Bradbury Marble Co. v. Laclede Gaslight Co.

BLAND, P. J. (after stating the facts). — At the close of plaintiff’s case and at the close of all the evidence, defendant offered a demurrer to the evidence. The refusal of the court to grant its request is assigned as error. For the reason the powder deposited on the marble did no injury in itself and was harmless unless moistened, defendant contends the damages were not direct, and for this reason plaintiff cannot recover. Some of the cases hold to this doctrine, but the majority of the cases in the United States repudiate it and hold that consequential as well as direct damages may be recovered in this form of action. [See 21 Am. and Eng. Ency. of Law, p. 716, and cases cited in footnote 11.] There is some evidence tending to show the discharges — 107 — from the smokestacks of the Heine Boiler Company and the Fairbanks Soap Company may have contributed to the damage complained of, but there is no direct evidence that they did so. On the other hand, plaintiff’s evidence tends to prove the discharges from defendant’s works fell upon its yard, and these discharges, when wet by rain, dissolved, penetrated and stained the marble, hence we think the evidence was sufficient to authorize the jury to find the damages complained of were caused by discharges from defendant’s plant alone, when combined with rain falling after the deposits were made. The action is not based on negligence but is for maintaining a private nuisance. The general rule is, “Although an act may be in itself lawful yet if it is done in a particular place and so necessarily tends to the injury and damage of another’s property it constitutes a nuisance.” [Joyce on Nuisances, sec. 26.] Wood says, “It may be stated, as a general proposition, that every enjoyment by one of his own property, which violates the rights of another, in an essential degree, is a nuisance, and actionable as such at the suit of the party injured thereby.” [1 Wood on Nuisances, sec. 1.] This general rule is subordinate to the right of every one to the reasonable enjoyment of his own property by putting it to any use he chooses, provided the use to which he devotes it violates no legal right of another, however much damage the other may sustain therefrom. As where the damages are caused from the natural development of the land itself, or when one lives in a city and is bound to submit to the consequences of the obligations of trade carried on there. [1 Wood on Nuisances, p. 6, and cases cited in the text.] As a general proposition, neither a private person or a corporation has the right to erect and maintain a nuisance which has the effect of depriving the adjoining-proprietor of the beneficial use of his land, without making compensation for the injury. [Paddock v. Somes, 102 Mo. 226, 14 S. W. 746; Powell v. Brick & Tile Co., — 108 — 104 Mo. App. 713, 78 S. W. 646; Chicago G. W. Ry. Co. v. Church, 102 Fed. 85; Bohan v. Gas Light Co., 122 N. Y. 18; Hauck v. Tidewater Pipe Line Co., 153 Pa. St. 366.] The operation of defendant’s gas machines was lawful and hence not a nuisance per se. There is no evidence that the machines were operated in a negligent or unskilful manner, or that they were in themselves obnoxious. The question, therefore, is whether or not their operation interfered with the ordinary use of plaintiff’s yard, or violated any of his legal rights. The case of Robinson v. Kilvert, 58 L. J. Rep. (Ch. Div.) 392, was a. suit by a tenant against his landlord for loss caused by an alleged nuisance maintained by the landlord. The facts were the tenant had leased of the landlord a warehouse, in which he stored large quantities of brown and tissue paper. Under the wareroom was a basement, in which the landlord maintained a heating boiler. Heat from this boiler heated the ware-room to about eighty degrees Fahrenheit. The heat injured the brown paper by drying it out and reducing its weight, thereby preventing it from acquiring weight by absorbing moisture which it otherwise would have acquired in a moist atmosphere. On these facts, Cotton, J., at pages 394-6, said: “It has been put before us on the ground that what has been done by the defendants is a nuisance, because it interferes with the user by the plaintiff of his premises. It is to be noticed that the heat raised in the room of the plaintiff is not very considerable — it has never exceeded eighty degrees Fahrenheit on the floor, and is generally considerably below. A question of nuisance must be a question of degree. If a person does a thing which is in itself noxious, or which interferes with the ordinary user of a house or building, that is a nuisance. But no case has been quoted, and I know of none, which lays down that where a person does something, not in itself noxious — e. g., the emission of poisonous fumes— he is — 109 — guilty of a nuisance, unless it is an injury to the ordinary enjoyment of life. But it would be wrong to say that a person can be guilty of a nuisance for doing some1thing, not in itself noxious, and which does not interfere with the ordinary enjoyment of life, because it interferes with some particular delicate trade which is carried on by a neighbor; that would be throwing too great a burden on a man’s neighbors.” If the marble stacked in plaintiff’s yard was of a delicate nature and easily stained by foreign substances, the case perhaps falls within that of Robinson v. Kilvert, supra. This case is authority for the text (21 Am. and Eng. Ency. of Law (2 Ed.), p. 658) where it is said: “The question of nuisance is not affected by the mere fact that the property injured consists of luxuries; but one who carries on an exceptionally delicate trade cannot complain of a lawful use of neighboring property, which would not injure anything but such a trade.” The question is mainly one of' degree and location, for what would be a private nuisance in one portion of a populous city, devoted to private residences, would not be one in a portion of the same, city where a great number of factories had been in operation for a number of years. [Demarest v. Hardham, 34 N. J. Eq. 469; Ross v. Butler, 19 N. J. Eq. l. c. 306; Owen v. Phillips, 73 Ind. 284.] However, in an action at law to recover for damages caused by a private nuisance, the question whether or no the acts complained of constitute a nuisance should be left to the jury, where the plaintiff’s evidence tends to show his legal rights have been invaded by the defendant, resulting in damages. Plaintiff, we think, made out a prima-facie case, and therefore the demurrers to the evidence were properly overruled. The court gave the following instruction for plaintiff: “If from the evidence you find that during the time between December 20, 1903, and January 16, 1906, the Bradbury Marble Company, plaintiff herein, was occu — 110 — pying and using in its business a certain lot of ground fronting on the west side of Second street in St. Louis, City Block bounded north by Convent street and south by Rutger street and east by Second street and was the owner of and in possession of a stock of marble which was located on said lot of ground; and that during the same period of time the Laclede Gas Light Company, the defendant herein, owned and was operating a certain gas plant and gas works which were situated on land fronting on the east side of Second street and situated in St. Louis City Block bounded north by Convent street and south by Rutger street and west by Second street; and that said plant and works were near Second street and were opposite to the said premises occupied by plaintiff and to where said marble was located; and that during the period of time aforesaid said defendant caused or permitted carbon, iron, oil and sulphur to issue from its said plant and works, which were then, on certain day or days during said period, spread and diffused westwardly across Second street over said premises occupied by plaintiff and were deposited or settled on said marble, thereby causing said marble or any of it to be so stained that it was materially damaged and made unfit for commercial uses in its stained condition; and that in consequence of such stains, plaintiff in order to restore said marble to a condition fit for commercial uses was compelled to incur and has incurred expense in doing an additional amount of sand rubbing over and above what it would have had to do if said marble had not been so stained, then your verdict must be for plaintiff and you will assess the plaintiff’s damages at a nominal sum, say one cent, and also at such further sum, if any, as you may find from the eveidence was the reasonable expense or cost of doing any such additional sand rubbing, which you find was made necessary by stains which were made on and to said marble during the period of time between December 20, 1908, and January 16, — 111 — 3906, and were caused by defendant’s acts aforesaid.” Plaintiff had the legal right to stack its marble on its yard and to leave it uncovered. Defendant had the legal right to operate its gas machines, in a careful and skilful manner, and to discharge such substances therefrom as were not injurious to the neighboring property when used in the usual way. Therefore, if plaintiff is making an unusual use of its yard, in view of the fact that it is located in a district largely devoted to manufacturing purposes, or if the marble it stacks in its yard is of such a delicate nature as to become stained and injured from substances discharged from the smokestacks of factories by which it is surrounded, it ought not recover. The instruction authorized a verdict for plaintiff on the mere fact that plaintiff’s marble was damaged by. discharges from defendant’s plant and rain, totally ignoring defendant’s legal right to operate its machines, and leaving out of view the question of whether or not the user to which plaintiff devotes its yard is a usual one, in the circumstances, and we think was erroneous in thus leaving out important, and perhaps controlling issues in the case. The answer pleads a right by prescription in defendant to operate its gas plant. The evidence tends to prove that machines of practically the same pattern and operated in the same manner were installed more than ten years before the commencement of this suit. On this evidence, defendant asked the following instructions, which the court refused: “4. Adverse possession is- possession by one person which is inconsistent with possession or right of possession by another. In theory it is a possession founded in trespass originally, but available after the lapse of years by reason of an open, notorious and hostile occupation. To constitute adverse possession, it is necessary that the possession be actual, continuous, notorious and hostile, but all of these may appear from the nature and — 112 — circumstances of the possession. Actual in this sense means real, visible. Continuous means without interruption. Notorious means open, undisguised, generally known, and hostile means opposed and antagonistic to the claim of all others. Undisputed means not called in question. “5. The court instructs the jury that although they may believe from the evidence that ashes, smoke, gases., soot, cinders, oil and dust did proceed from defendant’s works and did damage plaintiff’s stock of marble, from December 20, 1903, to the date this suit was instituted, yet if the jury further find from the evidence that defendant had for at least ten continuous years prior to any complaint from plaintiff, maintained its said works at the same location and that said works had during all that time, discharged ashes, smoke, gases, soot, cinders, oil and dust in the same manner that they were discharged from December 20,1903, to the date this suit was instituted, and if the jury further find that the discharge by said plant of said ashes, smoke, soot, gases, cinders, oil and dust in said manner was adverse, notorious and undisputed, as defined in instruction numbered —, then their verdict must be for the defendant. - While the right to maintain a public nuisance cannot be acquired by prescription, the right to maintain or continue a private nuisance may be, that is, by adverse and exclusive enjoyment for the length of time prescribed by the statute of limitations for the acquisition of title to land by adverse possession. [21 Am. and Eng. Ency. of Law (2 Ed.), 734-5.] There is evidence from which a jury might have drawn the inference that plaintiff could have maintained an action against defendant for maintaining the nuisance charged in the petition at any time within ten years next before it commenced this suit, and the above refused instructions should have been given. According to our views as herein expresised, — 113 — we think the court also erred in refusing the following instruction asked by defendant: “6. The court instructs the jury that in determining- whether the acts complained of constitute a nuisance, they must take into consideration the locality of the business of plaintiff and that of defendant, the nature of the business that is being conducted by defendant, the character of the machinery he is using, the manner of using the property producing the alleged injuries, and you may also consider the kinds of business, if any, which are being conducted and carried on in the vicinity of these premises.” The instructions given by the court for defendant, we think fairly submitted to the jury all other phases of the defense. For errors noted, the judgment is reversed and the cause remanded. All concur.