The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-12-13

constitution, may think necessary and
~expedient.' Shaw Oh. J, in common
wealth VS., Alger, Z cush. 81.
The question, therefore in the case
at bar must be, whether there is any
thing in the nature Of the case which
renders it unreasonable, in view of the
relative rights, interests M wishes Of
both parties n the general welfare
Of the public, that defendants should
continue upon their premises the bust
ness they are 0 engaged in, or
whether, on the other hand, the re-
sulting annoyance to the complainant
must be regarded as one which is in
cident to the lawful enjoyment of prop
erty by another, and which, conse-
quently, can form no basis for legal re-
dress. (Which again, may I say, is
the very proposition involved in the
case at bar.) j"
"And. in considering this question,
the fact is to be kept in view that the
business of the defendants is one
which is lawful in itself and necessary
to the community, and which the pub
lie good requires shall be, carried on
by some persons in some locality. The
question is whether it be proper and
right that 1t be carried on in the par
~ticular locality where 1t is now estab-
lished. Even the most offensive trade,
as we have seen, is allowed to be car
ried on in a remote place; and this
means, not a place remote from all
other occupations and trades, but re-
mote from such other occupation or
trade as would be specially injured or
incommoded by it's proximity; in
other words, in a place, which, in view
OF its offensive nature, Is q proper n
suitable one for it's establishment.
The most offensive trades are lawful,
as well as the most wholesome and
agreeable; and all that can be requir-
cd of the mon WIN shall on 0q 90 IN
them is, that due regard shall be had
to fitness of locality. They shall not
carry them on in a part of the town
occupied mainly for dwellings,, nor, on
the other hand, shall the occupant Of
a dwelling in a part of the. town al
ready appropriated to such trades,
have a right to enjoin another coming
in, because of it's offensive nature.
Reason, and a just regard to the
rights n interests of the public, re-
qu1re that in such case the enjoyments
of pure air and agreeable surround
ings for a home shall be sought in
some other quarter; and a party can
not justly call upon the law to make q
that place suitable for his residence
which was not SO when he selected it."
And right here may 1 suggest and
ask the question: Is not that exact
ly what these plaintiffs are asking this
court to do? Judge Cooley a y it
cannot be done, and he continues by
saying: ~
I'm the case before us we find that
the defendants are carrying on a bus
mess not calculated to be specially
annoying, except to the occupants OF
dwellings. They chose for its estab-.
|lishment a locality where all the
buildings had been constructed for
purposes other than for residence.
Families, to some extent, occupied
these buildings, but their occupation
was secondary to. he main object of
their construction. and we must sup
which precluded the choice of a more
desirable neighborhood. The number
or these families, moreover, was de-
|creasing, and in view of the size OF
the block, was really insignificant at,
the time this machinery was put In.
" We cannot shut our eyes
to the obvious truth. that if the run
ming of this mill can be enjoined, al
most any mandatory in any Of our
cities can be enjoined upon similar
reasons. Some resident must be in
commoded or annoyed by almost any
quarters and among the most offens
I've trades Of every city, will be found
persons, who, from motives of CON
~Venlence, economy or necessity, have
taken up there their abode& but in the
administration of equitable police, the
StCokSA dAIu AlOTS general INTERESTS 4
must be regarded rather han Sthe in
ferior and special. The welfare OF the
community cannot be otherwise SUBJ
served n its necessities provided for.
Minor inconvenience must be RENE
died b" actions for the recovery Of
damages rather than by the severe
process Of injunction"
I have thus quoted at length, be-
cause, as before stated, the doctrines
there laid down are so clearly ap-
plicable to the case at bar.
If we proceed upon the. theory that
a gas plant is a nuisance per sc, then
1t follows that if the plant should
move away across the Big Slough, for
instance, the moment that any person
should buy a piece of property ad-
joining or in close proximity thereto,
and would come in and ask an in
junction that the gas plant again move
on, n the order would have to be
made, because the law is no respecter
OF persons. Everyone has the same
rights, and il the plaintiffs in this ac-
ton have the right to establish their
residences near this plant, with full
knowledge of its existence, and in a
place more naturally adapted for
business than for residential purpose,
other persons have the same right,
and the gas plant would practicable
have to be on wheels. or else go OUT
pI business ent1reIy.
1t is unthinkable that in this modern
day, where so many people use gas for
fuel and illuminating purpose in this
city that the whole city of Fargo
should be disconnected and deprived
OF Its privilege to use this kind OF
fuel, simply to protect a few persons,
who of their own choice settled near
this plant; or that the defendant,
which has been investing its money
to so large an, extent upon the faith
or the power vested by the legislature
in the city of Fargo to grant the
franchises which it did to carry on a
lawful business. should be suddenly
deprived of its property, or so dis
turbed In it's enjoyment that the neces-
sary result would be to cast upon the
citizens OF the city generally, large
expense to either buy q. plant of their
own, or submit to excessive charges.
made necessary by so great a loss up-
on the part of the present
This is not a case where the gas
company has deliberately gone to a
residential district. and is seeking to
establish a plant. but rather one where
the plant being established in a natur-
al business section, they find that resi-
dences are coming to the plant.
II in the past, or in the future, the
defendants have or will damage th2
plaintiffs, by accident or otherwise,
they have a full remedy at law; bur
sitting as a court of equity, I do not
feel that / would he warranted in ex-
tending the relief demanded in he
complaint, which Is therefore denied.
and the action is dismissed.
1913.
BY the court: