38 How. Pr. 176 | The Superior Court of New York City | 1869
I am not justified by the evidence in this case, in finding that the value of the real estate of the plaintiff has been depreciated by the defendant’s business. For the purposes of a residence for a private family, there can be no doubt its value has been materially lessened; but in the market, for a business not materially affected by the annoyances which proceed from the defendant’s shop, or for any other suitable purpose, the weight of the evidence shows that the value of the property has rather increased than depreciated since the erection of the defendant’s building. But I am justified in finding, and I have found, that the plaintiff’s business has been in some measure interrupted and disturbed, and the enjoyment of his premises as a residence for himself and family in some degree impaired by the business carried on by the defendant in the adjoining building.
This general doctrine has been applied to a variety of businesses, which were lawful mthemselves, but which tendered the residences of others unfit for comfortable habitations, such as a smith’s forge (Besby agt. Gill, Lutw. 69); swine-sty (Aldred’s case, 9 Reps., 59 a.) lime-kiln (Ibid, per Gray, C. J.); and tallow-furnace.
In Fish agt. Dodge (4 Denio, 311), the business of finishing steam-boilers, whereby the occupant of an adjoining house was disturbed by the noise and dust, was held to be a nuisance. So, a coal-yard in a city, from which, offensive dust and smut arose, and was diffused into the premises of neighboring inhabitants, was held to be a nuisance within a covenant against ie anything offensive to the neighboring inhabitants” (Barrow agt. Richard, 8 Paige, 351). A slaughter-house was declared to be prima facie a nuisance (Cathie agt. Valentine, 9 Paige, 575). It was there repeated, that it was not necessary that the trade or business should endanger health; but it was sufficient if it was oppressive to the senses, rendering the enjoyment of life and property uncomfortable. And in this court (McKeon agt. See, 4 Robt., 449, where all the cases are carefully collected) it was held, that the carrying on of the business of sawing blocks
The annoyance and the disturbance of comfort and the enjoyment of property, however, must be substantial and real. The law will not regard trifling inconveniences. Therefore, noxidus vapors arising on another’s land must be such as visibly to diminish the value of adjacent property, or the comfort and enjoyment of it (Bamford agt. Turnley, 3 B. & S. 66 ; Tipping agt. St. Helen’s Smelting Co., 4 Id. 608, 616, 1,093).
From the cases which have been cited, and many others which might be, it appears to be well established that any lawful business or trade may be a nuisance, if it is conducted in a manner which is injurious to the comfortable enjoyment of another man’s property. It need not be detrimental to health, or endanger life; nor is it necessary that it should directly depreciate the value of property. If in the manner and for the purposes such property may be used, its enjoyment is so interfered with as to destroy or greatly impair its comfortable use, it is a nuisance against which the law will protect the injured.
In this case the grounds of complaint are, that the com
But while I have been compelled by the evidence to find that all these alleged causes of annoyance to the plaintiff do exist, and that they proceed from the defendant’s premises, and from the manner of conducting his business, yet there are other considerations and principles which have, in my j udgment, a controlling influence upon this case.
The business of blacksmithing and horse-shoeing is a lawful business, and is not per se a nuisance (Ray agt. Lynes, 10 Ala. R. 63). It is of great benefit, utility, and convenience to the public, and may rightfully be carried on for private emolument, provided it be done in a proper and convenient place. Comyn says (Comyn Dig. tit. Action upon the Case for a nuisance, C.), an action “ does not lie for a reasonable use of my right, though it be to the annoyance of another; as if a butcher, brewer, etc., use his trade in a convenient place, though it be to the annoyance of his neighbor.”
The case of Hale agt. Barlow (4 C. B., N. S. 334), was an action at law for damages. The defendant had erected a brick-kiln on his own land, in front of the plaintiff’s house, wherein he burned large quantities of brick, causing noxious and unwholesome vapors to arise, injuring the plaintiff’s premises, rendering his dwelling uncomfortable, unhealthy, and unfit for habitation. Justice Byles, in charging the jury, said, “it is not everybody whose enjoyment of life
These cases illustrate and sustain the proposition that an action will not lie, if a lawful trade, which may be offensive to persons living in the vicinity, is carried on at a proper and suitable place. (See also cases cited in notes q, r. r. to Broom’s Legal Maxims, 165 ; 1 New Law Library, 84).
The evidence furnished in this case, as well as a personal examination, which I have thought it not improper to make, of the street and neighborhood in which the defendants shop is situated, has led me to the • conclusion that it is a convenient, proper, and suitable place for such a business There are' no (exclusively) dwelling-houses in the block on the north side, and but one on the south side. The street, which was formerly occupied for - private stables, is now used mostly for shops of various descriptions, having some families occupying the upper stories. In short, the entire street, from the corner of the Second avenue is, with the one exception I have mentioned, now used and occupied for stabling horses, or for business purposes.
A horse-shoeing establishment is in one sense a public convenience, as much so as a city railway; and, as was said ,in regard to the latter (Williams agt. N. Y. Central R. R. Co., 18 Barb., 247) the annoyances complained of are such as are experienced by dwellers in populous towns and cities, and must be endured without redress, because they are of minor importance compared with the general good. Blacksmithing is also a necessary trade, and must be carried on in places not too remote from the habitations of men. Where then can it be carried on ? Is there any locality in the inhabited part of this city where such a business, with its incidental annoyances, can be conducted without subjecting some one person to discomfort and suffering? Such estab
So far as the plaintiff's property is injured by the construction of the defendant’s forges and chimneys, or by the use of the party-wall, or his business is affected by the vibration or jar, and dust which proceeds from the defendant’s shop, there is an adequate remedy at law, and they furnish no grounds for equitable relief. The chancellor says, in Van Bergen agt. Van Bergen (3 J. C. R., 287), “ it must be a strange and mischievous case of pressing necessity, or the right must have been previously established at law, to entitle the party to call to his aid the jurisdiction of this court” (White agt. Cohen, 19 Eng. L. and Eq.; Att.-Gen. agt. Nichol, 16 Vesey, 338).
As there cannot be any legalization of a nuisance by prescription, and as all offensive trades which have been carried on without complaint in parts of the city, remote at the
There must be judgment for the defendant with costs.