J. P. Schaller & Co. v. Canistota Grain Co.

GATES, J.

[1] The complaint in this case, after setting forth the corporate capacity of the parties, alleges “that each of said plaintiffs is the owner of an elevator upon the right of way of the Chicago & Northwestern Railway Company at Canistota, in the county of McCook, state of South Dakota, that the above named defendant has a lease to certain of the said right of way of the said Chicago & Northwestern Railway Company lying between the elevators hereinbefore referred to as belonging to each of plaintiffs. and that said defendant threatens to, and unless restrained by the judgment of this court will, erect upon its leased portion of said right of way an elevator which will be within 100 feet of *19 each of the elevators belonging to plaintiffs, and in violation of section 533 of the Civil Code of the state of South Dakota for 1903.” To this was added a prayer for injunctive relief. The defendant interposed a general demurrer to the complaint, and also demurred on other grounds not necessary for consideration. The trial court sustained the demurrer upon the sole ground “that said complaint does not state facts sufficient to constitute a cause of action.” From the order sustaining the demurrer, plaintiffs appeal.

Section 533 of the Civil Code is as follows: “No elevator, warehouse, flouring mill or manufactory shall be constructed within 100 feet of any existing structure, and shall be at a safe fire distance from all station buildings, and so as not to conflict with the safe and convenient operation of such railroad.”

It is contended by appellants that upon the bare allegations of the complaint set forth they are entitled to an injunction restraining the building of defendant’s proposed elevator, upon the theory ■that its construction would, by reason of the statute, amount to r nuisance.

It is the contention of respondent: (1) That said statute is unconstitutional in that it is an invasion of respondent’s private rights; (2) that notwithstanding the statute the complaint must clearly show that the act threatened would, if carried out, amount in fact to a nuisance; and (3) that the complaint must also show special injury to the plaintiffs.

[2,3] It is not necessary' in determining this case to pass upon the first or second grounds of respondent’s contention. They are closely interwoven. We do not think that we ought to now pass upon the constitutionality of the act upon .the meager showing of facts set 'forth in the complaint. While this statute is presumptively a valid act, it is possible that as to fireproof structures it might not be. It is at least presumptively so as to frame structures. This question was not argued by appellant. Because of the meager recital of facts, and because of the absence of a -full argument, we must decline to pass upon this question at this time. Jewett v. Smail, 20 S. D. 232, 236, 105 N. W. 738 .

We are of the opinion that respondent is right in its third contention. If the statute is within the regulations authorized under the police power of the state, and if facts are alleged bringing the case under section 2393, Civ. Code (assuming, without de *20 ciding, that such allegations are necessary), an injunction action will lie. 20 Ann. Cas. 933; First National Bank v. Sarlls, 129 Ind. 201 , 28 N. E. 434 , 13 L. R. A. 481, 28 Am. St. Rep. 185 ; Kaufman v. Stein, 138 Ind. 49 , 37 N. E. 333 , 46 Am. St. Rep. 368 ; Griswold v. Brega, 160 Ill. 490 , 43 N. E. 864 , 52 Am. St.. Rep. 350; Spelling on Extr, Relief, § 383; Joyce on Injunction, §§ 352> 353- But to bring- this relief within the reach of appellants, they must allege additional facts which show a special injury to them. Civ. Code, § 2402; State v. Thorson, 9 S. D. 149, 152, 68 N. W. 202 , 33 L. R. A. 582, and authorities last above cited.

In Aultman v. Siglinger, 2 S. D. 442, 50 N. W. 911 , it was said: “A court cannot be called upon to supply facts by inference or conjecture. The facts themselves must be stated * * * by direct allegations of the ultimate facts.” In McCormick H. M. Co. v. Rae, 9 N. D. 482 , 84 N. W. 346 , Mr. Justice Young lucidly stated: “It is clear that no rule of construction, however liberal, can supply and arbitrarily inject into a pleading an averment of a material fact which has been wholly omitted.” The complaint in this case wholly fails to allege any facts showing that appellants would be specially injured. Nor does it follow that the construction of an elevator within 100 feet of appellants’ elevators, even if unlawful, would necessarily cause special injury to plaintiffs. 31 Cyc. 48. Appellants rely upon the Indiana and Illinois cases herein cited, but in each of said cases the complaint set forth matters showing special injury to the plaintiff. We are clearly of the opinion that the order sustaining- the demurrer to the complaint must be affirmed upon the grounds of respondent’s third contention.

[4, 5] Respondent also contends that the statute in question is void under the provisions of section 21, art. 3, of the .Constitution, because, being a part of chapter 125 of the Laws of 1899, the title of that act was not sufficiently broad to include the section now appearing as section 533, Civ. Code. It may be doubted whether the contents of the section in question are expressed in the title to that act, but we may not now look to the title of that act to determine the question of its validity. Upon the revision of the Codes in 1903, that section was- adopted as a part of division 2 of the Civil Code. The title to the act adopting the Revised *21 Civil Code is as follows: “An act to provide a Civil Code for the State of 'South, Dakota, embracing four divisions: The first relating to persons. The second to property, including shipping and incorporations,” etc.. The title to the second division is amply broad to cover the provisions of section 533. Wilson v. Western Surety Company, 140 N. W. 263 .

The order sustaining the demurrer to the complaint is affirmed.