115 N.Y.S. 297 | N.Y. App. Div. | 1909
The defendant is a domestic corporation, organized under the Business Corporations Law, for the purpose, among others, of carrying “ on business of general contractors, including the contracting with other corporations and persons'for the supply of power or for the construction, equipment or improvement of railroads, bridges, wharves, tunnels and subways and to carry out such contracts-.” It maintains ah electric power plant on the river front at Kent and Division avenues, in the borough of Brooklyn. The People’s evidence tends to show that small flakés or particles of hard coal are emitted from its smokestacks, fall upon passersby, and are blown or sifted into the houses within a given radius. A gas plant across the street and other manufacturing plants in the vicinity burn large quantities of coal daily, The defendant’s evidence tends to show that its plant was suitably located, was equipped with the best up-to date devices, and was properly run; that, not being permitted to burn soft coal, it burned the only other coal commercially practicable for it to use ; and that at the time of the trial it was installing at large expense a device which, though new for that use, was expected greatly to reduce, if not entirely to- prevent, the emission of cinders from its smokestacks. It offered in evidence the certificates of incorporation of the railroad companies comprising the Brooklyn Rapid Transit system, and it offered evidence tending to prove the relations existing between them and it; that the Brooklyn Rapid Transit Company owned all of its capital stock ; that it sold power only to them and at cost, and that it was not .practicable for them to get the power elsewhere. All of that evidence was excluded.
The defendant contends that the railroad corporations have .legislative permission to maintain at suitable and convenient places the necessary power plants to run their roads, that they may contract with another to do that for them, and that the permission given them devolves on the one with whom they contract. The learned district attorney contends that as the Legislature has not expressly-authorized this particular plant to be run at the place and in the manner disclosed, neither the defendant nor the railroad companies have permission to run it.
"While there are expressions in some opinions, not necessary to the
Public, not private, rights are involved in this case. 'There can be no doubt that the railroad corporations have legislative permission to do what is necessary for the running of their roads in the city,
However, the defendant has been endowed only with the powers which any individual may exercise and can claim from its certificate of incorporation no greater rights. It is a mere accident that the railroads are its only customers, if that be the fact. Aright specially granted to a g-Mimqmblic corporation cannot be devolved by it upon an individual. It must be presumed that the Legislature intended that the right should be exercised by the one to whom it was granted. Permission to own and run the entire system might as well be devolved as permission to own and run any part of it. The railroads could have acquired under the power of eminent domain the site for this power plant and the property rights infringed by its maintenance, a cogent reason for thinking that the railroads have legislative permission to maintain it.' But the defendant had no
However, it does not follow that the said evidence was properly .excluded. It is- important at this, point to observe the distinction between public and private nuisance. Blaekstone.defines “public or common nuisances ”• ;td be those “ which affect the public, and are an annoyance to all the king’s subjects.;”1 and “ private nuisances” to he “ anything done to the hurt or annoyance of the lands, temm ments, or hereditaments of another;” Á public nuisance is a thing which, “ in its nature, or its consequences, is a nuisance, an injury .or a-damage to all persons who come within the sphere of its operation, though it may be in greater or less degrees ” (Soltau v. DeHeld, 9 Eng. L. & Eq. 104, 111); a nuisance is public “when it affects the rights enjoyed by citizens as part of the public; as the right of navigating a' river, or traveling on a public highway; rights to which every citizen is entitled.” (King. v. Morris & Essex R. R. Co., 18 N. J. Eq. 397, 399.) Hpon- first examination of sections 385 and 386 of the Penal Code,
It is necessary now to consider whether and to what extent the doctrine of compensation applies. The question appears to have been given more consideration by the courts in England than in
In this State in suits for alleged private nuisance caused by the carrying on of a lawful business, the question is whether the use made by the defendant of his premises is reasonable, regard being-had to time, place and circumstance. (Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267, 276 et seq. ; McCarty v. Natural Carbonic Gas Co., 189 id. 40.) In the last case cited Judge Vann, after reviewing the authorities, said : “ The extent niore than the nature of the injury, the guantum, rather than' the damnum, constitutes the nuisance. Some smoke is generally created by the natural and ordinary use of land near a village or city, and while this may sometimes be annoying to neighbors it is part of the price paid for living where there are neighbors. But when the smoke is so unusual and excessive as to materially interfere with the ordinary comfort of human existence, the trier of the facts, tahing into account all the circumstances, such as public utility, locality, immediate surroundings and the lihe, may find the use unreaso?iable.” (Italics are mine.) It seems that in a private suit the evidence excluded in this case would be considered by the court in determining whether an injunction should be^ granted or only money damages allowed. (Riedeman v. Mt. Morris Elec. L. Co., 56 App. Div. 23 ; and see Grey v. Simmons, 48 L. R. A. 717, and Commonwealth v. Miller, 139 Penn. St. 77.) The question of the right to consider the public advantage in determining whether there is a public nuisance has been decided by the Court of Appeals in a suit instituted by the Attorney-General to compel the abatement of an alleged nuisance,
My conclusions from the foregoing authorities are: That in a private suit the evidence excluded in this case would be relevant to the issue of whether the defendant was making a reasonable use of his property; that, even though a technical nuisance were made out, it could be considered by the court in an injunction suit on the question whether the public harm to result from shutting down the plant would not so outweigh the slight benefit to individuals as to justify the withholding of injunctive relief, and that, in a- public prosecution, the evidence is admissible to prove that the public inconveniences were^ absorbed in the greater public advantages directly resulting.
The defendant was indicted for an injury to the public, and was entitled to show the public benefit directly resulting from the act charged. It must not be overlooked that questions of injury to private property, to be redressed at the suit of' the owners thereof, are eliminated from the present discussion. We are dealing only with the personal discomforts suffered by all the public who happen to be in the vicinity of this power house, and the defendant Was entitled to prove that the inconveniences from particles of hard coal in the air to passers-by in the street, for instance, weré more than counterbalanced by the immediate advantage to them and the entire public from the power generated by the defendant to run the electric roads. The excluded evidence may have shown that the Brooklyn Bapid Transit Company could have shielded itself from public prosecution for the maintenance of this power plant by legislative authority. While, in law, the defendant, though owned by that company, has a distinct identity, the jury were entitled to know that it was only doing for the said company what the latter had the
The defendant respects the city ordinance and burns hard coal. This, when subjected to the intense heat of its furnaces, flakes off and particles escape through its smokestacks. These particles ma.y be an annoyance, but they certainly are not more unsanitary than many foreign substances found in the air everywhere in a crowded city. To many, the odors from the gas plant across the street from the defendant’s plant would be more offensive and perhaps more harmful than the particles of coal. There are few reported cases in this State of public prosecutions, for nuisance'resulting from lawful trade or business, and such cases may well be left to be redressed at the suits of individuals specially injured. The trades usually referred to in the books as indictable at common law were the tallow-chandlers’, the tanners’, and the like trades. The defendant is not contaminating the air with noisome and noxious vapors and gases, nor can it just as well conduct its business in some remote place. The place selected by it appears to be as suitable as any that could be selected; at least a jury would probably think so; it was a question of fact upon the evidence whether the business could be conducted without the emission of cinders from the smokestacks; with the excluded evidence in the case, it might be a question whether the maintenance of this power plant, or one like it in some similar place, was necessary to the running of the railroads. But if those questions should be resolved in favor of the defendant, it cannot be credited that a jury of New York city, properly instructed, would
. The. judgment is reversed.
Woodward, Jenks and Gaynor, JJ., concurred.
Judgment and order of the County Court of Kings county reversed, and new trial ordered. • '
See Laws of 1881, chap. 676, § 885, as amd. by Laws of 1-901, chap,. 367; Id. §386.— [Rbf.