171 KEITH, P. Wilton, the appellee in this court, filed a bill in the circuit court of Rockingham county, in which he states that he is a 172 resident of the town of Harrisonburg, and that contiguous to him is the property occupied by George Herring; that for three years past Herring has maintained on the lot on which he resides a kennel, about one hundred or one hundred and twenty-five feet distant from Wilton's residence, in which he is breeding dogs for sale, having at times as many as seven or eight, and rarely so few as two or three; that the dogs keep up an incessant barking, especially during the night, by which the complainant and his family are so annoyed and disturbed as to be prevented from obtaining such sleep and rest as health requires; that by reason of the repetition of this nuisance he has become extremely nervous, at times about unfit to attend to business; that the health of his family is being seriously and permanently impaired, and they are being deprived of the use and enjoyment of their home; that he has complained to Herring, but is unable to obtain from him any permanent relief; and that complainant, impelled by the desire to avoid litigation between himself and a neighbor, has borne with the situation until he can no longer endure it without serious and permanent injury to the health of himself and his family. He further avers that Herring is without visible means to respond in damages to an action at law, and charges that any judgment against him commensurate with the damage sustained will be wholly unavailing. He prays that Herring, his agents, etc., may be enjoined from keeping upon his premises dogs causing the injurious noises and disturbances complained of; that the nuisance of the kennel may be discontinued and abated, and for general relief.

A temporary injunction was granted in accordance with the prayer of the bill, and at a subsequent day the defendant answered the bill, admitting that for a number of years he has been keeping a few dogs for his own pleasure and for the profits derived from their sale, but denying that they have been creating a nuisance to the plaintiff and his family, or that the dogs kept by him could have been a nuisance to anyone in a normal condition of health and nerves. He denies that he has kept the 173 number of dogs with which he is charged in the bill, and states in detail the number kept by him at various times. He denies that he is unable to respond in damages for any nuisance he may have occasioned; and

finally claims that the plaintiff's annoyance is due to his nervous temperament, and asserts that neither the plaintiff nor any member of his family has ever been made ill or prevented from attending to business.

Upon these issues evidence was taken, and the case coming on to be heard, the circuit court perpetuated the temporary injunction, and Herring obtained an appeal from one of the judges of this court.

We think the weight of evidence establishes that plaintiff and his family were subjected to great and continuous annoyance and discomfort by the howling and barking of the dogs and the whining of puppies upon the premises of appellant; that their rest has been broken, their sleep interrupted, and that they have been seriously disturbed in the reasonable use and enjoyment of their home.

In Dittman v. Repp, 50 Md. 516, 33 Am. Rep. 325, Judge Alvey, delivering the opinion of the court, says: "In all such cases the question is whether the nuisance complained of will or does produce such a condition of things as, in the judgment of reasonable men, is naturally productive of actual physical discomfort to persons of ordinary sensibilities and of ordinary tastes and habits, and as, in view of the circumstances of the case, is reasonable and in derogation of the rights of the complainant."

In Spelling on Injunctions, section 431, it is said that: "Noises which tend to disturb rest and quiet in the neighborhood may be restrained. . . . . To warrant an injunction against a noise as a nuisance it must be shown that the noise is such as to produce actual physical discomfort to a person of ordinary sensibilities, and is unreasonably and unnecessarily made."

174

In Brill v. Flagler, 23 Wend. (N. Y.), at page 357, a case in which Flagler sued Brill for killing his dog, and the defendant pleaded that the dog was accustomed to come upon the premises of the defendant in the night-time as well in the daytime, and by his barking and howling annoy and disturb the defendant and his family, speaking of this plea the court said: "I am of opinion that the facts which the plea sets up constitute a bar to the action. The demurrer admits that the dog was in the constant habit of coming on the premises and about the dwelling of the defendant, day and night, barking and howling, to the great annoyance and disturbance of

the peace and quiet of the family; that the plaintiff was fully advised of this mischievous propensity of the animal, and willfully neglected to confine him, and that defendant unable to remove the nuisance in any other way killed him. No other authority than the experience and observation of every man is necessary to enable him to determine that the matters set forth in this plea constitute a private nuisance to the inmates of a family, and upon general principles justify all reasonable means to remove it. It would be mockery to refer a party to his remedy by action. It is far too dilatory and impotent for the exigency of the case. Whatsoever unlawfully annoys, or does damage to another, is a nuisance, and may be abated by the party aggrieved, so as he commits no riot in the doing of it."

That case, it is true, was an action at law, but it states clearly and forcibly the annoyance and inconvenience arising from the barking and howling of dogs, that they constitute a nuisance, and in that case excused what would otherwise have been a trespass. It declares that the remedy by action at law would be a mockery and far too dilatory and impotent for the exigency of the case, thus presenting a case for the interposition of a court of equity. It is true, also, that in that case the dog came upon the premises of the man who shot him; it was, therefore, somewhat in the nature of a trespass, while a nuisance generally results from the commission of an act beyond the limits of the property affected: High on Injunctions, 2d ed., sec. 739. Especially is this true of noises, and many other illustrations 175 might be added. Dogs in a neighbor's yard may effectually murder sleep and destroy the reasonable enjoyment of a home.

It is urged on the part of plaintiff in error that an ordinance of the town of Harrisonburg afforded an easy and expeditious remedy for whatever inconvenience appellee may have suffered.

In Kelly v. Lehigh M. & M. Co., 98 Va. 405, 81 Am. St. Rep. 736, 36 S. E. 511, this court said: "Where courts of equity have once acquired jurisdiction, a subsequent statute which gives to or enlarges the jurisdiction of the common-law courts over the same subject does not deprive the equity courts of their jurisdiction, although the statute may furnish a complete and adequate remedy at law unless the statute conferring such jurisdiction uses prohibitory or restrictive words."

66

And this was reiterated in Steinman v. Vicars, 99 Va. 595, 39 S. E. 227, where it was said: Where courts of equity have once acquired jurisdiction, they do not lose such jurisdiction merely because courts of law have been subsequently authorized to administer the same or similar relief": Spelling on Injunctions, secs. 398, 399.

We are of opinion that a court of equity has jurisdiction in such matters, and that in this case it has been properly exerised.

The decree of the circuit court is affirmed.

The Right to Kill Dogs which have become a nuisance by their propensity to fight and howl or to kill sheep has been recognized by the courts in some cases: Hubbard v. Preston, 90 Mich. 221, 30 Am. St. Rep. 426; Thorne v. Mead, 122 Mich. 273, 80 Am. St. Rep. 568; note to Hamby v. Sampson, 67 Am. St. Rep. 295. But compare Chapman v. Decrow, 93 Me. 378, 74 Am. St. Rep. 357; Hodges v. Cousey. 77 Miss. 353, 78 Am. St. Rep. 525; Ten Hopen v. Walker, 96 Mich. 236, 35 Am. St. Rep. 598.

HENRICO COUNTY v. CITY OF RICHMOND.
[106 Va. 282, 55 S. E. 683.]

CONSTITUTIONAL LAW.-A statute will not be declared unconstitutional unless there is a clear violation of some explicit provision of the constitution. (p. 1006.)

CONSTITUTIONAL LAW-Conferring Legislative Power on Courts. A statute providing for the extension of the corporate limits of cities and towns, designating the circuit judges of the state in which the premises lie as the governmental agency for carrying out the provisions of the statute, and conferring upon them the power to determine the boundaries, and the necessity for and expediency of extending such limits, is not unconstitutional as conferring legislative power on such courts. (p. 1006.)

The ordinance involved in this case reads as follows:

"AN ORDINANCE.

"(Approved August 12, 1905.)

"To extend the corporate limits of the city of Richmond in pursuance of the provisions of the act of the General Assembly of Virginia, approved March 10, 1904, entitled 'An act to provide for the extension of the corporate limits of cities and towns.'

"Be it ordained by the Council of the city of Richmond: "1. That the city of Richmond hereby declare that it is desirable to annex, in pursuance of the act of the General Assembly of Virginia, approved March 10, 1904 (Acts 1904, page 144), certain territory of the county of Henrico, Virginia, adjacent to the present corporate limits of the city of Richmond, in which is included the town of Fairmount, and to that end the city of Richmond doth hereby accurately describe the metes and bounds of such territory as follows: [Here follows a full description by metes and bounds.]

"2. The city of Richmond doth hereby set forth the necessity for and the expediency of the proposed annexation-that is to say:

"(1) That the crowded and congested conditions at present prevailing in almost every section of the city may be relieved by adding sufficient territory to the corporate limits of the city not built upon, but adapted to city improvements, so as to afford cheap and desirable locations for the erection of commodious, healthful and beautiful residences.

"(2) That the present and prospective system of public improvement of the city, such as the establishment of grades of streets and alleys, the plans of construction of sewers, culverts, drains, and water and gas mains, may be designed, adjusted and made, so as to avoid unnecessary annoyance and damage necessarily occurring where property is built upon and developed before such systems are designed, acquired and made.

"(3) The fact that a part of the territory proposed to be annexed is already built upon, though without any sufficient system of sewers or other improvements, makes it not only expedient, but necessary that some complete system of sewerage be promptly provided for the proper sanitation and improvement of such territory.

"(4) That within the territory proposed to be annexed there are several locations where the houses and population are more or less dense, which necessitate better police and fire protection than the county of Henrico is enabled, with the means at its command, to afford to such communities, and, as a result, it endangers the safety of life and property not only without but also within the corporate limits.

"3. The city of Richmond hereby sets forth the terms and conditions upon which it desires to make the proposed annexation, and proposes for the future management of the annexed territory the following: