Bd. of Health of Lyndhurst Tp. v. United Cork Companies

• Decision Date: 26 April 1934
• Citation: 172 A. 347
• Parties: BOARD OF HEALTH OF LYNDHURST TP. v. UNITED CORK COMPANIES.
• Court: New Jersey Court of Chancery

172 A. 347

BOARD OF HEALTH OF LYNDHURST TP.

v. UNITED CORK COMPANIES.

Court of Chancery of New Jersey.

April 26, 1934.

Syllabus by the Court.

1. Where it appears that the dust, odors, fumes, and gases created and emitted by the operation of a cork manufacturing establishment pollute the atmosphere to such a degree as to produce coughing, gagging, or choking; nausea and vomiting spells; a burning sensation of the eyes, nose, throat, and respiratory organs; compel residents to keep their doors and windows shut day and night; distress them at their meals and while in and outside of their homes; disturb them in their sleep; and otherwise trouble them in the ordinary enjoyment of their lives and property—such conditions constitute a nuisance, which it is the duty of the Board of Health to take proper measures to abate.

2. Conditions offensive and hazardous to the health of persons generally constitute a nuisance, although such be neither unpleasant nor disagreeable to some persons because of their peculiar habits or occupations.

3. The law presumes, until the contrary is shown, that every person is possessed of and enjoys a normal condition of body and mind.

4. The abatement of conditions as a public nuisance, not only when shown to be actually injurious to health, but where likely to be so, is authorized and required by the provisions of the Health Statute.

5. The right to relief against a nuisance cannot be defeated by partially abating the nuisance pending the suit for such relief.

6. Where the operation of a cork factory created and produced entirely new conditions hazardous to the health, comfort, and existence of those residing within the neighborhood, such manner of operation will be enjoined.

7. No right to maintain a nuisance, as against the public, can be acquired by prescription.

8. Neither the extent of the represented investment nor the fact that some of the complaining residents had, after defendant's advent, voluntarily located in the neighborhood, should deter this court, upon being satisfied of the existence of conditions hazardous to the public health, from lending its aid and assistance when properly enlisted to the public health authorities in effectively abating such nuisance.

Suit by the State, on the relation of the Board of Health of the Township of Lyndhurst, etc., against the United Cork Companies.

Decree in favor of the complainant in accordance with opinion.

Leo P. Reilly, of Lyndhurst, for Lyndhurst.

Andrew J. Steelman, of Newark, for State Board of Health.

McCarter & English (by Conover English), of Newark, and Noah Stancliffe, of New York City, for Cork Companies.

LEWIS, Vice Chancellor.

By section 28 of an act entitled "An Act to establish in this state, boards of health and a bureau of vital statistics and to define their respective powers and duties," as amended and supplemented, 2 Comp. St. 1910, p. 2668, § 28, the Legislature declared and enacted: "That any such local board of health, instead of proceeding in a summary way to abate a nuisance hazardous to the public health, may file a bill in the court of chancery, in the name of the state, on the relation of such board of health, for an injunction t6 prohibit the continuance of such nuisance, and such actions shall proceed in the court of chancery according to the rules and practice in such cases on the relation of individuals," etc.

Proceeding under and by virtue of that statute, the state, on the relation of the Board of Health of the Township of Lyndhurst, filed a bill for an injunction to prohibit the United Cork Companies from maintaining and continuing what it claims to be a public nuisance, hazardous to the public health. The gravamen of its complaint is that this defendant permits deleterious cork dust, odors, fumes, and gases to escape from the confines of its plant, wherein such are created and disseminated, which pollute the outside atmosphere to such a degree as to render it hazardous to the health of those residing within the contaminated area.

The defendant, a New York corporation, as its name indicates, is engaged in the business of manufacturing cork flooring and other products of which cork is a principal ingredient or component part. After having been located in Hoboken for about three years, it moved its establishment to Lyndhurst, where it has been operating ever since June, 1911. Apace with its business development and policy of expansion, it kept enlarging and extending its operations, equipment, and plant. Tracts of land adjacent and contiguous to its original site were acquired upon which it, from time to time, built and erected what has here been described as the office, bake oven, grinding, sifting, cork, storage, warehouse, and engine buildings, which constitute its present plant and establishment.

In the course of its business, defendant consumes large quantities of raw cork, which it stores upon its premises in five large one-story frame buildings, called "storage sheds." From there, as the business requires, the raw cork is transported to the "grinding building," a one-story brick structure 40 feet in width by 60 feet in depth, wherein from 40 to 50 tons of cork a day are ground into small particles. This, ground cork is then conveyed into the "sifter building," a two-story brick structure, 40 feet in width by 60 feet in depth, wherein it is sieved, and after which it is processed and brought into the "oven buildings," two one-story brick structures, each 60 feet in width by 245 feet in depth, wherein it is baked into cork boards.

The "grinding building" and "sifter building" are each ventilated by means of vents and louvers, which, of necessity, provide an avenue for the escape of the cork dust, created and disseminated in each of those buildings, into the outside atmosphere. The monitors and apertures in the vents and louvers in each of the "oven buildings" are always kept open in order to facilitate the necessary ventilation of each of those buildings. A smokestack, 117 feet tall, is erected on the northerly and southerly end of each of those buildings. Each of these smokestacks is connected to a flue to which is connected a hood, having a base measurement of 10 feet in width by 50 feet in length, which is erected over the northerly and southerly ends of the bake ovens installed in each of those buildings. It is through these hoods, flues, stacks, vents, and louvers that large and incalculable quantities of odors, fumes, and gases, generated and liberated by the cork being baked In these ovens at a temperature of 600 degrees Fahrenheit or more, ascend, are emitted and dispersed into the outside atmosphere. The process of baking is continued, day and night, from Monday to Saturday noon of each week.

Not more than 300 feet to the north of defendant's establishment are located Second and Third avenues, which are intersected by Delaware, Livingston, Stuyvesant, and Lake avenues, respectively. Second and Third avenues extend for a considerable distance both to the east and west of defendant's plant, are of a residential character, well kept, and built up with substantial and fairly expensive private dwellings, which are principally occupied by their owners, all respectable citizens of that community.

These residents, occupants, and property owners, together with others, bitterly complain of the cork dust, obnoxious odors, fumes, and gases which emanate from defendant's plant, settle down upon their respective persons and property, and pollute the atmosphere with such intensity that they are deprived of the ordinary enjoyment and comforts of their respective homes besides being subjected to such physical distress as tends to impair their health.

In substantiation of these complaints, relator, during the fifteen days required for the trial of this case, produced numerous witnesses, the great number of whom renders it impracticable to here summarize the testimony of each. However, a careful consideration of the testimony of each discloses that all uniformly testified to the existence of the distressing conditions here sought to be enjoined, which they said emanated from defendant's plant, invaded their homes, and contaminated the atmosphere in which they had to live and breathe. With the utmost sincerity and candor, and in unmistakable language, each of them described the physical distress and discomforts which those conditions produced and forced them to endure.

Succinctly summarized, their testimony is that they were harassed and distressed by the odors, fumes, gases, and dust emitted from defendant's plant, which pervaded and defiled the atmosphere to such an extent that some were seized with coughing, gasping, gagging, or choking sensations; others with nausea; and still others with vomiting spells. Some experienced a burning or irritating sensation in the eyes, nose, throat, or respiratory organs, while not a few were often forced to leave their meals. Most of them had to keep their doors and windows closed, even on the hottest and most sultry summer days, especially when the breezes were from the south of the defendant's plant. A number of them were disturbed and aroused from their sleep by the invasion of these odors and fumes, and constrained to close their windows and keep them closed. Some were made uncomfortable while sitting in their own homes or on their piazzas in the summertime; others were often forced to rinse and even completely re-do their family wash in order to free it of the cork dust which had adhered to and the burnt cork odors, gases, and fumes which had permeated it while drying on the clothes line.

This testimony was abundantly supplemented and substantiated by that of numerous physicians, chemists, and experts on atmospheric pollution. Mr. MacGarry, a health inspector of Lyndhurst, testified that the different conditions and the nuisance complained of actually existed, especially in and around the vicinity of the defendant's plant. Dr. Willis,...