Cavanaugh v. Corbin Copper Co.

ME. JUSTICE HOLLOWAY delivered the opinion of the court. The Lawlor and Kemper addition to Butte comprises the surface ground of the Gambrinus Quartz Lode mining claim which was platted and sold generally for residence purposes. About 1905 plaintiff purchased lot 20, block 2, with a dwelling on it, and ever since has occupied the premises as a residence for himself and family. The defendant Corbin Copper Company became the owner of lots 10, 11, 12 and 18 in the same block, and in 1913 commenced sinking a shaft on lot 18, about fifty feet from plaintiff’s residence, and continued the work for a year or more. In furtherance of its purpose the company placed upon its lots a gallows frame, a tramway, a blacksmith-shop, and other structures and machinery necessary to the prosecution of mining operations. This action was brought to recover damages, upon the theory that appellant was maintaining a nuisance which injuriously affected the health and comfort of plaintiff and his family and the value of their property. Certain individuals were joined as defendants, but they were acquitted of liability. The plaintiff prevailed as against the [178] copper company, and it appealed from the judgment and from an order denying a new trial. Three questions are submitted for determination: (1) Did the mining operations of the defendant company constitute a nuisance? (2) Is plaintiff estopped by deed from complaining of defendant’s operations? (3) Does the evidence justify a judgment for more than nominal damages? 1. Section 6162, Revised Codes, provides: “Anything which [1] is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, * * * is a nuisance.” The language of this statute is to be given a common-sense construction. On the one hand, it takes care that a legitimate and useful business or occupation shall not be suppressed on account of some imaginary or trifling annoyance, which offends the over-refined tastes or disturbs 'the supersensitive nerves of a fastidious person; on the other, it does not permit anyone, whatever his circumstances, to be driven from his home, or compelled to live in it in positive discomfort, in order to accommodate another, in the pursuit of his business which offends the mind and taste of the average individual. The question of nuisance vel non is not to be determined in [2] the abstract. Every case must be considered with reference to its own peculiar facts and circumstances. No one would have the temerity to contend that mining is per se a nuisance; but it is elementary that a business otherwise lawful and useful may become a nuisance, by reason of its location or the manner in which it is conducted. Neither a powder magazine nor a stone quarry is of itself a nuisance, but either may become such when located in a populous community or in a residence district. (Cameron v. Kenyon-Connell Co., 22 Mont. 312, 74 Am. St. Rep. 602, 44 L. R. A. 508, 56 Pac. 358; Longtin v. Persell, 30 Mont. 306, 104 Am. St. Rep. 723, 2 Ann. Cas. 198, 65 L. R. A. 655, 76 Pac. 699.) Upon the same principle a gas plant (Judson v. Los Angeles S. G. Co., 157 Cal. 168, 21 Ann. [179] Cas. 1247, 26 L. R. A. (n. s.) 183, 106 Pac. 581), an insane asylum (Shepard v. Seattle, 59 Wash. 363, 40 L. R. A. (n. s.) 647, 109 Pac. 1067), a brick kiln (Face v. Cherry, 117 Va. 41, Ann. Cas. 1917E, 418, 84 S. E. 10), or a tin-shop (Dennis v. Eckhart, 3 Grant Cas. (Pa.) 390), may become a nuisance. Numerous other illustrative cases will be found cited in 29 Cyc. 1165 et seq. If the evidence brings appellant’s mining [3] operations within the definition given in section 6162 above, it is no defense to say that they were carried on according to approved methods, or that in maintaining the nuisance appellant exercised due care, or that mining is necessary to the industrial life of the particular district. Community benefits cannot be urged as justification for the injury or destruction of private property without compensation. (Townsend v. Norfolk R. & L. Co., 105 Va. 22, 115 Am. St. Rep. 842, 8 Ann. Cas. 558, and note, 4 L. R. A. (n. s.) 87, 56 S. E. 970; Appeal of Pennsylvania Lead Co., 96 Pa. 116, 42 Am. Rep. 534; Columbus C. & I. Co. v. Tucker, 48 Ohio St. 41, 29 Am. St. Rep. 528, 12 L. R. A. 577, 26 N. E. 630; People v. White Lead Works, 82 Mich. 471, 9 L. R. A. 722, 46 N. W. 735.) The evidence discloses that these mining activities were be°gun [4] in a residential portion of the city, after it had been built up for residence purposes; that before such time it was a desirable, quiet neighborhood, and well adapted for residence purposes ; that the shaft, tramway, hoisting engine, air-compressor, air-containers, blacksmith-shop, and all machinery were in close proximity to plaintiff’s dwelling-house; that the inmates of the house were disturbed at all times of the day and night by loud and unusual noises, blasting, ringing of bells, dumping of cars, running of cars over the tramway, rumblings and vibrations of hoisting engines, pumps, air-compressors and other machinery, and periodically by day and night by heavy explosions of •dynamite, which awakened the inmates from sleep and jarred and shook the house and furniture; that such noises, vibrations and concussions were a source of great annoyance and discomfort to the inmates of plaintiff’s home, and made it unpleasant [180] and uncomfortable to live in, and caused plaintiff’s wife to become nervous and her health to be temporarily injured by reason thereof; that such conditions continued for a year or more, and defendant admits in the answer that such activities will be resumed and continued indefinitely. It is disclosed, further, that plaintiff’s property suffered structural injury, and that its value depreciated one-half. Under these circumstances, the trial court did not err in its conclusion that appellant was maintaining a private nuisance. 2. But it is insisted that, even though these activities caused some substantial annoyance and damage, plaintiff cannot be [5] heard, because he is estopped, by the condition of the deed conveying him legal title to his property, from complaining of mining operations by defendant. Whether plaintiff is estopped depends upon the terms of his deed. If it purports to do nothing more than sever the minerals from the superjacent soil and reserve to the grantor the mining rights, it may well be contended that there is implied in the reservation the right in the grantor and in defendant — a grantee from a common source— to employ such means and processes, for the purposes of extracting the ores, as may be reasonably necessary in the light of modern invention. (3 Bindley on Mines, 3d ed., sec. 813.) But the deed in question does more. It is in the usual form, with this addition: “It is understood that only the surface ground of the premises above described is herein conveyed, and that the party of the first part continue the owner of all minerals beneath the surface thereof, with the right to mine and extract the same: Provided, that in the exercise of such mining rights said premises shall not be disturbed, damaged, or interfered with by said party of the first part.” Plaintiff’s grantor did not see fit to make an unconditional reservation of his mining rights, but voluntarily limited his right to such mining operations as would not disturb, damage or interfere with the plaintiff in the use and occupation of the surface ground embraced in lot 20. The parties to- the deed were free to make any lawful contract, and plaintiff may rely with confidence [181] upon the terms quoted above, which recognize the correlative rights of grantor and grantee, and in effect bind each alike to the observance of the equitable rule expressed by the maxim: ‘ Sic. utere tuo ut alienum non laedas.” While plaintiff may not be heard to deny generally appellant’s right to utilize its property, he is not estopped by his 'deed to complain of particular mining operations which disturb or interfere with the quiet and peaceable possession and enjoyment of his own premises, or of acts of the appellant which cause damage to his property. In their presentation of this case, counsel have assumed that the copper company acquired mining rights, and we have proceeded upon that assumption, though the fact is not alleged in any of the pleadings. 3. No useful purpose would be served in reciting the evidence in detail or in substance. In our opinion it is sufficient to sustain the finding that plaintiff has been damaged to the extent of $1,250. The judgment and order are affirmed. 'Affirmed. Mr. Cheep Justice Brantly and Mr. Justice Sanner concur.