Lane v. City of Concord

• Decision Date: 15 March 1901
• Citation: 49 A. 687,70 N.H. 485
• Parties: LANE v. CITY OF CONCORD.
• Court: New Hampshire Supreme Court

49 A. 687

70 N.H. 485

LANE

v. CITY OF CONCORD.

Supreme Court of New Hampshire. Merrimack.

March 15, 1901.

Exceptions from Merrimack county.

Action by Elvira B. Lane against the city of Concord. From a judgment for defendants, plaintiff brings exceptions. Overruled.

Case for creating a nuisance to the plaintiffs injury. Trial by jury, and verdictfor the defendants. The plaintiff owns a lot of land, with a house upon it, in Concord. The land adjoining slopes towards the west, and at a distance of about 100 feet from the house is low and wet. The owners of this land, being desirous of grading it to a higher level, gave the defendants license to dump upon it the materials collected by them in cleaning the streets and removing garbage or refuse matter placed at the sides of streets by residents for removal. Job teamsters and other persons also dumped waste materials there. The materials thus placed upon the land consisted of sand, gravel, brush, leaves, grass, coal ashes, tin cans, stovepipe, broken earthen and glass ware, rags, old boots and shoes, hoop skirts, paper, old mattresses, decayed apples, etc. There was evidence that a dead cat was found there at one time. Between May 1, 1897, and the date of the writ, September 15, 1899, the defendants placed a large quantity of materials upon the lot They cleaned out the catch-basins at the sides of streets each spring and fall, and dumped upon the lot the contents of those located within an eighth of a mile of it The surfaces of these streets are made of sand or gravel. The contents of the basins consisted of sand, gravel, leaves, and other substances washed into them from the streets. The basins are so constructed that substances heavier than water settle to the bottom, and the water flows into the sewer through a pipe extending from the side of the basin, at a point two or three feet above its bottom, in a descending line to the sewer. A portion of the contents when taken from the basin is suspended in water, forming a semifluid mixture. The contents when first taken out, and for five or six hours afterwards, emit an odor. The defendants also dumped upon the lot materials of the kinds above mentioned; but their evidence tended to show that they did not place there any animal or vegetable matter other than brush, leaves, grass, rags, and old leather. The plaintiff introduced in evidence the following ordinance enacted by the city council: "No person shall place or leave, of cause to be placed or left, in or near any highway, street, alley, or public place, or any private lot or enclosure, or in any pond or other body of water where the current will not remove the same, any rubbish, dirt, soot, ashes, hay, shreds, oyster, clam, or lobster shells, tin cans, decaying fruit or vegetables, waste water, or any refuse animal or vegetable matter whatsoever, or keep in or about any dwelling-house, barn, shed, store, shop, or cellar, any of the aforesaid substances in any manner liable to become putrid or offensive, or injurious to the public health." The jury were instructed, among other things, in substance, that the defendants, under the license from the owners of the land, had the same rights which the owners had in respect to placing materials upon it; that they might place any materials there they saw fit, provided they kept the materials and the products of them upon the land, and did not allow the materials or anything arising from them to go upon the adjoining premises; that if it was a reasonable use of the land, in view of the rights of the owners, the plaintiff, and other adjoining owners, to place decaying vegetable and animal matter upon it, the defendants would not be liable, although gases arising from such substances went upon the plaintiff's land, but they would be liable if such use was unreasonable under all the circumstances. No exception was taken to these instructions. In connection with them, the following were given: "Right here is the relevancy of the ordinance that has been put in. It has no other bearing in the case. The plaintiff has put in a city ordinance which, in substance, prohibits persons from depositing upon the highways, or land adjoining highways, certain substances, and subjects persons to a fine if they violate the ordinance, provided these substances cause injury to health. Now, the only relevancy of this ordinance—its only bearing in this case— is as to the reasonableness of the act of the city in placing, if it did place, decaying vegetable and animal matter upon the lot. If the city placed matter there that was liable to decay and produce gases which were liable to escape to the adjoining premises, the ordinance is competent evidence and has a bearing on the question whether the act was reasonable or not, and it has no bearing upon any other question in the case." The plaintiff excepted "to the instruction that the ordinance prohibits the placing of any decaying animal or vegetable matter on or near any highway that is injurious to the public health." The jury were also instructed that the unsightly appearance Of the lot was not a cause for which the plaintiff was entitled to damages; that, if she was not injured by something coming from the premises upon her land,—gases or something else,—she had no right to complain. To this instruction she excepted. The plaintiff's request to instruct the jury in the following words: "The city ordinance prohibits the placing of any rubbish, dirt, soot, ashes, hay, shreds, oyster, clam, or lobster shells, tin cans, decaying fruit or vegetables, waste water, or any refuse animal or vegetable matter whatsoever, in or near any highway, or in any private...