Opinion · Supreme Court of North Carolina
Dargan v. . Waddill
31 N.C. 244
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1848-12-05
- Topic
- general
Ruffin, C. J. It was, we think, a fair inference for the jury from the instructions, as a whole, that the defendant’s stable was not a nuisance to the plaintiff', because the act of the defendant in building it was but a reasonable use of his own in erecting an useful appendage to his Hotel, and therefore the damage to the plaintiff was not unnecessary. Thus regarded, the Court does not concur in the instruction. It is true, that a stable in a town is not, like a slaughter house or a sty, necessarily and prima facie a nuisance.
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- Cited by
- 14 opinions
DARGANv. WADDILL,31 N.C. 244(1848)
ATLAS J. DARGAN v. JAMES W. WADDILL.
Supreme Court of North Carolina
(December Term, 1848.)
2. If the adjacent proprietors be annoyed by it in any manner which could be avoided, it becomes an actionable nuisance, though a stable in itself be a convenient and lawful erection.
The defendant, in 1841, purchased the house and lot situate immediately opposite the courthouse, and being the northeast corner lot of the square above described. It extended 40 yards on Wade Street and 70 yards on Green Street. The defendant refitted and made many additions to the house, so as to fit it for a hotel.
The lot between the plaintiff's and the defendant's lots, which was 40 yards on Wade Street and extended back 70 yards, had several small buildings on it in front, which had been used as storehouses and shops for mechanics, and in the rear there was a small stable, fit for one or two horses, which had been used for some fifteen years, without a plank floor. In 1841 the defendant purchased this middle lot, removed the small houses in front, with a design of using the lot by erecting a stable suitable for his hotel. Mrs. Bates notified the defendant of her objections to his putting stables so near her dwelling, but the defendant, notwithstanding, erected a large frame stable at the southwest corner of the lot, 50 feet long and wide enough for two rows of stable. The stable was within three feet of the line alongside of the plaintiff's garden, and near a small stable and privy of the plaintiff. The distance from the back piazza of the plaintiff's dwelling to the nearest corner of the stable was 33 yards. The balance of the lot the defendant used as a stable or horse lot, and also built upon it a small log (246) stable fit for two horses between the large stable and the plaintiff's dwelling, the nearest corner being about 12 yards from the plaintiff's piazza, near his kitchen and smokehouse.
The plaintiff married Mrs. Bates in 1841, and resided afterwards with her in the said dwelling-house. The defendant's stable was completed and put in use on 1 March. The large stable had a plank floor, and could hold fifty horses. It was proved that the noise from the tramping of the horses, particularly on public occasions, could be heard by all residing on this square and the adjoining squares, night and day, and rendered the dwelling-house of the plaintiff uncomfortable and disagreeable, and that Mrs. Dargan, who was a nervous lady and in delicate health, was very much annoyed by it. Some evidencePage 180was offered tending to show that, before the writ issued, a disagreeable smell, arising from the defendant's stables, could be perceived in the house of the plaintiff in damp weather, when the wind was blowing from the south to the house, and that, although the defendant had a privy on his other lot, many persons used the stable for that purpose. Some evidence was offered tending to show that, before the writ issued, the defendant kept a stallion in the small stable, but not until the last of the summer, if at all, until the writ issued. The witnesses considered the value of the plaintiff's house, as a dwelling, impaired by the erection of the stables so near to it.
The court charged that a stable, like a kitchen or a privy, being a necessary appendage to a hotel, the defendant, in the reasonable exercise of his rights, was at liberty to erect the stables, taking the evidence as to the location of the several buildings to be true, provided he did so in such a manner as to cause no unnecessary damage to the plaintiff. A man is not required to forego the reasonable use of his own, although by using it he does damage to his neighbor to some extent. (247) It is damageabsque injuria. A stable differs from a slaughter-pen, tanyard, or hogpen, because the latter are unnecessary and unfit for towns and should be put in remote and out-of-the-way places. If the defendant, before the writ issued, by neglecting to have his stables cleansed at proper times, had suffered the fifth to accumulate and become noisome, the plaintiff would be entitled to recover. So the defendant had no right to use the little stable, which was so near the plaintiff's dwelling, as a stand for his stallion, and if he did so, before this writ was issued, the plaintiff would be entitled to a verdict.
Verdict for the defendant. Motion for new trial for error in the charge, which was refused. Judgment, and the plaintiff appealed to the Supreme Court.
Of course, it will be understood that an action will not lie in such a case for noises that are barely audible and only occasional, but only for such as really annoy the plaintiff's family and would annoy persons generally who might dwell in the house, so as to impair their rest and comfort materially.
PER CURIAM. Judgment accordingly.Cited: Hyatt v. Myers,73 N.C. 237;Privett v. Whitaker, ib., 556;Thomason v. R. R.,142 N.C. 313.
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