DisseNTING Opinion.
Poché, J.A second examination of this case has satisfied me that in their pleadings plaintiffs have disclosed no cause of action. The exclusive ground of complaint in plaintiffs’ petition is that defendant is erecting a wooden structure in violation of law and of certain enumerated ordinances of the city of New Orleans.
Their pleadings, therefore, eliminate from the case all consideration of a private nuisance, or of a nuisance per se.
It was doubtless the opinion of plaintiffs’ learned counsel that such a building and defendant’s trade or occupation were not nuisances and could not be dealt with as such unless either or both were erected or carried on in a manner violative of some prohibitory law or of some city ordinance.
That conclusion is inevitable and finds ample support in reason as well as in law and authority.
A shop, even if built exclusively of wood, erected and used for the purpose of building cisterns, would not be considered a nuisance in the country or in an unincorporated town or village. Persons following that, as well as all other lawful trades, are entitled to the full protection of the law, and their calling will not be declared a nuisance because it may produce some inconvenience to the neighborhood, unless the complainant can show that he has thereby suffered real and substantial injury. Wood’s Law of Nuisances, sec. 792-
No rule of law or jurisprudence can be invoked as sustaining the proposition that a cooper-shop, or cistern-builder’s establishment, is a nuisance jper se. But such establishments could be treated as public nuisances if they were built within the fire-limits of the city of New Orleans in violation of the ordinance regulating the kind of structures allowed and the manner of building the same, within such limits.
*169Plaintiffs’ complaint in this caso is, that defendant has built a shed or wooden structure in violation of the ordinance which forbids the erection of any building within the defined limits, “ except the walls thereof be constructed of brick or other non-combustible materials, covered with slate or other non-combustible materials.”
The record shows that the defendant presented to the proper city authorities his application for permission to erect a building which he described, giving the details of the means which he intended to use so as to make his building fire-proof, or at least to comply with the requirements of the ordinance in the premises. The permission was granted to him and he at once proceeded with his construction, when he was stopped by the injunction.
If, as charged, he subsequently violated the provisions of the ordinance, or began to use the building as a shop before its completion, the city authorities had the undoubted, but exclusive, power to interfere with him so as to coerce obedience to the law, or to prohibit the premature use of the building; but that power is not lodged in private individuals, unless they allege and show special and actual damages accruing therefrom to themselves or to their property. “ The city alone could and should have taken steps to enforce the conditions of its regulations by the use of its police power.” Werges vs. R. R. Co., 35 A. 648.
It is plain to my mind that the violation of city ordinances c.an give no cause for civil action to individuals who fail to allege that the nuisance complained of is a nuisance per se.
I, therefore, dissent from the opinion and decree of the majority in refusing the rehearing applied for in this case, and I think that our previous opinion should have been reconsidered.