United States v. Luce

• Decision Date: 26 September 1905
• Docket Number: 155.
• Citation: 141 F. 385
• Parties: UNITED STATES v. LUCE et al.
• Court: U.S. District Court — District of Delaware

141 F. 385

UNITED STATES v. LUCE et al.

No. 155.

United States Circuit Court, D. Delaware.

September 26, 1905

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Syllabus by the Court.

The quarantine station on Delaware Bay between Lewes and Cape Henlopen has been established and maintained by the United States for the accomplishment of beneficent ends in which the public is vitally concerned; and it is a matter of great importance that neither efficiency in the administration of the station nor its usefulness in other respects should be impaired.

The fish fertilizer factory of the defendants and that erected by S. S. Brown & Company are distant from the quarantine station from five eighths to three quarters of a mile, located on the shore of Delaware Bay, and so situated in relation to each other that when the wind is in such direction as to carry to the quarantine station odors from the defendants' factory it will also carry to the station odors from the other factory. The period of their operation extends approximately from July 1 to the first or middle of November, and during this period the prevailing winds are in such direction as to carry the odors from the factories to the station.

The evidence is full, clear and convincing that the inmates of the quarantine station are materially annoyed and discomforted by offensive, noisome and nauseating odors originating at or in the immediate vicinity of the fish factories and caused by their operation, and that such annoyance and discomfort, while not uninterrupted, occur so frequently as to interfere to an unreasonable and unjustifiable degree with the common enjoyment of life and to constitute a nuisance which should be restrained by injunction if the government be in a position to complain of it.

It is not essential to the existence of a nuisance from offensive odors that they should be calculated to break down or injure health or that health should be impaired or even threatened by them. It is sufficient that they be nauseating or physically discomforting or annoying to persons of ordinary sensibilities, 'interfering with the ordinary comfort physically of human existence, not merely according to elegant and dainty modes and habits of living, but according to plain and sober and simple notions among the English people. ' The sound condition of those employed in the fish factories and habituated to the smells necessarily generated in their operation is not determinative of this case. It is well known that persons can become accustomed to foul and noisome odors and retain their health.

It by no means follows from the fact that the odors from the fish factories may not be nauseating or discomforting and annoying to those employed there, or to others inured to noisome smells, that they do not constitute a nuisance to the inmates of the quarantine station and marine hospital. It is important in this connection to bear in mind that the accomplishment of the purposes for which the station and hospital were established involves not only the presence there of the officers and employes in charge but the detention and confinement of many who have never been subjected to such a tainted atmosphere.

The frequency with which during the period from July 1 to the early part or middle of November in each year the quarantine station is visited with the noisome smells is sufficient to constitute a nuisance there.

The doctrine that owners and occupants of houses and lands are entitled to the enjoyment of air or reasonable purity, though of general, not being of universal application, there is sometimes difficulty in applying it to a given case. Considerations affecting the social state require in some instances concessions or compromises, to a greater or less extent, of what would otherwise be regarded as of strict right.

But the existence of the two factories in question does not constitute such an industrial or manufacturing neighborhood that the government is compelled to submit to the stench emanating from them. It cannot be compared to the growth and territorial expansion of the industries of a city.

The principal question after all is whether the defendants, in view of their obligation to others, are making a reasonable use of the premises occupied by them. Are they duly observing the precept, Sic utere tuo ut alienum non laedas? On the evidence and the authorities clearly they are not.

It is well settled that the mere fact that one voluntarily 'comes to a nuisance' will not preclude him from complaining of and relief against it. A contrary doctrine would be so unreasonable and oppressive as to work its own condemnation. Where one operates a factory emitting foul or noisome smells and owns and controls all the land within the area traversed by them in sufficient strength to be nauseating or substantially discomforting, no one has just cause to complain. But to foist impure and disgusting odors upon others in their homes, is a different matter, and, save in localities generally devoted to a business of a character to produce such or equally offensive smells, or unless by virtue of grant, license, estoppel or prescription, is not to be tolerated.

The fact that defendants have invested a considerable amount of money cannot clothe them with immunity for creating or contributing to and maintaining a a nuisance.

The doctrine of the balance of convenience or injury which so frequently is determinative of the propriety of granting or denying a preliminary injunction has no application to decrees after a hearing on plenary proofs taken in due course.

The fish fertilizer factory of the defendants and that erected by S. S. Brown & Company on the Delaware Bay are so situated with respect to each other that when the wind is in such direction as to carry the odors from one of them to the quarantine station it will carry the odors from the other there, and the odors from one cannot be distinguished from the odors from the other. There is no evidence of co-operation, privity or business relationship of any kind between the defendants and S. S. Brown & Company in the erection and operation of their respective factories, or between the defendants and the succeeding owners or managers, if such there be, of the factory erected by S. S. Brown & Company; nor is there any evidence to the point that the odors from either of the factories alone would or would not so contaminate the air at the quarantine station as to create a nuisance there within the definition of the authorities. But the combined odors from both factories unquestionably have that effect, and in producing it the two establishments in fact co-operate in and contribute to the creation of the nuisance.

This court has jurisdiction to award an injunction in this case by reason of the absence of a plain, adequate and complete remedy at law. The existence of such a remedy is negatived by several separate and independent considerations. Injury resulting from noisome or foul odors producing personal discomfort and annoyance is not susceptible of compensation in damages according to any approximately accurate measure, and from its recurrence would lead to multiplicity of suits. The peculiar circumstances of this case afford further support to the proposition that the United States, unless prevented by estoppel, acquiescence, or some other act or conduct on its part, is here entitled to injunctive relief. That the government, in the absence of a plain, adequate and complete remedy at law has a right to maintain an injunction bill to restrain a nuisance materially and injuriously affecting the occupancy of its own property there can be no doubt. If, as is the case, a private individual be entitled to equitable relief against foul or noisome odors rendering the occupancy of his property substantially and frequently discomforting and annoying, the government for stronger reasons is entitled to such relief against the continuous or recurrent nuisance at the quarantine station. For should the government resort to an action at law, it could not recover damages measured by the discomfort and annoyance suffered by the inmates of the station; and, unless the nuisance were of such intensity as to compel the abandonment of the station by the government, there would be absolutely no basis on which it would be possible even to guess at the quantum of damages. Further, in view of the fact that the nuisance has been created by both of the fish factories without concert between those operating them and with no practicable means of ascertaining what the effect of the defendants' alone would be, it is very questionable whether the government could in an action at law recover even nominal damages.

The jurisdiction of this court to award an injunction in this case, therefore, seems clear; and, possessing such jurisdiction, it has plenary power over the suit, including the ascertainment of disputed facts. Such an ascertainment, indeed, is contemplated by the Constitution.

The defendants, even on the assumption that the government is proceeding in this suit in a quasi private or proprietary character, have not acquired a prescriptive right as against it to continue or contribute to the continuance of the nuisance complained of, nor has there been any such acquiescence, act or conduct, on the part of the government as to estop or preclude it from complaining of such nuisance. Mere lapse of time short of the prescriptive period cannot operate as a bar.

It does not appear either directly or inferentially that the government at any time assented to or acquiesced in the operation of the fish factories in such manner as to produce or contribute to the production of the nuisance of which it now complains. These factories were not, nor was either...