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

consider also that the opinion was
written by Judge Cooley Of Michigan
one OF the greatest iurists this coun-
TRY has ever produced, and the fur
Their fact that it has been followed by
numerous courts, not only in his own
state, but others, we are led to con
clude that the doctrine laid down
thereinsWill. when applied, produce the
Largest beneficial result, with the least
annoyance. [ shall, therefore, in the
rest OF this opinion, quote largely from
fudge Cooley.
! that case the complainant was
the owner of a city lot in the city OF
Detroit, covered by a four-story brick
building. The lower story was rented
for a store or warehouse, and the up
per stories were occupied by him with
his family as a dwelling house, the
roof being used as a convenient place
for drying clothes. His ownership
had continued for twenty years or
more. In an adjoining building, on the
east, the defendants set up a steam
engine and boiler, and fitted the same as
a steam Touring mill. He alleged that
In so using the building as a mill they
caused great injury. inconvenience
ad damage to him, endangering the
safety Of his building by the motion
of machinery causing shaking Of the
building, weakening Of the walls,
creating rumbling noises, trembling
motion, causing windows, doors,
crockery n other fixtures or other
articles to come loose; that the fires
generated large quantities Of SCOT and
c1nders, which were thrown out on the
roof Of compliments dwelling house;
that steam from the boiler and ex-
haust pipes condensed and fell upon
the roof, keeping the air foul and
damp: all of which resulted, as the
complainant alleged, in his dwelling
house being rendered uncomfortable,
unhealthy, NOISY and unfit for &C.
cupation. and that he was deprived
Of the use Of the roof for drying
clothes, etc. A perpetual injunction
was asked. IN. ~ p.
The court held that this building
was located in a portion of the town
more calculated to be used as a bus
mess than a residential district, not
W1thstanding the fact that there were
some persons living at that time in
n about the premises, as described.
Upon the facts as stated, Judge Cooley
says: ..
There can be no question that the
mill causes annoyance to complain
ant and his family and renders the
occupation of his building, as a resi-
dence, less desirable, but we are not
Ny NAIo L0CAbS AK kkS .
has been any want of due care, or any
willful disregard of the rights of their
neighbors, in the N in which the
defendants have carried on their bust
ness. **" We have no doubt the
defendants put in their machinery in
entire good faith, supposing they were
legally and morally entitled to do so,
nj that 1t is not possible for them
entirely to avoid causing some annoy
ance n discomfort to complainant,
unless they discontinued wholly the
use Of their machinery. : a. = .
The question, therefore, which this
case presents, Gust as in the case at
BARI, is whether the complainant, in
consequence Of the annoyance which
the business of the defendants causes
him, is entitled to have that business
enjoined. 1t is not question Of mere
damages, such as might arise in an ac-
ton on the case, but it goes to the
foundation Of the right in defendants,
under the circumstances, to make use
OF their premises in the manner they
have decided to be for their interest;
and If the conclusion shall be adverse
to them, the loss in the breaking up
Of their business. and in the deprecia-
ton Of machinery, which can only bel
made use of after removal to some
new locality, must be. very consider
able. Nevertheless, if it Is the legal
right of complainant to have the an
noyance to himself and his family en-
Joined, the unavoidable consequent
loss to the defendants cannot preclude
this remedy. The serious consequences
to them can be reason only for more
careful and patient consideration Of
the case before the legal principles
governing it are applied to their detri-
ment.
Generally speaking, it may be said
THAT every man has n riphf tn fhn-ov-
elusive and undisturbed enjoyment Of
his premises, and to the proper legal
redress If this enjoyment shall be in
terrupted or diminished blythe act of
others. The redress, IL the injury is
slight OF merely casual, or If it is in
any degree involved in doubt, should
be by action for the recovery of dam
ages; but If permanent in it's nature
so that by persistence in it the wrong
doer might, in time. acquire rights
against the owner, it is admissible for
the court Of chancery to interiors by
injunction, provided the injury is con-
coded or clearly established. I" !"
The right, nevertheless, to, have such
a business restrained is not absolute
and unlimited, but is, n must be in
the nature of things, subject to rea-
sonable limitations which have regard
ito the rights of others not less than
to h general public welfare. One
mans comfort and enjoyment with ref
erence to his ownership of a parcel of
land cannot be considered by itself
distinct from the desires and interests
Of his neighbors, as otherwise the
wishes of one might control a whole
community, and the person most ready
to complain might regulate to suit
himself, the business that should be
carried on in his neighborhood. In a
crowded city some to 9TH
| arr ic fnoapa vahln frNro O lYro rot a nj nm :
ployment, and while the proximity of
the stables Of the dealers in horses, or
loft the shops of workers in iron or tin,
seems an intolerable nuisance to n
another Is annoyed and incommoded,
though in less degree, by the bundles
and boxes of the dealer in dry goods,
and the noise and jar of the wagons
which deliver and remove them. In
deed, every kind of business is gem
orally regarded as undesirable in the
parts of the city occupied most ex-
clusiyely by dwellings. and the estab-
lishment of the most clearly and quiet
warehouse might, In some neighbor-
hood, give serious offense and cause
great annoyance to the inhabitants.
This cannot be otherwise so long as the
tastes. desires, judgements and inter-
eStS Of men differ as they do, and no
Lrule of law can be- just which, in en-
~deavoring to protect the interests and
subserye the wishes of a. complaining
party, fails to have equal regard to
the interests and wishes of others. The
true principle has been said by an emil
nent jurist to be one growing out Of
the nature of well ordered civil soci-
ETY., that every holder Of property, how
ever absolute and unqualified may be
his title, holds it under the implied
liability that his use OF it shall not be
injurious to the equal enjoyment of
others having ar equal right to the
laninYmenf nf their nrnnertY. nor in