I. General restrictions on such use.
1. The Maxim "sic utere tuo ut alienum non laedas."
33 Connecticut, 118. - 1865.
Petition for an injunction against the keeping of a slaughterhouse on lands of respondent near the dwelling of the petitioner. The case was reserved for the advice of this court.
Park, J. - The respondent has successfully answered all the claims of the petitioner for a continuance of the injunction, with but one exception, and that is, in relation to the bleating of calves kept upon the premises for slaughter. We think the facts found by the court below upon this subject are sufficient to require the interposition of the court to prevent its continuance. It is found that the annoyance to the petitioner, proceeding from this cause, was so great at times as to drive him and his family from the occupancy of that part of his house nearest to the premises of the respondent. The court presents an extreme case of the kind - one that will constitute a nuisance, if a nuisance can be produced from such cause. In the cases of Whitney v. Bartholomew, 21 Conn. 213, and of Brown & Brothers v. Illius, 27 Id. 84, this court distinctly recognize the doctrine that a nuisance may be produced by offensive sounds in the prosecution of business lawful per se. The same doctrine is held in the case of So/tau v. De Held, 9 Eng. L. & Eq. R. 104, where an injunction was granted to restrain the ringing of church bells by a Roman Catholic community, although they were rung only upon the Sabbath. They were located so near a person's residence that his peace and quiet were greatly disturbed. If sounds of such a char-acter and so made can be sufficient to constitute a nuisance, how can it he questioned in the case under consideration?
It is difficult to conceive of any noise more destructive to the comfort and happiness of a family than the constant wailing of animals in distress in the immediate vicinity of their residence. Enjoyment under such circumstances would require nerves of brass and a heart of steel. But it is unnecessary to pursue this subject, for reason and law harmonize in declaring that the conduct of the respondent in this particular is unlawful and wrong. He should remember the maxim sic utere tuo at alienum non Iaedas, and conduct accordingly.
The remaining claims urged by the petitioner for a continuance of the injunction are not supported by the allegations of his bill and we do not therefore consider them.
We advise the Superior Court to so modify the injunction that the respondent may be allowed to prosecute his business, but to prevent the bleating of calves and the raising of offensive smells to the annoyance of the petitioner.
II. Special restrictions on such use of land.
1. Conditions and Limitations Forbidding Certain Uses Limiting to Particular Uses.
41 New York, 442. - 1869.
Ejectment to recover the possession of land on account of the breach of a condition subsequent contained in the deed from plaintiff. Judgment for plaintiff. Defendant appeals.
Hunt, Ch. J. - The appellant contends that the condition in the deed from Plumb is invalid, as being repugnant to the nature of the estate granted. He cites authorities to the effect, that a condition annexed to a devise or conveyance in fee, that the devisee or purchaser, shall not alien, is void; that a condition that the feoffee shall not enjoy the land or take the profits, is void; and others of a similar character. The cases cited have been recognized as sound law from a very early period, and may be conceded to be based upon sound principles. Wherever the condition in a deed is unlawful, impossible or repugnant to the nature of the estate granted, it is not to be enforced. 2 Bl. Com. 156-7; Coke Lit. 206a., 206b.; Bac. Abr., tit. " Condition." This condition is evidently neither unlawful nor impossible. Is it repugnant to the estate granted that its use should be restricted by preventing thereon, the sale of intoxicating liquors as a beverage? The cases in the books are numerous and uniform in holding that the use of the property in some directions, may be restricted. A condition that a school house should not be erected on the premises, or a distillery, or a blast furnace, or a livery stable, or a machine shop for iron manufacture, or a powder magazine, or a hospital, or a cemetery, have been held to be valid conditions. Collins v. Marcy, 25 Conn. 242; Craig v. Wells, 1 Kernan, 315; Gray v. Blanchard, 8 Pick. 284; Sperry v. Pound, 5 Ohio, 189; Nicoll v. Erie Railway Co., 2 Kern. 121.
The case of Colt v. Towle, in the English Chancery Appeals, so late as in June, 1859, is like the one before us. The plaintiff sold a piece of land to trustees of a land society, who covenanted that the plaintiff should have the exclusive right of selling beer to any public house erected on the land. The defendant, a member of the society, acquired a portion of the land with notice of the covenant, and erected on it a public house, which he supplied with his own beer. The plaintiff filed his bill to restrain the defendant from supplying beer. It was objected: 1. That the covenant was void for uncertainty. 2. That there was a want of mutuality. 3. That the covenant was void as being in restraint of trade. The court held the objections to be insufficient, and sustained the bill. Law Rep. Eq. Series, part 10, Oct., 1869, Chancery Appeals.
It is said that a condition, which avoids a grant on account of the sale of a single glass of beer, is unreasonable and absurd, and, therefore, void. It is said that a condition forbidding the keeping of a hotel or a saloon, where liquors are regularly sold, might be valid, while one depending upon the sale of a single glass of liquor, would be trifling and ridiculous, and could not be sustained. The grantor in the present case, evidently belonged to that class of men, who consider the habitual use of intoxicating liquors, as a serious evil. He was the owner of a tract of land, which as I infer from the case, he purposed to have formed into a town or village, by the sale of lots to individuals who should build upon them. This would give to his property remaining unsold, the advantage of the enhanced price, resulting from such improvement. The increase of inhabitants would give to himself and family the benefits of refined society. It was his opinion, as we may infer from his restrictive conveyances, that intemperance was a social evil, from which he desired to protect himself and his family. We may infer, in the same manner, that he considered his remaining property, as more valuable if located in a community where no liquor was sold as a beverage, than where its use was permitted. These views and wishes cannot be pronounced unreasonable and absurd. The grantor had a right to hold them, and he had a right to use his property in a manner that would accomplish them.