"Hogs in the city of Jackson may or may not be a nuisance, and any ordinance on the subject should be framed accordingly." In the Comfort Case the court construed section 2928 of the Code of 1892, of which section 3319, Code of 1906 (section 5816, Hemingway's Code), is a rescript. It was held in that case that under the authority given by this statute, empowering municipalities to prevent and abate nuisances and to suppress hog pens, a municipality could only prevent hogs being kept within its limits when the keeping was a nuisance; that an ordinance providing generally, as the one in that case did, that hogs should not be kept within the municipal limits without reference to whether their keeping was a nuisance or not was invalid. In the Crittendon Case it was held that section 3340, Code of 1906, conferring the power, among others, upon municipalities to regulate and suppress billiard tables and pool rooms, only authorized their prohibition when so conducted as to become a nuisance. In the Fitzhugh Case the court held in short that a municipality could not make a thing a nuisance that was not in fact a nuisance. It follows, from these views, that the principle which was the foundation of the chancellor's conclusion of law embodied in the two decisions of the Supreme Court of the United States, referred to by him and relied on by appellee to sustain the decree of the chancellor, does not come into play in this case. We simply hold that under our statute a municipality has no authority to prohibit any condition on the ground that it is a nuisance and inimical to the public health, unless in truth and in fact the evidence shows it is such a nuisance; that a municipality is without authority to pass an ordinance denominating a thing a nuisance, when in truth it is not a nuisance. We therefore do not reach the question of the power of the Legislature under the Constitution on this subject. Reversed, and judgment for appellant. NATIONAL REFINING CO. v. BATTE. (No. 24164.) (Supreme Court of Mississippi, Division B. June 9, 1924.) (Syllabus by the Court.) 1. Nuisance 3(6)-Gasoline filling station not nuisance per se. While a public filling station, used to serve automobiles, trucks, etc., with gasoline and oil, is not a nuisance per se, still it may be so operated as to be a public or private nuisance, and, if so operated, it may be enjoined to the extent of abating the nuisance. 2. Nuisance 3(6)—Gasoline filling station held a nuisance. Generally speaking, a person has the right to use his property for any lawful purpose, and other from such use, even though such use a right of action does not arise in favor of anmay be annoying or cause inconvenience; but the right to use private property is subject to some limitations, and the precise limits of one's liberty to do as he pleases with his property is difficult to define; but he cannot so use his property as to cause a physical invasion of the property of another person, and the erection of a filling station and driveway thereto in such manner as to invite motor vehicles to enter the filling station over a private way of the owner of the filling station, so as to constantly cause automobile headlights to shine upon and into another's residence, is not such a use as the owner hás a right to maintain. Appeal from Chancery Court, Hinds County, First District; V. J. Stricker, Chancellor. Action by E. A. Batte against the National Refining Company. From a judgment for plaintiff, defendant appeals. Affirmed. Green, Green & Potter, of Jackson, for appellant. Alexander & Alexander, of Jackson, for appellee. ETHRIDGE, J. The appellee, Batte, filed a bill in the chancery court against the appellant, alleging that the complainant had resided for many years in quiet and peace at No. 915 Grand avenue, Jackson, Miss.; that his home and residence fronts northwest, and is just opposite the point of intersection of Grand avenue with West Capitol street in said city; that the two streets intersect at a sharp angle, this forming a triangular tract of land just across Grand avenue, in front of complainant's house; that the defendant has acquired and is using as a public oil and gasoline filling station this triangular lot; that the erection and use of this filling station has caused the continuous presence of automobiles and auto trucks in and about the complainant's residence, with their attendant noise and confusion and annoyance, to the complainant's injury and damage; that the defendant has built and provided a driveway or entrance to said filling station, so as to provide entrance both from Capitol street and from Grand avenue across and through said triangular lot; that said driveway is so placed that the headlights from automobiles and trucks, coming into the filling station for gasoline and oil, at the invitation and solicitation of the defendant, come into said filling station from Capitol street, and at night or in the evening throw their lights directly upon and into the residence of complainant; that Capitol street is the main and principal thoroughfare for automobiles running east and west (100 So.) in said city, and that most of the automobiles which enter said filling station do so from Capitol street; that the lights and glare from such automobiles so using the defendant's filling station and facilities are after dark directed almost continually upon complainant's residence, to the extent that he is unable to sit or rest upon the front porch of his house with any comfort or pleasure; that said lights or glare from such automobiles penetrate into the interior of said house, and so render it difficult to sleep or to maintain any privacy therein, and have rendered it practically valueless as a home, to complainant's great damage; that the conditions above described and complained of were caused directly by and at the instance of the defendant in the use of said property as a filling station, and that the injuries complained of necessarily follow from such use or adaptation by the defendant of said property, and peculiar to and specially suffered by the complainant, and are of a kind and degree distinct from and not sustained or suffered by the general public; that prior to the erection of said filling station complainant, being apprised of the plans of the defendant, protested both to the city of Jackson and to the defendant against the erection of said filling station, but that nevertheless, and with full knowledge of such protest, and in willful disregard thereof, said defendant erected said filling station, and thereby caused the injuries and nuisance hereinbefore set out; that the acts of said defendant constitute a continuous nuisance to the complainant, and have caused and will continue to cause irreparable injury and loss to said complainant; that complainant is without adequate remedy at law in the premises. It is argued by the appellant that the damages suffered by the defendant are merely such as result from city life, and especially under modern conditions; that its business as a filling station is not a nuisance per se, and therefore cannot be controlled by the court. The damages alleged in complainant's bill are not merely such as result from city life and the use of the streets by automobiles, but under the allegations of the bill are the result of an invasion of complainant's premises by reason of throwing the lights and glare from the headlights of automobiles upon and into his house in a different degree and in a different manner from what he would suffer from the use of the streets in the ordinary and customary use thereof by automobiles and other vehicles. The bill alleges that the driveway of the defendant's filling station is constructed across the lot of defendant from street to street, so that automobiles and auto trucks may approach and enter the filling station in a different way from that in which the filling station could be approached by the ordinary use of the streets; the allegation being that the driveway is so constructed that automobiles, on entering the filling station from Capitol street and while being served by the filling station, throw their lights directly upon and into complainant's residence. [1] The bill avers that the residence was situated where it is, and enjoyed as a home by the complainant, for many years prior to the erection of defendant's filling station, and that prior to the erection of said filling station complainant protested against the erection of same across the street in front of his residence. While it is true that The bill prays for an injunction against a filling station is not a nuisance per se, still the defendant, to restrain and enjoin it from it may constitute such a use or invasion of maintaining said filling station in the man- another's property as to cause serious inner set out above, and from doing and per- jury, or in some cases almost a complete demitting the injuries and nuisance above destruction of a residence as a home and place scribed, and prays for a temporary injunction, and that upon final hearing that said temporary injunction be made perpetual, and for an assessment of damages in the sum of $2,500. This bill was demurred to on the grounds: First, that there was no equity on the face of the bill; second, that it appears affirmatively from the bill that the defendant was in the possession of its property for lawful purposes, and that no cause of action accrues therefrom; third, that the bill fails to aver such invasion of the complainant's property as would entitle him to relief under the law; that the defendant is in no way responsible for the use made of the property owned by it, so long as said use is lawful, and that to grant to complainant the relief sought would be to deprive the defendant of its property without due process of law. The demurrer was overruled, and an appeal granted to this court to settle the principles. for rest and sleep. [2] The right to use one's property, whether in a city or not, is not without reasonable limitations. The precise limits of one's liberty to do as he pleases with his own property are often difficult to define. Property may not be used to the exent of destroying the value of other people's property, who have the same right to the use and enjoyment of property as any other owner has. A person living in a city, of course, for the benefits derived from being so situated, must give up some of his rights, and must suffer such inconveniences as only affect the public at large. It is manifest that to construct an approach or entrance across a lot from street to street may occasion an injury. If such approach were laid out as a public street, the damages resulting to the adjacent property owners would be included in a condemnation proceeding, and the owner would be compensated for such special damage. The opening of such a way, and inviting the public to travel over and upon such right of way, by the private owner of the soil, would also inflict the same damage as if laid out by the public. Of course, a property owner has a right to engage in commerce and to use his property for that purpose; but in doing so he must so conduct the business as not to interfere unreasonably with the rights of the adjacent property owners. The filling station probably could be operated without the use of the driveway, and it may be that the public could be served by the filling station in such way as would cause the property owner no additional inconvenience by the use of the streets, or by laying out the driveway in such way as to cause no additional injury. It is well known that a light from an automobile, when thrown directly into the face and eyes of a person, will cause annoyance, and physical injury if persisted in, and, if the statements of the bill are true, it would be impossible to sit upon complainant's front porch, and use the porch as a place of rest or pleasure, while such lights were being constantly thrown directly thereon. It is not a case of an owner being in the possession of his own property and using his own property, but it is a case where, in order to use his own property for personal advantage, he causes a physical invasion of the adjacent property, and this he has no right to do. It may be that conditions may warrant the construction of these filling stations at places in a city given over principally to business uses, even though it might result in direct injury to another property owner in the use of his property; but it is clear to our mind that a place may not be so used where the situation surrounding it at the time of its construction does not bring it within the rule of a business district. Again, it may not be a necessity to keep a filling station open during the hours of the night when automobiles are operated, or during the hours when headlights are necessary, or it may be that the automobiles could be required to turn off the headlights on entering the driveway of the filling station or prior thereto, so as not to cause annoyance and discomfort to the complainant. Whether these things can be done in a reasonable manner, and without annoyance or injury to the complainant, we cannot decide from the allegations of the bill, and if there be any situation which would warrant the use of the defendant's property for the purpose for which it is used, without undue injury to the complainant, that may arise upon plea or answer. It is not necessary for a business to be a nuisance per se for it to be restrained as an unlawful interference with the right of an other person, for it may be conducted so as to become a nuisance, owing to the manner in which it is conducted, and if business is so operated that it becomes a nuisance, not per se, but from the manner in which it is operated, it may be restrained or abated to the extent that it is unlawfully operated. In King v. Vicksburg Railway & Light Co., 88 Miss. 456, 42 South. 204, 7 L. R. A. (N. S.) 1036, 117 Am. St. Rep. 749, the court recognized the principles involved in the present suit-that people, although they reside in a city, are entitled to enjoy their homes free from damage resulting from physical invasion of their property sufficiently to depreciate the value of the property and render its occupation uncomfortable. In that case the nuisance was by smoke, soot, and cinders growing out of the use of locomotives near the premises, brought about by the railway company constructing improvements on its property after the establishment of the home, and the court held that a corporation cannot claim exemption from liability for a nuisance maintained by it in the operation of an electric power plant, whereby property is damaged because it is operated under a charter giving it a right to do business. In Hamilton Corporation v. Julian, 130 Md. 597, 101 Atl. 558, 7 A. L. R. 746, the Supreme Court of Maryland held that one residing in the residence district of a municipality may enjoin the threatened erection of a bowling alley and moving picture theater adjoining his residence, if the act complained of will, in the judgment of reasonable men, be naturally productive of actual physical discomfort to persons of ordinary sensibilities and of ordinary tastes and habits, and, in view of all the circumstances of the case, will be in derogation of the rights of the complainant. At page 749 et seq., 7 A. L. R., there is a case-note treating in detail and setting forth numerous authorities on the right to enjoin threatened or anticipated nuisance. Numerous other authorities are cited in the brief in the present case. We think it is clear, from the allegations of the bill that the complainant has suffered damages, and will continue to suffer damage, separate and apart from such as result to the general public from the use of the streets by automobiles, and from the nuisance incident to the headlights by such automobiles in the use of the streets themselves. The bill states a case where the damage is direct, special, and serious to the particular complainant, distinct from that suffered by the public in general. The court below having overruled the demurrer, the judgment will be affirmed. Affirmed. (100 So.) ATKINSON V. STATE. (No. 23766.) (Syllabus by the Court.) Grand jury 8-Jury 70 (8)-When regular jury boxes quashed, prospective jurors not summoned from supervisors' districts in proportion to population; grand jurors need not be called in regular order one at a time from each supervisor's district. When the regular jury boxes have been quashed by the court, the only statute applicable to the summoning of a venire facias is section 2207 of Hemingway's Code, and under this section it is not required that the prospective jurors be summoned from the supervisors' districts in proportion to the population. Neither is it necessary in the drawing of the grand jury from the jurors thus summoned, that these jurors be called in regular order one at a time from each supervisor's district. In Banc. other beats. The grand jury was composed of 10 men from district No. 1 and 2 men each from the other four districts. All of this was seasonably objected to by the defendant through his counsel, by objections, motion to quash, and otherwise before the grand jury was impaneled. All of which objections were overruled. The grand jury then returned this indictment. It is contended by the appellant that it was the duty of the court, the sheriff, and the clerk, in summoning this venire, to have complied substantially with the laws relating to the drawing of the electors to serve on the juries by the board of supervisors. That is to say, that the venire in this case should have been drawn having in view the number of qualified electors in the respective districts, and that this venire should have been proportioned in accordance with the population of the respective districts. In other words, that the circuit judge, sheriff, and clerk in drawing this venire should have substantially complied with and followed section 2180 of Hemingway's Code, and that Appeal from Circuit Court, Lauderdale this was not done. County; C. C. Miller, Judge. Frank Atkinson was convicted of murder, and he appeals. Affirmed. Parker & Snow and Marion W. Reily, all of Meridian, for appellant. Rush H. Knox, Atty. Gen., for the State. SYKES, P. J. The appellant, Frank Atkinson, was indicted, tried, and convicted in the circuit court of Lauderdale county, of the murder of R. H. Bryant and sentenced to be hanged, from which judgment this appeal is here prosecuted. The appellant Atkinson and Clyde Greer were jointly indicted. A severance was had. Greer was tried first, convicted and sentenced to be hanged, and that judgment was affirmed by this court several weeks ago. It is unnecessary to recite the material facts relating to the killing; suffice it to say that the testimony of the state made out a case of murder. Upon motion the jury box of Lauderdale county was quashed; the grand and petit jurors in attendance were discharged. The court then ordered the clerk to issue a venire facias commanding the sheriff to summon 50 qualified persons to act as jurors, and that the sheriff summon these men in proportion of 5 men from beat 1 and 1 from each of the other beats. The order of the court commanded the sheriff to summon 26 persons for jury service from district No. 1 and 6 persons from each of the other supervisors' districts to serve as 'grand and petit jurors. This order of the court was obeyed by the sheriff. The grand jury was organized by the court directing the sheriff to call 18 jurors, 5 from beat 1 and 1 from each of the It is also contended that the names of these jurors should have been drawn in regular order from the five boxes, instead of drawing five from beat 1 and 1 from each of the others. This When the regular jury boxes of this court were quashed, it thereby became the duty of the circuit judge to have other jurors summoned in accordance with section 2207, Hemingway's Code (2714, Code of 1906). section alone is the one involved in this case. It provides that in cases of this kind "the court shall direct the requisite number of persons, qualified as jurors, to be summoned to appear at such times as the court shall appoint, and the court shall thereupon proceed as if the jurors had been regularly drawn and summoned." This statute provides for an emergency of this character, and under it the court is not required, either in having summoned or in organizing the grand and petit juries, to follow the statutes which relate to the drawing of juries by the board of supervisors. The only statute applicable is section 2207, Hemingway's Code, and it makes no difference under that section from what districts jurors are summoned or the number of jurors from each district who may sit upon either the grand or the petit juries. We find no error therefore in the action of the learned circuit judge in this matter. It is also contended that the special oath was not administered to the jurors in this case as provided by section 1241, Hemingway's Code. The stenographer's notes do not show that this oath was administered. However, the judgment of the court recites that the jury was sworn. There was no objection made in the record to any failure to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes swear the jury. This case comes squarely within the rule announced in Hayes v. State, 96 Miss. 153, 50 South. 557, and McFarland v. State, 110 Miss. 482, 70 South, 563. There is therefore no merit in this objection. There are certain objections to the introduction of testimony which have received our consideration. As a matter of fact, all of these questions relating thereto were settled in the case of Greer v. State (Miss.) 99 South. 905, adversely to the contention of the appellant. The judgment of the lower court is affirmed, and Friday, July 25th, is fixed as the date of execution. Affirmed. MOORE v. HINES, Director General. (No. 24198.) (Supreme Court of Mississippi, Division A. June 9, 1924.) (Syllabus by the Court.) Abatement and revival 47-Actions against former Director General held not to abate, because not revived. Actions against the Director General of Railroads, pending March 3, 1923, when the amendment to the Transportation Act went into effect (42 Stat. 1443, c. 233), which actions had been brought against a former Director General, and not revived against his successor, under said amendment authorizing such revivor at any time before satisfaction of final judgment, did not abate. Appeal from Circuit Court, Lafayette County; Thos. E. Pegram, Judge. Action by J. R. Moore against Walker of the character described in subdivision (a), (c), or (d), properly commenced within the period of limitation prescribed, and pending at the time this subdivision takes effect, shall not abate by reason of the death, expiration of moval from office of the Director General of term of office, retirement, resignation, or reRailroads or the Agent designated under subdivision (a), but may (despite the provisions of the act entitled 'An act to prevent the abatement of certain actions,' approved February 8, 1899), be prosecuted to final judgment, decree, or award, substituting at any time before satisfaction of such final judgment, decree, or award the agent designated by the President then in office. Nor shall any action, suit, or other proceeding heretofore or hereafter brought by any public officer or official, in his official capacity, to enforce or compel the performance of any obligation due or accruing to the United States arising out of federal control, abate by reason of the death, resignation, retirement, or removal from office of such officer or official, but such action, suit, or other proceeding may (despite the provisions of such Act of February 8, 1899), be prosecuted to final judgment, decree, or award, substituting at any time before satisfaction of any such final judgment, decree, or award the successor in office." Under this amendment to the Transportation Act, causes circumstanced as this one was do not abate, but substitution of the Director General in office may be made "at any time before satisfaction of such final judgment, decree, or award." Dougherty v. Payne, Director General (C. C. A.) 291 Fed. 60. Reversed and remanded. D. Hines, Director General. From a judg- MICHAEL v. WEST HATCHIE DRAINAGE ment dismissing the cause, plaintiff appeals. Reversed and remanded. Harry M. Bryan, of Oxford, and Wells, Stevens & Jones, of Jackson, for appellant. ANDERSON, J. On motion of Hines, appellee, formerly Director General of Railroads, appellant's cause was dismissed, because it had not been revived, either in the name of John Barton Payne or Jas. C. Davis, successors in office to appellee. From that judgment appellant prosecutes this appeal. The cause was dismissed on March 15, 1923. DIST. (No. 23842.) (Supreme Court of Mississippi, Division B. June 9, 1924.) (Syllabus by the Court.) Appeal and error 508-Dismissal of appeal by circuit court affirmed because no appeal bond in record showing appeal to circuit court. Where a bill of exceptions was taken to the action of a board of supervisors from an assessment of taxes in which was included an appeal bond and was mislaid, and a motion was made in the circuit court to dismiss the appeal because such record was not on file, and tion to entertain the appeal, and on appeal the cause is dismissed for want of jurisdicto this court the alleged bill of exceptions is stricken from the record on motion, the court cannot thereafter decide the merits of the appeal because no appeal bond is in the record showing an appeal to the circuit court. At that time the amendment to the Transportation Act of 1920, which became effective March 3, 1923 (42 Statutes at Large 1443, c. 233), was in force. That amendment provides, among other things, the following: "(h) Death, Expiration of Term of Office, Retirement, Resignation, or Removal from Office of Director General of Railroads, or of Public Officer Bringing Suit Arising out of Federal Control, Not to Abate Actions, etc.-Ac- Appeal from Circuit Court, Alcorn County; tions, suits, proceedings, and reparation claims, C. P. Long, Judge. |