Opinion
01-31-1887
PERRINE v. TAYLOR.
Chilion Robbins, for complainant. E. W. Arrowsmith and Charles Haight, for defendant.
Bill to abate a nuisance. On motion for an injunction. For former opinion, see 3 Atl. Rep. 149.
Chilion Robbins, for complainant. E. W. Arrowsmith and Charles Haight, for defendant.
BIRD, V. C. The complainant owns a large store-house, with cellar underneath. The defendant owns an adjoining lot, on which is an hotel, in which he accommodates daily about 40 guests. The privy used by these guests and the transient customers is located within six inches of the foundation walls of the complainant's store. The vault to this privy is several feet in depth, but perhaps not so deep as the cellar under the store. There is a drain-pipe from the privy, the bottom of which is about 31 inches from the bottom of the vault. The excavations for the cellar under the store were made about four years ago. About the time they were completed, large quantities of matter, chiefly liquid, came into this cellar. It was so offensive as to attract the attention of the board of health. This matter came through the ground in the region of and opposite to the privy of Mr. Taylor. It was seen running through by at least two witnesses. Since then, on several occasions, similar offensive matter hasfound its way through the walls into the cellar of the complainant. The result has proved most nauseating to the occupants, and the possession of the property has been rendered very uncomfortable. The prayer of the bill is that the defendant shall be ordered to remove the said privy as a nuisance, or to construct such strong and water-tight walls about it as will prevent the escape of any deposits. The defendant admits that the alleged offensive matter is a nuisance to the occupants of the store; but he insists that it comes not from his privy, but from some other source. He says that, in excavating the cellar for the store, there were discovered two old drains and two old privies. The drains were in use at the time, but the privies had been disused for many years. One of the privies was entirely removed, both foundation and contents, and I believe the other was too, or so nearly as not to be capable of producing, after the lapse of 55 years, the most obnoxious odors complained of. The old drains were not only cut off, but so diverted or provided for as to be out of the question.
If the testimony of the witnesses in this case is believed, it seems most plain indeed that the matter complained of in the bill comes directly from the privy of Mr. Taylor. I have read the entire volume of testimony with the greatest attention, and it persuades me beyond a doubt, since the health of the occupants of the store is so intimately associated with the condition of that cellar, that I would be quite remiss in my duty did I not advise an injunction. I will advise an injunction that the defendant abate the nuisance complained of within 30 days after service of a copy of the decree. I will not specify how it shall be done; that is, that he shall move the present privy, or reconstruct it so as to make the walls impervious, and to prevent all leakage or overflow, or otherwise. If he prevents the flow of the deposit on the complainant, he will have complied with the law, and what I deem to be the just rights of the parties. The order should be made absolute. Let the costs of this motion await the final decree.