Lewis v. Behan

Wvly, J. The plaintiffs, who are property owners in the neighborhood of the whisky distillery of defendants on Ferdinand street, bring this suit to abate the operation of said whisky distillery as a nuisance and to recover damages. The court gave judgment enjoining the defendants from operating said distillery, but rejected the demand for damages. The defendants appeal, and the plaintiffs, joining in the appeal, pray for an amendment of the judgment so as to allow them exemplary damages, they “ waiving only actual damages.” The distillery was established under authority from the city. The defendants are in pursuit of a lawful business, and from the evidence we find nothing to warrant the conclusion that they are not conducting it properly and with a due regard to the police regulations of the city. [131] . The smoke and noise may disturb the plaintiffs, but it is an inconvenience from which they can not be relieved. Article 669 of the Revised Code provides that “if the works or materials of any manufactory or ■other operation cause any inconvenience to those in the same or 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.” As the city of New Orleans authorized the establishment of the distillery, we can not presume it is in violation of its police regulations. 14 An. 247. It is therefore ordered that the judgment herein be annulled, and it is decreed that plaintiffs’ demand be rejected with costs of both courts.