148 A. 695 | Pa. | 1929
Argued September 30, 1929.
Appellant's major question is that this court did not possess the power under the Constitution and the law to announce the rule in Ladner v. Siegel,
Counsel evidently misunderstands the effect of our decisions in relation to nuisances, as they embrace a very limited subject, — buildings for the storage of a large number of cars used generally for pleasure or commercial purposes. Had we announced, without a foundation on which to base it, that public garages in residential districts would be prohibited as nuisances per se, defendant might question our power, but the court did not proceed on that theory.
When automobiles came into use extensively, and complaints were brought to this court as to the occupation of buildings for storage in residential locations, we said that an owner has a right to any use of his property, barring malice and negligence, unless by its continuance he prevents his neighbors from enjoying the use of their property; that a public garage business was lawful and would not be a nuisance in anticipation unless its conduct in certain localities or surroundings was known generally to result in injury to property, health or safety, regardless of how carefully it was conducted. *482
See Burke v. Hollinger,
Later, the "nuisance per se" rule was held not to apply to buildings devoted to storage purposes in business sections of cities of the larger size, or those sections in such cities largely commercial yet partly residential (Hollinger's Case), and still later, to residential districts composed of apartments of all kinds, hotels, clubs, schools and other buildings as limited and described in Ladner v. Siegel (No. 3),
The expression that a public garage is a "nuisance per se in a residential district" was evolved from common law principles following the practical effect of such uses, which are prejudicial to the interests of the community and therights of individuals (the essence of equity jurisprudence, section 13, Act of 1836, P. L. 789), and injurious to health, safety and property, — the groundwork of nuisances. See Sparhawk v. Union Pass. Ry. Co.,
It is urged that in holding that a business, lawful in itself, may become a nuisance per se, we changed the common law, and that the legislature has the sole power to do this. We are not able to follow appellant's argument. The function of determining whether a rule of the common law exists, and what it is, lies solely with the court, as does also the question whether given conditions offend that law. Here is a contest between the right of peaceful enjoyment of property and the employment of other property in lawful acts which, nevertheless, injure the right of enjoyment. The law uniformly has attributed to the enjoyment right a higher status than the injuring-use right, so much so that we have held that the latter may, if it damages property or health, become a nuisance, and its repetition with like effect a nuisance per se; human rights are pitted against material ones. Courts, in so determining, follow the common law which is based on principles and rules of action best adapted for the peace and security of persons and property. But the individual or property right cannot be held to outweigh all considerations of society generally. The common law, therefore, is not a fixed, unyielding set of principles of a certain standard applying only as conditions warranted a century ago, but adapts itself to changing conditions as marked by the progress of public, material and social affairs. The automobile is of a late day, but, if its use is injurious to health, safety and property, it is none the less a nuisance because of its recent origin, and it may be outlawed as a nuisance per se in certain localities, if its use in those *484
localities is injurious to health, safety and property. When the legislature, by enactment, takes a nuisance out of common law, it is no longer controlled by the common law. If, as argued by appellant, Judge RICE had said, in Pittsburgh v. W. H. Keech Co.,
It is urged that the garage rule is uncertain in its application, a departure from the strict meaning of a nuisance because it makes the determination of a nuisance depend on locality; and a nuisance per se is an act which is a nuisance at all times and at all places. The per se rule is not made for convenience, — though it may operate to relieve one of the parties of the necessity of proving a fact, — nor is it a departure from equitable principles. If the rule involved the application of the governing principles to variable situations of fact, either as to cause or effect, some of which might be harmless and others harmful, of course the rule, when applied, would not produce uniform results, and would be uncertain of application. While there are many kinds of garages (and we have dealt with many such different situations in different localities), in each case the uniform result of their operation in a residential district is as explained above. The contention as to uncertainty does not more than suggest that there may be border-line cases. This is inevitable and the Hollinger and Ladner (
The definition of a nuisance per se as given by appellant relates to conditions which are bad in themselves and prohibited by law at all times and places, as for instance a house used as a bawdy-house. We know that a horse-boiling factory is a nuisance per se if a use of property is attempted for that purpose within inhabited territory, yet situated distant from any habitation it certainly would not be a nuisance. In any definition of nuisance per se, of the type now under consideration, in addition to the idea that the contemplated use is a source of damage to persons or property, locality is of primary importance and is an essential factor. When it is generally known that acts are injurious as herein discussed, it does not require experiments or a demonstration of use to determine whether the result would have an evil effect.
As to the federal question involved, we stated above the right of an owner to any use of his property unless he prevents his neighbors from enjoying the use of their property. This is an attribute of property almost as old as its use. Two property rights are predicated on it, one in the owner who is acting and the other in his neighbor whose property is affected by such use. So that, while one has a property right of use, the other, the neighbor, has a property right to enjoy his land without injury from such use. The rights are, in a sense, correlated, the one acting and the other acted upon. Neither can be destroyed or injured by judicial decree or legislative enactment. The same reason that would strike down an act of assembly regulating nuisances, as an infringement of rights guaranteed by the 14th Amendment, would, no doubt, condemn a decision of a court that would hold a particular act a nuisance, or its repetition *486
a nuisance per se: that is, that the action is arbitrary, unreasonable, or an unjust discrimination. The federal Supreme Court has said: "We cannot interfere, unless the judgment amounts to mere arbitrary or capricious exercise of power, or is in clear conflict with those fundamental 'principles which have been established in our system of jurisprudence for the protection and enforcement of private rights' ": American Express Co. v. Kentucky,
Equity may abate or restrain a nuisance where it affects private property: Penna. Lead Co.'s App., supra. In discussing the question as to whether this is a residential district, we had occasion, in the Hollinger Case, to go into the subject and point out the situation as it existed in cities, and referred to the Huntingdon Case decided by Judge HENDERSON, which appellant seems to have lost sight of. We said in the Hollinger Case, at page 523: "In applying the rules here stated, courts will be careful to note that in small cities and boroughs, business and residences closely interlock, and, in determining the residential character of a locality, of which that considered in Tyson et al. v. Coder,
Plaintiff resides in the City of Franklin. It is not a large city. His property lies in a block through which a railroad runs or adjoins it. The fact that a railroad adjoins, or that there is a business or manufacturing establishment in the next block or on the opposite side of the street, will not classify the land as commercial or as semicommercial (as defined in the Hollinger Case) in small cities or boroughs. In the districts here involved, a railroad or other business may be located near by, yet the territory contested for in such localities may be exclusively residential. It is a matter resting in the sound discretion of the court below, and we will not interfere unless that discretion is manifestly abused. We do not find it so in this case.
Decree affirmed at the cost of appellant.
