149 Ga. 345 | Ga. | 1919
(After stating the foregoing facts.)
In Bonner v. Wellborn, 7 Ga. 296, 311 (before the code), Judge Nisbet, speaking for the court, said': “A private nuisance is anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another. 3 Blackstone, 170. . . If one does any other act, in itself lawful, which yet being done in that place, necessarily tends to the damage of another’s property, it is also a nuisance.” In Coker v. Birge, 9 Ga. 425, 427, 54 Am. D. 347
In the instant case the burden of the complaint is the use of soft coal instead of coke. It is true that the plaintiff himself uses soft coal. He denied that he used soft coal exclusively. But conceding that he used soft coal exclusively, the plaintiff’s stack protrudes from the roof of his nine-story building, and the smoke only occasionally settles, under certain atmospheric conditions, into the defendant’s laundry. If it be further conceded .that such occasional infringement of the defendant’s rights worked hurt and injury to it, the plaintiff is not for that reason alone, under the circumstances of this case, to be denied appropriate relief. In Robinson v. Bough, 31 Mich. 290, it was held that “it is no defense to a bill to enjoin a nuisance caused by tíre manner in which a business is conducted in a neighborhood,- that some of the complainants have establishments in the same vicinity to which similar objections lie as are made to the one in question.” In the opinion by Graves, C. J., the case of Gilbert v. Showerman, 23 Mich. 448 (cited approvingly by the Tennessee Supreme Court in Union Planters’ Bank
Is there, in case of nuisance produced by smoke alone, any satisfactory reason upon which tho. court of equity can withhold injunctive relief and remit the injured party to his action at law? The importance of the question justifies a further examination of the decided cases. In Crump v. Lambert, supra, Romilly, M. R., said: “The law on this subject is, I apprehend, the same, whether it be» enforced by action at law or by bill in equity. In any ease where a plaintiff could obtain substantial damages at law, he is entitled to an injunction to restrain the nuisance in this court. There is, I apprehend, no distinction between any of the cases, whether it be smoke, smell, noise, vapour, or water, or any other gas or fluid. The owner of one tenement can not cause or permit to pass over, or flow into, his neighbour’s tenement any one or more of these things in such a way as materially to interfere with the ordinary comfort of the occupier of the neighbouring tenement, or so as to injure his property. . . The owner of the adjoining or neighbouring tenement, whether he has or has not previously occupied it, — in other words, whether he comes to the nuisance or the nuisance comes to him, — retains his right to have the air that passes over his land pure and unpolluted, and the soil and produce of it uninjured by the passage of gases, by the deposit of deleterious substances, or by the flow of water.” And in that case an injunction was' granted to “restrain the issuing of smoke and effluvia from a factory chimney, and the making of noise in the factory, although it was situated in a manufacturing town; it being proved that such smoke, effluvia, and noise were a material addition to previously existing nuisances.” The doctrine of this case has been adopted by the English courts and generally by the courts of this country. Wood on Nuisances, § 507, and cases cited in notes.
In Lord Colchester v. Ellis, 2 Starkie’s Ev. 538, the defendant, who was the owner of a building -in London, erected a chimney in
The case of Galbraith v. Oliver, 3 Pittsburg (Penn.), 79, was an action to restrain the defendants, the proprietors of a flouring mill, from using soft coal to run their steam engine. In the course of 'the opinion by Johnson, J., it was said: “No occupation is more legitimate, and no erection more careful, than that of a flouring mill. There can be no denial of the owner's right to build one and to run it by steam. So of any other manufacturing establishment. They may not be agreeable to his next neighbor. He is not bound to consult the taste, pleasure, or preference of others; but he is bound to respect his neighbor’s rights. . . While mills and manufactories are legal and necessary, it is neither legal nor necessary that they be so located as to interfere with the rights of others in the enjoyment of their possessions. When, therefore, they create noises that prevent sleep, or taint the atmosphere with vapors prejudicial to health or nauseous to the smell, or fill it with a smudge that depreciates its use for every purpose, they trench on the rights of persons. affected thereby. Just here is where the line must be drawn. At this point'they become nuisances.” In Wood on Nuisances, § 502, the author, after reviewing many cases, English and American, says: “Thus it will be seen that even in the ordinary uses of buildings, the owners and occupants are bound not only to see to it that their chimneys are so arranged as to carry off the smoke developed therein, but are also bound to use such fuel as will produce the least obnoxious smoke.” This doctrine is supported by many cases. See Rhodes v. Dunbar, 57. Pa. 274 (98 Am. D. 221); Sullivan v. Royer, 72 Cal. 248 (13 Pac. 655, 1 Am. St. R. 51); Campbell v. Seaman, 63 N. Y. 568 (20 Am. R. 567); Ross v. Butler, 19 N. J. Eq. 294 (97 Am. D. 654); Tuebner v. Cal. St. R. Co., 66 Cal. 171 (4 Pac. 1162); Hurlbert v. McCone, 55 Conn. 31 (10 Atl. 164, 3 Am. St. R. 17); Wesson v. Washburne Iron Co., 13 Allen (Mass.), 95 (90 Am. D. 181); Hutchins v. Smith, 63 Barb. (N. Y.) 252; Hyatt v. Myers, 71 N. C. 271. See also Joyce on Nuisances, § 136 et seq., and cases cited in notes.
The English courts, it would seem, have not hesitated to grant injunctive relief in cases of nuisances produced by smoke alone. Many American courts, in such eases, have, upon various grounds, denied the right to such relief, and have remitted the complaining parties to their actions at law. The principal and usual grounds upon which injunctive relief has been denied may be referred to as the “de minibus,” the “balance of injury,” or the “public benefit,” and the “discretionary” doctrines. With respect to the first it is sufficient if the injury be appreciable, within the meaning of the term heretofore indicated in this opinion. With respect to the second: In Richards’ Appeal, 7 P. F. Smith (Pa.), 113, 114, it was said: “A chancellor will consider whether he would not do a greater injury by enjoining than would result from refusing and leaving the party to his redress at the hands of the court and jury.” In Campbell v. Seaman, supra, the Supreme Court of New York said of this case that it was in direct conflict with the authorities of the State of New York and could not be there adopted as the law.' The case is also criticised and explained in Wood on Nui
Judgment reversed.