Hayden v. Tucker

Wagner, Judge, delivered the opinion of the court. Sic utere tuo ut non alienum ¡cedas, is a sound as well as an ancient maxim of the law. It is an established rule, as old as the common law itself, that a man should so use his property as not to injure his neighbor; and hence if one carry on a lawful trade in such a manner as to work harm or annoyance to another, he will be answerable. Thus it has been held in the old books, that if a man erects a smith’s — 221 — forge, swine-sty, lime-kiln, privy, or tallow furnace, in such close proximity to the dwelling-house of another as to render it unfit for habitation, he will be liable to an action. (Bradley v. Gill, Lutw. 29; Aldred’s Ca. 9 Coke, 58; Jones v. Powell, Hut. 135; Morley v. Praquell, Cro. Car. 510.) And it is not indispensable to maintain this right of action, that the owner should have been driven from his dwelling or habitation ; it is sufficient if the enjoyment of life and property has been rendered uncomfortable. (Rex v. White, 1 Bur. 337, per Ld. Mansfield.) Nuisances are of two kinds, public and private. The former are said to be such inconvenient and troublesome offences as annoy the whole community in general, and not merely some particular person. (4 Bl. Com. 167.) Thé latter is defined to be anything done to the hurt or annoyance of the lands, tenements or hereditaments of another. (3 Bl. Com. 216.) It is in many cases difficult to determine to which of these claims an alleged nuisance belongs. Many, indeed, there are which may be regarded as both public and private. Thus, if one does an act which operates injuriously to another, it will be a private nuisance for which he shall have his action for redress ; but if, in addition thereto, it is detrimental to a whole neighborhood, or to. the community at large, it is also a public nuisance, and the subject of criminal as well as civil prosecution. But where a person sustains some particular damage beyond the rest of the community, by a public nuisance, he may maintain his private action and seek redress in the courts. The action is-founded on that inestimable principle of Christian morality which commands every man to do to others as he would have others do to him. The same great principle is recognized and enforced in the law maxims heretofore quoted ; and therefore it is that acts in themselves perfectly lawful become wrongful in consequence of time, manner, or place of performing them. It is insisted by the counsel for the respondent, that the wrong here complained of, even if it does amount to a nui — 222 — sanee, having been established before appellant bought the property and moved to it with his family, cannot be remedied by the injunction process ; that a court will not interfere to prevent or remove a private nuisance, unless it has been erected to the annoyance of the right of another long previously enjoyed ; that it must be a case of strong and imperious necessity, or the right previously established at law ; and in support of this several cases are cited. It is true courts will hesitate about granting injunctions in doubtful cases, and the exercise of a power will be denied except in cases of great injury where no adequate or commensurate remedy in damages is afforded at law. But the jurisdiction is undoubted, and founded on the ground of restraining irreparable mischief, or of suppressing oppression and interminable litigation, or of preventing multiplicity of suits. (2 Sto. Eq. Jurisp. § 925.) A right of action may lie against a party for a nuisance, where a court would not be justified in interfering to remove it by injunction. To authorize this extraordinary interference, there must be such an injury as from its very nature is not susceptible of being adequately compensated by damages at law, or such as from its continuance or permanent mischief, must occasion á constantly recurring grievance which cannot otherwise be prevented but by injunction. And this remedy will be allowed where the injury is material, and operates daily to destroy or diminish the comfort and use of a neighboring house, and the remedy by a multiplicity of actions for the continuance of it would furnish no substantial compensation. (2 Sto. § 926.) It is only necessary that a party should establish his right in an action at law preparatory to obtaining an injunction for a nuisance, where a question of title is involved, or the right itself is doubtful or uncertain. (Irwin v. Dixon et al., 9 How., U. S., 10; Dana v. Valentine, 5 Metc. 8.) Every continuance of a nuisance is a fresh one. And this is not only true of the party first injured, but a purchaser may have his action for the continuance of a nuisance erected before his purchase was made, as an heir may have for one — 223 — erected in the lifetime of his ancestor. (1 Ch. Pl. 77-95, 7th ed.; Beswick v. Cunden, Cro. Eliz. 402; Rosewell v. Prior, 1 Ld. Raym. 713; Shalmee v. Pultney, id. 276.) In Elliotson v. Feetham, (2 Bing., N. C., 134,) the plaintiff alleged in his declaration that he was lawfully possessed of a dwelling-house, in which he with his family dwelt and where he exercised and carried on the profession of doctor of medicine and physician, and that defendant being possessed of a certain manufactory for the working of iron, &c., situate near to his dwelling-house, made divers large fires, and also divers loud, heavy, jarring, varying, agitating, hammering, and battering sounds and noises, whereby the plaintiff and his family were greatly disturbed, and by means of which his premises were greatly lessened in value, and he had been prevented from exercising and carrying on his profession in so ample and beneficial a manner as he otherwise might and would have done. The defendant pleaded that they had been possessed of the said workshops, in which the noise was made, ten years before the plaintiff was possessed of the term in his house, and that they had always during that time made the noise in question,' which was necessary for carrying on their trade. On demurrer and joinder the plea was held bad, and judgment given for the plaintiff. In the Duke of Northumberland v. Clowes, cited in 3 Chitty’s Black. 217, note 5, the defendant employed a steam engine in his business as a printer, which produced a continual noise and vibration in the plaintiff’s apartment, which adjoined the premises of the defendant, and it was held to be a nuisance. Hight v. Thomas, (10 Ad. & El. 590,) was an action for annoying plaintiff in the enjoyment of his house, by causing offensive smells to arise near to, in and about it. Plea enjoyment, as of right, for twenty years of a mixen on defendant’s land, contiguous and near to plaintiff’s house, whereby, during all that time, offensive smells occasionally and unavoidably arose from said mixen. On a traverse of of a right, the defendant had a verdict. Held, that the plea was bad, and plaintiff entitled to a judgment non ob — 224 — stante veredicto, for that it did not show a right to cause offensive smells in the plaintiff’s premises, nor that any smells had in fact been used to pass beyond the limits of defendant’s own land. So, too, Bliss v. Hall, (4 Bing. 183,) was a case of nuisance for carrying on the trade of a candle maker on premises adjoining the dwelling of the plaintiff. The defendant pleaded that he had carried on the business in the same place of three years before the plaintiff became, possessed of his messuage. Upon demurrer, Yaughn, Judge, said, “ The smells and noises of which the plaintiff complains are not hallowed by prescription ; ” and Bosanquet, Judge, said, “ The defendant has, prima facie, a right to enjoy his property in a way not injurious to his neighbor; but here on his own showing the business he carries on is offensive, and he makes out no title to persist in the annoyance.” It is true that the cases above referred to were mostly actions at law, but we perceive no valid or substantial reason for denying the right to equitable relief in like cases. Where the injury is occasional, contingent, fugitive, or temporary, there may be sufficient grounds for withholding this strong arm of equity interposition; but where it is of continued recurrence, and constant in its nature, it is an idle mockery to turn the party over to. his remedy at law. Why compel the party to commence a fresh action every day to establish each separate act of nuisance, when the whole can be finally concluded and set at rest by the chancellor on a final hearing? Why flood the courts of the country with litigation, when a plain and ample remedy is provided for avoiding ití Besides, there are some things that cannot be compensated in dances. What verdict will afford adequate remuneration to a man whose home is rendered intolerable by a revolting'nuisance ? whose social happiness is marred by a disgusting annoyance perpetually bringing the blush of shame to modesty and innocence ? We have examined the evidence with attention and care, and we are unable to conceive how a case could be made out more clearly, going to establish a nuisance. The witnesses all concur as to the grievance complained of, and — 225 — its immediate proximity to plaintiff’s dwelling. Daily and nightly there is no intermission, and even on the Sabbath, a day consecrated to repose, quiet, and divine worship, there seems to be no abatement. The judgment is reversed, and a perpetual injunction will be entered in this court. The other judges concur.