Bradbury Marble Co. v. Laclede Gas Light Co.

• Decision Date: 17 December 1907
• Citation: 106 S.W. 594,128 Mo. App. 96
• Parties: BRADBURY MARBLE CO. v. LACLEDE GAS LIGHT CO.
• Court: Missouri Court of Appeals

106 S.W. 594

128 Mo. A. 96

BRADBURY MARBLE CO. v. LACLEDE GAS LIGHT CO.

St. Louis Court of Appeals. Missouri.

December 17, 1907.

Rehearing Denied January 7, 1908.

1. NUISANCE—PRIVATE NUISANCE — DAMAGES —INDIRECT CONSEQUENCES—DEPOSITS FROM GAS PLANT.

The fact that discharges from defendant's gas plant, deposited on plaintiff's marble, were harmless, in the absence of moisture, would not render the damages so indirect as to prevent recovery.

2. DAMAGES—QUESTIONS FOR JURY.

Whether damages to plaintiff's marble resulted from discharges from defendant's gas plant alone held, under the evidence, for the jury.

3. NUISANCE—PLEADING.

Where a petition charges that defendant in manufacturing gas wrongfully caused large quantities of discoloring ashes, etc., mixed with carbon, iron, etc., to issue, which were deposited upon plaintiff's stock of marble, and that by reason thereof plaintiff was required to make expenditures for sand rubbing, the action is not based on negligence, but is for maintaining a private nuisance.

4. SAME—NATURE AND ELEMENTS.

As a general rule an act in itself lawful is a nuisance, if it is done in a particular place, and so necessarily tends to injure and damage another's property; but one may reasonably enjoy his property by putting it to any use he chooses, whatever damage results to another, providing no legal right is violated.

5. SAME — ACTS CONSTITUTING PRIVATE NUISANCE.

As a general proposition, neither a private person nor a corporation has the right to erect and maintain a nuisance, which has the effect of depriving an adjoining property owner of the beneficial use of his land, without making compensation for the injury.

6. SAME—NUISANCE PER SE—GAS PLANTS.

The operation of a plant for manufacturing gas for heating and lighting purposes is lawful, and not a nuisance per se; and if there is no evidence that its machines were operated in a negligent or unskillful manner, or that they were in themselves obnoxious, there can be no recovery for damages therefrom, in the absence of a showing of an interference with the ordinary use of plaintiff's property, or a violation of his legal rights.

7. SAME—QUESTIONS FOR JURY — NATURE OF QUESTION.

In an action at law to recover for damages caused by a private nuisance, whether the acts complained of constitute a nuisance should be left to the jury, if the evidence tends to show an invasion of plaintiff's legal rights, to his damage.

8. SAME—INVASION OF LEGAL RIGHTS.

In an action for damages caused by discharges from a gas plant, whether plaintiff's legal rights were invaded held, under the evidence, for the jury.

9. SAME—DEFENSES.

Though plaintiff, a marble company, has a right to stack its marble on its yard, and leave it uncovered, a defendant gas company across the street has a right to operate its machines in a careful and skillful manner, and to discharge such substances as are not injurious to the neighboring property, when used in the usual way, and plaintiff cannot recover, if it is making an unusual use of its yard in view of its location in a district devoted to manufacturing purposes, or if the marble so stacked in its yard is of so delicate a nature as to become stained and injured from the reasonable use of the gas plant.

10. TRIAL — INSTRUCTIONS IGNORING DEFENSES.

An instruction authorizing a verdict for plaintiff upon mere proof that its marble was damaged by discharges from defendant's gas plant, but ignoring defendant's legal right to operate its machines, and whether plaintiff devoted its premises to an unusual use, is erroneous in omitting important issues.

11. NUISANCE—PRIVATE NUISANCE — ACQUISITION OF RIGHTS BY PRESCRIPTION.

While the right to maintain a public nuisance cannot be acquired by prescription, the right to maintain a private nuisance may be established by adverse and exclusive enjoyment for the length of time prescribed by the statute for the acquisition of title to land by adverse possession.

12. SAME—QUESTION FOR JURY.

Evidence held sufficient to warrant the submission of the issue of a prescriptive right to maintain and continue a private nuisance.

Appeal from Circuit Court, City of St. Louis; Daniel D. Fisher, Judge.

Action by the Bradbury Marble Company against the Laclede Gas Light Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Plaintiff and defendant are both Missouri corporations. Plaintiff is engaged in the business of buying, selling, polishing, and cutting marble, granite, and other stone for building and monumental purposes, and occupies a parcel of ground in block 47, city of St. Louis. The lot has a frontage of 125 feet on the west line of Second street, and a depth of 150 feet, and is situated between Convent and Rutger streets. Defendant is engaged in manufacturing gas for lighting and heating purposes, and for many years, to wit, since 1869, has maintained a plant for the manufacture of gas east of and just across Second street from plaintiff's marble works and yard. It is charged in the petition "that defendant, in the process of manufacturing gas, as aforesaid, on said premises, and in and with said works and plant, wrongfully caused to issue and proceed from said works and plant large quantities of offensive, deleterious, harmful, and discoloring ashes, smoke, gases, soot, cinders, oil, dust, together with and mixed with carbon, iron pyrites, oxydized pyrites, which, on various days and times from December 20, 1903, up to the date of commencing this action, spread and diffused themselves, and were, especially whenever the wind was blowing, or there were currents of air moving from the east in a westwardly direction, diffused and spread over and upon the lot or tract of ground in block No. 47, of said city of St. Louis, used, occupied by, and in the possession of plaintiff (Bradbury Marble Company), as hereinbefore alleged, and settled and were deposited upon and against the stock of material aforesaid, consisting chiefly of marble then and there owned by and in possession of plaintiff, and then and there kept and stored by it on said lot or tract of ground, whereby and in consequence of which a large number of pieces and blocks of said marble, to wit, 1,167 pieces and blocks, so, and then and there owned by and in the possession of Bradbury Marble Company (plaintiff) were stained, discolored, and partially disintegrated and made and rendered unfit for use, unsalable, and valueless in their said damaged and injured condition, and said stains, discoloration, and disintegration penetrated said pieces and blocks of marble to such extent that it became and was necessary to do a large amount of extra sand rubbing thereto and thereon in order to restore said marble and make it again fit for use and salable; that by reason of the premises and of defendant's wrongful acts aforesaid plaintiff has been compelled to expend and has already expended a large sum of money, to wit, the sum of $850, and will hereafter be compelled to expend further large sums, to wit, the sum of $215 in doing extra sand rubbing to and upon said pieces and blocks of marble, damaged and injured as aforesaid by defendant's wrongful acts aforesaid, between the 20th day of December, 1903, and the date of commencing this action, that is, an additional sand rubbing thereon and thereto which would not have been necessary if it had not been for the damage and injury aforesaid, caused to said marble by defendant; that the aggregate of said two sums, to wit, the sum of $1,065, was, at all the times herein mentioned, and is, the reasonable cost and expense of doing said extra sand rubbing." A bill of particulars, stating the damage to the marble, was filed with the petition. It is also stated in the petition that plaintiff in 1903 notified defendant of the harm which was being done its property, and presented a bill for the damages accrued up to that time ($470), but defendant refused to pay the same. The answer was, first, a general denial, and the following: "Defendant, further answering, says that in its business of manufacturing gas it is and was operating the plant complained of in plaintiff's amended petition. Defendant further states that it acquired the property in question from the St. Louis Gas Light Company, in or about the year 1889, and that said St. Louis Gas Light Company erected the works and plant thereon, and that said plant and works were operated by said St. Louis Gas Light Company and this defendant in the same manner in which they were operated during the times mentioned in plaintiff's amended petition, for a period of over 20 years prior to any complaint from plaintiff of the acts alleged in said amended petition to have been committed by defendant; that the alleged damage and injury to plaintiff's stock of marble, if any, was caused by the acts of plaintiff in placing and leaving said marble uncovered and unprotected and exposed to the elements, when plaintiff well knew that by such exposure its marble would be injured and damaged thereby; that the alleged injury and damage to plaintiff's said stock of marble, if any, was greatly increased because plaintiff needlessly and carelessly exposed a greater part of said marble than was necessary, that is to say, that instead of placing the small surfaces in an upright position, it placed the large surfaces upright. Wherefore, having fully answered, defendant prays to be discharged with its costs in this behalf expended." The reply was a general denial of the new matter in the answer. Verdict and judgment were for plaintiff for $1,000.01, which was reduced by voluntary remittitur to $975.

William A. Baehr was introduced as a witness by plaintiff, and testified he was defendant's chief engineer, and had charge of all its manufacturing stations in the city of St. Louis; that Station A, located east of plaintiff's marble yards, is what is known as a water gas station, composed of machines consisting of three parts,...