Radney v. Town of Ashland

SOMERVILLE, J. (1) A vast majority of the houses in this section of the country are built of pine, and a large percentage of them are more or less old, and “somewhat dilapidated.” Reason and sound policy concur with judicial opinion in denying that such buildings, even in towns and cities, are per se nuisances.—Baumgartner v. Hastay, 100 Ind. 575, 50 Am. Rep. 830; City of New Orleans v. Lagasse, 114 La. 1055, 38 South. 828; 2 Wood on Nuisances (3d Ed.) § 746. (2) Nor does the use of such a building for the carrying on of the lawful business of a livery and feed stable, or an automobile garage, with the incidental storage of feed stuffs and gasoline, constitute a nuisance per se, although its maintenance may increase the risk of fire to neighboring houses.—Harris v. Randolph Lumber Co., 175 Ala. 148, 57 South. 453; Rouse v. Martin, 75 Ala. 510, 51 Am. Rep. 463; Duncan v. Hayes, 22 N. J. Eq. 25 ; 1 Wood on Nuisances (3d Ed.) § 148. See, also, Ray v. Lynes, 10 Ala. 63. (3) We think the proper test of a nuisance in such cases is stated by Mr. Wood in the text just above cited as follows: “In order to render a building a nuisance, by reason of the exposure of other buildings to danger from fire, the hazardous character of the business must be unmistakable, the danger imminent, and the use of such an extraordinary and hazardous character as to leave no doubt of the nuisance. The mere fact that the business carried on there is of a hazardous character, and largely increases the rates of insurance upon surrounding property, is not sufficient ; it must appear, not only that the business or use to which the building is applied is hazardous, but also that it is conducted in such a careless manner, or in such a locality, as to make injurious results probable.” The author says, further, after reviewing the case of League v. Journeay, 25 Tex. 172, that though “the court do not pass directly upon the question as to what degree of hazard from fire [638] must be proved in order to make a use of property a nuisance,, there can be no question that it must be of such as makes dangerous results probable rather than possible.” An apt example of such use will be found in the case of Fields v. Stokley, 99 Pa. 306, 44 Am. Rep. 109. (4) It may be conceded that the bill of complaint sufficiently shows that other buildings in the near vicinity of this barn, and thereby also much of the business section of the town, are in imminent danger of destruction if the barn itself should burn. But this is conditional and does not meet the requirement, for the allegations that the barn is “liable” to catch on fire, and is-“a perpetual subject of fire,” do not show that that necessary beginning is, by reason of any accompanying conduct or conditions, either imminent or probable. We hold, therefore, that the bill is demurrable for want of such a showing, and that the demurrer was improperly overruled. (5) In this aspect of the case, it is of course immaterial whether the nuisance be private or public in its -character. We remark, however, that the generality of the peril shown by the bill is sufficient to render the building a public nuisance, if it be a nuisance at all.—Fields v. Stokley, 99 Pa. 306, 44 Am. Rep. 109. (6) We need not, however, determine whether, for a public nuisance within its boundaries, but without special injury to the municipality as such, the municipality could, in its own name, sue for its abatement (see Lonoke v. Chicago, etc., Ry. Co., 92 Ark. 546, 123 S. W. 395, 135 Am. St. Rep. 200, so affirming, and 21 A. & E. Ency. Law 710) for the bill shows a special interest and right by reason of the danger (if sufficiently shown) to the property of the municipality itself, or at least to a municipal institution, viz., the city jail. So, the municipality stands in this respect in the position of any individual. — 21 A. & E. Ency. Law 710. In what we have said we are not to be understood as laying down a rule which would thus narrowly restrict municipal legislation for the general safety of the people. Large powers to this end have been conferred by special charters, and section 1264 of our Code declares that: “The council shall have authority to prescribe fire limits in any city or town, and buildings of wood or other inflammable material shall not be erected therein; they [639] may do all things necessary to prevent conflagration and give security to the inhabitants of the city or town from fires.” (7) The bill does not show that the town of Ashland, in the exercise of such powers, has, by general ordinance, inhibited the conduct and conditions here complained of, and we have no such question before us. But in any case, it is important to observe that a building which Was lawfully erected, and is a nuisance only because of the mode of its use, cannot be destroyed or removed. Only the business or use can be suppressed.—Cuba v. Miss. C. O. Co., 150 Ala. 259, 43 South. 706; 2 Wood on Nuisances, §§ 744, 745. In short, the remedy reaches no further than the necessity of the case demands. Many illustrative cases are collected in the note to Evansville v. Miller, 146 Ind. 613, 45 N. E. 1054, 38 L. R. A. 161, 166. Let the decree of the county court be reversed, and one here rendered sustaining the demurrer to the bill of complaint, with remandment for further proceedings. Reversed, rendered, and remanded. Anderson, C. J., and Mayfield and Thomas, JJ., concur.