Freeland v. Burdick and Scott. plicable to the case in hand this author then adds: "Where the name of a hotel was attached to it before a lessee of it took possession, the fact that the lessee increases by his energy and skill the value of the name is not a reason why he may use the name in another place in competition with the owner, because to do so would mislead the public." O'Grady v. McDonald, 72 N. J. Eq. 805; 66 Atl. 175, is cited as supporting the text and is quite similar to the present case. [See, also, Hopkins on Trademarks, page 212, section 93.] Common observation as well as the reported cases show that hotel names generally attach to the place and designate the particular premises rather than the proprietor thereof and are not transitory with him. In such case the name remains with the place regardless of any change in the ownership or person conducting the business there; and such owner or occupier of the premises will be protected in the use of such name against both strangers and former owners or lessees. There are some exceptions to this rule depending upon the peculiar facts and the learned counsel for defendant has cited a number of cases recognizing exceptions. [Vonderbank v. Schmitt (La.), 15 L. R. A. 462; Sieward v. Denechaud, 120 La. 720, 45 So. 561; Woodward v. Lazar, 21 Cal. 448, 82 Am. Dec. 751.] In the case first cited the plaintiff had conducted both a hotel on the European plan and a restaurant as separate establishments but in co-operation with each other. To both these he gave his personal name. He sold the hotel theretofore called the "Hotel Vonderbank" but continued to own and run the restaurant. The hotel passed into the hands of a party who put in a dining room and insisted on his right to conduct the same as the "Vonderbank Hotel." The court enjoined such use and placed much stress on the fact that plaintiff merely lent his personal name to this business while he conducted it. The court said: "Had the name of that establishment formed an element of the good-will of the hotel business while Freeland v. Burdick and Scott. it was being conducted on the leased premises by the plaintiff, it would, under all of the authorities, have passed to the landlord at the termination of plaintiff's lease, and by his conveyance to the defendant; but as it was rather a personal perquisite of the proprietor while lessee, and not an impersonal ingredient of his business, it did not pass to the landlord, but remained subject to the control of the lessee at the termination of the lease." The Sieward case supra, also from Louisiana follows the Vonderbank case in holding that under the facts there the "Hotel Denechaud" was given by the proprietor to the business and not to the property. That case did not involve the precise question here, being a suit by its owner to cancel the lease because among other things the lessee had changed the name of the old hotel and transferred it to another hotel also operated by him. The name being a personal one and the intent being to apply it to defendant's business rather than to the location and the natural right of a person to apply his own name to his own business regardless of location, were the controlling facts in that case. In the Woodward case supra, the plaintiff erected on leased land a building used by him as a hotel, giving it the name "What Cheer House." Later he built another hotel near this one on land owned by himself and gave it the same name. Subsequently the old hotel was abandoned and remained vacant for some time. A new proprietor was enjoined from conducting a hotel there under the name "What Cheer." The court laid stress on the fact that the plaintiff had built this hotel and given it this name. The real ground, however, for sustaining the injunction is stated thus: "Before surrendering the demised premises, he transferred his business, and the name under which it was conducted, to another building, and then surrendered the demised premises and the building, with no special name, to his landlords. He had conducted the business under the name of the "What Cheer House," at his new locality, at least from November Freeland v. Burdick and Scott. until January, while the old building remained unoccupied, and before it was opened as a hotel. He had in this time, if he had no other claim, established an exclusive right to the name as the trade mark for his new house. Although, therefore, his claim to protection, so far as his right results from the good will acquired for the name while it was applied exclusively to the demised premises may not be sustainable, he is entitled to protection in the exclusive use of the name as proprietor of the new house.' We may therefore state the following rules as applicable to this case: A hotel is generally such a building and premises as is especially and permanently adopted to that business and is known by its name which ordinarily attaches to and remains with the location rather than with the particular proprietor. In such case the name passes with the premises to successive proprietors who are entitled to the exclusive use of such name. In determining whether a particular case forms an exception of this rule, these facts have more or less weight: (1) Whether or not the building and premises are designed to be used permanently as a hotel; (2) whether the name given it is that of an individual conducting it or is impersonal; (3) whether the tenant or proprietor who is seeking to divert such name to another place is the person who first gave it such name; (4) whether such name has been applied exclusively to the one place or has been used to designate a person's business whereever it was conducted. Applying these tests to this case we find that the premises in question are adapted to the hotel business only; that the name given it, Park Hotel, is impersonal and is designed to designate place rather than ownership; that defendant did not give this name to this hotel but that such was attached thereto before her proprietorship and tenancy; that the name has been applied exclusively to this hotel and to no other place of business. The trial court attached importance to the fact that no owner of this property had ever conducted a hotel therein, but same had been done by ten Horine v. Peoples Sewer Co. et al. ants. This, we think, is not a controlling factor. The name has become localized to plaintiff's hotel and he is entitled to the relief prayed. The judgment is therefore reversed and the cause remanded with directions to enter a judgment for plaintiff as prayed for in the petition. Bradley, J., concurs; Farrington, J., concurs. R. W. HORINE and BEN HORINE, Appellants, v. PEOPLES SEWER COMPANY and CITY SEWER COMPANY, Respondents. Springfield Court of Appeals, June 25, 1918. 1. MUNICIPAL CORPORATIONS: Sewage Disposal: Nuisance: Right, to Injunction. Property owners, damaged by discharge of sewage in close proximity to their land, and overflowing thereon, had adequate remedy at law by suit for damages, and, in view of probably material injury to entire population of city, could not have such disposal of sewage restrained. 2. COURTS: Jurisdiction: Missouri Appellate Courts. Where property owners sued to restrain disposal of sewage and the sewer company claimed prescriptive right to discharge of sewage, but irrespective of limitations plaintiffs were not entitled to injunction, their remedy at law being adequate, the issue of title was not involved. Appeal from Lawrence County Circuit Court. -Hon. C. L. Henson, Judge. AFFIRMED. George Pepperdine and H. H. Bloss for appellants. John L & Carr McNatt for respondents. BRADLEY, J.-Plaintiffs filed their bill in equity to enjoin defendants from discharging sewage upon the land of plaintiffs, and so near the same as to affect the value thereof, and to render said land unfit Horine v. Peoples Sewer Co. et al. for use by reason of foul and offensive odors. The answer is a general denial, a plea of the statute of limitations, and a plea in the nature of estoppel. The trial court denied the relief prayed for, and plaintiffs appealed. In 1891 the defendant, City Sewer Company, was established by ordinance of the city of Aurora; and the defendant, Peoples Sewer Company, was likewise established in 1896. The Peoples Sewer Company at the time of its establishment laid its sewer pipe across the land now owned by plaintiffs, and placed its discharge where it now is, without any express consent of the then owner, and without condemnation proceedings. The City Sewer Company at the time it was established laid its sewer not on the land of plaintiffs, but the discharge is above and near said lands. Chat river, a small stream or creek, flows through the city of Aurora, and through plaintiffs' land, and into this river both sewers discharge. The sewage passes through plaintiffs' land, but no proceedings were had by either defendant to condemn this stream through plaintiffs' land as an outlet for said sewers. The land alleged to be damaged consists of twelve acres, triangular in shape, and situate between the Frisco and Missouri Pacific railroad tracks, and is within the corporate limits of the city, but is not platted. Independent of the sewer discharge the land is not suitable for residence, but is used for agricultural purposes. Above plaintiffs' land are a number of mines the discharge from which is into Chat river, and this discharge, the trial court found contributed to the contamination of the stream, and consequently to the injuries complained of. It was also found by the trial court that before the construction of the sewers the waters of Chat river were unfit for use. The sewer discharge from the Peoples Sewer Company by backing up and failing to flow away during dry times when the river is low or dry has spread over a considerable area, two or three acres, and rendered, so it is claimed, |