Everett v. Paschall

• Decision Date: 03 December 1910
• Citation: 61 Wash. 47,111 P. 879
• Parties: EVERETT et ux. v. PASCHALL.
• Court: Washington Supreme Court

111 P. 879

61 Wash. 47

EVERETT et ux. v. PASCHALL.

Supreme Court of Washington

December 3, 1910

Department 2. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by J. F. Everett and wife against Benjamin & Paschall. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

Reynolds Ballinger & Hutson, for appellants.

F. J Carver, Arthur E. Griffin, and John Slattery, for respondent.

CHADWICK J.

The findings of the trial judge show that plaintiffs are the owners of, and reside upon, lot 14, block 19, Madison Park addition to the city of Seattle, in King county; that their property is of the value of $2,000. Defendant is the owner of the south half of lots 12 and 13, block 9, upon which a cottage is situated. An alleyway separates plaintiffs' lot from the fractional lots of the defendant. On November 29, 1909, defendant opened, and has since maintained in his cottage, a private sanitarium for the treatment and care of persons afficted with tuberculosis. The sanitarium has a capacity for accommodating 10 patients, and, since opening there have been from 4 to 10 patients under treatment. The court found also, that the Madison Park addition is an established residential portion of the city; that the danger zone of tuberculosis is about three feet, beyond which there is no danger of infection or contagion; that pulmonary tuberculosis is a germ disease, thriving only in warmth and darkness, and propogating only in living animals; that the germ is destroyed by exposure to daylight without and suffused light within rooms in from a few minutes to a few hours; that the danger can be reduced to a negligable quantity by proper care of the expectorants and disinfection of the vessels used by the patients, their clothing, and the surroundings; that defendant was conducting his sanitarium with a due regard for the safety of his patients and the public; that there was no danger to persons living in the immediate vicinity; that the sanitarium had been in the past, and would in all probability continue to be, a great benefit to the community. After finding that the best results could be obtained only by locating the sanitarium within easy reach of the attending physicians, and within easy access of markets where proper food could be obtained, the court found also: 'That the disease of pulmonary tuberculosis is very prevalent, and that one-seventh of the deaths in the United States are caused by pulmonary tuberculosis; * * * that said sanitarium conducted by the defendant is not a menace to the plaintiffs, or either of them, or to any person living in any building which may hereafter be erected upon the lots owned by the plaintiffs; * * * that the germs of tuberculosis may be carried by house flies from the sputum of consumptives; * * * that there exists a general public dread of tuberculosis, and the maintenance of a tubercular hospital in the vicinity of residences detracts from the confortable use of such residential property, on account of the dread of contagion therefrom in the minds of persons ignorant of the true nature of the disease and the harmlessness of such sanitaria; * * * that the plaintiff's property will, by the maintenance of said sanitarium, be less salable and lessened in value from 33 1/3 per cent. to 50 per cent. and the other property in said neighborhood will be lessened in value in decreasing ratio, depending upon the distance located from said sanitarium.'

From these findings, and others which we have not deemed it necessary to notice, the court made the following conclusions of law:

'(1) That any and all damages, if any, which the plaintiffs have sustained in the past and will sustain in the future by reason of the maintenance and operation of said sanitarium conducted by the defendant, if continued to be conducted as it now is, are damnum absque injuria.

'(2) That the plaintiffs are not entitled to an injunction in this action enjoining or preventing the defendant from operating or maintaining the sanitarium owned and conducted by the defendant.

'(3) That said sanitarium is not a nuisance per se, and is not a nuisance in the manner in which it is being conducted.

'(4) That the defendant is entitled to have this action dismissed and entitled to recover of and from the plaintiffs his costs and disbursements herein.'

From these conclusions and the decree thereupon rendered, plaintiffs have appealed.

The text of our decision has been aptly stated by counsel for appellant: 'Can a tuberculosis hospital be maintained in a residential portion of a city, where its maintenance depreciates the value of contiguous property from 33 1/2 to 50 per cent., and where its existence detracts from the comfortable use of such residential property?' In the evolution of the law of nuisance there has grown an element not clearly recognized at common law. Blackstone, 3 Com. 216, has defined a nuisance to be 'anything that worketh hurt, inconvenience, or damage,' reducing the nuisances which affect a man's dwelling to three: (1) Overhanging it; (2) stopping ancient lights; and (3) corrupting the air with smells. It will be seen that within these definitions the maintenance of a sanitarium conducted with due attention to sanitation is not a nuisance, for it creates no physical inconvenience whatever. But a new element in the law of nuisance has been developed, first, by judicial decisions, and, later, by declaratory statutes; that is, the comfortable enjoyment of one's property. It is written in the statutes of this state: 'Nuisance consists in unlawfully doing an act or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency * * * or in any way renders other persons insecure in life, or in the use of property.' Rem. & Bal. Code, § 8309. Respondent contends, and the court has found, that the property of respondent is not a nuisance per se, and that it is so conducted that it is not, and cannot be, a nuisance by reason of its use; that there is no real danger; that the fear or dread of the disease is, in the light of scientific investigation, unfounded, imaginary, and fanciful; and that the injury, if any, is damnum absque injuria. On the other hand, the appellants insist that the location of a sanitarium for the treatment of a disease, of which there is a positive dread which science has so far failed to combat, so robs them of that pleasure in, and comfortable enjoyment of, their home as to make it an actionable nuisance under the statute; and, furthermore, under the findings of the court, that the presence of the sanitarium in a district given over to residences, and which has depreciated property from 33 to 50 per cent., is such a deprivation of property as will warrant a decree in their favor under the maxim, 'Sic utere tuo ut alienum non laedas.'

Waiving for the present the substantial pecuniary damage which the court found to exist, and addressing ourselves to the principle underlying the lower court's decree--that is that the danger being only in the apprehension of it, a fear unfounded and unsustained by science, a demon of the imagination--the courts will take no account of it. If dread of the disease and fear induced by the proximity of the sanitarium, in fact, disturb the comfortable enjoyment of the property of the appellants, we question our right to say that the fear is unfounded or unreasonable, when it is shared by the whole public to such an extent that property values are diminished. The question is, not whether the fear is founded in science, but whether it exists; not whether...