Et Ux. v. Poultrymen's Serv. Corp...

Decision Date18 June 1945
Docket Number149/460.
Citation43 A.2d 15
PartiesKOSICH et ux. v. POULTRYMEN'S SERVICE CORPORATION.
CourtNew Jersey Court of Chancery
OPINION TEXT STARTS HERE

COPYRIGHT MATERIAL OMITTED.

Suit by Anthony Kosich and wife against the Poultrymen's Service Corporation for injunction against maintenance of a private nuisance.

Decree granting injunction advised to extent indicated in opinion.

1. Principles which will guide the Chancellor in granting or denying an injunction against alleged nuisances are, among others, the following:

(a) If the legal right is not clear, or the injury is doubtful, eventual or contingent, equity will give no aid. Demarest v. Hardham, 34 N.J.Eq. 469.

(b) Any business, however lawful, which causes annoyances that materially interfere with the ordinary comfort, physically, of human existence, is a nuisance that should be restrained; and smoke, noise, and bad odors, even when not injurious to health, may render a dwelling so uncomfortable as to drive from it anyone not compelled by poverty to remain. Cleveland v. Citizens' Gaslight Co., 20 N.J.Eq. 201.

(c) To throw sand, earth or water upon lands of another in ever so small a quantity, is an invasion of property and a trespass, and to continue to do so constitutes a nuisance. Hennessy v. Carmony, 50 N.J.Eq. 616, 25 A. 374.

(d) To enjoin the prosecution of a perfectly legal business on account of the noise made in conducting it, the evidence should be clear and convincing.

In the conditions of present living noise seems inseparable from the conduct of many necessary occupations. Its presence is a nuisance in the popular sense in which that word is used, but in the absence of statute noise becomes actionable only when it passes the limits of reasonable adjustment to the conditions of the locality and the needs of the maker to the needs of the listener. What those limits are cannot be fixed by any definite measure of quantity or quality. They depend upon the circumstances of the particular case.

If those who complain of a nuisance from the operation of a lawful business located in the vicinity of that business after it had been established and while it was operating, that is an element to be considered in judicially determining whether or not the comfort of the complainants in the use of their property has been adversely affected to an unreasonable extent. Benton v. Kernan, 130 N.J.Eq. 193, 21 A.2d 755.

2. Noises, vibrations, dust, dirt, and offensive odors have all been declared nuisances under certain circumstances in this jurisdiction. See cases collected infra.

3. The fact that other factors may have contributed to the annoyances complained of, will not afford immunity to a defendant who is proven to have caused offensive conditions upon complainant's property. Kroecker v. Camden Coke Co., 82 N.J.Eq. 373, 88 A. 955.

4. Even though a defendant, pending suit, partially abates a nuisance, complainant is entitled to that complete redress to which he was entitled when he sought his remedy. Kroecker v. Camden Coke Co., supra.

5. Where the properties of complainant and defendant are adjacent, and are located in a section which is both a residential and a manufacturing district, the fact that the municipality has designated the area as a manufacturing zone gives no right to a manufacturer to inflict a nuisance upon his neighbors through the creation and dissemination of new, unusual and obnoxious noises, vibrations, dust, dirt, and foul odors which injuriously affect the comfort of complainant and of other average, normal individuals in the vicinity to an unreasonable extent.

6. In the instant case, use of complainants' premises for dwelling purposes antedated the establishment of defendant's business, but defendant's main mill was in operation before complainants improved their property; nevertheless, complainants were not required to anticipate the rapid growth of defendant's business or to submit to the increased noise, dirt and annoyance incident to the speeding up of defendant's business, the installation of new and noise-producing appliances and the nuisance-producing carelessness of defendant's employees.

7. Whether conditions complained of constitute a legal nuisance must always be determined by the pertinent circumstances of each case, but the wealth or poverty of individuals affected is not such a circumstance.

8. Where complainant has delayed the institution of suit in reliance upon defendant's promises to remedy conditions complained of, he will not be barred of his remedy on the ground of laches. Nor will the existence of a nuisance originally slight but becoming increasingly more aggravating estop persons affected thereby, through laches, from maintaining a bill.

Parsons, Labrecque & Borden and Theodore J. Labrecque, all of Red Bank, for complainants.

Ewart & Bennett, Howard Ewart, and Percy Camp, all of Toms River, for defendant.

WOODRUFF, Vice Chancellor.

Complainants filed their bill to enjoin the defendant, Poultrymen's Service Corporation, from operating its poultry food manufacturing and processing plant in such a manner as to produce and disseminate meal, dust, dirt, foul odors, noises and vibrations, which complainants charge have constituted and do constitute a private nuisance injurious to them personally and to their property.

The complainants, husband and wife, and the defendant corporation own immediately adjoining properties of Flint Boulevard, in South Toms River, Ocean County. On the complainants' land there is a large building containing five stores and fourteen apartments. Complainants make their home in one apartment; they rent the others. The stores are all presently used by the complainant Anthony Kosich; therein he conducts a new and used furniture and house furnishing business. To the rear of the store and apartment building is a one story building divided into private garages.

Defendant's land runs through from Flint Boulevard to South Main Street. Upon it stands a four-story, sheet-metal enclosed mill, a mash-mixing building, a grain storage building, and a garage. When the main building was erected it was made to face Flint Boulevard, but it was not built out to the building line. Subsequently, two dust collecting sheds were added to the front of the mill and a large cone-shaped dust collector was installed above them near the roof; also, two similar dust collectors were installed outside of the mill near the roof on the side facing the property of the complainants.

The defendant has always taken its delivery of grain from freight cars placed on a siding across Flint Boulevard from its mill and the property of the complainants. Originally grain was shovelled from the cars into trucks, carried over the boulevard and dumped into hoppers leading into the mill. In July, 1927 the defendant installed a vacuum grain unloading device to do this work and, in the summer and fall of 1943, it substituted therefor another system. Grain is now drawn by the vacuum from the freight cars into a flexible metal hose, thence through a metal pipe under the highway and into the mill. The vacuum is created by a fifty horsepower electric motor operating an exhaust fan, and the air withdrawn from the pipe is released through a muffler into the outer air. Grain is carried from the pipe outlet into a tank containing a rapidly revolving cyclone cleaner; it then drops into a closed chute in which it is carried to a cleaning separator where any remaining dust is separated from the grain. This dust is drawn up through a pipe into one of the cyclone dust collectors on the outside of the mill where the heavier particles fall to the bottom and are carried into one of the dust sheds and the lighter dust is discharged into the outer air.

In addition to handling whole grain, defendant cracks corn and also grinds it into fine meal. The dust arising from such cracking and grinding, and from subsequent screening and grading, is forced by means of fans to one of the cyclone dust collectors installed on the outside of the building. There the heavier portions settle and are carried by an enclosed conveyor to storage bins; the lighter dust, in this instance, passes from the collector back into the mill and to a tubular dust collector, from whence it is carried to a storage bin.

Defendant also combines meat scraps, fish meal, bran and other ingredients in large mixers to form what is known as a dry mix. The ingredients are received in dry form in bags. Another appliance, known as a premixer, combines semi-solid buttermilk, fish oils and distillers' syrup into a wet mix. The wet mix and the dry mix are then combined to form what is known in the trade as a mash.

The bags in which defendant's products are sold are returned to the mill and are there cleaned by a motor-driven fan which sucks the dust from the bags. This dust also goes into a cyclone collector. The heavier portion of the dust is placed in bags; the lighter dust passes out of the top of the collector into the open air. The exhaust from the vacuum unloading system also contains dust. It is discharged through a twelve inch pipe, equipped with a muffler, into one of the dust sheds. These sheds are fitted with wooden louvers and hung with burlap, and are designed to receive and retain all dust except such as may pass through the burlap into the open air.

The conditions of which complainants were complaining at the time they filed their original bill of complaint in this cause may be thus classified:

(1) Dust, dirt, meal, chaff and other grain residue emanating from defendant's mill, falling upon complainants' land and buildings and carried into their stores and apartments;

(2) Noise and vibration resulting generally from the operation of defendant's machinery and appliances, particularly the noises at the freight cars on the siding incident to the operation of defendant's vacuum grain unloading device;

(3) Foul odors from fermenting or deteriorating meal and grain residue. By their amended bill complainants...

To continue reading

Request your trial
14 cases
  • Kozesnik v. Montgomery Tp.
    • United States
    • New Jersey Supreme Court
    • April 8, 1957
    ...is no defense that the zoning ordinance authorized the operation and hence judicial relief may be had. Kosich v. Poultrymen's Service Corp., 136 N.J.Eq. 571, 584, 43 A.2d 15 (Ch.1945). Nonetheless when a zoning ordinance is being prepared, and as here the potential nuisance is recognized un......
  • State v. Holland
    • United States
    • New Jersey Superior Court — Appellate Division
    • January 15, 1975
    ...101 N.J.Eq. 281, 137 A. 416 (E. & A. 1927); Damadio v. Levinsohn, 111 N.J.Eq. 84, 161 A. 504 (Ch.1932); Kosich v. Poultrymen's Service Corp., 136 N.J.Eq. 571, 43 A.2d 15 (Ch.1945); Oechsle v. Ruhl, 140 N.J.Eq. 355, 54 A.2d 462 (Ch.1947); Lou Menges Organization v. North Jersey Quarry Co., 3......
  • Rockenbach v. Apostle
    • United States
    • Michigan Supreme Court
    • May 14, 1951
    ...Blue Bird Laundry Co., 85 Cal.App. 388, 259 P. 484; Fendley v. City of Anaheim, 110 Cal.App. 731, 294 P. 769; Kosich v. Poultrymen's Service Corp., 136 N.J.Eq. 571, 43 A.2d 15; Perrin's Appeal, 305 Pa. 42, 156 A. 305, 79 A.L.R. 912; White v. Old York Road County Club, 318 Pa. 346, 178 A. Th......
  • Associated Metals & Minerals Corp. v. Dixon Chemical & Research, Inc.
    • United States
    • New Jersey Superior Court — Appellate Division
    • February 19, 1963
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT