Kentucky-Ohio Gas Co. v. Bowling

• Decision Date: 26 May 1936
• Parties: KENTUCKY-OHIO GAS CO. v. BOWLING.
• Court: Kentucky Court of Appeals

95 S.W.2d 1

264 Ky. 470

KENTUCKY-OHIO GAS CO. v. BOWLING.

Court of Appeals of Kentucky

May 26, 1936

Appeal from Circuit Court, Boyd County.

Action by Ed. Bowling against the Kentucky-Ohio Gas Company. From a judgment for plaintiff, defendant appeals.

Reversed and new trial granted.

Martin & Smith, of Catlettsburg, for appellant.

Waugh &amp Howerton, of Ashland, for appellee.

RICHARDSON Justice.

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. If 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 was 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 operation of the engines of the plant or the plant itself produced at any time any noises other than that made by the exhaust pipes. It is established beyond doubt that since the construction and use of the large brick stack or chimney and the air chambers therein, into which the exhaust pipes were extended, noises have been eliminated. There is no evidence of any vibration of the earth produced by the operation of the plant. It is well established by the evidence that its operation produces an air vibration which is caused by the intake pipes disturbing the air courses and currents, and when the pumping station is in operation, it thus shakes and jars Bowling's residence, so that the doors and windows rattle. "It shakes so at night that one can hardly rest," during six months beginning November 1st and ending May 1st, each year.

Its power plant and pumping station so jarring and causing Bowling's residence to oscillate, thus disturbing and interrupting the enjoyment of his home as narrated by the witnesses, constituted a nuisance.

"A nuisance is something that is offensive, physically, to the senses, and by such offensiveness makes life uncomfortable." Rosehill Cemetery Co. v. City of Chicago, 352 Ill. 11, 185 N.E. 170, 177, 87 A.L.R. 742. "Whatsoever," says Blackstone, "unlawfully annoys, or doth damage to another, is a nuisance." North v. McDonald, 47 Barb. (N.Y.) 528. Another definition of the term is: "That is a nuisance which annoys or disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncomfortable to him." Baltimore & Potomac R. Co. v. Fifth Baptist Church, 108 U.S. 317, 2 S.Ct. 719, 27 L.Ed. 739; Petroleum Refining Co. v. Commonwealth, 192 Ky. 272, 232 S.W. 421. A fair test as to whether a business lawful in itself, or a particular use of property, constitutes a nuisance, is the reasonableness or unreasonableness of conducting the business or making the use of the property complained of in the particular locality and in the manner and under the circumstances of the case, and where the use made of his property by the person complained of is not unreasonable, it will not afford the basis of an action to recover damages. Orton v. Virginia-Carolina Chemical Co., 33 Tex.Civ.App. 577, 77 S.W. 632; Louisville & N. R. Co. v. Com., 158 Ky. 773, 166 S.W. 237.

"The law is well understood that every man has the exclusive dominion and right to the free enjoyment of his own property to use it as he pleases, and that his neighbor enjoys the same rights and privileges with his property; consequently it is the duty of each to so use his own as not to injure that of the other. This duty, however, must be taken with some qualifications, for as it has been held: 'In the nature of things and of society, it is not reasonable that every annoyance should constitute an injury such as the law will remedy or prevent. One may therefore make a reasonable use of his right, though it may create some annoyance or inconvenience to his neighbor. *** According to our settled notions and habits, there are convenient places, one for the home, one for the factory, but, as often happens, the two must be so near each other as to cause some...