Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
The record discloses that the plaintiffs, or the majority of them at least, have moved into
the neighborhood in recent years. In view of this situation it is claimed by defendant that,
inasmuch as she was carrying on her business of raising, breeding and boarding dogs on her
premises at the time plaintiffs established their residences in the neighborhood, they cannot now
be heard to complain. Such circumstance may properly be taken into account in a proceeding of
this nature in determining whether the relief sought ought, in equity and good conscience, to be
granted. Doubtless under such circumstances courts of equity are more reluctant to restrain the
continued operation of a lawful business than in instances where it is sought to begin in a
residential district a business of such character that it will constitute a nuisance. . . .
Defendant cites and relies on prior decisions of this Court in each of which consideration
was given to the circumstance that the parties seeking relief had established residences near the
business the operation of which was sought to be enjoined. That such a circumstance may
properly be considered in any case of this character in determining whether equitable relief should
be granted is scarcely open to question. However it is not necessarily controlling. Looking to all
the facts and circumstances involved, the question invariably presented is whether the discretion
of the court should be exercised in favor of the parties seeking relief. In the case at bar the trial
court came to the conclusion that the nuisance found by him to exist ought to be abated, and that
such action was necessary in order to protect the plaintiffs in their rights and in the use and
enjoyment of their homes. It may be assumed that new residences will be built in the community
in the future, as they have been in the past, and that in consequence the community will become
more and more thickly populated. This means of course that the injurious results of the carrying
on of defendant’s business, if the nuisance is not abated, will be greater in the future than it has
been in the past. Such was obviously the view of the trial judge, and we cannot say that he abused
his discretion in granting relief. . . .
The decree of the circuit is affirmed. Plaintiffs may have costs.
Notes
1. The logic of collective action. Why did the court think it necessary to enjoin the defendant
in Ensign v. Walls? Why not simply put the homeowners to the burden of purchasing the property
if they did not like its use as a kennel? More concretely, the homeowners could have paid the
property owner to cease operations and to write into the property deed a restriction on any similar
use of the property in the future.
The problem comes into view if we look at the surrounding properties from above. Go
ahead, use the satellite function in Google Maps on a laptop or a handheld or some such device.
Use it to look at 13949 Dacosta Street, Detroit, Michigan, zip code 48223. The defendant’s
property, located in the middle of the Google Earth image below, had been encroached on such
that by the time of the litigation it was ringed by a circle of new homes—homes that had arrived
thanks to the mid-century boom in the Detroit auto industry, which had in turn caused the
footprint of Detroit to grow considerably, sending new homes for auto workers further and further
out into what had been rural and remote land only a short time previously.
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