Adams v. . Popham

Church, Ch. J. The findings of the judge establish that the pond made by the defendant by means of a dam across a small stream, although upon the defendant’s premises, was a public nuisance, and that the plaintiff was especially affected by its continuance. One erecting or maintaining a common nuisance is not liable to an action by a person who has sustained no damage except such as is common to all, but is liable to one who has sustained damage peculiar to himself, and may be restrained in equity from erecting or continuing the nuisance. (Francis v. Schœllkopp, 53 N. Y., 152; Lansing v. Smith, 4 Wend., 25; 2 Story’s Eq. Juris., §§ 925, 927; McKeon v. See, 51 N. Y., 306.) The facts found, although upon conflicting evidence, and affirmed by the General Term, are conclusive upon this court, if there was any evidence to justify them. We have examined the evidence with care and are satisfied that the findings Avcre Avarrantcd, and beyond that avo have no poAver to pass upon them. Nor do we think that the circumstance that the plaintiff, by the permission of the defendant, took ice from the pond one or íaao winters, constituted such an acquiescence or encouragement for the continuance of the erection, as to estop her from claiming that it Avas a nuisance, especially after its effects Avcre more clearly discovered. Nor did the efforts made by the plaintiff and her husband to have the pond rendered innocuous, by suggesting improvements, and otheiuvise, prevent her from resorting to an action for its abatement after these efforts proved unavailing. It is insisted however that the judgment is too comprehensive and SAveeping. The purpose of the pond was to enable the defendant to secure a supply of ice, and it is urged that the pond might be maintained in the winter months for that purpose Avithout producing any injurious *414 effects upon the health of the plaintiff or her family, or her property. The judge was requested to find that no injurious or offensive results proceed from the pond of the defendant in the winter months. This was refused and an exception taken, and it is claimed that this was proved by uncontroverted evidence, and should have been found. The answer to this point is, in the first place, that the request if found would not be decisive of the right to maintain the pond even in the winter months, because, although no injurious results might proceed from the pond during that period, yet the keeping it up through the winter, attended as it seems to have been by large washings into it of vegetable matter, might produce bad effects afterwards. There is evidence tending to show that such would be the case, and sufficient to justify a refusal to find, that the keeping up of the pond in the winter, would not be injurious. Such a request was not made, and the request actually made was only an item of evidence, bearing upon the general question whether the continuance of the pond was or might be in its effects harmful, and it is not error to refuse to find more evidence. It is claimed however, that the judgment prevents the defendant from damming the stream, or having a pond on any part of his land, of any .character or description. It appears that the small stream which was obstructed to make the pond, runs through the land of the defendant for about a mile, and it is insisted that he ought not to be prevented entirely from making a pond on any part of his land, with such restrictions and requirements as will render it harmless. We are unable under the findings and evidence to determine whether this is practicable or not. A pond although harmless during the period when it is actually frozen, may be the means of breeding malaria during the remainder of the year, and yet it may not be impossible that a pond can be so made and managed on some portion of defendant’s land, as not to be hurtful, and if it can, and the defendant chooses to adopt that method, it is his legal right thus to enjoy his *415 own land. A person may enjoy his own property in any lawful manner, but may not do so to the injury of others. In view of the comprehensive terms of the judgment, we arc inclined to permit the defendant to apply to the Supreme Court, on notice to plaintiff, for leave to make a pond, at such other place, and in such manner, and under such restrictions as to its construction, management and use, as to render it entirely harmless to the plaintiff and the public. If the court shall determine that this is practicable, it may in its discretion give permission, otherwise the judgment will be conclusive. To this extent the judgment may bo modified if desired, and as modified affirmed with costs. All concur. Judgment accordingly.