Corley v. Lancaster

• Court: Kentucky Court of Appeals
• Writing for the Court: LEWIS, JUDGE:
• Citation: Corley v. Lancaster, 81 Ky. 171, 5 Ky.L.Rptr. 39 (Ky. Ct. App. 1883)
• Decision Date: 19 May 1883
• Parties: Corley, & c., v. Lancaster.

81 Ky. 171

5 Ky.L.Rptr. 39

Corley, & c., v. Lancaster.

Court of Appeals of Kentucky.

May 19, 1883

1. There are public nuisances that produce injury to many persons, or, indeed, all the public; they are also private because, at the same time, they produce a special and particular injury to private rights.

2. Although the nuisance complained of be public in its nature if the plaintiff alleges and shows special injury to himself he may maintain his action, although other individuals have also suffered injury from the same cause.

3. Appellants are not estopped by their consent to the building of the dam which proved to be a nuisance, unless it be shown that he consented thereto, knowing, or having reason to believe, that a nuisance was to be the result.

4. The written contracts proposed, but not signed, were not relevant to the issue, but, as appellant introduced one, it was proper for appellee to introduce the other.

APPEAL FROM MARION CIRCUIT COURT.

ROUNTREE & LISLE AND RUSSELL & AVRITT FOR APPELLANT.

1. Although a nuisance be public in its character and effect yet, if an individual suffers injury therefrom in any manner peculiar to himself, or differently from others, he has his right of action.

2. There is a broad distinction between the original erection of a structure that a party consenting thereto knows will result in a nuisance and where one consents to a structure as a measure of relief while the wrong is being done to him. (Wood on Nuisances, 577; Lead Co. Appeal, Am. Law Rep., Oct., 1881; Commonwealth v. Ashbrook, 1 Bush, 139; Addison on Cont., 12; 2 Bush, 182; 5 J. J. Mar., 564; 9 Bush, 23; Herman on Estoppel, 354; Crowe v. Brown, Sneed's Rep., 102.)

R. J. BROWNE & C. S. HILL FOR APPELLEE.

1. All the proof shows, that if there be a nuisance at all, it is common to the entire neighborhood, and not special to appellants.

2. For any of those acts which are in their nature public nuisances, no individual is entitled to an action unless he sustain some extraordinary or particular damage not common to others.

3. Appellant admits the building of the rock wall, and agreed to give the rock therefor. He is estopped to complain of any injury resulting therefrom. (Cosby v. Owensboro and Russellville Railroad Co., 10 Bush, 292; 74 N. C., 471; 76 N.Y. 413; 14 Bush, 357; Civil Code, sec. 598; Louisville Coffin Co. v. Warren, 78 Ky. 403; St. Helen Smelting Co. v. Tiffany, 4 Am. Law Rep.; Woods on Nuisances, 4; 11 Richardson S. C. Rep., 214; Pennsylvania Lead Co. Appeal No. 1, Am. Law Rep., Oct., 1881; 30 N.Y. 593; 4 Minor's Inst., part 1, p. 1.)

OPINION

LEWIS JUDGE:

This is an action by appellants to recover damages on account of the alleged creation and continuance by appellee of a nuisance.

It appears that in 1874 appellee erected about 250 yards from the residence of appellants, and on the opposite side of a stream called Hardin's creek, in Marion county, a large distillery; and that he operated his distillery and fed large numbers of animals, confined under the sheds constructed for the purpose, from five to seven months each year, from that time until the commencement of this action.

The residence of appellants, husband and wife, is situated upon a farm of near 100 acres, belonging to the wife, in front of which for several hundred yards flows the creek.

It is alleged by appellants that the deposits from the animals, and other offensive matter produced by the distillery, have been by appellee permitted to run into the creek, poisoning and rendering impure the water thereof that previously flowed pure into and over the lands of appellants, whereby it has become unfit for use of man or beast, or to gather ice from, which they previously used it for. And that the decaying matter produced in the manner mentioned has rendered the air so foul and offensive as to cause appellants and their family to become sick, and often to vomit while taking their meals; and in consequence of the alleged nuisance, the value of their land as a place of abode has been greatly lessened.

Appellee, in his answer, denies that the water of the creek has been rendered unfit for use, or the air made offensive, or that appellants have been damaged to any extent by reason of the alleged nuisance. And further answering, he states that if there has been any damage to appellants, which he denies, " the same was caused by the suggestion and instance of plaintiff, Anderson Corley, and he also prevented the removal of said cause of bad air."

Upon the trial the jury returned a verdict for the defendant in the action, and judgment having been rendered in accordance with it, this appeal is prosecuted.

At the close of the evidence offered at the trial by appellants, a motion was made by appellee for a peremptory instruction, but it was overruled.

The ground upon which the motion was made, and upon which counsel for appellee now contends that the judgment should be affirmed, is, that the evidence showed that, whatever nuisance existed, if any, was common to the whole neighborhood, and not special to appellants, and, consequently, they have no right to recover in this action, having failed to allege and prove special damages; and in support of his position, cites the case of Cosby, & c., v. The Owensboro & R. R. R. Co., 10 Bush, 288, where this language is used: " Private individuals, seeking relief against a public nuisance, must show that they suffer an injury distinct from that suffered by the general public, and that said injury is one that the public, in the promotion of the general interest, has not the right to inflict upon them without compensation."

The nuisance complained of in the case referred to was created by the construction of a railroad...