Tushbant v. Greenfield's Inc.

Plaintiffs have established to some extent the existence of a private nuisance which can be sufficiently abated by defendant to minimize the resulting harm to plaintiffs' business. Plaintiffs are entitled to some relief. Mackenzie v. Frank M. Pauli Co.,207 Mich. 456 (6 A.L.R. 1305). I cannot agree with Mr. Justice REID that this is entirely a public nuisance, and that the only remedy for the abatement thereof rests with the public (police) authorities. "Injunction lies at the suit of a private person to restrain such an appropriation of the site of a street by another person, as leaves no mode of access to complainant's premises, and otherwise prejudices them." Pratt v. Lewis (syllabus),39 Mich. 7. If a nuisance is private, infringes on the rights of others, and arises out of the manner of conducting a legitimate business, equity will point out the *Page 633 nuisance and decree the adoption of methods calculated to eliminate or minimize the injurious features. Adams v.Kalamazoo Ice Fuel Co., 245 Mich. 261; Smith v. City ofAnn Arbor, 303 Mich. 476. The record before us is convincing that defendant's manner of conducting its restaurant business is harmful to plaintiffs and results in their loss of business. It is possible to minimize the damage without imposing undue hardship on defendant. The decree entered in the circuit court should be modified. It is not necessary to require defendant to form a line-up of its customers on the outside edge of the sidewalk with not more than two persons standing abreast of each other, with an opening in crossing the sidewalk. The obstruction of view of plaintiffs' show windows for a short period of time is unimportant as compared with the inconvenience to the public use of the street that would be caused by trying to compel users of the street to pass through a double line-up of persons from curb to door. Unobstructed entrance to plaintiffs' store can readily be accomplished by defendant by means of an employee of defendant supervising the line-up of its customers. Plaintiffs may propose a decree for entry in this court in accordance herewith. No costs of appeal allowed either party. STARR, WIEST, BUTZEL, and BUSHNELL, JJ., concurred with BOYLES, J. *Page 634