New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-06-15
THE COURTS.

gar Refinery of WiIlOz & ROs.and
Suits Against the Union BenevoIeI
Society Dismissed-The Contested r.
c0rdership of the Fourth District, Et
In the case of Michael Muller vs.. II.
Stone and WillOz & Rostand, Judge Dibbl
has rendered an opinion as follows:
The plaintiff AYERS that he is the owne
of certain property in this city. known a
No. 81 Front street and No. % Fulton stree
where he resides with his family, and wher
he has kept a refreshment saloon and coffee
house. He complains that in the summe
or fall of 1870 III. l.. Stone, an absentee, VIII
owns the adjoining lots and buildings
known as Nos. % and 25 Front street an
Nos. "a and 26 Fulton street, leased hi
property to Willoz & Rostand, a Commercial
firm in this city, made defendants herein
that the lease permitted and the said firm
established in said building a sugar refinery
in which is used a powerful steam engin
and boilers. The plaintiff charges that til,
operation of this steam engines shakes hi
lplaintitf 81 house to the foundation, Injuries
his walls, fills his premises with noises anC
vapors, and renders the place uninhabitablt
as residence and unfit for the business
which he pursues.
be specifies that these noises and shak
ings have frightened his family, rendered
some of them sick and compelled him TO re-
move to another building. He AYERS the
apprehension that his building may be
thrown down, and charges that the boiler.
engine and machinery III the premises of
said defendants are nuisance, especially
injurious to the plaintiff and his property.
and should be abated. He claims that he
has sustained damages TO the amount of ten
Thousand dollars, for which he prays. He
asks that the defendants be enjoined from
operating their steam engines in the build
ing adjoining his own, which in any man.
ner shake the buildings of plaintiff, or an
noy him or his family.
Catherine, William and Mary Muller in
tervene, claiming to be joint owners of one
undivided half of the property occupied by
the plaintiff. They adopt the allegations Of
his petition and join in his prayer.
Willoz &. ROstand answer and admit
that they occupy the building aforesaid as
sugar refinery as charged by the plaintiff.
They represent that they pay licenses to
the city and State; that on July %, 1870,
the Council of New Orleans granted them
permission to erect and operate a steam
engine, as they now do. They further rep
resent that, December 80, 1870, the Admin
istrator of Commerce of New Orleans
directed survey of the premises, which
ported that the engine could be run with
out the slightest vibration; that the walls
were strong and secure. They represent
that the Council adopted reports made ac-
,ordlngly, and continued the privilege of
as originally granted. They
annex to their answer the resolution of the
Council granting them permission as afore-
aid, and the report of the Surveyor. They
lsked that plaintiffs demand be rejected, |
md that the city of New Orleans be called |
n warranty and that if any judgment |
b0n1H ha paplapaI 10 Al
hould have judgment over against the |
ity. ..s..
The defendant, Stone, filed a general de- |
ial, adopted the answer of the other re-
pondents, and joined them in their call in
The city of New Orleans filed an excep-
ion, that no cause of action was disclosed
gainst the corporation. This exception
vas never fixed, but it was agreed that it
hould be considered on answer and dis
Osed of upon the merits. 1t seems clear
lau the exception is well taken 1.-THE acts
the city were simply permissive-an
given in the exercise of her police
over, to do certain acts, without which
uthority the. acts would have been unlaw-
IL. The city can in no way be held re-
1onsible for the way in which such priv
eye is exercised by the grantee
The evidence establishes the allegations
the petition, notwithstanding the report
the City Surveyor. whose examination
as, perhaps, made hastily. Itappears that
e running OF the eng ines and other ma
Ilnery connected with the sugar refinery
I'd all the effects charged. The walls of
e plaintiffs building were shaken. and his
,use was made untenable, and, to a con-
derable extent, his business was broken up. ,
deed, when the case was submitted. it ,
hrAr H.
1T must turn almost entirely upon points /
law. ,
The defendants urge that, when a mu- ]
cipal authority grants permission, such !
is given in this case, the owner of the
joining property can not complain that S
G engine and other works permitted are
nuisance. Defendants counsel cited sew @
al cases, which, he understands, 90 to | S
is effect. But 1t seems to me the author
& run the other way; they are numerous. t
d the doctrine seems to be that declared O
the Supreme Court of New York in the +
SO of Fish VS.. Dodge, fourth DEMO, 81. il
one carry on lawful calling in such a C
inner sa to prove nuisance to his neigh v
r, he is answerable for damages There II
q, when one carries on business in the e
npact part of the city whereby the oc- e.
pant OF the adjoining dwelling is annoyed "
the noise and dust, such occupant NAV "
intain an action on the case and the | Il
son complained of may be held Il
answer Ior the nuisance" See eighth | a
ay, 1885, The Supreme Court of Massa- ID
lsetts in this call said "The engine may,
of its construction, location a.
employment, become public or private 9;
sance, even if its proprietor violates r.
ne of the special or positive provisions =
the statutes of the commonwealth. e,
he cases from 4 (snmstnck Iu5 -
rber ~, cited by the defendant, turns p
On other principles. A private citizen -
y not complain that thing is nuisance NJ
ich is being constructed in a public high =,
y and for the public benefit. ~ ~
is clear, therefore, that the plaintiff is =.
tiled to reliet. am not at all satisfied -
m the evidence as to the amount of -
nages which he should recover; the evil -, ~
ice is loose, and | am unable to esti- II
tie it. &c
indeed it is matter that properly ought m
iave been submitted to jury. Where I co
re such doubt [ believe it proper IN ii,
lsuit the plaintiff in his money claim. tb
judgment will be entered GRANTING the IN
lnction prayed for and nOnsuiting the m
lntitfs claim for damages. fir
a motion is made for a new trial it TN
uld be granted, and the question of ar
nages submitted to jury. m
n Two suits brought by Ed. Thompson D..
l Save Williams ct ais. vs.. the Union Be-
'olent Society No. 4, Judge Dibble this m
rning rendered decision, ordering the d.
is to be dismissed with costs. We sub d
a the reasons for Judgment: s,
The plaintiffs in these cases sued for the tb
solution of the society made, defendantsl ar
inning THAT they had been deprived of til
ir rights therein, and that they were en- M
ed to have its affairs wound up and it's of
perty divided. The action was dismissed. hi
IN the ground that as expelled members w
A corporation they could not sue for its til
solution; that if they had any right of be