131 Ind. 408 | Ind. | 1892
The complaint in this case consisted of three paragraphs. The appellant withdrew the second paragraph and the court sustained a demurrer to the first and third. The appellant refusing to amend the appellees had judgment.
The assignment of error calls in question the ruling of the court in sustaining the demurrer to the first and third paragraphs of the complaint.
The first paragraph alleges, in brief, that the appellant and the appellees are the owners of adjoining city lots in the city of Greenfield, Indiana, situate hear the center of the city; that the family residence of the appellant, in which he and his family reside, is located on the lots so owned by him; that the appellees, regardless of the rights of the appellant, and of the safety, peace, comfort and lives of himself and family, without his consent, and over his objection, have dug and constructed a natural gas well to the depth of about one thousand feet, two hundred feet distant from appellant’s said residence, and within forty-three feet of the appellant’s lots; that appellees threaten and are about to “ shoot” said well and will do so unless restrained therefrom ; that for this purpose they have unlawfully brought into the city of Greenfield a large quantity of nitro-glycerine or other nitro-explosive compound, and have permitted the same to remain within two hundred feet of appellant’s said residence for three hours at a time, in the midst of and surrounded by a large number of people; that they threaten to
The third pai’agraph alleges, substantially, that under the land of the appellant, described in the first paragraph of the complaint, at a depth of nine hundi’ed or one thousand feet, are many valuable stones and rocks, among others, the rock known as “ Trenton rock,” containing great quantities of natural gas of the value of $4,000; that said natural gas, prior to August, 1889, was imbedded, contained, held and securely kept in said “ Trenton rock ; ” that on the 19th day of August, 1889, the appellants unlawfully and maliciously dug and constructed a natural gas well to the depth of one-thousand feet within twenty-five feet of appellant’s lots, and on the — day of September, 1889, unlawfully and maliciously intending to injure and damage the appellant and his property, unlawfully, wantonly and maliciously performed the act of “ shooting ” their gas well to the great damage of the appellant; that the appellees at the time they sunk their well, intended, by means thereof, to draw and cause to flow large quantities of natural gas from appellant’s said “ Trenton rock ” into their well, and that large quantities of said gas did flow into their said well from August until December, 1889 ; that in September of that year appellees unlawfully and maliciously, and over appellant’s objection, with the in
We regret that we have not been furnished a brief by the appellees in this cáse, and that we are unadvised, by them, of the ground upon which the circuit court made its rulings.
In our opinion the court erred in sustaining a demurrer to the first paragraph of the complaint. It is true that many allegations are found therein which might have been omitted, but still the distinct allegations are these, that by shooting appellees’ well, and the accumulation of nitro-glycerine for that purpose, the appellant’s dwelling and the life of himself and family will be endangered.
This is admitted by the demurrer, and if such is the fact the appellees should be enjoined from “shooting” their well.
One of the well-known exceptions to the rule that the owner may use his property as he thinks best, is that he must so use it as to cause no unnecessary injury to others. “A private nuisance of the sort which is redressed at the suit of the party, is anything done on one’s premises or elsewhere, or put into circulation, or omitted to be done contrary to a legal duty, wherefrom, through the separate action of nature or of the common cause of events, an injury follows
It is settled by our own decisions that the erection or maintaining of anything that is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, constitutes a private nuisance. Ohio, etc., R. W. Co. v. Simon, 40 Ind. 278; Haag v. Board, etc., 60 Ind. 511; Owen v. Phillips, 73 Ind. 284; Williamson v. Yingling, 93 Ind. 42.
To live in constant apprehension of death from the explosion of nitro-glycerine is certainly an interference with the comfortable enjoyment of life.
Injunction is the proper remedy for an injury of this kind. Smith v. Fitzgerald, 24 Ind. 316; Reichert v. Geers, 98 Ind. 73.
We do not think the court erred in sustaining a demurrer to the third paragraph of the complaint. The use of the words “ unlawfully,” “ maliciously ” and “ wantonly ” add no force to the complaint. In construing the complaint, and in determining the rights of the parties thereunder, we will look to the nature of the acts alleged, and if such acts are lawful within themselves, such epithets can not make them unlawful.
That the appellees had the right to explode nitro-glycerine in their well for the purpose of increasing the flow of gas, was settled by the case of People’s Gas Co. v. Tyner, ante, p. 277.
The question needs no further elaboration here.
Judgment reversed, with directions to overrule the demurrer to the first paragraph of the complaint.