38 Ind. App. 427 | Ind. Ct. App. | 1905
Lead Opinion
-Appellee sued appellant to recover'damages resulting from fire alleged to have been communicated to his dwelling from appellant’s foundry, and to enjoin appellant from continuing to operate his foundry and
The complaint was in a single paragraph, to which an answer in six paragraphs was addressed. Eeply in denial. Upon the issues thus joined, trial was had by the court, resulting in a general finding and judgment for appellee.
Appellant’s motion for a new trial was overruled. By his assignment of errors he questions the sufficiency of the complaint, and attacks the action of the court in overruling his motion for a new trial.
In his complaint appellee alleges that for many years he has owned, and still owns, certain real estate, upon which is a dwelling-house, which he occupies as a residence; that appellant also owns certain real estate, upon which he has erected a foundry, which he owns and operates; that as a part of said foundry appellant constructed a brick cupola, about thirty feet north of appellee’s house; that appellant uses said cupola almost every day from one and one-half to two hours, in which to melt iron; that he uses wood, coal and coke in the operation of the same; that chunks of burning wood fly from the cupola in all directions, and, except when the wind is from the south, the sparks and pieces of burning wood are carried upon appellee’s premises, and frequently upon his dwelling; that his dwelling has caught fire therefrom four times within the past two years, and whenever said cupola is in operation his dwelling is in constant and imminent danger of being destroyed by fire; that pieces of burning wood and cinders from the cupola have fallen on the roof of his house in large quantities, have filled the down spouting more than twice in the past six months, and he has been compelled to clean out said spouting frequently; that he obtains rain water for use in his house by its being carried from -the roof through the down spouting into a cistern, and by reason of said facts he is unable so to obtain rain water, and
It is further alleged that when said cupola is in operation, and the doors and windows of his residence are open, the sparks and cinders therefrom are carried into his house and the house is filled with smoke coming from the cupola, which is offensive and injurious to the health of himself and family; that appellant could arrange and operate his cupola so that the sparks, smoke, ashes and chunks of burning wood would not be carried upon and into his dwelling, and constantly expose him and his family to danger, annoyance and injury, and his property to constant danger of destruction by fire; that by reason of these facts appellee’s comfortable enjoyment of his home has been and is constantly interfered with, and the value of his real estate for a residence and for rental purposes has greatly depreciated; that his residence, when said cupola is in operation, is in constant and imminent danger of being damaged and destroyed by fire, and that he has been damaged by the fires caused by reason of the same, as aforesaid, etc.; that appellant is threatening to, and will, continue to operate the same in the same manner; that appellee has been damaged by reason of the facts aforesaid in the sum of $500, and the continuance of the same will do him irreparable damage. Prayer for damages and injunction.
The evidence shows without conflict that appellant had owned and operated his foundry for twenty years, and that appellee had owned and occupied his property adjacent thereto for more than twenty years. While so owning and operating said foundry, the evidence also shows that for
The complaint proceeds and the trial was had upon the theory that the cupola and the manner of operating it constituted a private nuisance; for it is alleged in the complaint that the defendant can arrange and operate his said cupola so that said sparks, smoke, ashes and chunks of burning wood will not be carried upon, into and through plaintiff’s house, constantly exposing him and his family to danger and injury, and his property to constant danger of destruction. The theory, as above stated, is manifest as shown by the evidence and the rulings of the trial court. For more than twenty years prior to 1901 no complaint was made of the manner in which the cupola was operated. The evidence clearly establishes the fact that since that time the manner in which the cupola was operated constituted a private nuisance, and greatly interfered with appellee’s occupancy and enjoyment of his property. The injury thus caused was a continuing one, and the nuisance was also a continuing one.
Appellee sought to recover damages caused by three several fires, all of which occurred since 1901, and for a
In Owen v. Phillips (1881), 73 Ind. 284, 296, it is held that wherever a mill or factory is located, whatever its surroundings, property owners of the vicinity have a right to require that it shall be properly managed, conducted with ordinary care and proper regard for the rights of others, and in such a way that no unnecessary inconvenience or annoyance shall be caused by it. The rule there disclosed is applicable to the facts here, for that is what appellee asks, and what the trial court held he had a right to demand.
It is not alleged that appellant’s business 'is an unlawful one, but that in the operation of a part of it — the cupola— great injury is done to appellee’s property, and appellee and his family are put in jeopardy, and to inconvenience and annoyance. It is further contended that these could all be averted by a proper operation of the cupola.
In Peck v. City of Michigan City (1898), 149 Ind. 670, the Supreme Court quoted with approval the following from 16 Am. and Eng. Ency. Law, 988: “Where the injury inflicted by a nuisance is not of such a character that it can be ascertained, both as to the past and future by a single action, successive actions lie for new damages so long
In the case of the City of North Vernon v. Voegler (1885), 103 Ind. 314, it was held that a cause of action for damages does not accrue until the wrong or injury has resulted in damage. See, also, Sherlock v. Louisville, etc., R. Co. (1888), 115 Ind. 22; 21 Am. and Eng. Ency. Law (2d ed.), 724.
In 2 Wood, Ruisance (3d ed.), §708, it is said that in order to sustain a plea of a prescriptive right to the nuisance when the same consists of the right to do some act upon another’s premises, the rule is: “That to constitute an adverse user requisite to sustain the right, it must be shown that the user has actually invaded the rights of the person against whom the claim is made, in reference to the particular matter which is the subject of complaint, and that the user, during the entire statutory period, and the invasion of the right, has produced an injury equal to, and of the character complained of, and of such a character and to such an extent that at any time during that period an action might have been maintained therefor.” See, also, Sherlock v. Louisville, etc., R. Co., supra; 21 Am. and Eng. Ency. Law (2d ed.), 735.
Our conclusion is that the evidence is sufficient to sustain the finding of the trial court as against appellant’s contention that he has acquired a prescriptive right to operate his cupola in the manner complained of.
It is also contended that the evidence is not sufficient to sustain the finding as to the amount of damages assessed. With this contention we cannot agree, for upon that point the evidence is ample.
It is contended by the appellant that the evidence is insufficient to support the special findings as to the amount of damages. Under the rule just stated, it is unnecessary to consider this question further, for two reasons: (1) Because the finding is general, and the amount fixed in the general finding is of controlling influence; (2) because, as stated, the evidence is sufficient to support the finding.
The remaining questions raised by the motion for a new trial are expressly waived.
We do not find any error and the judgment is affirmed.
Rehearing
On Petition eor Rehearing.
It is alleged in the complaint “that the defendant can arrange and operate his said cupola so that said sparks, smoke, ashes and chunks of burning wood will not be carried upon, into and through his house as aforesaid.” The averment is not its own proof, but there is evidence tending to show that the cupola was operated in a manner calculated to injure adjoining property. The particular precautions which ought to have been taken are not pointed out perhaps, but the inference that a more careful method of operation would have prevented the matters of which complaint is made was not unreasonable. The record was prepared prior to the consideration by the courts of that section of the act of 1903 (Acts 1903, p. 338, §8, §641h Burns 1905) requiring the appellate tribunal to weigh the evidence in certain classes of cases, and the assignments of error were properly drawn to cover and present every phase of the case. That they were ineffective for the purpose intended was no fault of the counsel. The case made tends to establish an improper use of his property by the appellant, resulting and likely to result in injury to the property of others, and the petition is therefore overruled.