McCarty v. . Natural Carbonic Gas Co.

Vane, J. This action was brought to restrain the defendant from so operating its manufactory as to cause smoke, soot and dust emitted from its chimneys to gather and settle about the dwelling house of the plaintiff to liis annoyance and injury. The trial court found the following facts in substance: For four years prior to the 13th of July, 1904, when this action was commenced, the plaintiff owned certain premises on South Broadway in the village of Saratoga Springs, consisting of a lot of land with a frame dwelling house thereon, known as the “Anna Therese.” Said house is situated in a country district suitable for country homes, “ although not as yet so appropriated by others than the plaintiff.” The defendant is a foreign corporation engaged in tl; 3 manufacture of carbonic acid gas in a semi-fluid form convenient for shipment to market by compressing the natural gas found on its premises, and for this purpose it maintains a plant containing machinery operated by steam, which is generated from two boilers with a capacity of 100 horse power. It has two smokestacks, each 90 feet high, situated 840 feet from the residence of the plaintiff. From two and one-half to four tons of soft coal are used daily by the defendant and its chimneys continuously pour forth “ a thick black smoke, large in volume and larger, denser and thicker when tlie fires are freshened twice ” every hour during the twenty-four that the plant is in operation, Sundays excepted. When the wind is right the smoke blows "down upon the plaintiff’s house and comes "upon and around it. When the atm os *45 pliere is dense “ clouds of smoke proceeding from the defendant’s chimneys gather and settle about the plaintiff’s house, enveloping it and sometimes obscuring it from view.” Said smoke “ has caused the exterior of the house of the plaintiff to become discolored with soot and has caused plaintiff and his family much discomfort and annoyance and some financial injury.” The defendant canses this damage and injury by the use of soft coal, yet by the use of anthracite coal it would obtain the same result in manufacturing although at a greater expense, and if the use of soft coal were abandoned the discomfort experienced by the plaintiff would be entirely avoided. “ The present use of soft coal is not a necessary use for the practical management and running of its plant ’’"and “ under all the circumstances of the case the present discomfort of the plaintiff is not occasioned by any reasonable use by the defendant of its own property.” The plaintiff had owned his property for several years before the defendant erected its factory. Another factory like the defendant’s was located in the neighborhood before the plaintiff purchased, but as it uses anthracite coal it has never caused any annoyance. The rental value of the plaintiff’s house has been injured by iliense of soft coal by the defendant to the extent of $800, and he has in cur rea expense for cleaning rugs to the extent of $18 more. The court, after repeating as conclusions of law its findings of fact in relation to reasonable and necessary use, further found as conclusions of law that “ the defendant should be enjoined, restrained and forbidden from burning soft coal on its said plant in the village of Saratoga Springs, New York, for the purpose of generating steam,” and that “ the plaintiff herein is entitled to the sum of $818.00 damages and is also entitled to the costs of the action.” TJpon appeal to the Appellate Division the judgment was modified by deducting from the damages awarded the sum of $18.00 as of the date when the judgment was entered, and, as so modified, the judgment was unanimously affirmed. The action of the courts below withdraws the evidence *46 from our view, except for the consideration of exceptions relating thereto, and leaves hut one question upon the merits for us to decide and that is whether the facts found support the conclusions of law 1 In other words, in a country district suitable for country homes, does the use of soft coal in a factory so situated that thick, black smoke therefrom, great in volume and dense in quality, envelopes and discolors a neighboring dwelling house, causing much discomfort and some financial loss to the occupants, constitute a nuisance, when such use of soft coal is not necessary for the practical running of the plant and is not a reasonable use of the manufacturer’s property ? The principles governing the decision of that question are neither recent in origin nor doubtful in application. The ancient maxim of sic utere tuo ut alienum non Imdas is the foundation of the well-established rule that no one may make an unreasonable use of his own premises to the material injury of his neighbor’s premises, and if he does the latter has a right of action even if he is not driven from his dwelling, provided the enjoyment of life and property is materially lessened. (Campbell v. Seaman, 63 N. Y. 568 ; Cogswell v. New York, New Haven & Hartford R. R. Co., 103 N. Y. 10; Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18; Morton v. Mayor, etc., of N. Y., 140 N. Y. 207; Garvey v. Long Lsland R. R. Co., 159 N. Y. 323 ; Bly v. Edison Electric Illuminating Co., 172 N. Y. 1 ; Pritchard v. Edison El. Ill. Co., 179 N. Y. 364.) The law relating to private nuisances is a law of degree and usually turns on the question of fact whether the use is reasonable or not under all the circumstances. No hard and fast rule controls the subject, for a use that is reasonable under one set of facts would be unreasonable under another. Whether the use of property to carry on a lawful business, which creates smoke or noxious gases in excessive quantities, amounts to a nuisance depends on the facts of each particular case. (21 Am. & Eng. Ency. of Law [2d ed.], 692.) Location, priority of occupation and the fact that the injury is only' occasional *47 are not conclusive, but are to be considered in connection with all the evidence and the inference drawn from all the facts proved whether the controlling fact exists that the use is unreasonable. If that fact is found, a nuisance is established and the plaintiff is entitled to relief in some form. Unless that fact is found, or it is an inference of law from other facts found, no nuisance is established, even if the plaintiff shows that he has suffered some damage, annoyance and injury. Those evils are at times incidental to civilized life and the sufferer finds compensation in the arts and agencies of civilized society. (Campbell v. Seaman, supra.) What is reasonable is sometimes a question of law and at others a question of fact. When it depends upon an inference from peculiar, numerous or complicated circumstances it is usually a question of fact. Whether the use of property by one person is reasonable, with reference to the comfortable enjoyment of his own property by another, generally depends upon many and varied facts; such as location, nature of the use, character of the neighborhood, extent and frequency of the injury, the ‘ effect on the enjoyment of life, health and property and the like. Such was the nature of the question in this case which, we think, is one of fact. , The case last cited involved injury to ornamental shrubbery on land adjacent tó a village, from the noxious gases of a brick factory, which dug the clay on its own premises, and the exhaustive opinion of Judge Earl holds, with the concurrence of all the judges, that articles of luxury are as much under the protection of the law as articles of necessity; that it is immaterial that the injury is only occasional; that the right to an injunction is not affected by the fact that the brick kiln was used before the plaintiff purchased his land and that if the use is such “ as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment specially uncomfortable or inconvenient ” it constitutes a nuisance. In the well-known Cogswell Case (supra) a railroad company had erected an engine house near a dwelling house in a *48 city and the smoke, cinders and coal dust, carried hy the winds, filled the house, injured articles therein and rendered the air offensive and the house uncomfortable. It was held that the “ engine house, as used, was within every definition a nuisance, for which, as between individuals, an action would lie for damages and for which a court of equity would afford a remedy by injunction.” All the judges united with Judge Andrews in saying : “However necessary it may be for the defendant that its engine house should be located where it is, this constitutes no justification for the injury suffered by the plaintiff, nor is it any answer to the action that it exercises all practicable care in its management. It may have the right, which it claims, to acquire land by purchase for the accommodation of its business, but it must secure such a location as will enable it to conduct its operations without violating the just rights of others. Public policy, indeed, requires that in adjusting the mutual relations between railroads and individuals, courts should not stand upon the assertion of extreme rights for either side, but in this case the facts leave no room for doubt that the plaintiff has suffered a substantial and unauthorized injury.” The Bohan Case (supra) involved the comfortable enjoyment of neighboring property owing to noxious odors from gas works carried on by a corporation organized under the general statute. The court charged the jury that the question for them to determine was: “ Did the odor pollute the air so as to substantially render plaintiff’s property unfit for comfortable enjoyment ? ” The jury found for the plaintiff and the court held that the act complained of constituted a nuisance per se. The court refused to charge “ that unless the jury should find that the works of the defendant were defective, or that they were out of repair, or that the persons in charge of manufacturing gas at these works were unskillful and incapable, their verdict should be for the defendant.” It further refused to charge “ that if the odors which affect the plaintiff are those that are inseparable from the manufacture of gas with the most approved apparatus and with the utmost *49 skill and care and do not result from any defects in the works or from want of care in their management, the defendant is not liable.” Both requests were refused and the exceptions to the rulings were held to raise no error. The thorough review of all the prior cases makes it unnecessary for us to mention them, and an able dissenting opinion added emphasis to the decision, for it showed that nothing had been overlooked and that no argument was left unused. The leading authorities in all jurisdictions hold that the question is whether the defendant makes a reasonable or, as some judges express themselves, a proper use of his own property ? Sometimes negligence is referred to as an element in the question. Judge Landon once pointedly said: “ A lawful business negligently conducted is not a lawful business lawfully conducted,” but, as the quotation implies, since a negligent use of one’s own property to the injury of another is an unreasonable use, the ultimate question after all is whether the use is reasonable. (Dunsbach v. Hollister, 49 Hun, 352, 354.) Negligence, wrong business methods, improper appliances and the like may bear upon but do not control the question of reasonable use. If the use is reasonable there can be no private nuisance, but if the use is unreasonable and results in substantial injury, an actionable nuisance exists. Trifling results are disregarded, for the courts proceed with great caution and will not interfere with the use of property by the owner thereof unless such use is unreasonable, the injury material and actual, not fanciful or sentimental. Lex non favet votis delicatoi'um. (Genet v. Del. & Hud. Canal Co., 122 N. Y. 505, 529 ; Wood on Nuisances [3d ed.], 679; Jaggard on Torts, 744; Garrett on Law of Nuisances, 146.) The defendant’s business is lawful and not a nuisance ¡per se, although it has been found that as carried on it is a nuisance in fact. The extent more than the nature of the injury, the quantum, rather than the damnum, constitutes the nuisance. Some smoke is generally created by the natural and ordinary use of land near a village or city, and while this *50 may sometimes be annoying to neighbors it is part of the price paid for living where there are neighbors. But when the smoke is so unusual and excessive as to materially interfere with the ordinary comfort of human existence, the trier of the facts, taking into account all the circumstances, such as public utility, locality, immediate surroundings and the like, may find the use unreasonable. This is not a case where the defendant cannot carry on its business without injury to neighboring property, for all damage can be avoided by the use of hard coal, as is done by one of its competitors in the same kind of business in the same locality, or possibly by the use of some modern appliance such as a smoke consumer, although either would involve an increase in expense. It is better, however, that profits should be somewhat reduced than to compel a householder to abandon his home, especially when he did not “come to the nuisance,” but was there before. “ The safety of property generally is superior in right to a particular use of a single piece of property by its owner. It renders the enjoyment of all property more secure by preventing such use of one piece by one man as may injure all his neighbors.” (Sullivan v. Dunham, 161 N. Y. 290, 300.) The use made of property may be unpleasant, unsightly or, to some extent, annoying and disagreeable to the occupants of neighboring property without creating a nuisance. When, however, it not only interferes materially with the physical comfort of persons in their own homes, but also causes some financial injury to the owner, it constitutes a nuisance. That is this case, and the facts found compel an affirmance except in one particular. 11 The conclusion of law that the defendant should be enjoined from burning soft coal on its premises to make steam is too broad, for it is unlimited as to time or circumstances, and the judgment follows the conclusion. If the defendant, by the use of some appliance now known or which may become known hereafter, can burn soft coal in its factory without injury to the plaintiff, it cannot lawfully be deprived of that *51 right. If the plaintiff should convert his house into a factory, using soft coal, he would not be entitled to an injunction. The defendant, therefore, should be permitted to apply at Special Term, upon proper notice at any time, for a modification of the decree at the foot thereof, permitting it to burn soft coal, upon proof of such a change of facts as to make such use of its property no longer unreasonable, j Subject to this modification the judgment should be affirmed, with costs.