin a city and containing, stored therein, large quantities of gunpowder, was a nuisance. “ When we know (said Judge Green) that the electric fluid, the irresistible ef- “ fects of which arc disclosed in every thunder storm, may, in “ defiance of every precaution, cause it to explode, it cannot be “ doubted that if five hundred kegs of powder were stored in a “ magazine in this city, every thunder storm would awaken an “univesal alarm and consternation in the minds of the in-;I habitants.” (1 Swan, 213, 216.) And the Court pronounced it,per a nuisance.

So it has been hold that building a smith’s forge so near another's house, and making such a noise with hammers, that the occupants could not sleep, (Com. Big.

Action on the case for Nuisance ;) and so constructing a livery stable as to disturb the occupants of an adjacent house by the interminable stamping of horses, day and night, and by noisome smells, is a nuisance. (9 Iredell, 244.) These references show that the plaintiff took upon himself an unnecessary burden of proof, by alleging that -the stable was annoying and injurious to him in more ways, and to a greater extent, than was necessary to constitute it a nuisance. Yet there was a general verdict for the plaintiff, maintaining the truth of his averments ; and it appears to be well supported by evidence.

The charge of the Court was not unfavorable to the defendants ; and we do not perceive any ground for an appeal on their part, in any of the errors they have assigned. The only question is whether the Court did not err in refusing a peremptory injunction in favor of the plaintiff; which refusal he has assigned as error. After the institution of this proceeding, the stable appears to have been kept in a less annoying manner" than formerly, and the witnesses say, as well as stables are usually kept.

Yet the amended petition charges it to have been still a nuisance, and under the pleadings and proof, the verdict establishes that it was such, as well "after as before the partial dissolution of the injunction : or the partial injunction decreed. The finding of the jury is inconsistent with any other conclusion than that they believed the stable to be a nuisance, as then kept. For it was returned under the charge of the Court, to the effect that a lively stable is not, in itself, a nuisance ; but whether it be so or not will depend upon the manner of keeping it, and other circumstances.

It would appear then, that the only decree which could be legally rendered on the verdict, was a perpetual injunction. It is true, as observed by- Ch. Justice Ruffin in Dargan v. Waddell, (9 Iredell, 247,) that a livery stable in a town is not necessarily, or prima facie, a nuisance. Such erections may and usually are harmless and useful. But if they be so built, or so kept, or so used as to destroy the comfort of persons owning and occupying adjoining premises, and impair their value, stables do thereby become nuisances.

They are not necessarily so, but may become so ; and we think the proof abun- ' dantly shows that that of the defendants was in fact so, by reason of its locality and construction, as well as the manner of keeping it. According to the testimony of the defendants’ witnesses, it was as well kept as livery stables generally are. The defendants did not propose to keep it differently ; or profess to be able and willing to undertake the keeping of it in any manner which would be less annoying to the plaintiff.

Supposing it possible that a stable, situated and constructed as this is, may be so kept as not to be a nuisance, will this be done ? What security has the plaintiff that the care and expense necessary for that purpose will be bestowed ? The defendants do not propose it. On the contrary, they insist that it is well kept, and that it is not a nuisance. That is the issue they tender ; and on it they rest their case ; it has been rightly found against them ; and the corresponding judgment must follow. In Coker v. Birge, (10 Ga.

R. 336,) which was a bill to enjoin the building of a stable, the defendant, in his answer, insisted that he would take such precautionary measures as to prevent the apprehended danger, by keeping the stable clean, sprinkling lime water, &c. But the Court refused to discharge the ad interim interdict, so far as to permit the experiment to be made ;■ because they deemed it improbable that what the defendant proposed would be done. (See same case, also in 9 Ga. 425.) So in Catlin v.

Valentine, (9 Paige, 575,) where the defendant, by his answer, insisted that he intended to use a slaughter house in such a manner that it would not be a nuisance to complainants, the Chancellor admitted that it was, perhaps, possible to carry on the business to a limited extent, in such a manner as that it would not be a nuisance ; but he thought it wholly improbable that any one would incur such cost and labor, and therefore refused to dissolve the injunction (and see cases cited in Coker v. Birge, 9 and 10 Ga.

R.) Here the defendants’ stable, as kept, is a nuisance, and they do not propose to keep it in any other manner which will be less offensive or injurious. Nor does the evidence warrant the belief that, as it is located and constructed, it will or can beso kept as not to be a-nuisance. The principle upon which an injunction is allowed in such cases is. that the injury is such, as, from its nature, is not susceptible of being compensated in damages.

It is a constantly occurring grievance, from day to day, and year to year, which, in its nature, is incapable of being estimated in dollars and cents ; and cannot be prevented otherwise than by an injunction. (Story Eq., Sec. 925 ; 16 Ves. 341.) Though the defendants should sustain inconvenience and loss, they have no just cause of complaint. They were aware of the plaintiff’s objections to their building their stable in that place. Still they persisted ; and even went on to enlarge it after the institution of this proceeding.

They refused every offer of the plaintiff, either to be at the expense of removing the stable, or of building one for them of like dimensions elsewhere. They commenced and consummated the establishment of the nuisance in their own wrong. The maxim of the law is, use your own rights and property so as not to injure that of another. The legal proposition, consequently, being, that if one do

an act in itself lawful, which being done in a particular place, necessarily tends to the damage of another’s property, it is a nuisance, for it is incumbent on him to find some other place to do that act, where it will not be injurious to his neighbor, ,(3 Bl. 218,) it was the duty of the defendants to find some other place for their livery stable, where it would not be so injurious or offensive as to deprive others of their accustomed and rightful use and enjoyment of their property. We are of opinion that the judgment be reformed, so as to render the decree which the Court below ought to have rendered ; that is, that the injunction be made absolute and perpetual. Judgment reformed.