Pottstown Gas Company v. Murphy
| Decision Date | 06 May 1861 |
| Citation | 39 Pa. 257 |
| Parties | Pottstown Gas Company <I>versus</I> Murphy. |
| Court | Pennsylvania Supreme Court |
J. H. Hobart and James Boyd, with whom was St. George Tucker Campbell, for plaintiff in error.—In answer to our point, which raised the question of negligence in erecting and carrying on the works, the court below replied that the case was one which raised the question of nuisance or no nuisance, and refused the instruction prayed for. As there was no evidence in the cause tending to establish a nuisance, except in so far as all gas-works are nuisances, per se, the question is, whether these works, properly constructed and worked, are per se nuisances, and whether the owners are responsible in damages for the consequence arising from the ordinary and usual smells incident to such works. If so, the result will be ruinous to most if not all the gas companies in the state. We argue, therefore, that under the ruling in Wheatly v. Baugh, 1 Casey 536, the court below should have told the jury that the plaintiff had no cause of action. Analogous cases sustain this view: Am. Railway Cases, vol. 2, p. 292.
This argument meets the second and third assignments of error, because, taking the whole charge together, the jury were told that the company was liable for damages, although guilty of nothing beyond the proper use of the works. The slight qualification as to the manufacturing and distributing of gas being legal and beneficial, did not change the general tenor and effect of the charge.
B. M. Boyer, for defendant in error.—The plaintiff below has cause to complain of the charge of the court below, for by it he was deprived of damages, on account of the noisome smells proceeding from the works, unless he could show that the company "by something done in the construction of their works, had wantonly, unnecessarily, or oppressively caused such smells to annoy the plaintiff in a special and peculiar manner and degree beyond others in the immediate vicinity;" while, with regard to the injury done to the well of plaintiff, the jury were told "that for such an injury, if it amounted to a nuisance, he was entitled to reasonable and proper, which means compensatory, damages."
The law is not as is contended for, that a gas company may pollute the air which a man breathes, and the water which he uses, provided it be done skilfully, and from no worse motives than selfishness. The offer to the public of a cheap, safe light, is no proper substitute for pure air and water. The principle sic utere tuo, &c., applies to this as to other offensive occupations.
The fact that the defendant is incorporated is no justification or excuse. It is a private corporation, which sells what it manufactures for private profit. It is a public accommodation, but so is the hotel of Mr. Murphy.
The court instructed the jury that the question was not of negligence, but nuisance, and that if the works were constructed, or carried on, or either, so as to create an abiding nuisance, to the particular injury of plaintiff's property, the company were liable to reasonable damages, whether there was negligence or not. This instruction was correct: 3 Bl. Com. c. 13; Shuter v. T...
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