20 N.J. Eq. 201 | New York Court of Chancery | 1869
The complainants in this case own, as tenants in common, four brick houses, occupied as dwellings, in Lombardy street, in the city of Newark. Some of these are occupied by the complainants themselves. They are designed, and suitable for dwellings for respectable and wealthy families, but are not the most costly or elegant in the city; yet are fully equal to the average of dwellings occupied by such families. The rest of Lombardy street, which extends from Front to Broad street, is built up with dwelling-houses of about the same class, which are inhabited by wealthy and respectable farm-
The Citizens Gas Light Company have commenced erecting their works on the east side of Front street, between it and the Passaic river, opposite the place where Lombardy street ends, in Front street. The gas holder or tank will be about one hundred and eighty feet distant from the complainants’ houses, and the retort house, purifier, and other works for the manufacture, will be between three hundred and four hundred and fifty feet distant.
The complainants allege that the building and working of the gas works so near their houses, will greatly injure their value, and render them unfit for residences. That gas works always and necessarily send forth .noisome and unpleasant vapors and smoke which are diffused to an extent greater than the distance to these houses, which will render living in them uncomfortable and unhealthy.
The complainants further allege that gas in holders is liable to explode, and that the explosion of so large a quantity as will be contained in this holder, which it is admitted
The defendants deny that the manufacture of gas in the manner in which they intend to conduct it, will be a nuisance to the complainants’ houses, or will render life in them uncomfortable. They answer that they do not intend to use the process of purifying the gas with lime, which is the cause of the most objectionable odor arising from gas works, and will substitute for it the process by oxide of iron, which is comparatively inoffensive. They also intend to construct .a cistern under ground, into which the tar and ammoniacal liquors and other offensive fluid products, will be conveyed by gas tight pipes, and from which they will be discharged by pipes into boats, which will convey them away.
The principles of law and equity that must govern thisi -case were fully considered and determined by me, in the case of Ross v. Butler, 4. C. E. Green 294, and I have not found any reason to change the opinion then expressed.
Any business, however lawful, which causes annoyances that materially interfere with the ordinary comfort, physically, of human existence, is a nuisance that should he restrained ; and smoke, noise, and bad odors, even when not injurious to health, may render a dwelling so uncomfortable, as to drive from it any one not compelled by poverty to remain.
Unpleasant odors, from the very constitution of our nature, render us uncomfortable, and when continued or repeated, make life uncomfortable. To live comfortably is the the chief and most reasonable object of men in acquiring property as the means of attaining it; and any interference with our neighbor in the comfortable enjoyment of life, is a wrong which the law will redress. The only question is what amounts to that discomfort from which the law will protect.
The discomforts must be physical, not such as depend
The application is to restrain putting up the building, and also manufacturing gas. As to the building itself, it can be of no injury to any one, if no gas is ever made in it. But it is usual and proper where a building or works are being erected that can only be used for a purpose that is unlawful, to restrain the erection. The works, if erected, might tempt the owner to use them, and it seems like trifling to permit any one to go on witñ a building which he can never be permitted to use. But ,in .this case, as will appear hereafter, ..I am not entirely satisfied that it is impossible to manufacture gas in some way that will not be a nuisance to houses situate .as those .of the complainants, and therefore I
As to the danger of explosion of the gas holder, I do not think sufficient is proved to show it to be a dangerous nui-, sanee. In the first place, the danger of there being an ex-j; plosion is small. The instances are rare, and it cannot hap- j pen from the ordinary use of the holder; and then the} danger to any building at the distance of these of the com- > plainants, does not appear. No proof is given of any injury'1 to buildings at that distance; I do not think it as dangerous as the steam engines which are scattered every where through our cities.
I am satisfied, by the evidence, that if the process of purifying by lime should be used in the works of this company, it would cause a clear and serious injury to the complainants’ houses, would make living in them uncomfortable. The evidence as to the process by the oxide of iron is not so clear the other way. The evidence clearly shows that it will not be so offensive as the lime process. And in the way that the defendants intend to revivify the oxide as detailed in the affidavit and deposition of Mr. Kennedy, who is devising and constructing their works, if it shall be strictly followed, it may not be so offensive as at all to annoy the complainants. There is no proof on their side to show that it will; this process is recently introduced in this country, and perhaps sufficient is not known of it to determine that question. But unless I am satisfied by proof, that the process intended to be used by the defendants will produce annoyance, I cannot restrain them.
With regard to the coa.1 tar, the ammoniacal water and other liquid products of the manufacture of gas, the cistern and plan for conveying them to it, and emptying them from, it, if it can be, and shall be faithfully carried out, may prevent the effluvia that usually arises from these sources. I
"With regard to the smoke and gases evolved upon the-drawing of the retorts, I have more difficulty; this operation is repeated frequently every day, and is almost continual. The defendants will erect their retort-house below the hill, so that its top will be but a few feet above the level of the ground on which these houses stand. The smoke and gases are to be discharged by the ventilators near the top, usual in retort-houses. It seems to me that'in certain states-of the atmosphere, a gentle wind, in that direction, will carry this smoke and gas three hundred feet to these houses, and if so, it is clear that it will be an annoyance which ought-not to be permitted; but on this point there is no evidence, and I ought not to restrain the defendants on speculations,, however probable they may seem to me.
The justification that this is a neighborhood devoted to-such manufacture, in which annoyances of this kind should not be restrained, is not sustained by the proof. Only two factories that could be an annoyance are shown; one the Patent Leather Manufactory, and the other the Oement Works. No neighborhood can be outlawed from protection by the existence of only two establishments of this kind. It is only when a town or part of a town is, by their continuance for years, wholly given up to such establishments, so-that one more would not add sensibly to the discomfort, that-this rule applies; as if in Sheffield, Birmingham, or Pittsburgh, or any other city, begrimmed and clouded with the soot and smoke issuing from hundreds of engines, one more was added, such- almost imperceptible addition to the evil would not be restrained. Besides, the annoyance from the dust of the lime and cement is of a different nature and
But on the whole I am of opinion that no injunction against manufacturing gas ought to issue at the present stage of the case. The proof is not clear, except in case the gas shall be purified by lime, that the manufacture will seriously annoy any one at these houses. Some of the witnesses indeed express their opinion that it will, but with perhaps the exception of one or two, these opinions are not supported by facts observed by them. On the other hand, eleven witnesses, some of whom, at least, are known to be men of character and good sense, testify, that at like distances from the Newark gas works, in the course of years, they have not noticed any offensive smell, although lime purifiers were used; and although it seems to me that in this there must be some mistake or misapprehension, which perhaps an opportunity at cross-examination would have corrected, yet I cannot disregard this evidence unless overcome by evidence more explicit than that of the mass of the proof of the complainants. Besides, in this case, a preliminary injunction is not absolutely necessary; the cause can be brought to hearing before the works can be completed, or in operation, and full proof can be given, on both sides, of the effect of such works without lime purifiers, at the distance of the houses of the complainants. Upon the principles which I have adopted, I can have no hesitation on the final hearing in ordering a perpetual injunction, if it shall appear that works conducted as the defendants propose to conduct these, will annoy any one occupying the houses of the complainants, although only at intervals or occasionally, by any smoke, gas, or offensive vapors which may render living there uncomfortable ; and there can be no doubt that the gases and
An injunction must issue to restrain the defendants, the gas company, from using what is known as the lime process in purifying their gas, or any process of which lime is a substantial part; and from manufacturing gas in any way that will produce any annoyance to persons dwelling in the houses of the complainants, by any smoke, gases, other effluvia or odors, that may issue from the works. The residue of the injunction is refused. |The costs to abide the event of the suit. '