Hurlbut v. McKone, 55 Conn. 31

Hurlbut v. McKone

55 Conn. 31 | Conn. | 1887

Loomis, J.

This is a complaint for an injunction, and for the recovery of damages on account of an alleged nuisance erected and continued by the defendants on their own land, adjacent to the plaintiff’s dwelling house.

The trial court found the issue for the plaintiff and assessed his damages at one thousand dollars; but, pending the suit, there was such a change made by the defendants in the mode of operating their works as to render the preventive remedy asked for unnecessary, and therefore the injunction was denied.

The eight errors assigned may, for the purposes of this review, be reduced to two, namely:—That the facts found will not sustain any judgment for the plaintiff ; and that the court entertained improper elements of damage, which increased the amount of the judgment.

1. Under the first head the question is, whether the existence and operation of the defendants’ steam planing mill in the manner in which it was conducted and located, so materially interfered with the comfort and enjoyment of the plaintiff and his family in their dwelling house as to constitute a nuisance ? The finding of the court is so full and strong on this point that it would seem conclusive. It is as follows:—“ The defendants use the shavings and saw-dust from their machines for fuel to generate steam. Such light and combustible fuel makes a great deal of smoke and cinders. The machinery of the mill, whenever it is in motion, makes much noise; so great is the noise of the machinery, and so near is it to the plaintiff’s house, that when it is in motion it is impossible for the plaintiff or the members of his family to read, write, or carry on conversation without great diffi*41culty. It causes the house to jar so that the windows rattle in the casings; dishes and other like things standing on the table or on shelves will shake and jolt together. The health of the plaintiff and his family has been injured. A tenant in the house, a Mrs. Whiting, was sick there and died. Her medical attendant testified in court that she suffered greatly from the noise of the defendants’ machinery, and that her disease was aggravated and her death hastened by it. The wife of the plaintiff, being in a delicate state of health, has suffered very much from headaches caused by the noise. The value of the house has been and is greatly impaired— especially its rental value. The plaintiff has been unable to procure tenants, and such as he does procure are unwilling to pay as much rent as he before received. The smoke and cinders from the defendants’ chimney came into the plaintiff’s yard and into his house whenever a door or a window was opened. Clothes in the yard hung out to dry were made foul so that they had to be washed again. Everything in the house was soiled—the floors, carpets, walls, windows, curtains, and even the table on which they ate their meals. Upon more than one occasion the plaintiff and his family were unable to eat the meal which had been prepared for them, so dense and noisome was the smoke which came into the house from the defendants’ mill. In some or all of these ways the plaintiff has been troubled, annoyed, injured, discomforted, and distressed, and the house made almost uninhabitable, ever since the defendants erected their mill.”

This surely was no trifling inconvenience which the civilities of good neighborhood, in a thickly settled and industrious community, required the plaintiff to bear in silence, nor was it a matter painful merely to a cultivated taste, but the finding makes it, beyond all controversy, a matter of great physical discomfort, powerfully affecting the comfortable enjoyment of the plaintiff’s home, and impairing the health of his family and the value of his property.

But it is suggested that the defendants’ business was per se lawful, and the use made of their own property was reasonable.

*42We concede that the law will not interfere with a use that is reasonable. But the question of -reasonable use is to be determined in view of the rights of others. Even a cooking stove may be so located and used as to make it a nuisance to the adjacent proprietor, as in Grady v. Wolson, 46 Ala., 381. The owner may erect buildings with chimneys and build fires therein in a proper manner, because these are among the necessary incidents to such property, but he has no right to burn fuel in the making of such fires that develops dense masses of smoke to the injury of his neighbor, nor to build his chimneys so as to send the smoke into his neighbor’s house. Wood on Nuisances, sec. 432.

It is further said that the place in question was a manufacturing locality, and that the plaintiff’s annoyances and damage were only such as were incident to the neighborhood where he had elected to reside.

In determining whether the defendants violated any just rights of the plaintiff, the location and surroundings are to be considered, for it is undoubtedly true that what constitutes a nuisance in one locality may not be in another, and we can fully accept the rule laid down in McCaffrey's Appeal, 105 Penn. St., 253: “A person who resides in the centre of a large city must not expect to be surrounded by the stillness which prevails in a rural district. He must necessarily hear some of the noise and occasionally feel slight vibrations produced by the movement and labor of its people and by the hum of its mechanical industries.”

And if we should adopt the distinction laid down by Lord Chancellor Westbury in St. Helen's Smelting Co. v. Tipping, 11 H. L. Cases, 650, cited by the defendants, between a nuisance producing a material injury to property, where the right of action is absolute, and an alleged nuisance which produces merely personal annoyance and discomfort, where the right of action depends “ greatly on the circumstances of the place where the thing complained of occurs,” we still think there is no authority that would deny a right of action under the facts and circumstances of this case as described in the finding. The vivid language of Thompson, *43J., ill delivering the opinion in Dennis v. Eckhardt, 3 Grant, 302, with slight changes would seem to describe this case: “ Some discomforts must be endured as compensation for the conveniences of city life * * * but I cannot find authority in law for saying that a thing which fills the atmosphere that others have a right to live in with offensive smoke and odors, stifles the breath, produces nausea and headache, *- * * prevents the drying of clothes and ventilation of houses, darkens the sunlight, and converts pleasant residences into prison-houses in dog-days, and defiles carpets, curtains and dinner plates with deposits of soot and dirt, is not a nuisance, even though the results are only occasional.”

The claim of the defendants that the locality is one “ given over to mechanical industries,” is not in full accord with the finding. The plaintiff’s house is on Governor street, and on this street there is no claim that there are any manufacturing establishments. There are such on Sheldon street, and it is found that “ within one thousand or fifteen hundred feet of the defendants’ premises there are a number of other manufacturing establishments, and the neighborhood within the distance above stated is largely occupied by mechanics and by tenement houses.” All these manufacturing establishments are of course still more remote from the plaintiff’s house, and the distance obviously is so great as to preclude any annoyance from smoke, cinders or the jar of machinery, and the noise must be so softened that it could not well be a nuisance. All the discomfort which the plaintiff can suffer therefore, of the kind referred to, must come from the establishment of the defendants, only twenty-one feet distant from his house. It is probably in the power of the defendants, without great expense, to avoid all just ground for complaint. The court finds they have already done so, mostly in respect to smoke and cinders.

In regard to the suggestion that the plaintiff elected to reside in this locality, there is nothing to show that the objectionable business of the defendants had ever been carried on before the plaintiff took possession, but rather the contrary, for they did not build till 1884. If, however, it were other*44wise, and the plaintiff knew of the nuisance, and then went and took up his abode near it, he would not thereby be precluded from maintaining his action. A man is not to be precluded from building and living on his own land because the adjoining proprietor first erected a nuisance, which indeed was no nuisance till somebody went there to live. Hale v. Barlow, 27 L. Jour., C. P., 208; Commonwealth v. Upton, 6 Gray, 478; Fertilizing Co. v. Hyde Park, 97 U. S. R., 659. In regard to any suggestion arising from the fact that the dwelling houses in the vicinity are largely occupied by mechanics and tenants, we fully approve and adopt the language of Chancellor Zabriskie in delivering the opinion in Ross v. Butler, 19 N. Jersey Eq., 294: “ I find no authority that will warrant the position that the part of a town which is occupied by tradesmen and mechanics for residences and carrying on trades and business, and which contains no elegant or costly dwellings, and is not inhabited by the wealthy and luxurious, is a proper or convenient place for carrying on business which renders the dwellings there uncomfortable to the owners and their families, by offensive smells, smoke, cinders or intolerable noises, even if the inhabitants themselves work at trades occasioning some degree of noise, smoke and cinders. There is no principle in law or reason which would give protection to the large comforts and enjoyments with which the wealthy and luxurious are surrounded, and fail to secure to the artisan and laborer and their families the fewer and more restricted comforts which they enjoy.”

2. The remaining question is, whether there entered into the judgment any improper elements of damage.

The defendants say, in substance, that the court assessed damages for injuries not actionable, but what injuries are referred to the assignments of error do not mention at all. This amounts to no more than a general assignment of error, which is contrary to the rule on this subject, and might be disregarded, but as the defendants were heard in argument upon the question it may be more satisfactory to dispose of it upon its merits.

Resorting then to the oral argument before this court to *45supply the omission referred to, we find that after a critical analysis of the finding the counsel for the defendants are able to specify a few particulars wherein the court, in describing the effects of the nuisance, went beyond the allegations in the complaint; for instance, the complaint, in referring to the effect upon the health of the plaintiff and his family, says simply that it was endangered, whereas the finding is that it was injured; ■ also, where the complaint only speaks of the effect of the running of the defendants’ machinery as causing an intolerable noise, making it impossible to hear conversation, the finding states, in addition, that it caused the house to jar and made the windows rattle and the dishes jolt together. Now, without stopping to show how far these facts might come in under the general allegations of the complaint in respect to being harassed, annoyed and made uncomfortable and the house being made unfit for habitation, we may concede, for the purposes of discussion, that in the two particulars mentioned, the finding specifies injuries not specifically alleged, and our answer is, that the inference attempted to be drawn therefrom, that the court gave damages for those additional injuries, is unwarrantable. It should be borne in mind that the suit was for an injunction and also for damages, and the evidence to be received and the facts to be found and made part of the record had reference necessarily to both remedies.

All the necessary effects of running the defendants’ machinery in close proximity to the plaintiff’s house were to be inquired into upon the trial, in order to determine whether it was a nuisance, and whether it was such an one as to demand the extraordinary remedy of an injunction. The facts referred to, therefore, had a proper office to perform. “ Health endangered ” was perfectly established when the court found health actually injured* for the greater must include the less, and health injured was a much stronger reason for an injunction, as the nuisance if continued might result in the permanent impairment of health. So as to the other fact, if the machinery operated with such tremendous power as to jar the house itself, the court not only would see how intense *46and intolerable tbe noise must have been, and tbat tbe allegation in tbat respect was true, but tbat the necessity for an injunction was more urgent on tbat account. Now, our conclusion is, tbat as all tbe facts referred to bad a perfectly legitimate office to perform in tbe mind-of tbe trial judge, it is to be conclusively presumed, in tbe absence of any evidence to tbe contrary shown by tbe record, tbat they were so applied. Tbis principle, has often been invoked to prevent a new trial for an alleged improper admission of evidence, where there was a general objection at the time and tiie court received tbe evidence but gave no indication as to tbe use to be made of it, and where for one purpose it would have been proper, but for another very improper. The party in such cases is never allowed to say it was used for the improper purpose. Tbe analogy is perfect, only in tbe case at bar there is stronger reason to apply tbe principle, because there was no objection at all to the facts in the court below, and yet, in effect, we are asked to reverse tbe presumption and bold tbat where facts bad a legitimate and an illegitimate-purpose it must be conclusively presumed in favor of tbe latter. We cannot accede to such an extraordinary demand.

There was no error in the judgment complained of.

In tbis opinion tbe other judges concurred.