Allen v. Union Oil & Mfg. Co.

The opinion of the Court was delivered by Mr. Justice Jones. The “Case” states that this is an *577 “action for damages to real property.” After the answer, but before the docketing of the case, the plaintiff died. On motion, Judge Aldrich made an order, July 13th, 1900, substituting Conquest Allen, administrator of C. E. Allen, deceased, as plaintiff in said action. The defendant appeals from this order on grounds which raise the question whether this action, being ex delicto, survives the plaintiff, or may be continued by his administrator. It is conceded that the action is for a tort, and does not survive to the administrator of the injured plaintiff, unless it falls within the terms of act of 1892, 21 Stat., 18. As this involves a construction of said -act, we quote it in full as follows : “An act to amend and declare the law in regard to actions by and against the representatives of deceased persons and others for injuries to real estate. Whereas, there is no remedy provided by law in South Carolina for injuries to the real estate of any person deceased, committed during the lifetime of such deceased person, or for injuries to the real estate of any person committed by any person deceased during the lifetime of such deceased person, now for remedy thereof. “Section i. Be it enacted by the Senate and the House of Representatives of the State of South Carolina, now met and sitting in General Assembly, and by the authority of the same, That causes of action for and in respect to any and all injuries and trespasses to and upon real estate shall survive both to and against the personal or real representative (as the case may be) of deceased persons, and the legal representatives of insolvent persons and defunct or insolvent corporations, any law or rule to the contrary notwithstanding.” This is a remedial statute, and as such should receive a liberal construction — that is, a construction “giving the words the largest, the fullest, the most extensive meaning of which they are susceptible.” Endlich on Int. Stat., sec. 107. It will be observed that the title relates to “injuries to real estate,” and so does the preamble; but in the body of the act the language is, “causes of action for and in respect to any *578 and all injuries and trespasses to and upon real estate,” shall survive, &c. In order to carry out the purpose of the act as declared in the title and preamble, and giving the language used its fullest meaning, we do not think that the statute merely relates to actions for trespassers to real estate, which involves a direct invasion of the property, as the digging up of the soil, cutting down trees, &c., but fairly includes consequential injuries to real estate resulting from an actionable nuisance. This construction is made manifest by construing “and” as “or,” which is very frequently done in the construction of statutes, and reading the statute in its broadest sense, as follows : “causes of action for and in respect to any and all injuries to, or trespasses upon, real estate.” In reference to the distinction between trespasses and nuisance, Mr. High, in his work on Injunctions, 2 ed., p. 476, says: “The distinction between trespass and nuisance consists in the former being a direct infringement of one’s right of property, while in the latter the infringement is the result of an act which is not wrongful in itself, but only in the consequences which may flow from it. In the one case the injury is immediate, in the other it is consequential, and generally results from the commission of an act beyond the limits of the property affected.” A trespass is a direct and forcible invasion of one’s property, producing- a direct and immediate result, and a nuisance is a species of invasion of another’s property, producing indirect or consequential injury by agencies wrongfully operating outside of the property injured. Wood on Nuisances, 2d ed., sec. 13. But to bring an actionable nuisance, either private or mixed, within the statute, the nuisance must produce some physical injury to the real estate of another, as distinguished from mere'discomfort, inconvenience or bodily injury to the person of the owner. If the nuisance merely operates upon the mind or body of the owner, and does not injuriously affect the property itself in some material manner, it is not within the statute. For illustration, noise may under certain circumstances become a nuisance to the owner of a dwelling, but if *579 the atmospheric vibrations merely cause annoyance to the owner through his sense of hearing, that would not be an injury to his real estate, in the sense of the statute; but if the atmospheric vibrations wrongfully set in motion by another were such as to so shake the owner’s dwelling as to materially affect it as a dwelling place, or weaken its fastenings, or break the window glass, or crack the plastering and the like, such physical injuries to the real estate would be fairly included within the language of the statute. Disagreeable or noisome odors, fumes, gases, &c., may become a nuisance; but if the injury therefrom is limited in its effect to the human body, an action therefor does not survive under the statute. So, also, smoke, dust, cinders, particles of lint cotton, may become a nuisance, but action therefor will not survive, under the statute, unless they injuriously and materially affect the physical condition of the real property, as distinguished from mere annoyance, discomfort, inconvenience or injury to the person. We cannot say, however, as matter of law, that smoke, dust or soót may not injure the real estate, by discoloring the buildings or otherwise affecting its physical condition. Nor can we say, as matter of law, that cinders and particles of lint cotton caused to fall upon one’s premises-produces no actionable injury to the real estate. On the contrary, it is not hard to conceive circumstances under which such things cast upon one’s premises and dwellings may materially injure the property, in which case action therefor would survive. So, also, if one’s easement of access to his real estate over a public way is specially and materially affected, such injury to his property right is an injury to real estate, within the statute. In Devereaux v. Champion Cotton Press Co., 17 S. C., 66, it was assumed on Circuit and not disputed that the blocking of a street was actionable, if thereby the plaintiff’s real property was injuriously affected. In Ross v. R. R. Co., 33 S. C., 477, this Court held that “lands,” in the condemnation statutes, included all rights or easefnents growing thereout. Our conclusion, therefore, is that the order appealed from should be *580 affirmed, because there are some allegations in the complaint (and reference is made to the complaint which is officially reported herewith), which state acts of injury to real estate within the statute, as construed by us — for instance, the causing of sparks, cinders, particles of lint cotton to fall in and upon plaintiff’s premises and dwelling, so as to expose the buildings to the constant risk of destruction by fire, and rendering them untenantable, and also obstructing plaintiff’s easement in the use of the street as an access to his premises. This is not intended to be an exhaustive statement of the relevant allegations of the complaint, but as being sufficient to show that the complaint states a cause of action within our construction of the statute. If the complaint attempts to state acts of injury to real estate, but does so indefinitely or defectively, such defects may be remedied by motions to amend or make more definite, rather than by dismissal of the complaint, on the motion before us. The parties in the case designate this action as one for damages to real estate. In the further progress of the case, care should be taken to limit plaintiff’s action and corresponding proof to such wrongful acts of defendant as caused injury directly or consequentially to plaintiff’s real estate as distinguished from acts which merely caused the plaintiff mental or bodily annoyance, discomfort or injury, in accordance with the views herein announced. The judgment of the Circuit Court is affirmed.