Hyatt v. . Myers

PeaesoN, C. J. What is a nuisance, is a question of law. Nuisances are divided into public and private. There is no suggestion of a public nuisance, that is, an injury to the town of Washington ; but the complaint is of a nuisance to the dwelling house of the plaintiff, by reason of exposure to being set on fire by sparks, and of the annoyance and inconvenience arising from the smoke, soot and cinders coming from the chimney of the defendants’ steam grist mill, factory, &c. *237 In regard to the exposure of the house to being set on fire, the jury disagreed and were not required to give a verdict, so we are to take it there was no danger of fire from sparks. That is out of the case. Private nuisances vary in degree, and it depends upon the circumstances attendant on each particular case, whether either a Court of law or a Court of equity will give relief. If a man, instead of contenting himself with the quiet and comfort of a country residence, chooses to live in a town, he must take the in&mvenience of noise, dust, flies, rats, smoke, soot and cinders, &c., &c. ; and he cannot in law complain of the owner of an adjoining lot, by reason of smoke, soot and cinders, caused in the use and enjoyment of his property : Provided, the use of it is for a reasonable purpose, and the manner of using it is such as not to cause any unnecessary damage or annoyance, and he takes all prudent precautions to avoid annoying his neighbors; and even then, neither a Court of law or a Court of equity will treat it as a nuisance unless the damage is material, so as to exceed what the owner of property ought to be allowed to put upon the owner of property adjoining, in the reasonable enjoyment of his own property, under the maxim, “ sioutere tuo ut alienum non Icedas,” which depends upon the circumstances of the case. “ Does the nuisance arise from an establishment made for personal gratification or mere private profit? Or does it promote the convenience of the public?” What is the extent of the damage ? If slight, the Courts of law may treat it as a nuisance, and give a remedy in damages; if great and irreparable, so that compensation cannot be made, then a Court of equity will interfere by injunction. These general principles are announced and discussed in Dargan v. Waddell, 9 Ired., 244, a case showing when Courts of law give relief, and in Eason v. Perkins, 2 Dev. Eq., 38, a case showing when Courts of equity will interfere by the extraordinary writ of injunction. A perusal of these cases will show that our case has never been tried upon its merits. *238 At the first trial, the jury find on the issue, “ Does the plaintiff and his family suffer great inconvenience and annoyance irom the smoke, soot and cinders being blown from defendant’s mill over in the plaintiff’s house, rendering his condition and that of his family uncomfortable and disagreeable, so as to be a nuisance to him ?” ‘‘We think it is a nuisance to plaintiff and family,” is the verdict — assessing no damages — but upon the idea that the law implies at least nominal damages in every case of nuisance, the verdict was amended under the instructions of the Judge so as to find damages to the amount of one cent. It is apparent from the case sent up to us, June Term, 1874 (see Hyatt v. Myers, 71 N. C. Rep., 271.) that the Judge in’ the Court below, upon this finding, hesitated and did not see that he would be warranted by the doctiineof the Court of equity, to put forth the omnipotent arm of the chancellor, and order the grist mill, &c., of the defendants to be torn down and concluded to adopt some other mode of abating the supposed nuisance, until the question of nuisance or no nuisance bad been disposed of more in accordance with the principles of law. So be makes an order that the chimney be raised higher. From this order, the defendants appeal. In this Court it is held, that whether the Judge below ought to have left the plaintiff to his remedy at law, or ought to have interfered by injunction, is a matter which this Court is unable to determine, upon the facts set out in the record. “We can see no error in the order to raise the smoke stack and put on the spark arrester.” It would have been more appropriate, simply to have allowed the defendants time to abate the nuisance. Whether the inconvenience and annoyance suffered by the plaintiff, and his family, by reason of the smoke, soot and cinders, amounted to a nuisance or not, taking into consideration the surroundings of the case, was a question of law, about which the Judge ought to have given the jury special instructions, instead of leaving them to say in the abstract, “we think *239 it is a nuisance to the plaintiff and his family.” Whether the inconvenience and annoyance to the plaintiff and his family in his dwelling house, was to such an extent, that the house was no longer fit for a habitation, in which case the interference by injunction was called for on the ground of irreparable injury, or was merely annoying and uncomfortable when the wind ■was from a certain point so as to admit of compensation in damages, in which case, the plaintiff ought to be left to his remedy at law, is a question which was not submitted to the jury, and yet it is a most material fact, touching the merits of the case. As the mode of preventing the supposed nuisance directed to be tried by the former order did not answer any good purpose, we think his Honor, upon what seems to have been a bona fide offer on the part of the defendants to try some other mode, erred in not allowing further time, until the next term, at which time the question of nuisance or no nuisance under all the surroundings of the case, with special instructions, could have been submitted to a jury', together with a distinct inquiry upon the question of damages, so as to see if the injury, if any, was insignificant, and fell under the rule, de minibus non curat Lex, which the Court will not class under the head of nuisance, but will treat as an annoyance, which persons who live in towns, near the water-front, where the business of the town is mostly done, are supposed to have made up their minds to endure, by reason of the compensatory advantages of the situation. Or to see whether the injury by reason'of the fact that the defendants were causing unnecessary damage for the want of proper precautions and due care, amounted to so much, as the Court would require to be compensated for, in damages and treat as a nuisance. Or to see whether the inj ury amounted to such a destruction of the property as to be an irreparable injury, by rendering it unfit for habitation; so as to call for the extraordinary writ of injunction. - The fact of the extent of the damage done to the plaintiff, if any, has not been found by either the jury at the first trial, *240 or by the Judge at the second trial, we are not to be understood as conceding the right- of the Judge to find the fact of damage or of the surrounding circumstances as he does in the case now before us.) Thus we are unable now, to decide the case upon its merits, and for that reason find there is error in making the injunction perpetual, in the absence of any finding by a jury of the amount of damage done to plaintiff. After taking the papers to write an opinion to this effect, it occnred to me, that water grist mills, and steam grist mills, were both conducive to the public convenience, and equally so, according to location, and I was led to the reflection, why should water grist mills be protected from vexatious litgation, except where the damages exceed $20 per annum, and steam grist mills (the number of which has greatly increased of late years) be left to the rigid rules of the common law in regard to nuisance ? Upon looking at Battle’s Rev. “ Mills” chap. 72, I find section 1. “ Every water grist mill, steam mill or wind mill that shall grind for toll, shall be deemed to be a public mill.” Section 2 and 3, apply to these three kinds of mills — -then comes sections applying to water mills only, until section 13, which, and the sections following, “include any grist mill or mill for other useful purpose; and prescribe the mode in which any person conceiving himself injured by the erection thereof must (using that word in the sense of may, as in the construction of 8 and 9, will and may in respect to assigning breaches in action on bonds with condition articles 68 and 69) — proceed to seek relief — “ this I am inclined to think puts an end to the present action ; but as the point is new, and was not adverted to on the argument, we express no opinion and leave it for the consideration of his Honor in the Court below. Error. This will be certified. Pse CüRIAM. J udgment reversed.