Bohan v. Port Jervis Gas-Light Co.

• Decision Date: 07 October 1890
• Citation: 25 N.E. 246,122 N.Y. 18
• Parties: BOHAN v. PORT JERVIS GAS-LIGHT CO.
• Court: New York Court of Appeals Court of Appeals

122 N.Y. 18

25 N.E. 246

BOHAN

v.PORT JERVIS GAS-LIGHT CO.

Court of Appeals of New York,

Second Division.

Oct. 7, 1890.

Appeal from supreme court, general term, second department.

The amended complaint, after setting out the incorporation of the defendant, and that it was, and for several years prior to the commencement of the action had been, engaged in the manufacture of gas, and that the plaintiff and defendant were owners of adjoining property, alleged ‘that about the year 1880 the defendant erected a new tank for the purpose of its gas-works on its said premises, the southern side of which stands within a few feet of plaintiff's premises; that about the year 1880 the defendant began to, and ever since has and still does, manufacture its gas at said works from naphtha, and that said tank was and still is used to store said naphtha, for the purposes aforesaid; that naphtha is an offensive, noxious, unhealthy, and sickening mineral substance, destructive to the health and comfort of those required to be and remain in close proximity to it; that said tank was erected and is maintained in a negligent and unskillful manner, and by reason of the negligence and want of care upon the part of the defendant in the construction, use of, and maintenance of, said tank, * * * and also by reason of the erection and use of said tank and said works, and the negligent and unskillful manufacture of gas from naphtha, the defendant has since August, 1880, and still does maintain a nuisance, injurious to the comfort and enjoyment of the plaintiff, and injurious to the rental value of the said premises. The defendant, in its answer, admitted the erection of the tank, and that it was engaged in manufacturing gas from naphtha, and alleged that it used naphtha because it was more economical than coal, and denied negligence in the erection of its works, or in the conduct of its business. It alleged that its business was carried on with all practicable care and skill, and by the use of the most approved machinery, and the employment of skillful and competent persons; that it was engaged in a lawful business, authorized by the statutes of the state; and that its gas was used in lighting the streets and public places of the village of Port Jervis; and that the consequences to the plaintiff therefrom were such as necessarily arose from the prosecution of its business. It appeared on the trial that defendant had been engaged in manufacturing gas on the premises in question since 1860. Prior to 1880, it manufactured gas from coal, but since August of that year all its gas was manufactured from naphtha. The plaintiff gave no evidence of negligence on the part of the defendant, either in the construction or maintenance of its works, or the conduct of its business. For the failure to give such proof, the defendant moved to dismiss the complaint, which was denied, and an exception was taken. Further facts appear in the opinion.

FOLLETT, C. J., and HAIGHT, J., dissenting. Affirming 45 Hun, 257, mem.

Lewis E. Carr, for appellant.

John W. Lyon, for respondent.

BROWN, J., ( after stating the facts as above.)

The plaintiff made no complaint of the existence of a nuisance upon defendant's property prior to 1880, when defendant first introduced the use of naphtha in the manufacture of its gas; and it was a disputed question on the trial, upon which there was a strong conflict of testimony, whether the smells from the defendant's works after it began to use naphtha were more offensive than when it used coal. This question, it must be assumed, the jury determined in favor of the plaintiff's contention. The court charged the jury that, to constitute a nuisance, it was essential that the smells and odors from the defendant's works should be sufficient ‘to contaminate and pollute the air, and substantially interfere with the plaintiff's enjoyment of her property,’ and that the question for them to determine was, ‘did the odor pollute the air so as to substantially render plaintiff's property unfit for comfortable enjoyment?’ An exception was taken by the defendant to this part of the charge. The rule stated by the learned trial judge was in accordance with all the authorities. If one carry on a lawful trade or business in such a manner as to prove a nuisance to his neighbor, he must answer in damages, and it is not necessary to a right of action that the owner should be driven from his dwelling; it is enough that the enjoyment of life and property be rendered uncomfortable. Rex v. White, 1 Burrows, 337; Smelting Co. v. Tipping, 11 H. L. Cas. 642; Fish v. Dodge, 4 Denio, 311;Catlin v. Valentine, 9 Paige, 575;Campbell v. Seaman, 63 N. Y. 568;Cogswell v. New York, N. H. & H. R. Co., 103 N. Y. 10, 8 N. E. Rep. 537; Wood, Nuis. § 497, and cases cited.

It was claimed by the defendant, and the court refused a request to charge, ‘that unless the jury should find that the works of the defendant were defective, or that they were out of repair, or that the persons in charge of manufacturing gas at these works were unskillful and incapable, their verdict should be for the defendant;’ and ‘that if the odors which affect the plaintiff are those that are inseparable from the manufacture of gas with the most approved apparatus, and with the utmost skill and care, and do not result from any defects in the works, or from want of care in their management, the defendant is not liable.’ An exception to this ruling raises the principal question discussed in the case. While every person has exclusive dominion over his own property, and may subject it to such uses as will subserve his wishes and private interests, he is bound to have respect and regard for his neighbor's rights. The maxim, ‘ sic utere tuo ut alienum non laedas,’ limits his powers. He must make a reasonable use of his property, and a reasonable use can never be construed to include those uses which produce destructive vapors and noxious smells, and that result in material injury to the property and to the comfort of the existence of those who dwell in the neighborhood. The reports are filled with cases where this doctrine has been applied, and it may be confidently asserted that no authority can be produced holding that negligence is essential to establish a cause of action for injuries of such a character. A reference to a few authorities will sustain this assertion. In Campbell v. Seaman, supra, there was no allegation of negligence in the complaint, and there was an allegation of due care in the answer. There was no finding of negligence, and this court affirmed a recovery. In Heeg v. Licht, 80 N. Y. 579, an action for injuries arising from the explosion of fire-works, the trial court charged the jury that they must find for the defendant, ‘unless they found that the defendant carelessly and negligently kept the gunpowder on his premises.’ And he refused to charge upon the plaintiff's request ‘that the powder-magazine was dangerous in itself to plaintiff, and was a private nuisance, and defendant was liable to the plaintiff, whether it was carelessly kept or not.’ There was a verdict for the defendant, and this court reversed the judgment, holding that the charge was erroneous. In Cogswell v. New York, N. H. & H. R. Co., supra, the special term found as facts that, in the construction of the engine-house and coal-bins, and in the use of its premises, the defendant exercised due care, so far as the same was practicable, and it refused to find, upon plaintiff's request, ‘that, in the construction of the engine-house, chimney, smoke-pipe, and coal-bins, it had not exercised, and does not now exercise, such reasonable and proper care as was necessary not to injure the plaintiff's property.’ A judgment for the defendant was reversed, this court holding that the engine-house as used was a nuisance, and that it was not an answer to the action that the defendant exercised all practicable care in its management. In Gas Co. v. Murphy, 39 Pa. St. 257, the charge of the court and the refusals to charge were very similar to the charge in this case. The supreme court of Pennsylvania overruled the exceptions, holding that negligence was not essential to a right of recovery. To the same effect see Cleveland v. Gas-Light Co., 20 N. J. Eq. 201;Gas-Light, etc., Co. v. Thompson, 39 Ill. 598; Wood, Nuis. (2d Ed.) § 583.

The principle that one cannot recover for injuries sustained from lawful acts done on one's own property, without negligence and without malice, is well founded in the law. Every one has the right to the reasonable enjoyment of his own property, and, so long as the use to which he devotes it violates no rights of others, there is no legal cause of action against him. The wants of mankind demand that property be put to many and various uses and employments, and one may have upon his property any kind of lawful business; and so long as it is not a nuisance, and is not managed so as to become such, he is not responsible for any damage that his neighbor accidentally and unavoidably sustains. Such losses the law regards as damnum absque injuria; and under this principle, if the steam-boiler on the defendant's property, or the gas-retort, or the naphtha tanks, had exploded, and injured the plaintiff's property, it would have been necessary for her to prove negligence on the defendant's part to entitle her to recover. Losee v. Buchanan, 51 N. Y. 476. But where the damage is the necessary consequence of just what the defendant is doing, or is incident to the business itself, or the manner in which it is conducted, the law of negligence has no application, and the law of nuisance applies. Hay v. Cohoes Co., 2 N. Y. 159;McKeon v. See, 51 N. Y. 300. The exception to the refusal to charge the first proposition above quoted was not therefore well taken.

It is contended, however, by the defendant that the acts of the legislature relating to gas companies are a protection from liability for consequential...