Dangelo v. McLean Fire Brick Co.

DONAHUE, Circuit Judge (after stating the facts as above). ■ The plaintiffs in error ask a reversal of this judgment for error in refusing to charge as requested and for errors in the charge as given to which exceptions were taken. The first of these alleged errors cannot be considered by this court for the reason that the transcript of the record does not contain plaintiffs’ request to charge. Sugar Co. v. Quinones, 254 U. S. 245, 41 Sup. Ct. 110, 65 L. Ed. 246. At the close of the charge, counsel for the plaintiff took the following exceptions: First. “As to what the court said as to the right of easement and prescription which might be found in favor of the defendant.” Second. “As to what the court said as to the fuel not being proper for them to consider as to the class of fuel there used.” These portions of the charge, to which exceptions were taken, have no application whatever to the first cause of action, and therefore the judgment of the trial court upon that cause of action must be affirmed. The transcript of the record does not contain the evidence; therefore, the presumption obtains that the charge of the court was [16] correct and was responsive to the issue as developed by the evidence as well as by the pleadings. Jones v. Buckell, 104 U. S. 554, 26 L. Ed. 841. It is contended, however, that, regardless of the evidence, the defendant could not acquire .any easement to commit a public nuisance or violate a statute of a state. That question, however, is not presented by this record. The defendant is engaged in a legitimate business and whether, in the conduct of that business, it has violated a statute of the state or created or maintained a public nuisance are questions that depend entirely upon the facts established by the evidence as to the location of its factory in a residential or manufacturing district and the quantity and offensive character of the fumes, soot, and smoke cast into the surrounding atmosphere. However that may be, the plaintiffs are seeking to recover special damages for injury to private property occasioned by the deposit upon plaintiffs’ premises of sulphur fumes, poisonous vapors, and viscous substances. The deposit of these substances upon plaintiffs’ private property is not a public nuisance. The public nuisance, if any, consists in the pollution of the atmosphere by these fumes, vapors, and substances before they are deposited upon plaintiffs’ land, and while the plaintiffs could not grant the defendant the right and the defendant could not acquire an easement to maintain a public nuisance, nevertheless the plaintiffs could grant the right to defendant to deposit any refuse from its plant upon plaintiffs’ property, and whatever rights may be acquired by grant may be acquired by prescription. 19 Corpus Juris, 904, 905; Wellington v. Cambridge, 220 Mass. 312, 107 N. E. 976; Hulme v. Shreve, 4 N. J. Eq. 116. The plaintiffs cannot predicate their action for damages to their private property upon the creation or maintenance of a public nuisance unless they suffered special damages differing in kind from the injuries or annoyances common to the public. In this case, if the plaintiffs had granted to the defendant the right to deposit these fumes, vapors, and viscous substances upon their premises they would suffer no injury from the maintenance of such public nuisance, differing in kind from the injury common to the public, for which they would have a right of action. An easement acquired by prescription presumes a grant, so that the same result must follow, if the defendant did in fact acquire an easement either by prescription or by implied reservation. It is further claimed that no statute of limitation will run until after the damage has been done, and that it was only within the last three or four years that the accumulation of poison has produced substantial injury. In the absence of the evidence or a special finding by the jury as to when the damages occurred, the record does not present this question. The court properly charged the jury that the use of bituminous, coal in the operation of a brick plant is not unlawful. This plant was constructed in 1891 and ever since that time it has used bituminous coal for fuel in the operation of its plant. If the defendant acquired any easement in plaintiffs’ property by prescription or implied reservation that easement contemplated the use of bituminous coal by defendant in the operation of its plant. If, however, the defendant acquired [17] no easement in the plaintiffs’ land, then, if liable at all, it is liable for all the damages accruing to plaintiffs’ property, regardless of the character of the fuel used. It may be true that in an action for injunction, a court of equity might enjoin the use of bituminous coal in certain locations if other fuel were available. It is, however, wholly unnecessary for this court to decide that question for the reason that this is an action at law to recover damages for injuries already suffered. The fact, if it is a fact, that the defendant might have avoided damaging plaintiffs’ property or might have lessened the damages to plaintiffs’ property by the use of other fuel is now unimportant. It is too late to change the facts. The damage is done, and if defendant is liable to plaintiffs for that damage it must pay in full. It is claimed, however, that the fact that a cheap grade of coal was used by defendant would entitle the plaintiffs to recover punitive damages. The jury having found against the plaintiffs upon the question of actual damages, of course, no punitive damages could have been allowed. For this reason the charge of the court in this respect, even if it were conceded to be erroneous, could not have been prejudicial to the plaintiffs.. The judgment of the District Court is affirmed.