Cavanaugh v. Corbin Copper Co.
| Decision Date | 11 July 1918 |
| Docket Number | 3925. |
| Parties | CAVANAUGH v. CORBIN COPPER CO. et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; John B. McClernan Judge.
Action by M. J. Cavanaugh against the Corbin Copper Company, a corporation, and others. From a judgment for plaintiff, and an order denying its motion for a new trial, the named defendant appeals. Affirmed.
Walker & Walker, of Butte, for appellant.
J. A Poore, of Butte, for respondent.
The Lawlor and Kemper addition to Butte comprises the surface ground of the Gambrinus Quartz Lodge mining claim, which was platted and sold generally for residence purposes. About 1905 plaintiff purchased lot 20, block 2, with a dwelling on it and ever since has occupied the premises as a residence for himself and family. The defendant Corbin Copper Company became the owner of lots 10, 11, 12, and 18 in the same block, and in 1913 commenced sinking a shaft on lot 18, about 50 feet from plaintiff's residence, and continued the work for a year or more. In furtherance of its purpose the company placed upon its lots a gallows frame, a tramway, a blacksmith shop, and other structures and machinery necessary to the prosecution of mining operations. This action was brought to recover damages, upon the theory that appellant was maintaining a nuisance which injuriously affected the health and comfort of plaintiff and his family and the value of their property. Certain individuals were joined as defendants, but they were acquitted of liability. The plaintiff prevailed as against the copper company, and it appealed from the judgment and from an order denying a new trial.
Three questions are submitted for determination: (1) Did the mining operations of the defendant company constitute a nuisance? (2) Is plaintiff estopped by deed from complaining of defendant's operations? (3) Does the evidence justify a judgment for more than nominal damages?
1. Section 6162, Revised Codes, provides:
"Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, *** is a nuisance."
The language of this statute is to be given a common-sense construction. On the one hand, it takes care that a legitimate and useful business or occupation shall not be suppressed on account of some imaginary or trifling annoyance, which offends the over-refined tastes or disturbs the supersensitive nerves of a fastidious person; on the other, it does not permit any one, whatever his circumstances, to be driven from his home, or compelled to live in it in positive discomfort, in order to accommodate another, in the pursuit of his business which offends the mind and taste of the average individual.
The question of nuisance vel non is not to be determined in the abstract. Every case must be considered with reference to its own peculiar facts and circumstances. No one would have the temerity to contend that mining is per se a nuisance; but it is elementary that a business otherwise lawful and useful may become a nuisance, by reason of its location or the manner in which it is conducted. Neither a powder magazine nor a stone quarry is of itself a nuisance, but either may become such when located in a populous community or in a residence district. Cameron v. Kenyon-Connell Co., 22 Mont 312, 56 P. 358, 44 L. R. A. 508, 74 Am. St. Rep. 602; Longtin v. Persell, 30 Mont. 306, 76 P. 699, 65 L. R. A. 655, 104 Am. St. Rep. 723, 2 Ann. Cas. 198. Upon the same principle a gas plant (Judson v. Los Angeles S. G. Co., 157 Cal. 168, 106 P. 581, 26 L. R. A. [N. S.] 183, 21 Ann. Cas. 1247), and insane asylum (Shepard v. Seattle, 59 Wash. 363, 109 P. 1067, 40 L. R. A. [N. S.] 647), a brick kiln (Face v. Cherry, 117 Va. 41, 84 S.E. 10, Ann. Cas. 1917E, 418), or a tin shop may become a nuisance. Numerous other illustrative cases will be found cited in 29 Cyc. 1165 et seq. If the evidence brings appellant's mining operations within the definition given in section 6162 above, it is no defense to say that they were carried on according to approved methods, or that in maintaining the nuisance appellant exercised due care, or that mining is necessary to the industrial life of the particular district. Community benefits cannot be urged as justification for the injury or destruction of private property without compensation. Townsend v. Norfolk R. & L. Co., 105 Va. 22, 56 S.E. 970, 4 L. R. A. (N. S.) 87, 115 Am. St. Rep. 842, 8 Ann. Cas. 558, and...
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