Opinion
03-12-1886
PERRLNE v. TAYLOR.
A. C. Hartshorne and J. Vredenburq, for complainant. C. Haight, for defendant.
On bill for injunction.
The complainant, Perrine, is the owner of a large store, three stories in height, and containing rooms in which are carried on the business of confectionery and ice-cream manufactory, a general merchandise store, music store, tailor shop, and law offices. The said building is so situated as to form an L, the larger part of the building fronting on Mainstreet, and the other or smaller part of the L fronting on South street, in the town of Freehold, New Jersey. The defendant, Taylor, owns a large three-story building, which is used as a hotel, and is situated on the corner of the said Main and South streets, and in the angle of the said L formed by complainant's building. In the extreme corner of the land, belonging to the defendant, and against the land of the complainant, so as to be surrounded on two sides thereof by the complainant's land, is a large urinal, privy, or vault, which is used by all travelers, guests, and employes connected with the hotel. This vault is claimed to be not properly constructed, and that the contents thereof have percolated, oozed, escaped, and run through and under the walls of the vault, in and over the walls and floor of the complainant's cellar, under his building above described, in such quantities as to damage goods, wares, and merchandise, and to cause disgusting smells to arise therefrom, and spread from the cellar to the top of the said store, and is very disagreeable, disgusting, and obnoxious to complainant, his customers, and employes of the said store. When these facts were presented to the court, a preliminary injunction was granted, restraining the use of said vault for the purposes mentioned. Pending the argument on final hearing the defendant built a new vault, and closed up the old one.
A. C. Hartshorne and J. Vredenburq, for complainant.
C. Haight, for defendant.
BIRD, V. C. I think the testimony taken on final hearing in this cause justifies the complainant in filing his bill. That a great nuisance to the complainant and his tenants existed, is not questioned. It was virtually admitted that the testimony taken at the preliminary hearing warranted the injunction which was awarded. The change which the defendant has made upon his premises has beyond all doubt greatly, if not absolutely, (absolutely, I think, under the evidence,) relieved the complainant. This fact, together with the many convincing proofs presented at the preliminary hearing, overcomes all effort upon the part of the defendant to show the impossibility of his responsibility. The statements of witnesses which sustain this view are sufficiently referred to in my conclusions upon the order to show cause. To my mind, the effort of the defendant has wholly failed to meet or modify them. The proof shows that, since the filing of the bill, the defendant has removed the old vault, and constructed a new one. The object of the bill is not to prevent all use of the defendant's premises, but only to the detriment of the complainant.
I will advise a decree according to the prayer of the bill, so far as such prayer is consistent with the views heretofore and herein expressed. The complainant is entitled to costs.