4 N.W.2d 326 | Minn. | 1942
The industrial area in which defendant is located is largely and substantially given over to railroads, repair Shops, switch tracks, elevators, and other heavy industry. In the normal functioning of these enterprises, particularly the railroads, noise, dust, cinders, and smoke are incidental conditions. As need for electricity has increased, defendant has several times enlarged the original facilities with which it began in 1911. Additional boilers and smokestacks have been added. By their evidence, plaintiffs have shown that when the wind assists, cinders and dust in such quantities come over upon their premises, on which they combine business and residence, that life becomes very disagreeable. The windows must be closed, otherwise the cinders and dust come into the house. Once inside, the dust and cinders get into everything — food, clothing, fixtures, and rugs. Ordinary tasks, such as washing of clothes, become very difficult. The parties, of course, disagree over the extent to which the dust and cinders interfere with the enjoyment *228 of life, as well as their source and removability. The area in which plaintiffs reside is zoned for light industrial uses.
The defendant's boilers are stoker-fed. The devices which they use for elimination of the cinders produced in the combustion process are said to be in accordance with accepted engineering standards. By changing the direction of the flue gases, by use of chambers and breeching which slow down the rush of gas, by using cinder-collecting fans which engage the cinders in the gas stream, the defendant removes the cinders from the smokestacks and drops them into cinder-collecting hoppers located between the boilers and the top of the stacks. Admittedly, these devices do not remove all cinders. In addition to attacking the manner in which defendant's smokestacks are constructed, plaintiffs claim that the cinder-removing devices sponsored by them are superior to those used by defendant and would remove a greater percentage of cinders, soot, and ashes.
The principal question with which we have been concerned is the propriety of the trial judge's instructions upon the subject of nuisance. They were:
"A nuisance has been defined by our statutes as anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. [Mason St. 1927, § 9580.] If it does so it is a nuisance. Industrial nuisances are usually right things in wrong places, or improperly operated things. Circumstances must always determine whether or not one of these is a nuisance. I dare say that most of you would consider it a nuisance to have a church right next to your home, with automobiles parked all around. Perhaps a schoolhouse the same way, or perhaps an undertaking establishment, but all of these places, as well as those that are more obviously disagreeable to us, must have their place in city life. We are bound to take what hardships or inconveniences or discomforts that come from them if they are properly located in a location allocated to them, and if they are properly operated. If they are not so located, or if they are not *229 so operated then one who is damaged by such improper location or such improper operation is entitled to recover for whatever damage may be sustained."
Thereafter, the trial judge went exhaustively into claims of the parties with regard to their respective devices and the operations of each.
The plaintiffs strenuously object to this instruction as being destructive of the scope of the statute and contrary to the decision law of this state, relying chiefly upon Brede v. Minnesota Crushed Stone Co.
Under certain circumstances a nuisance may exist although the conditions complained of are naturally attendant to that activity. Lead v. Inch,
And so it must be, particularly in an area zoned for industrial use. The mere existence of any industry is attended by inconvenience. Since industry is essential to our modern life, cities, in an effort to minimize the number of people affected by such inconvenience, prescribe certain areas for the location of industry. As to those residing in that area, the interference by industry with their physical enjoyment of life cannot be eliminated. Residents there cannot expect the same relative freedom from smoke, dust, cinders, and noise generally enjoyed by those living in residential areas. Cf. Romer v. St. Paul City Ry. Co.
It may be conceded that the mere fact that an industry is located in an industrial district does not in itself justify its maintenance as a nuisance. See Eaton v. Klimm,
In this posture of the case, plaintiffs have no ground on which to complain of the trial court's instructions upon the subject of nuisance. The superiority of rights of habitation over rights of trade as stated in the Brede case,
Upon the question of whether there are devices in common use which are more efficient in removing the objectionable material from smokestacks, the evidence and implications ran in different directions, and that was properly resolved by the triers of fact. Certainly the cost of a change, the probability of betterment, and the effect upon performance were all factors which any industry should consider in determining whether to experiment with devices other than those now in use. Where an industry has done nothing to minimize or inhibit the existence of objectionable materials produced as an incident of its operation, there is good reason to compel the adoption of existing appliances designed for that purpose. *232
Heller v. American Range Corp.
Plaintiffs' reliance upon State v. Randall,
Other assignments of error raise questions having no merit. Permitting the jury to view the premises was certainly a permissible exercise of discretion, and charges of misconduct are without substance. Failure to admit into evidence an ordinance *233 of the city of Minneapolis making it unlawful to permit the escape of certain noxious substances and odors was not erroneous. Aside from the serious question of its application in this case, it being a criminal ordinance, the court, by virtue of the manner in which it was pleaded, knew of its existence by judicial notice. Mason St. 1927, § 9270. No proper foundation was made for the admission of exhibit "KK," a bottle containing materials said to have been removed from a plant using competitive devices, to establish the superiority of such system. Its probative value was too speculative to be relevant unless the identity of operating conditions between the two plants was established in considerable detail.
Order affirmed.