Kentucky-Ohio Gas Co. v. Bowling

• Decision Date: 26 May 1936
• Citation: 264 Ky. 470
• Parties: Kentucky-Ohio Gas Co. v. Bowling.
• Court: United States State Supreme Court — District of Kentucky

264 Ky. 470

Kentucky-Ohio Gas Co. v. Bowling.

Court of Appeals of Kentucky.

Decided May 26, 1936.

1. Nuisance. — "Nuisance" is something which annoys or disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncomfortable to him.

2. Nuisance. — Test as to whether business lawful in itself, or particular use of property, constitutes a nuisance, is reasonableness of conducting business or making use of property in particular locality and in manner and under circumstances of case.

3. Nuisance. — Where owner's use of property is not unreasonable, such use will not afford basis of action to recover damages for maintenance of a nuisance.

4. Nuisance. — While it is owner's duty to so use property as not to injure that of others, this duty must be taken with some qualifications, and one may make a reasonable use of his right, though it may create some annoyance or inconvenience to his neighbor.

5. Nuisance. — No one has the right to use his own property so

as to injure those about him, since use and enjoyment thereof must have reference to the rights of others.

6. Nuisance. — One cannot invade another's premises with nuisance with impunity, nor need act always be habitual or periodical.

7. Nuisance. — To determine what constitutes a nuisance, characteristics of person claimed to have been annoyed must be considered; question being whether nuisance will, or does, produce such condition that in judgment of reasonable men is productive of physical discomforts to persons of ordinary sensibilities and ordinary tastes and habits.

8. Nuisance. — Amount, intensity, and duration of invasion with a nuisance, and effect thereof on value and enjoyment of premises invaded, are questions of fact; burden of proof resting upon owner of property invaded to establish quality and quantity of his damages.

9. Nuisance. — Whether air vibrations caused by operation of gasoline pumping engines constituted actionable nuisance held for jury.

10. Nuisance. — In determining proper measure of damages recoverable for maintenance of a nuisance, it is essential to ascertain whether nuisance is permanent or temporary.

11. Nuisance. — "Permanent nuisance" must usually be created by inherent character of structure or business, lawful and necessary operation of which creates permanent injury; while nuisance created only through negligence is "temporary nuisance."

12. Nuisance. — "Permanent nuisance" generally exists where structure or business is relatively enduring and not likely to be abated, either voluntarily or by order of court; and, if prospective damages resulting therefrom can be estimated with reasonable certainty, diminution of value of property is recoverable as damages.

13. Nuisance. — "Permanent nuisance" exists where damages recoverable would be small as compared with cause of its removal or installing another or auxiliary plant, or where frequency of actions by complaining owner for his damages in rental would be so onerous as to deny him adequate relief.

14. Nuisance. — Permanent damages may be recovered where nuisance, although arising from a continuing cause, cannot be abated because of public interest.

15. Nuisance. — Where structure or business constituting nuisance is permanent and structure is negligently constructed, or structure or business is negligently operated, recurring damages are recoverable.

16. Nuisance. — Person damaged by nuisance must minimize his damages if he can.

17. Nuisance. — Nuisance created by operation of power plant and

pumping station held permanent, although not negligently constructed or negligently operated, and hence measure of property owner's damages was diminution of market value of his property, proximately resulting from its invasion by nuisance.

18. Nuisance. — Annoyance and discomfort of owner and his family caused by oscillation of his residence and shaking and rattling of doors and windows by operation of pumping station were not elements of damages for which owner could recover in addition to lessening of market value of property, since dimunition of market value of property necessarily includes annoyance and discomfort which directly affect such value.

19. Appeal and Error. — Defendant in suit for damages resulting from maintenance of nuisance could not complain of instruction containing word "noises," where defendant's offered instruction contained such word.

Appeal from Boyd Circuit Court.

MARTIN & SMITH for appellant.

WAUGH & HOWERTON for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

This action is to recover damages for creating and maintaining a private nuisance to the annoyance of the owner and his family and depreciating the market value of his home.

For ten or twelve years next before its institution, Ed. Bowling owned, and he and his family occupied, a home about two and a half miles from the corporate limits of the city of Ashland, in the outlying portion of the city, in what is known as Hood's Creek and Hood's Creek Road. It is a five-room cottage, with a cement block foundation placed below the surface. It was constructed of reasonably good material, good workmanship, and its chimneys and mantels are of brick. It is lighted with electric lights. It is located in a thinly populated vicinity. It fronts on a highway. Opposite, and about one hundred feet from it, are the power plant and pumping station of the Kentucky-Ohio Gas Company. The plant and pumping station were constructed in 1930. In a proceeding instituted in the District Court of the United States for the Eastern District of Kentucky, the plant, the pumping station, and equipment were sold at public sale, when it was purchased by the Kentucky-Ohio Gas Company. It acquired title thereunder by deed in June, 1933. This deed also conveyed to it eighty producing gas wells, pipe lines, equipment, gas wells contracts, real estate, and other assets belonging to the former owner. The sales contracts, it thereby acquired, obligated it to the consumers to deliver under compression the entire capacity of the eighty wells scattered over a radius of some nine or ten miles, through the entire life of the field, during six months, beginning November 1st, and ending May 1st, each year until the gas is exhausted. To draw the gas from the eighty wells and deliver it under compression into high-pressure lines for the six months beginning November 1st and ending May 1st, it operated two gas engines, one eighty horse power, the other eighty-five horse power capacity.

"These engines were built upon reinforced concrete foundations according to plans and specifications provided by the manufacturer and under the supervision of a skilled engineer, the witness, Mr. Gesling. They were housed in a tile block and brick building which sets back of the county road some twenty-five or thirty feet. Directly in front of this engine house and between it and appellee's residence is a three room brick and tile office building. To the rear of the engine house, as one leaves the highway and appellee's residence is a small boiler house, which is a metal building constructed of steel sheets fastened to steel frames. The roof and walls of the boiler house are sheet iron. Near the engine house is a concrete water tower, which extends into the air some twenty-five or thirty feet, used to cool the gas by means of running the pipes containing the natural gas through the water tank so that cool water will pour over the pipes. These pipes are connected with the engines and pass through solid concrete walls in order to go to and from the engines.

"Each engine has an exhaust pipe which produces a noise incident to the operation of all gas engines."

After it acquired title to the property, in the summer of 1933, to obviate and eliminate noises, it constructed "a large brick stack or chimney about eight or ten feet in diameter, extending some twenty or thirty feet in the air and containing numerous air chambers into which the exhaust pipes of the gas engines were extended." This improvement eliminated the "noises," but not the "vibration."

Bowling for his cause of action charges that the Kentucky-Ohio Gas Company's power developed at the power plant and pumping station, directly and naturally "created, sent forth and distributed loud noises, vibrations and concussions, which have from time to time since the plant had been in operation, continuously shook" his "property and caused it to shake and tremble, * * * so that he and his family could not live in the property in peace and comfort or sleep during the night time," and "have practically destroyed the use of plaintiff's property for residential purposes," all of which were without his consent and against his will. The defense was a denial. On the verdict of a jury a judgment was entered in Bowling's favor for $500.

The Kentucky-Ohio Gas Company, appealing, insists that "the proof utterly fails to support the charge that loud noises were created by the operation of its pumping station or that the air vibrations complained of were negligently caused or that they were of such a degree or character as to constitute an annoyance"; the court erred in not directing a verdict for it, and "in holding that the things complained of as an annoyance were temporary in their nature rather than permanent and so instructed the jury."

It is unnecessary to reproduce the evidence. There is no evidence that the...