63 So. 470 | Ala. | 1913
— This is an action to recover damages on account of the maintaining of a nuisance, consisting of a pond, on the premises of the defendant. The pond was used for the purpose of washing iron ore, and in consequence of such use of it the earth washed out of the ore settled as a sediment or mud, known in mining parlance as a “slush pond.” It was alleged that this pond became “infected and infested with numerous frogs,
This pond was about three-fourths of a mile from plaintiff’s residence.
The trial resulted in a verdict and judgment in favor of the plaintiff in the sum of $72.50, from which judgment the defendant prosecutes this apepal.
The defendant moved to strike a great number of allegations from the complaint, on the ground that they were allegations as to damages not recoverable in this action. The court overruled the defendant’s motion as to most of the allegations, and the ruling is made a separate assignment upon each ground of the motion.
The mental and physical pain suffered by the individual members of the plaintiff’s family was not, of course, ground of recovery in this action, but might, under the decisions of this court, constitute ground for a separate action. But the allegations and proof of such facts were proper to show the damages that plaintiff’s home may have suffered in consequences of the nuisance —that was rendered less valuable as a home on account of such nuisance, or that it had to be abandoned as a home on account of the recited ills and injuries caused to the members of plaintiff’s family. In other words, such allegations were proper as being descriptive of the particular injury plaintiff’s home and his property suffered, though the sickness or suffering of the particular members of his family was not a recoverable element of damages. However, the loss which plaintiff suffered, in the nature of deprivation of the services of his minor children and of his wife, if properly alleged and shown, might be recovered as damages in this action. Any possible injury on account of such allegations and proof could be prevented or guarded against by special charges or instructions to the jury upon the proper elements of recoverable damages in this action.
The rule as to damages for personal inconvenience, recoverable in an action of case as for maintaining a nuisance, was well stated by the Supreme Court of Maryland. The rule as expounded by the Maryland court has been quoted by Mr. Cooley, in his work on Torts, and has been practically adopted, if not literally, by this court in former cases:
*500 •“ ‘No principle is better settled than that, where a trade or business is carried on in such a manner as to interfere with the reasonable and comfortable enjoyment by another of his property, or which occasions material injury to the property itself, a wrong is done to the neighboring owner, for which an action will lie. And this, too, without regard to the locality where such business is carried on, and this, too, although the business may be a lawful business, and one useful to the public, and although the best and most approved appliances and methods may be used in the conduct and management of the business. * * * We cannot agree with the appellant that the court ought to have directed the jury to find whether the place where this factory was located was a convenience and proper place for the carrying on of the appellant’s business, and whether such a use of his property was a reasonable use, and, if they should so find, the verdict must be for the defendant. It may be convenient to the defendant, and it may be convenient to the public; but, in the eye of the law, no place can be convenient for carrying on a business which is a nuisance, and which causes substantial injury to the property of another. Nor can any use of one’s own land be said to be a reasonable use which deprives an adjoining owner of the lawful use and enjoyment of his property.’ In regard to the claim that the defendant’s works were first in order of time, the court held that the defendant had no right to erect works which would be a nuisance to the adjoining land owned by the plaintiff, and thus measurably control the uses to which the plaintiff’s land might in the future be subject, and that it could not, by the use of its own land, deprive the plaintiff of the lawful use of his property. Evidence of the large amount invested in such factories in the neighborhood was held incompetent. ‘The law, in cases of this kind,’ says the*501 court, ‘will not undertake to balance the conveniences,, or estimate the differences, between the injury sustained by the plaintiff and the loss that may result to the defendant from having its trade and business, as now carried on, found to be a nuisance. No one has a right to-erect works which are a nuisance to a neighboring owner, and then say he has expended a large sum of money in the erection of his works, while the neighboring property is comparatively of little value. The neighboring owner-is entitled to the reasonable and comfortable enjoyment of his property, and, if his rights in this respect are invaded, he is entitled to the protection of the law, let the consequences be what they may.’ It was held to be no-defense that the defendant’s business was conducted with care and skill and with the best appliances.” — 2 Cooley on Torts, pp. 1243-1245; Barclay v. A. G. S. R. R. Co., 178 Ala. 124, 59 South. 169.
“A tenant or occupant 'Of property may maintain a. suit for a‘nuisance by reason'ofn oise, smoke, odors, etc.. —State v. Judge, 46 La. Ann. 78, 14 South. 423; Lurssen v. Lloyd, 76 Md. 360, 25 Atl. 294. And any one, though having no interest in the property, but living thereon, such as a child or a visitor, who is made sick by a nuisance wrongfully maintained or suffered by the defendant may have an action for the physical injury. — Hunt v. Gas Lt. Co., 8 Allen [Mass.] 169 [85 Am. Dec. 697]; Holly v. Gas Lt. Co., 8 Gray [Mass.] 123 [69 Am. Dec. 233]; Ft. Worth, etc., Ry. Co. v. Glenn, 97 Tex. 586, 80 S. W. 992 [65 L. R. A. 818, 104 Am. St. Rep. 894, 1 Ann. Cas. 270].”
Of course we do not mean to say that the pond in question; or its use, constituted. a nuisance within the-above rule; that is a question we are not now considering.
In this contention defendant’s counsel is in error. If the action were for the erection of the nuisance only, there might be something in this contention; but, instead of its being for the erection, it is for the maintenance thereof, and it is alleged that it was so maintained after plaintiff acquired the property, and the claim for damages is expressly limited to those suffered within the year next preceding the bringing of the action. It is not sought to recover any damages suffered by the plaintiff’s vendor, but only those suffered by this plaintiff, and suffered within the year next preceding the bringing of this action.
The rule on this subject is well stated by Mr. Cooley (2 Torts [3d Ed.] pp. 1289-90), who- says: “The party who at the time suffers the inconvenience of a nuisance is entitled to complain of it, and it is immaterial whether it was or was not a nuisance to him to its origin. Therefore it is of no importance to the right of action that the plaintiff has come into the neighborhood since the nuisance was created; he has the right to locate himself wherever he can do so to his satisfaction, and no one can have the authority to set limits to his choice of location by interposing something which is offensive. Moreover, it would detract very seriously from the value of property if the owner, desiring to dispose of it, could not transfer all his rights, including his right to protection in its complete enjoyment, but must, when a nuisance is created near him, either await the result of proceedings for its abatement, or dispose of his land with the nuisance practically assented to, and for a price
The same eminent authority discusses the same and", additional phases of the same subject (Id., pp. 1290, 1291) as follows: “It is a familiar principle that no-lapse of time can confer the right to maintain a nuisance as against the state. On the other hand, where-a nuisance is purely private, and concerns only the one-person or the few who are injured, its maintenance for-the period of prescription, without interruption, will bar any subsequent suit. There still remains the case-of a public nuisance, not complained of by the state but by those to whom it works a special and peculiar injury, and whether the right to maintain it as against such. persons can be gained by lapse of time may possibly be • open to some question. It would seem plain that it could not be as against any one who had not personally been a sufferer from the nuisance for the whole period,. and while the nuisance was maintained without change.. In other words, the prescription would run against individuals, and one could lose his action only because he had failed to complain, having had the whole period of " prescription in which he was at liberty to do so. Therefore persons coming newly within the evil influence of '
It follows that the court did not err in its ruling on the pleadings, or on the evidence, nor in the charges in respect to this feature of the case. As before stated, no damages were claimed which did not occur within one year from the bringing of the suit, and the action was not for •erecting a nuisance, but for maintaining a nuisance during the year as for which damages were claimed.
This case must be reversed on account of the trial court’s refusing to exclude improper argument of counsel. The plaintiff introduced proof tending to show
To such argument the defendant objected, and he moved to exclude the same on the following grounds: First, that there Avas no evidence in the case to uphold such statement; second, that the statement was untrue; third, that there is no law holding that a physician cannot disclose communications between himself and his patient, or that he is not 'required to testify as to any disease that the patient may have Avhen put upon the stand. The court overruled the objection and the motion of the defendant to exclude such argument, and refused to exclude the same from the jury, to Avhich action of the court the defendant then and there duly excepted.
We are not prepared to say that the general affirmative charge should have been given for the defendant. There was in the case evidence sufficient to carry the cause to the jury, however uncertain it may have been.
Reversed and remanded.