McGill v. Pintsch Compressing Co.
| Decision Date | 15 December 1908 |
| Citation | 118 N.W. 786,140 Iowa 429 |
| Parties | WM. MCGILL v. THE PINTSCH COMPRESSING COMPANY, a CORPORATION, Appellant |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.--HON. N.W. MACY, Judge.
ACTION to enjoin defendant from continuing its business of manufacturing compressed gas, and for damages. A decree was entered restraining it from operating its plant without equipping it with a smoke consumer and its boiler with a muffler, and damages were allowed. The defendant appeals.--Modified and affirmed.
Modified and affirmed.
Wright & Baldwin, for appellant.
Wm. A Mynster and E. E. Aylesworth, for appellee.
The defendant is and has been for the ten years last past engaged in the production of compressed gas which it supplies to all the railroad companies whose lines enter Council Bluffs or Omaha. Immediately south and west of the plant are the extensive railroad yards essential to the business of a railroad center, and in other directions dwelling houses. The dwelling of plaintiff, occupied by a tenant, is within one hundred and thirty-five feet to the northwest of it, with nothing intervening save a small coal shed. The plant consists of four furnaces, constructed of fire brick, with five or six smoke stacks, twenty-four retorts, each twenty-two inches wide by fourteen inches high, and ten feet long, constructed of iron and steel. The oil is unloaded into tanks, from which it is drawn into these retorts or crucibles where the gas is produced, and this gas is then passed through a purifier into other tanks, from which it is delivered to purchasers. About four tons of soft coal are burned in twenty-four hours, the plant being operated continuously. It represents an investment of about $ 100,000, and the annual output approximates that sum in value. The complaint of the plaintiff is that as the prevailing winds are from the southeast in that locality, as the evidence tended to show, these carried such volumes of smoke and soot, together with offensive fumes, emitted from the plant over plaintiff's house as to interfere with its comfortable enjoyment and use, and that the noises from the exhaust on its boiler had the same effect. The sufficiency of the evidence to establish a nuisance is challenged, but, as defendant cheerfully complied with the requirement of the district court that its exhaust pipe be equipped with a muffler and the furnace with a smoke consumer or other device to lessen the escape of smoke, soot and odors, we need only consider this question in so far as it bears on defendant's liability for damages.
A nuisance is defined by statute to be "whatever is injurious to health, indecent or offensive to the senses, or is an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property," and damages because thereof may be recovered. Section 4302, Code. Every person has the right to have the air diffused over his premises in its natural state freed from artificial impurities, and therefore the use of one's property so as to unwarrantably impregnate the atmosphere with foreign substances, such as smoke, soot, noisome fumes and odors which would not exist therein but for his instrumentality, is regarded as a nuisance and is actionable as such. By atmosphere freed from artificial impurities is not meant air absolutely pure, but an atmosphere as free and pure as reasonably could be expected in view of the particular location and the business conducted there. As every chimney or smokestack emits smoke, doing so does not constitute a nuisance per se. City of St. Paul v. Gilfillan, 36 Minn. 298 (31 N.W. 49); St. Louis v. Heitzeberg, etc., Co., 141 Mo. 375 (42 S.W. 954, 39 L. R. A. 551, 64 Am. St. Rep. 516). The air is more heavily laden with it in the thickly settled portions of a city or town than elsewhere, in the business portion more than the residence. Such contaminations are indispensable to the reasonable enjoyment of property, and with these the law does not interfere. Only when an unreasonable amount of smoke is emitted or is emitted in such an unreasonable manner as to inflict injury on another will the courts interfere. There is no precise test by which to determine when the smoke impurity imparted to the atmosphere is of a greater degree than is permissible. The injury must be tangible. Mere annoyance is not enough. It must be such as to render the occupancy of the complainant's premises physically uncomfortable to a person of ordinary sensibilities for the purpose to which devoted. Every person is entitled, generally speaking, to the exclusive and uninterrupted enjoyment of his premises, and to redress if such enjoyment shall be interrupted or diminished. Wood on Nuisance, section 495 et seq.
An offensive trade or manufacture may require interference in equity as well as any other nuisance, for though necessary and lawful they should be exercised in remote places. Says Judge Cooley concerning the subject generally in Gilbert v. Showerman, 23 Mich. 448:
The right, nevertheless, to have such a business restrained is not absolute and unlimited, but is, and must be in the nature of things, subject to reasonable limitations which have regard to the rights of others not less than to the general public welfare. One man's comfort and enjoyment with reference to his ownership of a parcel of land can not be considered by itself distinct from the desires and interests of his neighbors, as otherwise the wishes of one might control a whole community, and the person most ready to complain might regulate to suit himself the business that should be carried on in his neighborhood. In a crowded city some annoyance to others is inseparable from almost any employment, and while the proximity of the stables of a dealer in horses, or of the shops of workers of iron or tin, seems an intolerable nuisance to one, another is annoyed and incommoded, though in less degree, by the bundles and boxes of the dealer in dry goods, and the noise and jar of the wagons which deliver and remove them. Indeed, every kind of business is generally regarded as undesirable in the parts of a city occupied most exclusively by dwellings, and the establishment of the most cleanly and quiet warehouse might, in some neighborhoods, give serious offense and cause great annoyance to the inhabitants. This can not be otherwise so...
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