Green v. Lake

Mississippi Supreme Court October 15, 1882

Green v. Lake, 60 Miss. 451 (Miss. 1882)

Campbell

Opinion of the Court

Campbell, C. J.,

delivered the opinion of the court.

The ordinance of the city of Aberdeen declaring certain establishments, which become dangerous to person or property in their vicinity, to be nuisances, and liable to be proceeded against according to the ordinances" of the city, is free from all legal objection, and the petition of the appellant averring that the steam mill of the appellee is-dangerous to persons and property in its vicinity, because of its condition as set forth, and is therefore a nuisance, which he seeks to have judicially *456ascertained and declared to be such, and abated, should not have been dismissed. The demurrer should have been overruled, and the facts inquired into, if controverted by the defendant. The charter of Aberdeen confers on it power to “ prevent and remove all nuisances.” We agree with counsel in the assertion that this grant of power does not authorize the town to declare that to be a nuisance which is not, and destroy property or interfere with individual rights improperly under the pretence of preventing or removing nuisances ; but the town has the power to prevent and remove what comes within the legal notion of a nuisance, and, according to the petition in this case, the establishment complained of was a nuisance, because of its condition and surroundings.

The complaint, if denied, should be investigated, and the controversy determined accoi’ding to the facts developed.

Judgment reversed, the demurrer to the petition is overruled, and cause remanded to the Circuit Court for further proceedings.

Reference

Full Case Name: James M. Green v. David Lake
Cited By: 1 case
Status: Published
Syllabus: 1. Nuisance. City ordinance. Charter-power. City of Aberdeen. The charter of the city of Aberdeen empowered the mayor and selectmen, by ordinance, “to regulate and prevent the carrying on of manufactories dangerous in causing or promoting fires,” and “to prevent and remove all nuisances.” By virtue of the power thus conferred, the following ordinance, enacted by the mayor and selectmen, is valid: “All steam grist mills, saw mills, or other machinery run by steam, contained and operated in buildings or structures wholly or in part of wood, which establishment, by reason of the defect or dilapidation of the buildings, .the defective construction of the machinery, the worn-out condition of the boiler, or any other cause, are or shall hereafter become dangerous to persons or property in the vicinity, are hereby declared to be public nuisances, and liable to be proceeded against as such, according to law and the ordinances of the city of Aberdeen.” 2. Same. Petition for abatement of steam mill. Practice. A petition presented in the manner prescribed by the general ordinances of the city of Aberdeen, and based upon the ordinance above set forth, alleging that a certain steam mill within the corporate limits of the city is dangerous to persons and property in its vicinity, and especially to the petitioner’s person, famity, and property, because of the construction and condition of the buildings and machinery, and that it is a nuisance, which he prays to have abated, should not be dismissed on a demurrer calling in question the validity of the ordinance above quoted, but the facts alleged should be inquired into, and if established, the relief should be granted.