McCarty v. Natural Carbonic Gas Co.

• Decision Date: 04 June 1907
• Citation: 81 N.E. 549,189 N.Y. 40
• Parties: McCARTY v. NATURAL CARBONIC GAS CO.
• Court: New York Court of Appeals Court of Appeals

189 N.Y. 40

81 N.E. 549

McCARTY

v.NATURAL CARBONIC GAS CO.

Court of Appeals of New York.

June 4, 1907.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Richard McCarty against the Natural Carbonic Gas Company. From 5 judgment of the Appellate Division (100 N. Y. Supp. 1127), modifying and affirming a judgment entered on the decision of the court at Special Term in favor of plaintiff, defendant appeals. Modified and affirmed.

O'Brien, J., dissenting.

Henry T. Fay, for appellant.

George R. Salisbury, for respondent.

VANN, J.

This action was brought to restrain the defendant from so operating its manufactory as to cause smoke, soot, and dust emitted from its chimneys to gather and settle about the dwelling house of the plaintiff to his annoyance and injury. The trial court found the following facts in substance: For four years prior to the 13th of July, 1904, when this action was commenced, the plaintiff owned certain premises on South Broadway in the village of Saratoga Springs, consisting of a lot of land with a frame dwelling house thereon, known as the ‘Anna Therese.’ Said house is situated in a country district suitable for country homes, ‘although not as yet so appropriated by others than the plaintiff.’ The defendant is a foreign corporation engaged in the manufacture of carbonic acid gas in a semifluid form convenient for shipment to market by compressing the natural gas found on its premises, and for this purpose it maintains a plant containing machinery operated by steam, which is generated from two boilers with a capacity of 100-horse power. It has two smokestacks, each 90 feet high, situated 840 feet from the residence of the plaintiff. From 2 1/2 to 4 tons of soft coal are used daily by the defendant, and its chimneys continuously pour forth ‘a thick black smoke, large in volume, and larger, denser, and thicker when the fires are freshened twice’ every hour during the 24 that the plant is in operation, Sundays excepted. When the wind is right, the smoke blows down upon the plaintiff's house and comes upon and around it. When the atmosphereis dense, ‘clouds of smoke proceeding from the defendant's chimneys gather and settle about the plaintiff's house, enveloping it and sometimes obscuring it from view.’ Said smoke ‘has caused the exterior of the house of the plaintiff to become discolored with soot, and has caused plaintiff and his family much discomfort and annoyance and some financial injury.’ The defendant causes this damage and injury by the use of soft coal, yet by the use of anthracite coal it would obtain the same result in manufacturing, althourh at a greater expense, and if the use of soft coal were abandoned the discomfort experienced by the plaintiff would be entirely avoided. ‘The present use of soft coal is not a necessary use for the practical management and running of its plant,’ and ‘under all the circumstances of the case the present discomfort of the plaintiff is not occasioned by any reasonable use by the defendant of its own property.’ The plaintiff had owned his property for several years before the defendant erected its factory. Another factory like the defendant's was located in the neighborhood before the plaintiff purchased, but as it uses anthracite coal it has never caused any annoyance. The rental value of the plaintiff's house has been injured by the use of soft coal by the defendant to the extent of $800, and he has incurred expense for cleaning rugs to the extent of $18 more. The court, after repeating as conclusions of law its findings of fact in relation to reasonable and necessary use, further found as conclusions of law that ‘the defendant should be enjoined, restrained, and forbidden from burning soft coal on its said plant in the village of Saratoga Springs, N. Y., for the purpose of generating steam,’ and that ‘the plaintiff herein is entitled to the sum of $818 damages, and is also entitled to the costs of the action.’ Upon appeal to the Appellate Division the judgment was modified by deducting from the damages awarded the sum of $18 as of the date when the judgment was entered, and, as so modified, the judgment was unanimously affirmed.

The action of the courts below withdraws the evidence from our view, except for the consideration of exceptions relating thereto, and leaves but one question upon the merits for us to decide, and that is whether the facts found support the conclusions of law. In other words, in a country district suitable for country homes, does the use of soft coal in a factory so situated that thick, black smoke therefrom, great in volume and dense in quality, envelops and discolors a neighboring dwelling house, causing much discomfort and some financial loss to the occupants, constitute a nuisance, when such use of soft coal is not necessary for the practical running of the plant, and is not a reasonable use of the manufacturer's property? The principles governing the decision of that question are neither recent in origin nor doubtful in application. The ancient maxim of ‘Sic utere tuo ut alienum non laedas' is the foundation of the well-established rule that no one may make an unreasonable use of his own premises to the material injury of his neighbor's premises, and if he does the latter has a right of action even if he is not driven from his dwelling, provided the enjoyment of life and property is materially lessened. Campbell v. Seaman, 63 N. Y. 568, 20 Am. Rep. 567;Cogswell v. New York, New Haven & Hartford R. R. Co., 103 N. Y. 10, 8 N. E. 537,57 Am. Rep. 701;Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18, 25 N. E. 246,9 L. R. A. 711;Morton v. Mayor, etc., of N. Y., 140 N. Y. 207, 35 N. E. 490,22 L. R. A. 241;Garvey v. Long Island R. R. Co., 159 N. Y. 323, 54 N. E. 57,70 Am. St. Rep. 550;Bly v. Edison Electric Illuminating Co., 172 N. Y. 1, 64 N. E. 745,58 L. R. A. 500;Pritchard v. Edison El. Ill. Co., 179 N. Y. 364, 72 N. E. 243.

The law relating to private nuisances is a law of degree, and usually turns on the question of fact whether the use is reasonable or not under all the circumstances. No hard and fast rule controls the subject, for a use that is reasonable under one set of facts would be unreasonable under another. Whether the use of property to carry on a lawful business, which creates smoke or noxious gases in excessive quantities, amounts to a nuisance, depends on the facts of each particular case. 21 Am. & Eng. Ency. of Law (2d Ed.) 692. Location, priority of occupation, and the fact that the injury is only occasional, are not conclusive, but are to be considered in connection with all the evidence, and the inference drawn from all the facts proved whether the controlling fact exists that the use is unreasonable. If that fact is found, a nuisance is established, and the plaintiff is entitled to relief in some form. Unless that fact is found, or it is an inference of law from other facts found, no nuisance is established, even if the plaintiff shows that he has suffered some damage, annoyance, and injury. Those evils are at times incidental to civilized life, and the sufferer finds compensation in the arts and agencies of civilized society. Campbell v. Seaman, supra. What is reasonable is sometimes a question of law and at others a question of fact. When it depends upon an inference from peculiar, numerous, or complicated circumstances, it is usually a question of fact. Whether the use of property by one person is reasonable, with reference to the comfortable enjoyment of his own property by another, generally depends upon many and varied facts; such as location, nature of the use, character of the neighborhood, extent and frequency of the injury, the effect on the enjoyment of life, health, and property, and the like. Such was the nature of the question in this case which, we think, is one of fact. The case last cited involved injury to ornamental shrubbery on land adjacent to a village, from the noxious gases of a brick factory, which dug the clay on its own premises, and the exhaustive opinion of Judge Earl holds, with the concurrence of all the judges, that articles of luxury are as much under the protection of the law as articles of necessity; that it is immaterial that the injury is only occasional; that the right to an injunction is not affected by the fact that the brick kiln was used before the plaintiff purchased his land; and that if the use is such ‘as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment specially uncomfortable or inconvenient,’ it constitutes a nuisance.

In the well-known Cogswell Case, supra, a railroad company had erected an engine house near a dwelling house in a city, and the smoke, cinders, and coal dust, carried by the winds, filled the house, injured articles therein, and rendered the air offensive and the house uncomfortable. It was held that the ‘engine house, as used, was within every definition a nuisance, for which, as between individuals, an action would lie for damages, and for which a court of equity would afford a remedy by injunction.’ All the judges united with Judge Andrews in saying: ‘However necessary it may be for the defendant that its engine house should be located where it is, this constitutes no justification for the injury suffered by the plaintiff, nor is it any answer to the action that it exercises all practicable care in its management. It may have the right, which it claims, to acquire land by purchase for the accommodation of its business, but it must secure such a location as will enable it to conduct its operations without violating the just rights of others. Public policy, indeed, requires that in adjusting the mutual relations between railroads and individuals courts should not stand upon the assertion of extreme rights for either side, but in this case the facts leave no room for doubt that the plaintiff has suffered a substantial and unauthorized injury.’

...