Hennessey v. Carmony

• Decision Date: 19 November 1892
• Citation: 50 N.J.H. 616,25 A. 374
• Parties: HENNESSEY v. CARMONY et ux.
• Court: New Jersey Court of Chancery

25 A. 374

50 N.J.H. 616

HENNESSEY

v. CARMONY et ux.

Court of Chancery of New Jersey.

Nov. 19, 1892.

(Syllabus by the Court.)

Bill by Richard Hennessey against Cyrus P. Carmony and wife to restrain a private nuisance. Injunction granted.

J. W. Wartman, for complainant.

S. H. Grey, for defendants.

PITNEY, V. C. The object of the bill is to restrain a private nuisance. The complainant is the owner of a small lot of land, about 18 feet front and rear by about 96 feet deep, in the city of Camden, fronting on the west side of South Eighth street, about midway between Spruce street on the north and Cherry street on the south. Upon this lot is situated a small dwelling house, composed of a main or front part of brick, about 15 feet front by 30 feet deep, two stories high, leaving a passageway of 3 feet on the northerly side, and having a wooden extension or kitchen about 10 by 35 feet, two stories high, in the rear. The rear of this structure is 31 1/2 feet from the rear line of the lot. The ground lying to the north and west of this lot is owned by the defendants, or one of them, and is used for a dye works for coloring cotton and other materials. In the process of dyeing, it, of course, becomes necessary to dry those materials, and in order to hasten this process use is made of two machines, called in the evidence "whizzers," in to which the wet material is placed, and which, by being revolved at great speed, drive out the water by centrifugal force. These machines are driven by two small engines attached to them directly, without intermediate gearing, so that the engines must make the same number of revolutions as do the whizzers, and the more rapid the revolution, the more rapid the process of drying. The principal subject of litigation was as to the effect upon the complainant's premises of these machines. There were other matters complained of, some of which were remedied about the time the bill was filed, and such as were not remedied are capable of being remedied without serious inconvenience to the defendants. I will state them: First. The defendants, shortly before the bill was filed, had occasion to place a wire stay rope to support an iron smokestack for their steam boiler, and in so doing fastened the lower end of it to an object on their own land, so situate, as to the smoke stack that the wire rope crossed and overhung the rear of the lot of the complainant. This was removed after complaint made, but whether just before or just after the bill was Bled was a disputed question. Second. Some time previous to the filing of the bill—months or years—the defendants placed on their land, a few feet only from the sideline of complainant's lot, and near his back or kitchen door, a privy-house, which was used by their employes. This privy was placed immediately over a small brick sewer which led from defendants' works across their land to the public sewer in the street, and a small hole was made in this sewer under the privy. The defendants, at stated times, blew off their steam boiler into this sewer, with the result that the hot steam there introduced drove out the offensive odors of the privy into complainant's kitchen. Upon complaint being made of this practice, it was also discontinued, and the hole in the sewer closed, but whether before or after bill filed was also a matter of dispute. Third. The engines and the machines (whizzers) above mentioned stand near each other in a low, one-story building, Immediately in the rear of complainant's lot, and the steam is exhausted from the engines upon the roof. The complainant charges that hot water, vapor, and spray from these exhausts, when the wind blows from the dye house towards complainant's house, come over onto his lot, laden with cinders from the smokestack, and greasy filth from the engines, and interfere with the use of the yard for drying clothes, etc. Fourth. Complainant contends that the running of the centrifugal machines before mentioned has the effect of making a disagreeable noise, and also of jarring and shaking the house, so that the windows, and doors rattle, the pieces of table crockery rattle, and move upon one another on the shelves, and the walls are more or less cracked.

Upon the two latter branches of the case (especially the last one) more than twenty witnesses were sworn on the one side and the other. With regard to the charge that dirty water, vapor, and spray come onto complainant's premises from the engine exhausts, the proof is that the summer before the bill was filed defendants made certain repairs to and changes in their works, and when, after these repairs, the small engines were started up, shortly before the bill was filed, the steam exhausts led out to a point on the roof quite near the complainant's lot, with the result above stated, and that, upon complaint being made, the exhaust pipes were cut off, and made to lead directly to the roof, and to exhaust only some six inches above it. The point where they now exhaust is about 25 feet from the rear of complainant's lot, and it was contended by the defendants that this change rendered it impossible for anything proceeding from the exhaust to reach the complainant's lot. Notwithstanding this change, however, complainant's witnesses, himself, wife, and children, swear that the filthy spray continued to come onto their lot whenever the wind was blowing from the factory in that direction. In this they are supported by a Mrs. Cheeseman, a witness called by the defendants, who had been a tenant in complainant's house after bill filed. She swears to the fouling of her washed clothing from the spray from these exhausts. It was proved that oil was constantly fed into these steam cylinders while in motion, and, of course, as is well known, it is taken up by the steam, passes out with it through the exhaust, rendering the water, spray, and vapor resulting from the condensation of the steam greasy, and sometimes slightly discolored by the result of the wear of the piston. I think complainant made out his case in this regard, and is entitled to relief on that part of his bill. There is not the least difficulty in remedying the nuisance by simply extending the exhaust pipes by a bend down to one of the leaders which carry the rain water from the roof of the factory.

With regard to the alleged noise and vibration, and the right of the complainant to relief on that score if the vibrations be established, more troublesome questions arise. The proof is clear that when these machines, called in the evidence "whizzers," were first put in, some years ago, they did produce a serious vibration in the neighboring buildings. The factory is situate in the easterly center of the block, which is oblong, and bounded north by Spruce street, east by Eighth street and south by Cherry street, and the engines are about equidistant— say 110 feet to 120 feet—from each of these streets, and about 30 feet from the rear of complainant's lot. On the west of the factory is a church and a public school-house, and the latter is more than 150 feet distant from the machines. So great was the vibration they produced at the school-house that complaint was made by the school authorities, and the defendants attempted to remedy the nuisance by constructing a solid foundation of masonry, extending some six feet below the surface, and placing the machines upon it. It is also proven by one of the defendants' witnesses, who lived in the complainant's house at and before the construction of this foundation, that complainant's house was seriously shaken by the machines. This solid foundation, put in about three years before bill filed, seems to have remedied the difficulty so far as the school-house was concerned, and, under ordinary circumstances, one would suppose that the result would be general, and include buildings as near as complainant's dwelling. But the evidence compels me to come to a contrary conclusion. Numerous witnesses living in the neighborhood —most of them much further away from the machines than complainant's house —swear to a sensible vibration when the machines, as now placed, are going at full speed. Capt. Ward, an intelligent, impartial, and, I think, reliable, witness, lived in a house over 300 feet away, and testifies to a distinct vibration felt at his house whenever the machines were in full motion, causing the windows to rattle, and dishes to move on the shelves. He testifies further that, according to his observation, the vibration is generally greater in the morning and evening, before and after school hours, a circumstance which, if true, is significant, in connection with the complaint of the school authorities, and the fact that the more rapid the revolution the greater the vibration. Capt. Ward also accounts for the vibration being felt so far in a manner satisfactory to me. He has been a contractor for building sewers, and thus had occasion to excavate extensively in different parts of the city, and he says that whenever you excavate in that neighborhood seven or eight feet below the surface you come to a sort of quicksand, wet, of course, as all quicksand is, spread to a depth or from two to four feet above the solid bottom. This quicksand resembles in its character a body of water under pressure, and forms at once a conductor of the vibratory force. It is a well-known fact that the jar of a steam pump may be carried through the water in an iron main and felt at a great distance from its source. The evidence of the complainant and his family is strong as to the noise and vibration in his house, and its effect, as above stated, in causing the windows to rattle, and the dishes to rattle and none upon their shelves, the doors to swing open, and the walls to crack; and it is corroborated not only by the evidence of the numerous witnesses who have felt it further away, but, in a measure, by that of Mrs. Cheeseman, who, as before stated, occupied the house as a tonant of the complainant a...