55 N.Y.S. 192 | N.Y. App. Div. | 1898
It is sought in this, action to recover damages for injuries resulting from the maintenance of a nuisance on the defendant’s, property. On the trial the plaintiff had a verdict, from the judgment entered upon which and from an order denying a motion for a new trial the defendant appeals. The important question presented is that of the defendant’s liability, the plaintiff’s contention in that regard being, that the use or manner. of use of the defendant’s property constitutes a private nuisance; while the defendant insists that such use is authorized by law, does not exceed what is required by the necessities of the business in which it is lawfully engaged, and that consequential injuries to the plaintiff are only such inconveniences as one must suffer or sustain to persónal or property rights by the lawful use by another of his own property.
The plaintiff is the owner’of a parcel of land situate on the-northerly side of One Hundred and Sixteenth street, near Avenue A, in the city of New York. On her land was a dwelling house in which she and her family resided for some years prior to December, 1893, and there was also erected on such land a 'small building used as an office by the plaintiff’s husband in the conduct of his business. The defendant is a corporation duly organized in February, 1896, under a statute of the State of New York to carry on the business of manufacturing illuminating gas and distributing it to customers.
The-defendant denies those allegations of the plaintiff which charge the effects of the operation of defendant’s works as constituting a nuisance, and sets forth affirmatively its incorporation, and an obligation under a contract made with the State of New York pursuant to one ■of the conditions of its charter; it further alleges that it is engaged in furnishing large quantities of gas to customers in the city of New York, including the corporation of the city of New York, at greatly
The initial inquiry arises upon the evidence, and is: What are the results or consequences of the defendant’s use of its property and plant ? Do they only subject the plaintiff to such inconveniences and annoyances as flow- from the lawful use by a person of his own property, or are they such as are unlawful in consequence of the unreasonable use by a person of his property, regard 'being had to time, place and circumstances? The liability of the-defendant is to be ascertained by the same rule that would apply in an action between private individuals. Generally speaking, “ the test of the permissible use of one’s own land is not whether the use or the act causes injury to his neighbor’s property, or that the injury was the
The pleadings in the case at bar raise very plainly the issue as to the existence, of a private nuisance, and the verdict of the jury established the affirmative of that issue. An examination of the whole evidence shows that the jury were justified in reaching that conclusion. Apart from the circumstance of an alleged accident-which caused a special inconvenience and which the jury were instructed to disregard if they believed it to be an accident, substantially all that was claimed by the plaintiff respecting the injurious character and results of the use of the processes and the incidents of manufacturing gas by the defendant, was fully proven. It thus appearing that the .acts of the defendant being such as between private individuals would constitute a. nuisance, and that injury to the plaintiff’s person and property ensued therefrom, the next inquiry is, whether there is anything in the status of' the defendant or in the rights acquired by it, which exonerates it from liability for the consequences of its acts constituting a private nuisance. That exemption is claimed by the defendant for the reason that it, as a chartered corporation, holds a franchise from the State of New York to manufacture gas; that it is, therefore, lawfully engaged in a business, in the conduct of which those things complained of by the plaintiff are necessary incidents, and that it carries on all its processes of manufacture by methods produc
There is no variation of this rule as applied to different kinds of corporations, whether they be municipal, or manufacturing or carrying, or any other kind. In Cogswell v. N. Y., N. H. & H. R. R. Co. (103 N. Y. 10) it is said: The statutory sanction which will justify an injury to private property must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that- it can fairly be said that the Legislature contemplated the doing of the very act which occasioned the injury. This is but an application of the reasonable rule that statutes in derogation of private rights, or which may result in' imposing burdens upon private property, must be strictly construed. For it cannot be presumed - from a general grant of authority that the Legislature intended to authorize acts to the injury of third persons where no compensation is provided except upon condition of obtaining their consent. This construction of statutory powers applies with peculiar force to grants of corporate powers- toprivate corporations,, which are set up as a justification of corporate acts to the detriment of private property.” That was an action against
Turning then to the source of the defendant’s rights and powers as contained in the statute under which it was incorporated, we find nothing therein expressly giving the right to do those things complained of by the plaintiff, nor do we find anything from which an implication may be drawn that the Legislature contemplated conferring authority to commit such acts. .
It is stated in the record that chapter 248 of the Laws of 1886 is the charter of the Standard Gas Light Company. By that statute the defendant was authorized and empowered to lay conductors and mains for conducting gas. through and under the streets, avenues, squares and public- places of the city of New York, and as a consideration therefor the defendant was required to file in the office of the comptroller of the city of New York a stipulation or agreement that all gas supplied through such conductors and mains shall have-an - illuminating power of a certain degree and that -no greater-price or charge for supplying gas should be made or received by the company than at the rate of one dollar and fifty cents a thousand feet; and that for gas supplied to the public buildings ór offices of the corporation of the city of New York the charge should not exceed one dollar and twenty-five cents a thousand feet, and that gas supplied for the public lamps in the streets of New York should be furnished at a maximum rate not to exceed twelve dollars and fifty cents per annum. ■ There is nothing whatever in this statute which requires the defendant to manufacture gas in any particular way, at-any-particular place or under any special conditions. Nothing - whatever is said with regard to its plant or its., processes of manufacture. It is claimed that, in consequence of the provisions relating to charges to be made for gas, an authority is to be implied that the defendant might manufacture it by any processes, from any substance, in the cheapest and most economical manner, and regardless of any consequences to third persons.. There was .nothing, in ’ this -statute -that compelled the defendant to do anything unless it
We have seen that upon the facts which must have been found by the jury, a case of a private nuisance was made out; hut it is claimed by the defendant that in the instructions given by the judge there was a radical error, which broadened the liability of the defendant and placed it upon an altogether untenable ground. In his charge, the judge said to the jury : “The plaintiff was entitled to enjoy her property as before the gas works were put up.” And again : “ The plaintiff, I repeat, was entitled to enjoy her property as before the gas works were put up.” Those two sentences, separated from their context and considered without reference to the connection in which they were uttered, are made the subject of an exception,- and it is suggested that from them the jury were entitled to consider that the plaintiff had the right to enjoy her property in the same way as if no buildings had been put up by the defendant at all, and, therefore, it could be inferred that even for the ordinary inconveniences which result to one owner of land from an adjoining owner’s building upon his property an action might be maintained.
Nothing of the sort was meant or intended by the judge, and the connection in which the sentences quoted were used shows clearly that their application was as to the existence of a nuisance and not otherwise. In the very paragraph in which the first sentence occurs the court told the jury that they must find, by a clear preponderance of evidence, that certain facts existed which would constitute a private nuisance, and that if they constituted such a nuisance, then the plaintiff would be entitled to recover such damage as appeared from the testimony to result proximately from the injury. They were told that a nuisance could not be justified, or its maintenance permitted, by showing that the injury occurred in the conduct of a lawful business carried on with skill and care; that legislative and municipal authority might protect the defendant from indictment, but did not afford protection where property rights of occupants were invaded.
■ The measure of damages, as stated by the court, was the: correct one. The nuisance consisted in the manner of use of property. The effects of that nuisance were the impaired health of the plaintiff and the diminution in the rental value of her property. The jury were instructed to find separately the amount of damages for each species of injury. That awarded for the impairment of health was almost insignificant. It was an element of damage. It was caused by the noxious fumes emitted and by other annoyances,, and was a direct result thereof. In Chapman v. City of Rochester (110 N. Y. 273). a recovery was sustained both for injury to the property and health of a plaintiff. The damages to. property, temporary in their nature and continuing while the nuisance lasts, can only be measured by the diminution in rental value, or the difference between the- rental value free from the effects, of the nuisance and subject to it. The same rule applies-whether the property is in the possession of a tenant or in the occupation of the owner.' (Francis v. Schoellkopf 53 N. Y. 152.) The reporter’s syllabus of that case was criticised in Bohm v. M. E. R. R. Co. (129 N. Y. 596), but not as respects the point now under consideration, The
Upon the trial of this action the court was requested to require-the jury to make specific answers to certain questions in the nature-of special findings of fact, which request the court refused to comply with. It was a matter absolutely in the discretion of the trial-judge, and as that discretion was not improperly exercised, we are not disposed to interfere with the ruling of the court thereupon.
The judgment and order appealed from must be affirmed, with costs.-
Van Bruñt, P. J., Barrett, Rtjmsey and McLaughlin, JJ.r concurred.
Judgment and order affirmed, with costs.