50 Kan. 478 | Kan. | 1893
Opinion by
The plaintiff in error filed his petition in the court below, and the material allegations are as follows: That the said defendant, the Junction City Pressed Brick Company, is a corporation created by and existing under and by virtue of the laws of the state of Kansas, and engaged in the business of burning brick, at Junction City in said county; that said plaintiff is now and has been for a long period of time the owner and in the possession of the following-described real estate in the said county of Geary and described as follows, to wit: Special section number 9, and also lots numbered 7 and 8, all in township number 12 south, of range 6 east; that at the time and times hereinafter mentioned the said plaintiff was in possession of said real estate'except a small tract of about two acres leased to the said defendant company as hereinafter stated; that said land has been cultivated in fall wheat for several years last past, and was sowed to fall wheat, in the fall of 1888; that said plaintiff had growing upon said laud, in the season of 1888 and 1889,-acres in fall wheat which, in the spring of 1889, was growing and in good condition on said land owned and possessed by the said plaintiff; that on or about the 1st day of August, 1888, the said defendant brick company leased from the plaintiff about two acres of said land, for the period óf one year, with option to renew said lease from year to year for five years; said lease to commence on the 1st day of August, 1888; said defendant company was to have the use of the water power owned by the said plaintiff, and known as Fogarty’s mill, to run one Eureka brick press; the rental was of $100 per month; said lease was upon further condition, that said defendant company was to carefully and properly manage and control the power so to be supplied, and in no way to interfere with or injure the property rights of the said plaintiff, and to commit no injury on the said premises of the said plaintiff during the existence of said lease. A copy of said lease is hereto attached, marked “Exhibit A.”
The plaintiff therefore prays for a judgment against the said defendant company for the sum of $2,000, his damages so as aforesaid sustained, and for a decree upon the final hearing of this case perpetually enjoining the defendant company from using bituminous coal or other combustible material which will generate poisonous gas injurious to vegetation and crops growing upon the plaintiff’s premises, while burning its said brick kilns, and for such other aud further relief as in equity he may be entitled to, and for the costs of suit.
“I, C. Fogarty, of Junction City, Kas., hereby lease to the Junction City Pressed Brick Company, of the same place, ior the term of one year, with the option on the part of said company to renew said lease from year to year for five years, said lease to commence on the 1st day of August, 1888, the following-described premises and right of water power, to wit: Two acres of land on the north side of the public road leading from Sixth street, Junction City, to the bridge over the Smoky Hill river, and on the west side of said river, near the banks thereof, as the same has been selected and staked off by said company; also the right of attachment to and use of the water power now owned by said C. Fogarty that is known as ‘Fogarty’s mill,’ on said Smoky Hill river, for running one Eureka brick press, the amount of power to run said press and machinery being estimated at 30 horse power; all expenses and costs of making such attachment to be paid by said company. And the said C. Fogarty furthei agrees to give the right-of-way for a railroad switch on and over any land owned by him from the line of the Union Pacific or Missouri Pacific railroads between Junction City and the plant of said company, near his mill, as aforesaid. The said Junction City Pressed Brick Company agrees to pay to the said C. Fogarty, for the rental of said premises and’ water power as aforesaid, at the rate of $100 per month for each and every month or part of month said water power is used; said rental to be paid on the first of each and every month, the first payment to commence on the 1st of September, 1888.
“ It is expressly agreed and understood by the parties hereto, that if, for any reason not the fault of the said C. Fogarty, the said water power should fail or become insufficient to supply the amount of power required by said company, that no claim for damages shall be incurred or maintained against the said C. Fogarty by said company. It is further agreed, that said company shall carefully and properly manage and control the power supplied as aforesaid, so as to in no way interfere with or injure the property or rights of said C. Fogarty, and to commit no injury or waste on his lands during the time of the existence of this lease. It is further expressly understood and agreed, that at any time it is so determined by said company it shall have the right to remove off said leased premises all the property and improvements placed thereon, and to leave the said premises and water power in
“In witness whereof, the said parties hereunto set their hands and seal, this 30th day of July, 1888.
C. Fogarty.
Jno. K. Wright, Pres. P. B. CP
Afterward, the defendant in error filed a demurrer to the petition, for the reason that said petition does not contain sufficient facts to constitute a cause of action against said defendant. . Upon argument thereof in the court below, the demurrer was sustained, and the plaintiff not desiring to amend his petition, but being willing to stand upon the same, the court rendered a judgment in favor of the defendant for costs, and against the plaintiff, to which ruling of the court the plaintiff at that time excepted.
I. The question here is, Does the petition state a cause of action? Every allegation contained therein is admitted by the demurrer. The improper use of a certain kind of coal, that produced the destroying gas; that the business could be just as successfully carried on by the use of wood, or another kind of coal, that would not produce the noxious gas; the deadly effect of this peculiar gas on the growing wheat crop of the plaintiff; the ignorance of the plaintiff of the manner of conducting the business and the agencies to be employed; the destruction of the growing wheat by this gas generated in the burning kilns of the brickyard, and every other material fact necessary to constitute a cause of action, if one can legally exist, are all to be accepted as established facts for the purposes of this inquiry. There is a line of decisions of courts of last resort in this country and elsewhere, that hold that an action for damages can be maintained under the facts set forth in this petition. Many of the cases so holding are cited in Campbell v. Seaman, 63 N. Y. 568. The essence of the decision in that case is that—
“Where one manufacturing brick upon his lands uses a process in burning by which noxious gases are generated, which are borne by the winds upon the adjacent land of his*487 neighbor, injuring and destroying trees and vegetation, this is a nuisance, and the party injured may maintain an action to recover damages, and to restrain the use of the process complained of.”
Early and modern English decisions are cited; the case of Huckenstine’s Appeal, 70 Pa. St. 102, is noticed; and the following cases in which useful industries, which produce smoke or noxious gases, or vapors or odors, were declared nuisances, are relied upon as being analogous: Catlin v. Valentine, 9 Paige, 575; Peck v. Elder, 3 Sandf. Ch. 129; Taylor v. The People, 6 Park. Cr. R. 352; Davis v. Lambertson, 56 Barb. 480; Hutchins v. Smith, 63 id. 251; Whitney v. Bartholomew, 21 Conn. 213; Cooper v. Randall, 53 Ill. 24; Rex v. White, 1 Burrows, 337; Cooke v. Forbes, L. R. 5 Eq. Cas. 166; Sampson v. Smith, 8 Sim. 272; Tipping v. Smelting Co., 4 B. & S. 608. The theory of all these decisions is, that every one is bound to make such a reasonable use of his own property as to not occasion unnecessary annoyance or damage to his neighbor. If he makes an unreasonable or unlawful use of it, so as to produce material injury or great annoyance to his neighbor, he will be guilty of a nuisance to his neighbor, and the law will hold him responsible for the consequent damage. Of course, all we now say is upon the assumption that the petition alleges the facts as they will appear at the trial. A different state of facts may call for the application of another and totally distinct rule of action.
II. The second contention in support of the ruling below is, that the plaintiff in error is estopped by the terms of his lease, and by his conduct, from maintaining this action; the line of argument being that the lease carried with it whatever was essential to its use for the purpose for which it was rented. And this is true to the extent of its reasonable and lawful use, consistent with the rights of the neighborhood; but the gist of the complaint is, that while burning brick is a lawful business, the burning is not being done in a reasonable manner, with reference to the rights of adjacent landowners. If, at the time he made the lease, the plaintiff in error knew
We recommend that the judgment be reversed, and the cause remanded, with instructions to overrule the demurrer to the petition.
By the Court: It is so ordered.