Harris v. Randolph Lumber Co.

SOMERVILLE, J. The first and second counts of the complaint, as amended, show that the defendant had for 12 months preceding operated a planing mill and sash and blind factory in a residence portion of the city of Birmingham; that said mill was located in close proximity to certain residence lots belonging to plaintiff, upon which were seven houses occupied by her tenants. The gravamen of the counts is that the operation — 155 — of said mill and factory “necessarily creates a noise of such, volume and character as to create and be a nuisance and render said property undesirable for rental purposes, for which purpose alone it was adapted and suitable, and as to greatly depreciate the rental value to plaintiff of said property, and as to cause plaintiff to be unable to rent said property at the value it could and would be rented for but for said nuisance, and as. to prevent plaintiff from keeping all of said houses regularly rented, and as to prevent plaintiff from keeping any of said houses rented at their full rental value, and as to injure plaintiff in her rental value of said property.” It is further shown that during the 12 months mentioned plaintiff has been deprived of rent money by the reduction - of some rents and the complete loss of others; the figures for each house being given in detail. The noise complained of is described as “unreasonable, intolerable, harsh, loud, and discomforting.” The second count also charges notice to defendant of the injury to plaintiff, and its wanton continuance. The third count charges that in the operation of said mill and factory the defendant “has negligently or wrongfully caused, noise, smoke, dust, and soot to fall, go, and be upon said property of the plaintiff in such volume and character” as to produce the same results complained of in the first and second counts. Demurrers assigning numerous grounds were interposed to each of the counts, and were sustained by the trial court. The plaintiff declined to' plead further, and by appeal and proper assignment of alleged errors challenges the judgment of the trial court with respect to these demurrers to the complaint. 1. The first and second counts sufficiently state a cause of action for a nuisance. The gist of these counts is not the injury to plaintiff’s tenants, but to plaintiff — 156 — herself, as owner, in the diminution and loss of rents by reason of the discomfort imposed upon her tenants, present or prospective. Such an injury, resulting proximately from a nuisance maintained by defendant, is clearly actionable. — Code 1907, § 5198; City of Eufaula v. Simmons, 86 Ala. 515, 6 South. 47; 29 Cyc. 1271, 14. Both the conduct of the defendant, and its injurious consequnces, are set out with sufficient precision, and in these respects the counts are, we think, sufficient as against the grounds of demurrer assigned thereto. Whether the noises made by the operation of defendant’s plant are in fact unreasonable, destructive of the ordinary comfort of nearby residents, or intolerable to them; and whether, by reason thereof, plaintiff has been injured in her property rights — are, of course, issues of fact for the jury, to be determined in view of all the facts in the case. And in this regard the allegation of the complaint that the mill of the defendant was erected in a then already residential district would be a material if not decisive consideration. — English, v. P. E. M. & L. Co., 95 Ala. 267, 268, 10 South. 134; Kaufman v. Stein, 138 Ind. 49, 37 N. E. 333, 46 Am. St. Rep. 368; McMarron v. Fitzgerald, 106 Mich. 649, 64 N. W. 569, 58 Am. St. Rep. 511; Pritchard v. Edison Co., 179 N. Y. 364, 72 N. E. 243. Negligence or want of due care is not ordinarily an element of nuisance, though its presence might be in itself an independent cause of action. — See Vernon v. Wedgworth, 148 Ala. 490, 42 South. 749. 2. There is one aspect, however, in which the first and second counts are open to an objection if properly presented. Both counts, as we have seen, are based primarily upon the noise caused by the operation of defendant’s mill, and its injurious effect upon the rental value of plaintiff’s premises. But in each count it is — 157 — separately alleged that defendant maintained, in connection with its mill business, a lumber shed for the storing of lumber, and by reason of the nature of said business and its close proximity to plaintiff’s buildings the insurance rates thereon are increased and plaintiff thereby damaged in a specified sum. Whether this result is attributed to the proximity of the lumber shed alone, or of it and the rest of the plant combined, we think this part of the count is objectionable. The storing of lumber on one’s premises is not per se a nuisance, and violates no rights of neighboring property owners. “In order to render a building a nuisance, by reason of the exposure of other buildings to danger from fire, the hazardous character of the business must be unmistakable, the danger imminent, and the use of such an extraordinary and hazardous character as to leave no doubt of the nuisance. The mere fact that the business carried on there is of a hazardous character, and largely increases the rates of insurance upon surrounding property, is not sufficient; it must appear not only that the business or use to which the" building is applied is hazardous, but also that it is conducted in such a careless manner, or in such a locality, as to make injurious results probable.” — 1 Wood on Nuisances (3d Ed.) § 148-. No facts are alleged in the complaint to stamp this building or its contents with the noxious character of a nuisance. Any new building erected near to another would, we apprehend, increase the insurance rates on the latter; but, as declared by this court, “the law is settled, on sound reasons, that the mere fact of the diminution of the value of complainant’s property, or the increased risks from hazard of fire occasioned by a structure erected by a defendant upon a lot adjoining the complainant’s premises, without more, is unavailing as a — 158 — ground of equitable relief.” — Rouse v. Martin, 75 Ala. 510, 515 (51 Am. Rep. 463). And, we may add, it would not, without more, be actionable at law. We therefore hold that plaintiff’s loss by way 'of increased insurance rates is not recoverable under these counts. 3. It is, however, insisted for the plaintiff that, even if the added cost of fire insurance be not recoverable as an element of damage, nevertheless a motion to strike out that part of the complaint was the only proper remedy, and that sustaining a demurrer to the entire count was improper and erroneous. Such is the rule where to a good cause of action is imputed damage for which the law allows no recovery. — Kennon v. W. U. T. Co., 92 Ala. 399, 9 South. 200. “It is a general rule that a demurrer to a part of a count will not be entertained, unless the imperfect part is so material as that, being eliminated, it leaves the count without a valid cause of action. * * * The clause objected to is only one of several alleged cumulative acts of negligence, and, if it be stricken out, the count will remain amply good.” —L. & N. R. R. Co. v. Hall, 91 Ala. 118, 8 South. 373, 24 Am. St. Rep. 863. “Where the averments of a part of a count are defective, but could be stricken out and still leave a good cause of action, the proper way to meet the defect is by motion to strike,- objection to the evidence, or by requests for instructions to the jury.” — W. I. Works v. Stockdale, 143 Ala. 553, 39 South. 336, 5 Am. Cas. 578. In accordance with this well-settled rule, the objections to this defect could not be taken by demurrer. The case of Burns v. Moragne, 128 Ala. 493, 29 South. 460, is not in conflict with this view, for there the demurrer was allowed to reach, not merely a claim for non-recoverable damages, but a claim for damages in gross for alleged breaches of official duty, laid en masse, — 159 — some of which were not breaches of duty at all. But, whether the case were thus distinguishable or not, we would in any case feel compelled to follow the numerous authorities which plainly support our conclusion. 4. We are of the opinion that the second count does not sufficiently show wanton injury, and that the ground of demurrer pointing out this defect was properly sustained. — Henry Case, 139 Ala. 161, 34 South. 389. 5. The third- count sufficiently states a cause of action for the nuisance of noise, smoke, dust, and soot, and the averment that these annoying agencies were “negligently or wrongfully” sent upon plaintiff’s premises does not relieve the alleged nuisance of its tortious character. With respect to the claim for damages growing out of increased insurance rates resulting from the increased risk of fire by reason of the proximity of the lumber shed to plaintiff’s premises, we repeat what was said above in regard to similar averments in the first and second counts. The objection to this must be made otherwise than by demurrer. It results that the demurrer was properly sustained as to the second count, and erroneously sustained as to the first and third counts. The judgment will be reversed, and the cause remanded. Reversed and remanded. All the Justices concur, except Dowdell, O. J., not sitting.