Lowe v. Holbrook

Hall, Justice.

The jurisdiction of equity to arrest a nuisance about to be erected or commenced, is unquestionable, whenever it will be irreparable in damages, and the consequences resulting therefrom are not merely possible..but to a reasonable degree certain. Code, §3002.

The unauthorized use of the premises of another, in putting trash, filth and garbage upon the same, in such a manner as 'to interfere constantly with their reasonable and unimpeded use by the owner and to occasion him hurt, annoyance and damage, in addition to being a nuisance, is a continuing trespass, which may be irreparable in damages, and whether the wrong doer is insolvent or not, these repeated acts may give rise to a multiplicity of suits and occasion circuity of action ; and to avoid these consequences a court of equity may interpose by injunction. Apart from these instances, other circumstances may exist, which, in the discretion of the court, will render a resort to this remedial process proper. Code, §3219.

The erection of the party wall in this instance, and the windows left open in it, are not complained of as nuisances *566 or trespasses per se. It is the use, or rather the abuse, of these openings that is objected to.

It is hardly conceivable, that the complainant, by allowing this wall to go up, with the windows init, could have licensed their use so as to obstruct his gutters and cause his roof to leak, to the injury and damage of the goods stored in his building, and the annoyance and hurt of his tenants. It would require very clear proof to lead us to this conclusion and to authorize the application of the doctrine of equitable estoppel, to prevent 'the' removal or restraint of such wrong and damage, if indeed any thing would justify it, as it was contended by plaintiff in error should be done. We perceive nothing in the facts of this case that will raise even a slight presumption that the defendant in error ever sanctioned or allowed the plaintiff in error to use the premises in any such way.

The judge of the superior court, so far from abusing his discretion in ordering this temporary injunction, has exercised it wisely and properly. The case should go to a jury, that the various questions of law and fact involved may be passed upon and settled, upon a full hearing, with all testimony before the court, and when the relief, if the complainant in the bill should be found entitled thereto, may he properly adjusted and framed, so as to suppress the mischief with as little hurt and inconvenience to either of the parties as may be found essential to that end.

Judgment affirmed.