Kavanagh v. Barber

• Decision Date: 01 March 1892
• Citation: 131 N.Y. 211,30 N.E. 235
• Parties: KAVANAGH v. BARBER.
• Court: New York Court of Appeals Court of Appeals

131 N.Y. 211

30 N.E. 235

KAVANAGH

v.BARBER.

Court of Appeals of New York.

March 1, 1892.

Appeal from supreme court, general term, fifth department.

Action by Michael Kavanagh against Amzi L. Barber to recover damages for the maintenance of a nuisance opposite plaintiff's residence. The nuisance consisted in the operation of defendant's asphalt works. Plaintiff obtained judgment, which was affirmed by the general term. Defendant appeals. Reversed.

Viele & Chapin, (Sheldon T. Viele, of counsel,) for appellant.

Day & Romer, for respondent.

ANDREWS, J.

The trial judge instructed the jury that, if they found that the vapors arising from the manufactory of the defendant constituted a nuisance, the plaintiff was entitled to recover to the extent of the damages sustained by him in the diminished enjoyment of the premises he occupied. The evidence justified a finding that the fumes arising from the asphait penetrated the house, and subjected the plaintiff and his family to great annoyance and discomfort. The air of the neighborhood was tainted with the odor, and there is some evidence that the plaintiff's wife and daughter became ill in consequence. The main damage, however, sustained by the plaintiff, according to the proof, was in the personal discomfort to which he was subjected in the occupation of the house.

The case, in its legal aspects, is novel. The house was owned by the plaintiff's wife, and had been occupied for 14 years by the plaintiff and his family, and was so occupied when the manufactory of the defendant was built. The plaintiff, so far as appears, had no lease or other interest in the realty. The family, as is to be inferred, lived in the house by sufferance of the wife. The possession of the house followed the legal title. Both the occupation and the possession, in a legal sense, was that of the wife, and not of the husband. Martin v. Rector, 101 N. Y. 77, 4 N. E. Rep. 183. The husband supported the family. The question presented is whether, under these circumstances, a private action can be maintained by the husband for the discomfort caused by the offensive vapors. We find no precedent for such an action by a person so situated. Mr. Justice Blackstone defines a private nuisance to be ‘anything done to the hurt and annoyance of the lands, tenements, or hereditaments of another,’ (3 Comm. 215,) which definition, as said by Judge Cooley, (Cooley, Torts, p. 565,) embraces not a mere physical injury to the realty, but any injury to the owner or possessor as respects his dealing with, possessing, or enjoying it. Interferences with public and common rights, creating a public nuisance, when accompanied with special damage to the owner of lands, also gives a right of private action. The public nuisance as to the person who is specially injured thereby in the enjoyment or value of his lands becomes a private nuisance also. Upon the evidence in this case on the part of the plaintiff, the defendant maintained a public nuisance. The air of the neighborhood was, for a long distance, infected with the disagreeable odor of the asphalt, and rendered residence within the area...