City of New Orleans v. Lambert

Land, J. The petition alleges that the defendant is the proprietor of a certain blacksmith shop, situate in the Fourth District of the city of New Orleans, and that said shop is subject to the police regulations of the city, and liable to be closed and stopped in its operations whenever it becomes a nuisance, or dangerous to public health or safety. The petition further alleges that the shop renders living in the neighborhood inconvenient and unpleasant, on account of the noise, the odor and smoke thereof, and that the same is a nuisance and carried on in violation of the city ordinances. The defendant obtained a rule on the plaintiff to show cause why the injunction issued in this case should not be dissolved, on the grounds that the ordinance referred to in the petition is a mere nullity, and that the petition does not set forth any case for an injunction. The rule was made absolute, the injunction dissolved, and the plaintiff ordered to pay the costs of suit. It does not appear from anything in the record, that the ordinance referred to in plaintiff’s petition is amere nullity, nor has the defendant’s counsel favored the court with an argument on that point. The facts set forth in the petition authorized the issuing of an injunction, and if true, are sufficient to perpetúate it. Article 665 of the Civil Code provides, that if the works or materials for any manufactory or other operation, cause an inconvenience to those in the same, or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place. It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, the injunction reinstated, and the cause remanded to the lower court for further proceedings according to law, and that the defendant pay the costs of this appeal.