Peck v. Elder

Headnote

Different persons, owning separate tenements, affected by a nuisance, may join in a suit to restrain its continuance by an injunction.

Where during the pendency of a suit for a perpetual injunction against a business alleged to be a nuisance, the defendants are tried and convicted on an indictment for a nuisance in respect of such business ; the record of their conviction is prima facie evidence in behalf of the plaintiffs, and conclusive, unless the defendants prove that there was a material change in the manner of conducting the business, intermediate the commencement of the suit and the finding of the indictment.

The conviction is admissible, without any supplemental bill setting it forth.

The erection of a building in a city, avowedly for the purpose of carrying on a trade which is a nuisance, may be restrained by injunction.

A melting-house in a city, for the purpose of trying animal fat from the slaughterhouses, is presumptively a nuisance to the inhabitants in its vicinity ; and a general denial that it is a nuisance or offensive, will not suffice to justify the dissolution of a ^preliminary injunction.—-Per Walworth, Chancellor, in the principal case.

To entitle parties to such an injunction, it is not necessary that they shj^ld reside on premises affected by the, nuisance. It suffices that the nuisance is calculated to diminish the value of their property, by preventing good tenants from occupying it, or by destroying its value for building lots.—Per Chancellor Walworth, S. C.

The bill in this cause was filed in the late court of chancery, before the vice-chancellor of the first circuit, in Hovember, 1844, by Elisha Peck, John 0. Merritt, Anson G. Phelps, Runyon W.

Martin, and Richard A. Reading, against Robert Elder and four others, in order to restrain them from erecting and putting in operation a large fat-melting establishment at the comer of Fourth street and First Avenue, in the city of New York. The complainants were severally the owners of tenements, which they alleged would be injuriously affected by the proposed erection, as follows: J. 0. Merritt owned three houses and lots in Fourth street, adjoining the site of the melting-house; R. W. Martin owned a valuable three-story dwelling-house, opposite Merritt’s; E. Peck owned five similar dwelling-houses on Second Avenue, within six hundred feet of the site; A. G. Phelps owned twelve similar houses on Second Avenue, six on Fourth street, and eight on Fifth street, besides several vacant lots, all within six or eight hundred feet of the same site, (though he resided in a distant part of the city;) and R. A. Reading owned and occupied a like house, on First Avenue, within six hundred feet.

The bill stated that Elder was the president, and the other defendants were, with him, the trustees of the Butchers’ Melting Association, a voluntary association of butchers in the city of New York, organized for the purpose of conducting, on a large scale, the melting of the fat and tallow from animals slaughtered by the butchers of the city generally. That for this purpose the association had bought a plat of ground at the north-west corner of Fourth street and First avenue, being seventy-three feet one and a half inches in front, on the avenue, and one hundred feet deep, the title of which was conveyed to three of the defendants; that the association were about to erect thereon a very large and extensive melting-house, and had commenced excavating the cellar rtherefor, and building the cellar walls. That the complainants and others similarly affected, in number two hundred and sixty persons, presented a written remonstrance to the defendants, against the proposed establishment, which the defendants entirely disregarded, and the association, with full knowledge thereof, directed them to go on and erect the building, and use it for a melting-house. The bill then alleged that a melting-house in a city is an intolerable nuisance, eminently offensive to the neighboring population. It is accompanied by

noisome, noxious, and offensive stenches and smells; the stench of the vapor and smoke being a source of serious offence, discomfort, and annoyance, for more than half a mile from the trying vats or kettles, especially in a dense atmosphere, when the vapor descends and alights on houses, clothing, and furniture, in light greasy particles, making an oily stain like that of lamp-black wiped off with a cloth; and that the stench makes many persons sick, and occasions them to vomit. The bill charged that the proposed melting establishment, if erected and put in operation, would be a grievous and unwholesome nuisance to the whole neighborhood, and would materially injure and impair the value of the complainants’ property before mentioned. That the stockholders in the association were so numerous, that it was impracticable to ascertain all their names, or make them all defendants. The bill prayed for a perpetual injunction against constructing the melting-house, and from using it for the purpose of melting and trying the fat and tallow of animals, and for abating the nuisance, if established, and for general relief. It also prayed a preliminary injunction, to the same effect.

The vice chancellor, (McCoun, Y. 0.) granted a preliminary injunction expan°te, on filing the bill; but soon after modified it on the application of the defendants, so as to permit them to erect their intended building. The defendants then put in an answer on oath, denying among other things, that a melting-house, or establishment for the trying and melting of tallow, and the fat of animals, in a city, is an intolerable nuisance; or that it is of necessity a nuisance; or that the business is of necessity in any manner an offensive trade or business; or that when conducted in a proper manner, the same may or opght to be interdicted by law. They alleged that the business can be so conducted as not to be a nuisance or offensive; that the location was a suitable and proper one, the neighborhood being in a great degree unimproved. That a large number of slaughter-houses are, and long have been, in full operation in that neighborhood, and various other establishments sometimes claimed to be offensive. They insisted that they have a perfect right to erect their proposed building and maintain it as a melting-house.

the supreme court, and it was brought to a hearing in June. The complainants introduced and proposed to read in evidence the record of the conviction of the defendants for the nuisance, in the oyer and terminer, before mentioned. The defendants’ counsel objected to the evidence, on the ground that it did not hear upon the issue, because it was found and tried long after the issue in this suit was joined, and ought to have been brought forward by a supplemental hill; also that it was not conclusive upon the fact of nuisance.

The Court held the evidence to be admissible, and sufficient to show that at the time of the indictment, the defendants’ establishment was a nuisance. But that the defendants might prove, if they could, that there was a material alteration in the manner of conducting the melting business, between the time of filing the hill and that of the finding of the indictment.

The complainants then read the record of the indictment in evidence, and proved their several ownership of the property mentioned in the hill, and other facts which had been put in issue.

The defendants’ counsel also raised the objection, that the