Whalen v. Keith

Bates, Judge, delivered the opinion of the court. This was a suit brought before a justice of the peace by a complaint, as follows: “ Plaintiff states that he has been damaged by defendant to the amount of fifty dollars, in this, that he, plaintiff, is owner and occupier of certain premises described as follows: one house and lot situated on Poplar street, south side, between Nineteenth and Twentieth streets; that defendant is the owner and occupier of premises adjacent to the house occupied by plaintiff; that said defendant has erected or caused to be erected on his (defendant’s) premises, a certain frame shed, a portion of which encroaches on the premises of plaintiff, and that from said shed project two stove pipes, the smoke from which, through the wilfulness, negligence and carelessness of said defendant, escapes into and on the premises of plaintiff, rendering his house almost untenantable, and otherwise injuring the same, whereby plaintiff is damaged in the sum of fifty dollars, as above stated, and for which said sum he prays judgment against said defendant.” [89] The defendant filed with the justice a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The justice overruled the demurrer, and then, on the application of the defendant, the case was removed by change of venue to another justice, before whom it was tried and judgment given for the plaintiff for fifty dollars, from which the defendant appealed to the Law Commissioner’s Court, where judgment was again given for the plaintiff for fifty dollars, and the defendant appealed to this court. At the trial before the Law Commissioner, the defendant moved the court to dismiss the suit, for the same reason stated in his demurrer before the justice. The commissioner properly overruled the motion; for the complaint, or statement, showed substantially an injury done to the plaintiff’s property, by the negligent use by the defendant of his own property, and the precision required in pleading in courts of record is not required in cases before justces. No question was raised of the jurisdiction of the justice. The evidence given tended to prove the plaintiff’s case substantially. The defendant asked this instruction, which was refused: “ If the shed, from which the smoke is alleged to have escaped, was entirely upon the premises of defendant, and no smoke pipe encroached, or was carried over, on, or into premises of plaintiff, the plaintiff is not entitled to recover.” The court did not err in refusing this instruction. The ovidence showed that the plaintiff was injured by the defendant’s negligent or wilful misuse of his property, although neither the shed nor the smoke pipes projected over, or into, plaintiff’s property. It appeared in evidence that, before the suit was brought, the plaintiff had gone to the defendant and asked him to remove his stove pipe, because it caused him great inconvenience, and that the defendant refused to do so. The judgment is therefore affirmed, with ten per cent, damages. Judges Bay and Dryden concur.