Holke v. Herman

GOODE, J. The plaintiffs and the defendant are adjoining proprietors in the village of Holstein in Warren county. The plaintiffs own a tract of land of irregular shape containing five acres or more on which they had resided twenty-eight years, and the defendant a lot about three hundred feet square, bounded on the west and north by plaintiffs’ land. A public road or street runs along the south side of defendant’s lot on which fronts his hotel and saloon building near the southeast corner of the lot. West of the hotel building is another house used for a dance-hall and west of that a brick building designated as a tenement house. North of these structures are two outhouses, one just back of the hotel and the other of the tenement house. Behind the dance-hall is a privy with a vault seven or eight feet deep. A drainpipe leads from this north between eighty and a hundred feet to a cesspool. A short dis: tance behind' the privy is a building used as a woodhouse, hog-pen and for other purposes. North of this stands an ice-house which is east of the cesspool and both are in the part of the inclosure which may be called the barnyard. The bam itself is towards the northeast corner of the tract on a street running north and south. 'An open drain of slight depth extends northwestwardly down the slope of the ground from the woodhouse and hogpen quite a distance. There are three cisterns on the Herman premises: one just west of the main hotel and saloon building, one near the northwest corner of the tenement house and one immediately west of and behind the — 130 — barn. The plaintiffs’ land does not extend to the road which runs along the south side of Herman’s property, but is cut off from it by the residence lot of one Kropp; the front yard of the ITolke place abutting on the rear of Kropp’s yard. Access to plaintiffs’ house is by a passageway twelve or thirteen feet wide between the Herman and the Kropp lots as far back as the latter extends and thence north along the west side of the fence which .runs between Herman’s premises and plaintiffs.’ This fence extends north to the northwest corner of defendant’s property, thence east along its rear line to the street which runs north and south and bounds it on the east. The residence of the respondents’ stands on their lot near the northwest corner of Herman’s, facing the west side of the passageway which gives access to it from the south. It is therefore only twelve or fourteen feet from their dwelling to the line fence. The south part of the house has two stories and the rear or north part, one. A veranda runs along part of the west side which is used by the family in fine weather as a pleasant place to sit or lounge. This action arose because of the defendant’s beginning to excavate a pond in the northwest corner of his lot, forty feet wide by eighty feet long, or thereabouts, the west bank of which is thrown up against-the division fence, thus forming the pond immediately east of the dining room and kitchen of respondents’ home and perhaps a foot or two north of the veranda. The water would be a distance from the house estimated at thirty-five feet by the defendant and twelve to sixteen other witnesses. Herman’s ground falls off to the north so that about two-thirds of its surface would drain into or towards the proposed pond. It appears that horses, stock, hogs and poultry often run over the defendant’s barnyard; that the cesspool receives the overflow from the privy and that there would be a foul drainage into the pond. The evidence .shows — 131 — that it would not be fed from any pure source of supply, spring or running stream, and would have no outlet. The defendant claims it is his intention to supply it chiafiy by the overflow, conducted through drainpipes, from the cisterns which are filled from the roofs of the different tenements on his premises in order that he may take good ice from it. He also claimed that the wash from his buildings and yards would be kept out of the pond by a trench and embankment just south of it. There was testimony tending to show that Herman had endeavored to sell the ground on which the pond was begun, to Dr. Holke, husband of Mrs. Annie Holke, but the sale failed because Holke thought defendant’s price too high. The testimony also tended to prove that Herman tried to .force Holke to buy by threatening to make a pond on the ground and that his motive for making it was a malicious wish to injure and annoy the respondents. Two women, who had worked in the defendant’s household, testified to his declaring that he would make a summer resort for frogs and mosquitos which would not allow the Holkes to sit on their front porch as they were wont to do. Herman denied making these statements, but the court below, who had the advantage of hearing the witnesses testify, found the fact against him. After considerable excavating had been done, a preliminary restraining order was granted. This was made perpetual on the final hearing and the defendant ordered to fill the excavation and restore the premises to the condition they were in before the work was begun. The case is here on appeal from that judgment. An objection was interposed at the outset of the trial to the admission of any evidence on two grounds: that the petition stated no cause of action and that there was no denial of the allegations of the answer showing the plaintiffs were not entitled to relief. The court overruled the objection; an ex132 eeption was duly saved; the ruling is now assigned for error and must be considered. The answer alleges that defendant uses a considerable quantity of ice in his hotel and saloon business, has an icehouse to store it in, was digging the pond in question to take ice from, and, therefore, intended to keep the same filled with pure water chiefly by pipes and drains from the roofs of the buildings on his premises, that it would not be a nuisance, breed disease, cause discomfort to plaintiffs or interfere with their use or enjoyment of their homes, further averring that the water would be fifty or sixty feet from their house. Other averments not necessary to be given were also made. The allegation about the intention to keep the pond filled with fresh, wholesome water from the roofs was new matter constituting a defense to which, in strictness, there should have been a reply. R. S. 1899, sec. 608; State ex rel. v. Rau, 93 Mo. 130; Cordner v. Roberts, 58 Mo. App. 440. However, the point was clearly waived. The defendant filed no motion for judgment on the pleadings but, contenting himself with objecting to the introduction of testimony, proceeded to put in his evidence and support the defense set up in his answer. To avail himself on appeal of an omission like that, the party excepting must stand on the pleadings even when he moves for judgment in the lower court unsuccessfully; he can not introduce his proof as though a reply were in and after defeat on the merits, profit by an erroneous ruling on the motion. Such a practice would be inconsistent with the established rule that the failure to file a replication is of no consequence if the case was tried as though the issues were made up. Nelson v. Wallace, 48 Mo. App. 193. The objection to the stifficiency of the petition is of more serious import. After charging the ownership of the adjoining premises by plaintiffs and defendant, the progress of the work on the pond and its intended proximity to plaintiffs’ dwelling, — 133 — the allegations relied on to show it would be a nuisance are laid as follows: “That said pond was intended as it is to hold water the year around, if permitted to be completed and even as it now is, is and will be a nuisance, injurious to the health and detract from the comfort of plaintiffs’ family and will render said dwelling house uncomfortable and unfit for habitation; that the water therein will become stagnant and putrid, will breed disease and will constitute a home for frogs and insects, and will cause rank vegetation to grow on the banks thereof and will detract from and destroy the usefulness, comfort and beauty of plaintiffs’ home and the utility of said premises.” Averments then follow as to the impossibility of computing the damages suffered and to be suffered by plaintiffs and the inadequacy of their legal remedy. There are no statements to show the condition and uses of the defendant’s premises, that the pond would receive polluted washings therefrom, would be supplied from impure sources, would not be fed by a running stream or have no outlet, in short, no appropriate averments from which the offensive character of the proposed pond or its deleterious effect on the health of respondents would clearly appear. The answer, by stating the intention to nourish the pond with water conducted through pipes and drains from the roofs of defendant’s buildings, would help the omission of the petition -to show the supply must be by drainage off the premises if a replication had been filed joining issue as to the sufficiency of the water shed from the roofs to keep the pond fresh. The fault of the petition is this: It consists of predictions that harmful results will follow the construction of the pond instead of facts sufficient to show clearly the apprehended mischiefs will necessarily arise. The one subsantial fact in it is the allegation that the water will be only twelve feet from respondent’s residence; and unless we are prepared to hold — 134 — that a pond is per se or prima facie a nuisance so near by, regardless of how supplied with water or the intention to keep it pure, the petition is not good even after judgment. Many complaints have been held insufficient in this class of cases' when the reasons for apprehending a nuisance were stated with more fullness than in the one under consideration, among them McDonough v. Roberts, 60 Mo. App 156, in which the court held a bill to enjoin the erection of a dairy, in the vicinity of several residences owned by the plaintiff, bad on general demurrer though there were specific charges that its operation would necessarily engender disagreeable odors, noxious gases and unbearable stenches, that unwholesome vapors would emanate from the dairy itself and decayed animal and vegetable matter in it, poison the air in plaintiffs’ houses and render them uninhabitable, with a further averment that no connection could be made between the proposed dairy and a sewer, and that, therefore, foul cesspools would form on the ground1 and breed contagious sickness in the neighborhood. It is true a petition may sometimes be bad against a general demurrer, but good against an objection to the introduction of evidence. But in the case cited, this court committed itself to the doctrine well nigh universally upheld, that injunctions will not be granted to restrain a use of property which it is claimed will create a nuisance unless the use to be restrained is ipso facto a nuisance or the pleader charges facts from which the court can see that it must become one. Particular and positive allegations of facts are especially insisted on by the authorities in such actions, where the mischief is not actual, only apprehended. The uncertainty of future events, the frequency of groundless alarms and the despotism of needlessly preventing a citizen from using his property in the mode he considers most conducive to his interest or pleasure have properly made the courts extremely conservative in granting such relief and — 135 — it is allowed only when the case is free from donbt both on the pleadings and evidence. In most instances the disposition is to wait until the dread is justified by the event. Experience has demonstrated that a meddlesome, interfering policy represses the spontaneous energy and many-sided activity, which arises naturally from self-interest and differences of taste and inclination among men and constitute the true springs of progress. The spirit of our laws is chary about regulating conduct or restricting action. When this is done it is to preserve, not to abridge, freedom; that is, to prevent one person’s proper use and enjoyment of his rights or substance from being impaired by the encroachments of an aggressive neighbor. The rule of pleading is well stated in the text of 14 Ency. Pleading and Practice, 1144: “Equity is usually reluctant to grant an injunction against a nuisance not yet in existence but only threatened, and will require that a clear case be made •out before it will grant relief. Hence where an injunction is sought in such case the bill must allege sufficient facts for the court to see clearly that the thing complained of will constitute a nuisance. It is not enough to allege in general terms that probable injury will result; the bill must state facts and not opinions.” Numerous cases arising on various groups of facts can be found that illustrate and support the proposition thus expressed, a few of which may appropriately be noticed. Thebaut et al. v. Canove et al., 11 Fla. 143, was a case in which an injunction was asked against the erection of a steam mill on the grounds of irreparable injury to complainant’s property and their free use of it by the constant noise of the machinery in the immediate vicinity of their residences, the rendering of the air impure and unwholesome, the annoyance from smoke and danger of fire. The opinion says: “It is not enough that a complainant should .allege in his bill that the — 136 — injury will be irreparable to bimself or to his family or property, but he must show facts to enable the court to judge if the injury will be of the character stated.” In Kingsbury v. Flowers, 65 Ala. 479, there was a bill to restrain interments in a private cemetery near complainant’s home, containing allegations that the drainage from said cemetery, which was higher than the complainant’s premises, had contaminated his well and that further burials therein would greatly.endanger the health of himself and family, with other similar charges. A demurrer to the bill was overruled and the defendants, electing to stand on it, appealed from a final decfee. The Supreme Court, among other things, said: “These averments are too general and indefinite to authorize the interference of a court of equity. Pacts and circumstances should have been stated distinctly from which the court could see plainly that if future interments on these grounds are permitted, there would be a diminution of the complainant’s enjoyment of his dwelling and at least probable injury to the health of his family. It is not enough to allege simply that such consequences will result. There must be such a clear, precise statement of facts that there can be no reasonable doubt, if the acts threatened are completed, grievous injury will result. * * * There is not a fact stated in the bill from which it can be justly inferred that if the burials on these grounds should be made in the usual mode or in the mode in which former burials were made, any injury would result to the complainant. * * * Without the averment of special circumstances from which the court can be satisfied that future burials will most probably result in a nuisance from which the complainant will suffer special injury, irreparable by the ordinary remedies of law, there should not be interference to restrain them.” To the same effect is Bunne v. City of Austin, 77 Texas 139, where the bill was also against a cemetery. After stating that a cemetery was — 137 — not a nuisance per se, but might become so from its locality or the manner of using it, the opinion proceeds: “The inquiry in this ease is, does the. petition allege the existence of such facts as show with reasonable certainty that a nuisance will be brought into existence ? * * * There is no averment whatever as to the contemplated mode of sepulture.” There were profuse statements in the bill as to the contamination of the atmosphere and water which would ensue if burials were permitted and that complainant’s premises would be made sickly and they deprived of the use and enjoyment of them, but these were designated as “conclusions” and not such, either, as would necessarily result from the facts stated. A demurrer to the bill was sustained. “When the matter complained of is not in itself a nuisance, when it is not in its very nature hurtful to others, when it does not of necessity threaten to impair materially the health and comfort of those who may live near it, and the fact that it is a nuisance has not been established at law, the court abstains from interference unless a case of pressing necessity is shown by the bill and by the proof,” was the language of the court in Booser v. Randolph, 7 Porter, 238. Adams v. McMichael, 38 Maryland, 123, declared the same rule. “It is not enough for the parties complaining simply to allege that particular consequences will follow the erection of the factory; that may be their opinion or apprehension, but facts must be stated so that the courts can see and determine whether the allegation is well founded.” In Davis v. Adkins (Ky.), 35 S. W. Rep. 271, a petition against the erection of a sohoolhouse and privy, because the flow of water from them would ruin complainant’s spring, was held properly dismissed there being no averments making it reasonably clear that such a drainage into the spring would' inevitably result. — 138 — Rounsaville v. Kohlheim, 68 Ga. 668, was where the relief was sought against the construction of a large stable adjoining the plaintiff’s home, the charges being that filth, flies, vermin, stenches, noxious vapors, the stamping of horses and other annoyances would impair the health of plaintiff and his family, and their enjoyment of their home. The court said: “In this case all the allegations except the mere location are speculative and contingent. The bill was therefore without equity and should have been dismissed.” The Supreme Court of Indiana reversed a decree entered on a demurrer to a complaint to enjoin defendant from converting his dwelling house, twenty-eight feet from the plaintiff’s front door, into a blacksmith shop which alleged that the noise, clatter, smoke, smells, accumulation of filth and vehicles and horses around the shop would be unbearable by plaintiff’s family, injurious to their health and greatly damage him. The only material averments, it was held, were the location of the respective premises of the plaintiff and defendant and the latter’s intention to turn his into a blacksmith shop, and that the additional matter was mere conclusions which the demurrer did not ndmit to be true. “To hold the complaint good would be to hold that any complaint would be good to enjoin any legitimate business by alleging that the complainant owned and resided upon a lot and the adjacent lot owner was about erecting a building on his lot in close proximity to the complainant’s residence to carry on mercantile or other lawful business which would be patronized by the public, and drawing like inferences to those drawn in this complaint, without averring that the person threatened or intended conducting the business in an improper way or that it could not be conducted at such place without injury and danger to the complainant.” Bowen v. Mauzy, 117 Ind. 258. We deem it unnecessary to multiply quotations to support a rule so well established. — 139 — The following authorities are also in point. Rouse v. Martin, 75 Ala. 514; Kirkman v. Handy, 11 Humph. 406; St. James Church v. Arrington, 36 Ala. 546; Begien v. City of Anderson, 28 Ind. 79; Musgrove v. St. Louis Church, 10 La. Ann. 43; New Orleans v. Wardens, 11 La. Ann. 244; Ellison v. Commissioners, 5 Jones Eq. 57; Lake View v. Letz, 44 Ill. 81; Lake View v. Rose Hill, 70 Ill. 191; Cleveland v. Gas Light Co., 30 N. J. Eq. 206; Rhodes v. Dunbar, 57 Post. 274; Harrison v. Brooks, 20 Ga. 537; Turnpike Co. v. Yuba, 13 Cal. 190; Railroad Co v. Ward, 21 Black U. S. 494; Heeg v. Licht, 80 N. Y. 579; Dillsworth’s Appeal, 91 Pa. St. 274; Earl of Ripon v. Hobart, 3 Myl. & K. 169; Wood on Nuisances, secs. 796, 797 and 798, and cases cited. The learned author of that work summarizes the authorities on the subject, as follows: “The bill must set forth such a state of facts as leaves no room for doubt upon the question of nuisance, for if there is any doubt upon that point the benefit of it will be given to the defendant. * * * Great care should be observed in drawing complaints to restrain a threatened nuisance to set forth fully and particularly its value and character; in what the nuisance will consist and the knowledge of the plaintiff as to the use in the manner described, as well as the nature and character of the injury which will result to the plaintiff therefrom. These facts must not rest upon belief but upon the actual knowledge of the plaintiff which must be stated in the complaint as well as the source from which it is derived.” The only case taking the opposite view which we have found is Aldrich v. Howard, 7 R. I. 87. There the allegations of the bill are much fuller than here, but the opinion treats the predictions as to the harmful results which would follow, as themselves issuable facts, a view which we consider unsound both on principle and authority. In the case in hand, if a’ cause of action is not made out — 140 — by tbe allegations about tbe size of tbe pond .and its proximity to the respondent’s bouse, none is stated at all, for the remainder of the petition is expressions of opinion as to what will happen, the very kind of pleading which is condemned as futile. It would be plainly arbitrary to hold that a pond in a short distance of a residence, however undesirable, will be necessarily or with reasonable certainty a nuisance, on account of its deleterious effect on the health or comfort of the occupants. , It may or may not be, according to the kind of water flowing into it and the care with which it is cleansed and kept. Pools of water in grounds or gardens near houses are sometimes regarded as refreshing and healthy. A pond is not a nuisance per se and it is equally manifest that it need not be one under the circumstances disclosed. It is not inevitably nor probably harmful, nor even annoying to those in its vicinity. On the other hand, if filled with polluted drainage, allowed to become putrid and stagnant, it will be very obnoxious and dangerous. Allegations might have been made by the plaintiffs stating how the one in question must get its water, the lack of a pure source, that it could not be kept perennially fresh and other appropriate matters on which issue could have been joined and testimony heard. As it is, the petition neither complains of a prima facie nuisance nor of something which is highly likely to become one. We are therefore constrained to decide that it stated no cause of action and that error was committed in receiving testimony over the defendant’s objection. The nature of the evidence, which is of much wider scope and more impressive than the allegations, forbid us to dismiss the petition on this appeal. The testimony before us tends strongly to prove that the pond if completed would be a receptacle for the filthy wash and filthy drainage from the appellant’s premises and that it must be supplied in that way or not at all. — 141 — No stream or spring would feed it nor would there be an outlet. The slope of Herman’s ground, the uses to which he puts it, the limited roof space on his buildings and the cisterns to be filled from it, argue strongly and convincingly, as the record now is, against his claim that the water would be kept sweet and uncontaminated. The conclusion reached by the chancellor who tried the cause concerning that question, as well as the defendant’s motive in making the pond, are well supported by the proof. We are disposed to follow the doctrine that a man’s motive in making a certain use of his premises is immaterial, provided the act is lawful, as being in harmony with the general principles underlying the property right, though it is not 'accepted in all jurisdictions. Rockwood v. Wilson, 11 Cush. (Mass.) 221; 16 Am. and Eng. Ency. Law, 930; South Royalton Bank v. Suffolk Bank, 27 Vt. 505; Mahon v. Brown, 13 Wend. (N. Y.) 261; 28 Am. Dec. 461; Bonnell v. Smith, 53 Iowa 281; Olmsted v. Rich, 6 N. Y. 326. So holding, we would not consider the defendant’s purpose to annoy the plaintiffs as ground for restraining him; but the fact that he thought it would annoy them is a circumstance to be weighed in determining whether it would be a nuisance or not. While we hold that making the pond as located is prima facie a lawful act and that it is incumbent on the respondents to show facts clearly stated in the pleadings and proven by the evidence that it will with reasonable certainty impair their health and comfort if they would have it restrained, we likewise hold that if such is made to appear they are entitled to relief by injunction. The doctrine so often stated, that courts of equity are reluctant to restrain a threatened nuisance involves the converse proposition, that they will do so when it is apparent or extremely probable a nuisance will be created. Beach on Injunctions, see. 1071; Wood on Nuisances, secs. 100 and 796; Ryan v. Copes, 11 Richardson’s Law, 217; 73 Am. Dec. 106; Ross v. Butler, 19 N. J. Eq. 294; — 142 — Brady v. Weeks, 3 Barb. 157; Lewis v. Stern, 16 Ala. 214; McKeon v. See, 51 N. Y. 300; Adaues v. Popham, 76 N. Y. 410. Tbe reasons for preventing a prospective mischief are at least as cogent as those for abating a present one. In the latter' instance the courts act more readily because they are sure of their ground; the evil is visible. Put the call for protection against .an apprehended injury, reasonably certain to befall, is as imperative as that for relief from one now felt. Nor is the complaint required to wait until some harm has been experienced or to show with absolute certainty it will occur. One requirement would make the remedy largely useless and the other impracticable. Miley v. O’Hearn, 18 S. W. Rep. (Ky.) 529. While perhaps proof that it is inevitable or will necessarily ensue may be properly demanded, when nothing more than discomfort is anticipated, when danger to health .or life is threatened, a reasonable certainty is enough. Wood on Nuisances, sec. 100. A party does not have to stand by until his family have sickened or died. In the case at bar, the preponderance of tbe evidence adduced at the trial seems to be that 'the proposed pond could not, the circumstances and surroundings considered, be so constructed, supplied with water and used that it would not generate disease germs, be seriously deleterious to the health of respondents .and impair their physical comfort in the use and enjoyment of the house and grounds which have been their home for many years. If this is true it should not be tolerated. If, however, it may be so filled and kept by proper care as to cause no mischief, the defendant should be permitted to make use of it in that way. It is not necessary, nor do we think it would be just, to dismiss the petition. We may give the respondents’ leave to amend. Stevenson v. Edwards, 98 Mo. 622. The judgment is therefore reversed and the cause remanded with directions to permit the plaintiffs to re-plead, if so advised, on payment of the costs of the trial and appeal. All concur.