Ladd v. Granite State Brick Co.

• Decision Date: 15 March 1895
• Citation: 37 A. 1041,668 N.H. 185
• Parties: LADD v. GRANITE STATE BRICK CO.
• Court: New Hampshire Supreme Court

37 A. 1041

668 N.H. 185

LADD

v. GRANITE STATE BRICK CO.

Supreme Court of New Hampshire. Rockingham.

March 15, 1895.

Bill by Lydia W. Ladd against the Granite State Brick Company, praying for an injunction against the manufacture of bricks near the plaintiff's dwelling. Facts found by the court: in 1890 the defendants began the manufacture of bricks on their land, about 70 rods from the plaintiff's house. On a few acres of the plaintiff's land, between her house and the brickkiln, there is a natural growth of hard pine, and a small percentage of white pine. At times during the burning of brick, smoke or vapor from the kilns is carried by the wind to the plaintiff's house, causing a perceptible odor, that is offensive and temporarily annoying to the plaintiff. She is 66 years old, and has been for many years in delicate health, with a predisposition to bronchial troubles and erysipelas. She is susceptible to irritation from atmospheric changes, and sensitive to any supposed invasion of her rights. The smoke or vapor carried to her house is not such in quantity or quality as to cause serious inconvenience or perceptible injury to persons of ordinary health and temperament, but the plaintiff, in her enfeebled state and nervous condition, is troubled by it. It oppresses her breathing, causes her to cough more than usual, and has a tendency to bring out erysipelas. The foliage or needles on some of the white pines nearest to the kilns, and on the side of them next to the kilns, have turned to a reddish-brown color, indicating decay. This discoloration was caused by the smoke or gas from the kilns. No trees have been killed. The value of the grove as a protection of the plaintiff's dwelling from winds and storms is not affected, nor is its ornamental value seriously impaired. During the first two years the defendants used coal dust in their kilns, which, in the process of burning, generated a gas that is destructive to certain kinds of trees. In August, 1892, they discarded coal, and since that time have used nothing but wood. The defendants' use of their property is not unreasonable to the plaintiff. The damage to them from an injunction restraining the continuance of their business would be large. The damage to the plaintiff, if any, from a continuance of the business, will be small, and not irreparable.

Frink & Batchelder, W. L. Foster, and Streeter, Walker & Chase, for plaintiff.

Drury & Peaslee, C. Page, and Blackmer & Vaughan, for defendants.

CARPENTER, J. "The maxim, 'Sic uteretuo ut alienum non lædas,'" says Erie, J., in Bonomi v. Backhouse, E1, Bl. & El. 622, 643, "is mere verbiage. A party may damage the property of another where the law permits, and he may not where the law prohibits; so that the maxim can never be applied till the law is ascertained, and when it is the maxim is superfluous." The same may be said of the correlative maxim, "Qui jure suo utitur neminem ladit." To the proper application of either a prior determination of the legal rights of the parties in their relation to each other is essential. Equal rights are often in conflict. One's lawful use of a public highway may seriously interfere with, or for a time wholly prevent, its use by another who has an equal right to its free and unobstructed use. While one may in general put his property to any use he pleases not in itself...