Holman v. Athens Empire Laundry Co.
| Decision Date | 04 September 1919 |
| Docket Number | 1058. |
| Citation | 100 S.E. 207,149 Ga. 345 |
| Parties | HOLMAN v. ATHENS EMPIRE LAUNDRY CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
If a public nuisance causes special damage to a private citizen he has a right of action therefor.
If a private nuisance causes injury to the person or property, or both, of another, a cause of action accrues.
"A nuisance is anything that worketh hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful does not keep it from being a nuisance."
Every person has the right to have the air diffused over his premises, whether located in the city or country, in its natural state and free from artificial impurities.
(a) By air in its natural state and free from artificial impurities is meant pure air consistent with the locality and character of the community.
(b) The pollution of the air, so far as reasonably necessary to the enjoyment of life and indispensable to the progress of society, is not actionable.
(c) The privilege of use incident to the right of property must not be exercised in an unreasonable manner, so as to inflict injury upon another unnecessarily.
(d) The maxim "Sic utere tuo ut alienum non lædas," considered and applied.
Smoke is not per se a nuisance.
To constitute smoke a nuisance, it must be such as to produce either actual, tangible, and substantial injury to neighboring property itself, or such as to interfere sensibly with its use and enjoyment by persons of ordinary sensibilities.
The jurisdiction of equity to restrain nuisances is in aid of the legal right, when the legal right is inadequate, and to prevent a multiplicity of suits.
In cases of nuisances, the foundation for the interference of equity rests in the necessity of preventing irreparable injury and multiplicity of suits.
(a) There is in principle no distinction between any of the cases, whether it be smoke, smell, noise, or gas.
(b) The doctrines of "de minimis," "balance of injury," or "public interest," and "discretion" considered.
(c) In a suit to enjoin the continuance of a nuisance created by smoke alone, the plaintiff cannot be denied injunctive relief, his case being otherwise made out, because it would injure the defendant or the public to grant it. In such a case the chancellor has no discretion at the final trial.
(d) The injuries may be balanced, and the discretion of the chancellor exercised in the grant or refusal of an interlocutory injunction.
Under the pleadings and evidence, the court erred in directing the jury to return a verdict for the defendant.
Error from Superior Court, Clarke County; A. J. Cobb, Judge.
Suit for damages, injunction, etc., by W. S. Holman against the Athens Empire Laundry Company. Directed verdict for defendant, motion for new trial denied, and plaintiff brings error. Reversed.
In a suit in equity to restrain defendant laundry company from using soft coal, that is, such coal as throws out a black dense smoke, where the evidence was such as to authorize a finding by jury that the use of coke was at once convenient and practical, the direction of a verdict for defendant was error, as whether plaintiff was entitled to an injunction was for the jury.
W. S Holman is the owner of a nine-story brick building located on the corner of Clayton and Lumpkin streets in the city of Athens, known as the Holman Building. The building was completed in January, 1914. The exterior construction of the building is of tapestry brick. The ground floor of the building is occupied by a café and lunch room, ice cream and candy factory, cigar factory, and a gas company. The other floors are designed for office purposes. Immediately across Lumpkin street from the Holman Building, and on the corner of Clayton and Lumpkin streets, is the two-story brick building of the Athens Empire Laundry Company. This building has been occupied by a steam laundry for about 18 years. In the building is a 35 horse power steam boiler, used in the operation of the laundry. The smokestack on the west side of the laundry is about 140 feet away from the Holman building. The top of the stack, which is about 60 feet in height, is on a level with the sixth floor of the Holman building.
In July, 1917, W. S. Holman filed an equitable petition in the superior court of Clarke county, in which he alleged that until recently the laundry company had used coke for the purpose of firing its boiler; that coke did not give off any considerable quantity of smoke, and could be used for fuel without financial loss or inconvenience to the laundry company, and is obtainable in the necessary quantities in the local market. He also alleged that the laundry company, at the time of the filing of the suit, was using soft coal for fuel and emitting "a very black, dense smoke, which smoke is a nuisance to the portion of the city affected (the business section), but is especially injurious to petitioner." He charged that the smoke entered the windows of the building and blackened the walls and casing of the building itself, to the special injury of the building, as well as to the inconvenience and discomfort of the occupants thereof. His tenants were compelled to keep the windows down on the west and north fronts of his building, during the hot weather of the summer, in order "to exclude the immense volumes of smoke blowing therein" from the stack of the laundry building. A number of the plaintiff's tenants and especially the tenant operating a millinery and hairdressing establishment, have complained and threatened to leave his building unless the smoke nuisance was abated. The defendant would continue to use soft coal, and the damage from the nuisance created thereby would be irreparable, a multiplicity of suits would result, and the intervention of a court of equity was necessary to the adequate protection of the plaintiff's rights. The prayers of the petition were for judgment for the damage sustained by the plaintiff up to the filing of the suit, for injunction restraining the defendant from operating its plant "with such coal as throws out a black, dense smoke," for general relief, and for process.
The laundry company answered, and admitted the location of the respective buildings and of its smokestack, substantially as set out in the petition. It also admitted that at the time of the filing of the suit it was using soft coal, and that it had in the past, and for some years, used coke as a fuel; but it averred that coke could be obtained in the Athens market only from a tenant (a gas company) of the plaintiff, that recently it had been unable to obtain coke except at probibitive prices, that no more smoke was emitted from its boiler than was absolutely necessary in the proper operation of its plant, that its plant was operated by a skilled fireman and engineer and in a proper manner, and that its use of soft coal did not work appreciable hurt or damage to the plaintiff. It denied substantial injury and damage to the plaintiff's building, denied substantial injury to the plaintiff's tenants, denied that the injury, if any, to the plaintiff's building, the plaintiff's tenants, and the property of the latter was irreparable in damages, but, on the contrary, averred that the plaintiff had an adequate and complete remedy at law.
On the trial the plaintiff, by amendment, waived "his right to damages up to the time his suit was filed." The evidence on behalf of the plaintiff tended to show injury to the building as alleged in the petition, extreme inconvenience and discomfort to the plaintiff's tenants, and complaints and threats by the tenants to vacate the building. Whenever the wind was blowing from the laundry in the direction of the plaintiff's building, dense volumes of black smoke from the laundry's stack were blown directly into the building. Prior to the summer of 1917, at which time the defendant abandoned the use of coke as a fuel and commenced to use soft coal, some smoke came from the laundry's stack into the plaintiff's building. This smoke was, however, of a "yellowish color," was not particularly offensive to the plaintiff's tenants, and did not substantially damage the walls of the building. Since the defendant commenced to use soft coal as a fuel, the dense smoke from the defendant's stack was blown directly against the plaintiff's building whenever the wind was from the direction of the laundry, in such quantity as to necessitate the closing of the windows on both the west and north sides of the plaintiff's building. During the hot weather of the summer it was necessary to keep the windows of the building open. The tenants complained, not only on the ground of inconvenience and discomfort, but on the ground that the soot carried into the building and deposited upon the books, papers, furniture, and merchandise discolored and permanently injured the same. Even in winter the dense volume of smoke from the defendant's stack was blown in around the windows and openings of the building. Some of the plaintiff's tenants demanded offices on the opposite side of the building and away from the laundry. The plaintiff was compelled to make these changes in order to hold his tenants, to his financial loss. Coke, of suitable quality and in sufficient quantities, and at reasonable prices, could be had and used by the defendant. There was also some evidence to the effect that the volume of smoke thrown off by soft coal could be gradually reduced and controlled by the use of modern appliances.
The defendant's evidence was to the effect that its laundry and the plaintiff's building were located in the business section of the city; that its laundry had been in operation several years before the plaintiff erected his building in close proximity thereto; that...
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