37 A. 1041 | N.H. | 1894
"The maxim, Sic utere tuo ut alienum non loedas," says Erle, J., in Bonomi v. Backhouse, E. B. E. 622, 643, "is mere verbiage. A party may damage the property of another where the law permits, and he may not where the law prohibits; so that the maxim can never be applied till the law is ascertained, and when it is the maxim is superfluous." The same may be said of the correlative maxim, Qui jure suo utitur neminem loedit. To the proper application of either, a prior determination of the legal rights of the parties in their relation to each other is essential. Equal rights are often in conflict. One's lawful use of a public highway may seriously interfere with, or for a time wholly prevent, its use by another who has an equal right to its free and unobstructed use. While one may in general put his property to any use he pleases not in itself unlawful, his neighbor has the same right to the undisturbed enjoyment of his adjoining property. The right of each is qualified by that of the other.
Livery stables, lime-kilns, brick-kilns, butchers' shops, pigsties, tallow factories, smelting works, tanneries, noisy workshops, and various other establishments useful and necessary, but productive of more or less annoyance and injury to neighboring proprietors, may be maintained in some places and not in others, although their injurious effect upon adjacent property, and upon the personal comfort of those dwelling in the vicinity, is in each case the same. What standard does the law provide by which the business conducted in one place is declared lawful and in another unlawful?
Whatever may be the law in other jurisdictions, it must be regarded as settled in this state that the test is the reasonableness or unreasonableness of the business in question under all the circumstances. The owner may put his land or other property to any use not unlawful which, in view of his own interest and that of all persons affected by it, is a reasonable use. For the consequence to others of such a use, he is not responsible. The question of reasonableness is a question of fact. Bassett v. Company,
It is found that the use made by the defendants of their land is not unreasonable to the plaintiff, — that is to say, it is not unreasonable so far as by it she is affected. It does not unreasonably interfere with or prejudice her rights. The evidence was competent and sufficient to support the finding, and it cannot be revised. By consenting to a trial by the court of the merits, the objection, that equity does not ordinarily intervene, in such cases until the existence of the alleged nuisance is established at law, was waived. The case stands as if in a trial at the jury had found against the plaintiff.
Bill dismissed.
BLODGETT J., did not sit: the others concurred.