Northern Indiana Public Service Company v. Vesey

• Decision Date: 26 March 1936
• Docket Number: 26,630
• Citation: 200 N.E. 620,210 Ind. 338
• Parties: Northern Indiana Public Service Company v. W. J. and M. S. Vesey
• Court: Indiana Supreme Court

200 N.E. 620

210 Ind. 338

Northern Indiana Public Service Company v. W. J. and M. S. Vesey

No. 26,630

Supreme Court of Indiana

March 26, 1936

[Rehearing denied July 1, 1936.]

1. NUISANCE---Private Nuisances---Damages---For Continuing Nuisance---Permanent Damages.---Owner of greenhouses was entitled to all damages due to continuous operation of a gas plant emitting poisonous and destructive gases, soot, and dirt, where the court found that the gas plant could not be operated without causing damage and that it would be of less damage to permit the gas plant to continue its operation than to enjoin it. p. 349.

2. NUISANCE---Private Nuisances---Gas Plant.---Operation of an artificial gas plant emitting poisonous and destructive gases was both a public and a private nuisance. p. 350.

3. NUISANCE---Private Nuisances---Damages---For Continuing Nuisance---Permanent Damages.---Where operation of a gas plant emitting poisonous and destructive gases to the damage of adjoining greenhouses was permitted to continue operation because of the public interest, it was proper to combine damages for permanent injury to the greenhouses and temporary damages to a specific crop of flowers and allow full damages sustained in one action to avoid a multiplicity of suits. p. 350.

4. NUISANCE---Private Nuisances---Evidence of Continuance.---The fact that a nuisance is not legally abatable and is permitted to exist by authority of law is sufficient evidence to presume that it will continue under the same conditions for an indefinite period. p. 351.

5. NUISANCE---Private Nuisances---Damages---For Continuing Nuisance---Permanent Damages.---Where the operation of a gas plant emitting poisonous gases could not be abated, the fact that the operators thereof could voluntarily cease its operation would not restrict an adjoining property owner to temporary damages only. p. 351.

6. NUISANCE---Private Nuisances---Damages---For Continuing Nuisance---Permanent Damages.---Permanent damages are proper where the nuisance, although arising from a continuing cause cannot be abated because of public interest. p. 351.

7. NUISANCE---Private Nuisances---Actions for Damages---Pleading---Permanent Damages to Growing Crops.---In greenhouse owner's complaint for damages by reason of the operation of a gas plant in proximity to plaintiff's property, an allegation that the market value of plaintiff's plants has been depreciated, held sufficient to support an award upon the theory of permanent damages. p 352.

8. NUISANCE---Private Nuisances---Actions for Damages---Pleading---Negligence.---Complaint for damages resulting from operation of a gas plant allegedly constituting a private nuisance need not plead negligence and such allegations, if any, may be treated as surplusage p. 352.

9. NUISANCE---Private Nuisances---Damages---For Continuing Nuisance---Depreciated Market Value.---Where operation of a gas plant constituted a continuing nuisance because the public interest prevented its abatement, adjoining landowner's measure of damages was the depreciation in market value of his property rather than the rental value. pp. 353, 367.

10. NUISANCE---Private Nuisances---Damages---Relief When Injunction Denied.---Where court refused to abate operation of a gas plant emitting poisonous gases, etc., to the damage of adjoining greenhouses, it properly retained jurisdiction to award full compensation in damages for the permanent nuisance upon the theory that equity will grant full relief in one action. p. 354.

11. NUISANCE---Private Nuisances---Gas Plant.---Although the manufacture of artificial gas for public use is not a nuisance per se, the emission of noxious gases and fumes from a gas plant which endangers health and damages adjoining property does constitute a private nuisance for which damages may be recovered, or injunctive relief granted. p. 354.

12. NUISANCE---Private Nuisances---Relief Generally.---If a nuisance causes peculiar and particular injury to an individual, different from that of the public generally, such individual may maintain an action for damages and to enjoin the maintenance of the nuisance. p. 355.

13. NUISANCE---Private Nuisances---Damages---For Continuing Nuisance---Amount of Relief.---Where greenhouse owner's complaint for damages for operation of a gas plant constituting a nuisance did not recognize defendant's right to continue operation, but demanded injunctive relief, damages could be recovered only to the commencement of the action, including depreciation of the value of his property, if any, occasioned by continuance of the nuisance. p. 355.

14. JUDGMENT---Merger and Bar of Causes---Continuing Nuisances.---In action to abate operation of a gas plant emitting poisonous gases as a nuisance, judgment that such operation was a nuisance but that it not abate because of the public interest was a bar to further proceedings for its abatement, unless based upon new grounds. p. 356.

15. NUISANCE---Private Nuisances---Damages---Effect of Uncertainty in Computation.---Damages for the maintenance of a nuisance should not be denied upon the ground that the measure of damages is difficult to ascertain. p. 357.

16. NUISANCE---Private Nuisances---Damages---Speculative Damages.---In greenhouse owner's action for damages caused by poisonous gases, etc., emitting from a gas plant, damages awarded in separate amounts for loss to flowers and loss in market value of the greenhouse property, all as accruing before commencement of the action, could not be considered as speculative. p. 358.

17. NUISANCE---Private Nuisances---Damages---Double Damages.---Award of damages to greenhouse owner arising from operation of a gas plant, allowing separate amounts for loss in flowers and plants and for the depreciated value of the greenhouse property did not constitute double damages for the same injury, since the depreciated market value of the greenhouse property was a loss different from that suffered as to flowers and plants. p. 358.

18. NUISANCE---Private Nuisances---Damages---Profits From Business.---Owner of greenhouses injured by poisonous gases emitted by an adjoining gas plant was not precluded from damages because profits increased after erection of the gas plant, where such increase in profits was due to enlargement of the greenhouse plant. p. 363.

19. WITNESSES---Cross-Examination---Memoranda Used to Re- fresh Memory---Right to Inspection by Adverse Party.---Where cross-examination of witness disclosed that memoranda to which the witneses had referred on direct examination the day before was in a brief case and not in possession of the witness, it was not error to refuse to have it produced for inspection of the adverse party. p. 363.

20. NUISANCE---Private Nuisances---Damages---Evidence---Comparison With Conditions Far Removed.---In greenhouse owner's action for damages resulting from fumes and poisonous gases emitted by a gas plant, defendant's expert witness was properly excluded from testifying that similar losses to flowers in another state were due to weather conditions, lack of sunlight, and other climatic conditions. p. 364.

21. EVIDENCE---Opinion Evidence---Competency of Experts---Limited to Scope of Qualification.---In action for damages to flowers resulting from gas fumes, a witness, qualified as an expert horticulturist, having testified that one part of illuminating gas to five hundred parts of air would not damage a cyclamen plant, was properly excluded from expressing an opinion as to what effect such condition would have upon human life. p. 365.

22. APPEAL---Review---Harmless Error---Exclusion of Evidence.---In action for damages to greenhouse plants resulting from gas plant's emission of gases and fumes, where plaintiff's witness had testified that the "smell" cleared more quickly outside than inside the greenhouse, held not reversible error to exclude defendant's testimony that the collection of gases and vapor would be no greater inside than outside. p. 366.

23. NUISANCE---Private Nuisances---Damages---Measure of Permanent Damages---For Cumulative Injuries.---Where damages to greenhouses and flowers resulting from gases and fumes emitted by a gas plant were neither apparent nor contemporaneous with the construction of the gas plant, but were the cumulative result of its operation, the measure of permanent damages was the difference in value immediately before and after the injuries became complete. p. 368.

24. TRIAL---Reception of Evidence---Objections---Qualification of Expert.---Testimony of an expert chemist as to proper method of piling and handling spent oxide to avoid creation of sulphur gases, held properly admitted, objection that witness was not qualified and that other qualified witnesses had testified on that subject going to the weight of the evidence rather than to its competency. p. 370.

25. TRIAL---Reception of Evidence---Motions to Strike Out---Matters Unresponsive.---Where witness was asked what he observed as to ventilation of certain greenhouses, his response that those having one-way ventilation were not adapted to the growth of good roses was properly stricken as not being responsive to the question. p. 370.

26. APPEAL---Review---Harmless Error---Striking Evidence Later Admitted.---Error, if any, in striking out evidence of a witness was cured when the same witness was later permitted to testify fully on the same subject. p. 370.

27. EVIDENCE---Opinion Evidence---Examination of Experts---Experiments and Results.---In action for damages to greenhouse plants, where an expert witness testified fully as to experiments made with soils collected from plaintiff's greenhouse, his testimoney as to similar experiments made in other greenhouses held properly excluded. p. 371.

28. NUISANCE---Private Nuisances---Actions...