Olsen v. Tung

• Decision Date: 23 April 1934
• Docket Number: 31941
• Citation: 179 La. 760,155 So. 16
• Court: Louisiana Supreme Court
• Parties: OLSEN v. TUNG

155 So. 16

179 La. 760

OLSEN v. TUNG

No. 31941

Supreme Court of Louisiana

April 23, 1934

Appeal from Civil District Court, Parish of Orleans; Wm. H. Byrnes Jr., Judge.

Suit by Mrs. Mamie Jackson Olsen against Charles Tung. From an adverse judgment, defendant appeals, and plaintiff answers the appeal.

Affirmed.

McCaleb & McCaleb and Arthur B. Leopold, all of New Orleans, for appellant.

Denegre Leovy & Chaffe, John L. Toler, and Lloyd A. Ray, all of New Orleans, for appellee.

O'NIELL Chief Justice. ST. PAUL, J., absent.

OPINION

O'NIELL, Chief Justice.

Mrs. Mamie Jackson Olsen owns the three-story brick building No. 325 Bourbon street, and Charles Tung owns the three-story brick building No. 319 Bourbon street, adjoining the property of Mrs. Olsen. The building which she now owns was built when both lots belonged to the same owner, many years ago -- perhaps as long as eighty years ago. Thereafter, the owner of the two lots sold first the lot now owned by Charles Tung, and described it by a survey which placed the dividing line exactly at the outside surface of the wall of the building now owned by Mrs. Olsen. Hence the wall between the Olsen property and the Tung property is on Mrs. Olsen's ground, at the surface of the ground; but, being eighteen inches thick, it has an underground foundation or footing five feet thick, including the thickness of the wall itself; so that the base of the wall, a few feet below the surface of the ground, is twenty-one inches wider on each side of the wall than the thickness of the wall itself, and, to that extent, the foundation of the wall is on Tung's lot.

Tung bought his lot in 1924, and in that year had his three-story brick building erected, in which he has ever since conducted a large laundry, called "Oriental Laundry."

In the construction of the laundry building, Tung did not take advantage entirely of the right given to him by articles 680 and 684 of the Civil Code, to make his neighbor's wall "a wall in common" and to "cause beams or joists to be placed within two inches of the whole thickness of the wall," etc. But he did utilize the wall to some extent, in the construction of his own building; and the question in this case is whether he is making such use of the wall that, according to article 684 of the Civil Code, he must pay the owner one-half of the value of the wall.

Mrs. Olsen, having bought the property No. 325 Bourbon street in 1930, brought this suit against Tung: First, for $ 1,697.50, for half of the value of her brick wall; and, second, for $ 222.69 damages to the plastering in her building, said to have been caused by vibration resulting from the operation of the machinery in Tung's laundry; and, third, for an injunction against his operating his machinery so as to cause the wall of Mrs. Olsen's building to shake or vibrate. Tung denied that he was making use of Mrs. Olsen's wall, or had converted it into a "wall in common," denied that the operation of his machinery had damaged her building, and denied that the operation of the machinery was causing excessive vibration, or noise, or was a nuisance in any sense -- particularly because the many other establishments using machinery and other noisy contrivances in that busy neighborhood were causing more noise and disturbance than the Oriental Laundry could cause. Tung pleaded, especially, that Mrs. Olsen was estopped, and without right to complain, because she had full knowledge, or ample opportunity to know, of the conditions prevailing in the Oriental Laundry, before and at the time when she bought the adjoining property.

The judge who tried the case gave judgment in favor of Mrs. Olsen for $ 1,450, for half of the value of her wall, but rejected her demand for damages and the demand for an injunction. Tung has appealed from the decision. Mrs. Olsen, answering the appeal, asks that the judgment be amended by the granting of the injunction, by increasing the amount allowed for half of the value of the wall to $ 1,697.50, and by allowing the claim of $ 222.69 for damage to the plastering in her building. She claimed also in her petition $ 500 for fees or compensation of experts employed by her to ascertain her rights; but she admits that, as she offered no evidence to support the claim, it has passed out of the case, except that she may hereafter ask to have the fees of the experts taxed as court costs.

We concur in the conclusion of the judge who tried the case that the evidence does not sustain Mrs. Olsen's claim for damages to the plastering in her building. The judge, at the request of the attorneys on both sides, and in company with them, inspected the premises, and found that the vibration in Mrs. Olsen's building, from the operation of the machinery in the Oriental Laundry, was very slight, and not sufficient to cause any damage to Mrs. Olsen's building.

We concur also in the conclusion of the judge who tried the case that Mrs. Olsen is not entitled to an injunction to forbid the operation of the machinery in the Oriental Laundry in a way to cause the wall of her building to shake or vibrate. The vibration, which is very slight and not at all harmful to Mrs. Olsen's building, is unavoidable when the laundry machinery is in operation. The ground floor of the Olsen building is suited only to commercial establishments, and was, when this suit was filed, occupied by a corporation in the clothes-cleaning or laundry business. The second and third floor of the building were leased and used for a rooming house, catering to a class of unconventional patrons whose occupations induced them to lodge in a busy section of the city, and to do their sleeping in the daytime. They are the only class of sleepers whose rest could be disturbed by the Oriental Laundry, because it is never in operation at night or on Sundays. The machinery was driven by steam, when the laundry was established, in 1924, but in 1929 electric motors were substituted for the steam engine, and the change did away with most of the noise and vibration. The neighborhood itself, however, within a radius of several blocks, is an abiding place for noises and disturbances, incident to night clubs, dance halls, garages, and parking places, and, erstwhile, soft-drink rendezvous. Rue Bourbon is one of the very narrow streets, in the original French quarter, with a car line on it. At 314 Bourbon, across the street from the Olsen property, is the American Garage, with its noisy parking space. At 315 Bourbon street, immediately beside the Oriental Laundry, is the electric power plant of the New Orleans Public Service, Inc. And the judge who tried the case said, in his reasons for judgment, that he observed when he inspected the premises that the electric power plant made as much noise as -- if not more noise than -- the Oriental Laundry made when in operation. And adjoining Mrs. Olsen's property in the rear is the Sanitary Troy Laundry, using a steam engine to run the machinery, and running night and day. If the Oriental Laundry should be deemed a nuisance in the way in which it is being operated, at 319 Bourbon street, and should be suppressed as such, it would not be easy to find a suitable location for it in New Orleans. The locality, the occupation of the inhabitants of the neighborhood, the environment, is what determines whether an establishment which uses necessarily noisy machinery is a nuisance. A manufacturing enterprise that would be a nuisance in one locality might not be so in another. The inhabitants of large cities that are sustained by manufacturing and commercial enterprises must bear the unavoidable discomforts and annoyances thereof. Le Blanc v. Orleans Ice Mfg. Co. 121 La. 249, 46 So. 226, 17 L.R.A. 287; 20 R. C. L., p. 441, § 55. Noises and vibrations from the operation of machinery cannot be deemed a nuisance, subject to injunction, unless they are unreasonable in degree; and the question of reasonableness in that respect is a question of fact depending mainly upon the location of the establishment, its relation to other property, and particularly to other sources of noise or vibration. 20 R. C. L. p. 445, § 60; Orton v. Virginia Carolina Chemical Co., 142 La. 790, 77 So. 632. Although a laundry may be so conducted as to be a nuisance, the operating of a laundry is not a nuisance per se. 46 C. J. p. 714, § 212. The evidence in this instance shows that the defendant's laundry is operated as quietly, and with as little vibration or annoyance, as could be reasonably required. The judge was right, therefore, in refusing to grant the injunction.

We have concluded also that the judgment is correct in allowing Mrs Olsen compensation for the use of her wall. The one of the defenses set up by Charles Tung which impressed us most was that both buildings were already constructed with the underground foundation of the wall of what is now Mrs. Olsen's building projecting twenty-one inches beyond the property line and on Tung's property and actually supporting his building, when Mrs. Olsen acquired her property. It is not contended by the attorneys for Tung that, if he owes half of the value of the wall, for having made use of it, the debt is due to the one who owned the wall when he (Tung) first made use of it. It seems to be conceded by counsel for Tung that, if the use which he has made of the wall has obliged him to pay half of the value of it, Mrs. Olsen is entitled to the payment for Tung's continuing to use the wall, without having compensated any owner for the use of it. The attorneys for Tung invoke the doctrine of destination du pere de famille, not only because of the projection of the base or foundation of the wall under the surface of the adjoining lot, but because a former owner of that lot used the neighbor's wall to...