31 Del. 509 | Del. Super. Ct. | 1922
delivering the opinion of the Court:
The first and second counts of the declaration are based on the maintenance of a nuisance. The first count alleges that the defendant did “wrongfully and injuriously operate and use certain machinery therein, by causing said machinery to give forth, from time to time, many and divers heavy blows, shocks, jars, and concussions,” etc. The second count alleges that the defendant did “wrongfully and injuriously cause said hydraulic hammer or press to move with great force and violence and to give forth many heavy blows, severe shocks, jars and concussions,” etc.
An action for a nuisance is based on the wrongful act of the defendant in creating or maintaining it, and, under ordinary circumstances, negligence is not a material element in such an action, and therefore need not be alleged or proved. Lamming v. Galusha et al., 135 N. Y. 239, 31 N. E. 1024; Joyce on Nuisances, §§ 18 and 44; 2 Wood on Nuisances, p. 1277; 20 R. C. L. p. 381; 118 Am. St. Rep. 870. As a matter of fact, this is shown by several of the cases cited by the defendant, in support of the demurrer. Farrand v. Marshall, 21 Barb. (N. Y.) 409, 418; Carhart v. Gas Co., 22 Barb. (N. Y.) 297. The latter case squarely presents this question by a demurrer to a plea, alleging that there was no negligence on the part of a defendant, who had been sued for the
If negligence is not an essential element of a nuisance, it follows that the manner of wrongfully operating the machinery of the defendant need not be set out. The plaintiff does not in these counts rely on any “negligent” acts of the defendant, but on the fact that he“wrongfully” maintained a nuisance.
The following sentence, with respect to nuisances, appearing in Saunders on Pleading & Evidence, vol. 2, p. 464, is applicable here:
“It will suffice to describe it generally, without setting out the particulars of the defendant’s acts and the means of nuisance used by him."
Nor is the failure of the plaintiff to allege any duty from the defendant to him fatal. The rights of the parties are covered by the old legal maxim, “Sic utere tua ut alienum nonlaedas,” and the duty of the defendant to the plaintiff is implied from the allegation of his ownership of adjoining property to that of the plaintiff. Saunders on Pleading and Evidence, vol. 2 p. 463.
The correctness of our conclusions as to the grounds of demurrer to the first and second counts above commented on, as well as the objection that no unreasonable use of the defendant’s property is alleged, is shown by the fact that these counts substantially follow the declarations in the following cases: Elliotson v. Feethom, 29 E. C. L. 283; Tipping v. St. Helen's Smelting Co., 116 E. C. L. 608 (1863); Hole v. Barlow, 93 E. C. L. 334 (1858); Bamford v. Townley, 113 E. C. L. 62 (1862); Wesson v. Washburn Iron Co., 13 Allen (Mass.) 96, 90 Am. Dec. 181. See also Chitty on Pl, vol. 2, p. 768 et seq. and 4 Robinson's Prac. 809.
Tipping v. St. Helen's Smelting Co., Hole v. Barlow, and Bamford v. Townley all consider the question, as to whether the use of the property alleged to be a nuisance was reasonable, should be submitted to the jury. The declarations are set out in each case, and it is a significant fact that there was no allegation in any of them that the use of the property in question was unreasonable and no contention was made that such an allegation was, in any way, essential.
The demurrer is, therefore, overruled.
