Kirk v. McTyeire

MeCLELLAN, J. This appeal is from a decretal order denying, upon hearing, complainant-appellant’s application for temporary injunction to restrain, pendente lite, the city authorities of Bessemer from proceeding with their desigp to have constructed, on a lot provided by the city an incinerator for the destruction of garbage, débris, the’ carcasses of animals, etc., accumulating in the city, and to forbid the removal of such matter to the place of contemplated incineration through or over a street of the "city on which appellant, with many other citizens, maintains his family residence. [1] The system of hearing and appeal on applications for temporary injunctions is provided by Code, §§ 4528, 4529, 4531. This system has been considered and treated in McHan v. McMurry, 173 Ala. 182, 55 South. 793; Lynne v. Ralph, 201 Ala. 535, 78 South. 889. Where the bill praying injunction pendente lite possesses equity, the issue to be determined on the hearing is mainly one of fact. Authorities supra. [2] The carcass of an animal is not per se a nuisance^ and is not necessarily dangerous to the public health. 2 Dillon’s Municipal Corp. (5th Ed.) § 679 ; 29 Cyc. p. 1169; 28 Cyc. p. 720. [3, 4] A suitably located and properly operated plant for burning garbage is not a nuisance. 29 Cyc. p. 1174. The authoritative assumption by the municipality of the exclusive function of collecting in wagons and carrying, in properly inclosed receptacles, through the city’s streets to a common point, the garbage, refuse, or débris accumulating in the city, is the exercise of the police power, and is hence not the creation of a public or private nuisance of which property owners on thoroughfares so used to transport such matter can successfully complain. 2 Dillon (5th Ed.) § 678 ; 28 Cyc. pp, 715, 717, 719. [5] The conclusions of fact attained by the court below from a consideration of the averments of the bill and the affidavits submitted by the respective parties to the cause were justified by the evidence thus afforded, and required the denial to complainant-appellant of the temporary injunction sought. The mere apprehension that a nuisance will be created does not authorize the issuance of an injunction or its retention upon hearing to *126 dissolve. McHan v. McMurry, 173 Ala. 182, 186, 55 South. 793. The decree denying the temporary injunction prayed is affirmed. Affirmed. ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.