
    (78 South. 844)
    No. 21789.
    HILL v. BATTALION WASHINGTON ARTILLERY OF CITY OF NEW ORLEANS.
    (May 27, 1918.)
    
      (Syllabus by the Court.)
    
    Nuisance &wkey;>23 (1) — Injunction—Intended Use'.
    Where a structure, intended for use as a stable, is not shown to be a nuisance, as actually used, or likely to become a nuisance if when used as intended, an injunction prohibiting such intended use is properly dismissed.
    Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.
    Action for injunction by James D. Hill against the Battalion Washington Artillery of the City of New Orleans. Judgment for defendant refusing an injunction, and plaintiff appeals.
    Judgment amended, and, as amended, affirmed.
    H. G. Morgan and L. A. Morphy, both of New Orleans, for appellant. A. Y. Coco, Atty. Gen., for appellee.
   MONROE, C. J.

Plaintiff, as owner of certain premises fronting on St. Charles street, in the square otherwise bounded by Julia, St. Joseph, and Carondelet streets, prosecutes this appeal from a judgment rejecting his demand for a writ of injunction restraining defendant and its agents from keeping horses in, or using as a stable, certain sheds, or buildings, alleged to be in course of construction in the rear of, and adjoining, said premises; the allegation being that the proximity thereof will render the premises less habitable and depreciate their value.

It appears from the testimony, taken on the hearing below, that the structure complained of was completed before this suit was instituted; that the work was done at the expense of the state, upon a lot leased from A. D. Michel; that the horses, to be therein installed, are to be furnished by the United States and maintained at the expense of the state, for the use of the Battalion Washington Artillery, a military organization now in the service of the United States, though whether it is the particular organization herein made defendant is not so clear. However that may be, the testimony fails to show that the structure in question, as now used, is a nuisance, or that it will become a nuisance when used as proposed. As suggested, however, we shall reserve to plaintiff the right to renew this suit in the event that it should so become, though we are inclined to think that he would haVe that right, without the reservation.

It is therefore ordered that the judgment appealed from be so amended as to reserve to plaintiff the right to renew this suit in the event the stable in question should hereafter be allowed to become a nuisance, and, as thus amended, affirmed; plaintiff to pay all costs.  