Powell v. Bentley
| Citation | 34 W.Va. 804 |
| Court | Supreme Court of West Virginia |
| Decision Date | 07 March 1891 |
| Parties | Powell v. Bentley & Gerwig Furniture Co.- |
The noise of a factory, which materially interferes with and impairs the ordinary physical comfort of human existence, may be treated as a nuisance. But the standard as to the effect must be the man of normal nervous sensibility and ordinary mode of living.
But such cases depend in a peculiar degree upon their own facts and surrounding circumstances; so that courts of equity should proceed with great caution in abating or restraining such factory by injunction, and not enjoin unless the fact of nulsauce is made in some way to appear clearly beyond all ground of fair questioning.
Van Winkle & Ambler of counsel for appellants, cited: 57 Pa. St. 274; 78 Ky. 400; 10 Am. Rep. 669; 105 Pa. St. 253; 33 Am. Rep. 325; Wood Wilis. § 671; Id. § 613; Id. §§ 688, 639; 66 Am. Dec. 790; 28 Am. Rep. 378; 10 Am. Rep. 669; Tied. Lim. Pol. Pow..§§ 104, 122; Wood Nuis. 641; 130 U. S. 620; 11 II. L. Cas. 642; Poll. Torts 271; 9 Chan. 705; 5 W. Va. 1; 56 Am. Rep. 581; 146 Mass. 349; 4 Am. St. Rep. 317, 320; 4 Am. St. Rep. 601; 12 Phila. 259; Thomp. Tri. §§ 1911, 1915; 133 Mass. 289; 136 Mass. 239; 43 Am. Rep. 521, 522, 526; 118 Pa. St. 402; Wood mils. §.§ 618, 633, 634; Add, Torts § 224; 20 Am. Rep. 575; 22 Am. L. Reg. 625; 1 High. Inj. § 745; Id. §§ 756, 781, 786; 23 Miss. 540; 106 IT. S. 679; 50 Am. Rep. 112; Id. 119; Pom. Eq. Juris. § 817; Big. Estopp. 661, 663; Id. 553, 565, 566; High Inj. § 741; Id. § 13.
J. A. Hutchinson of counsel for appellant cited: 2 Thomp. Tri. § 1911; L. R. 8 eh. 8-13; 29 W. Va. 48; Wood Nuis. §617, 618; Phill. Ev. 436; 91. J. Eq. 186; 146 Mass. 349; 52 How. Pr. 255; 4 Rob't (N. Y.) 449; 1 High. Inj. §774; 8 Daly 113; 11H. L. Cas. 650; 50 Md. 522; 113 Mass. 8; 8 Cush. 80; 101 Mass. 29; L. R. 4 eh. App. 388; Wood Wuis. 632, 634; Id. 617, 638; 26 Ga. 182; 18 Ill. 266; 133 Mass. 289; 22 W. J. Eq. 26; 13 Allen 95; 100 Mass. 76; L. R. 9 ch. App. 705; 50 Md. 516; 3 Grant Cas. 390; 43 Am. Rep. 519; 10 Am. Rep. 669; L. R. 11 Eq. Cas. 338; 66 Am. Dec, 790; 47 W. II. 71; Cool. Torts 596, 598, 599; 50 Am. Rep. 112; 9 Wis. 158; 14 Wis. 479; 16 Wis. 661; 2 Barb. Ch'y Pr. § 608; 12 Allen 457; 14 Md. 444; 50 Am. Rep. 112; 146 Mass. 352, 353; 10 Monk Eng. Rep. 588.
0. Johnson for appellee, cited:
31 W. va. 137; 51 1ST. V. 100; Wood Wuis. §§ 801, 802, 806, n. 1; 97 IT. S. 317; 35 Am. Dec. 575; 97 IT. S. 679; 37 Pa, St. 112; 56 Pa. St. 413; 78 Ky. 406; High Inj. § 786; 5 Mete. 8; 27 Tex. 304; 24 Ala. 130; 49 Me. 539; 14 Vt. 230; 8 Ind. 104; 51 N Y. 300; 110 N". Y. 273; Wood Nuis. § 806; 9 Watt. 254; 63 1ST. Y. 568; 19 W. Va 439; 20 K J. Eq. 201; 1 Roht. (X. Y.) 449; L. R. 3 Eq. 409; 23 Mich. 448; 70 Pa, St. 102; 31 Mich. 291; 108 U. S. 317; 2E Y. S. 245; 55 Conn. 31; 3 Barb. 157; 9 Paige 575; 31 L. T. (K S.) 156; 1 DeM. & G. 616; 2 M. & C. 613; 4 K. & J. 528; L. R. 4 eh. 148; 3 Sumn. 189; Hopk. Ch'y 416; 4 B. & S. 600; 18 L. T. (K S.) 49; 17 L. T. (N. S.) 220; L. R. S. Ch. 583; 4 B & S. 608; L. R, 4 Ch. 148; L. R. 1 Excli. 265; 7 L. T. (N. S.) 207; 1 Rolle Abr. 14; 1 Dall. 150; 13 Gray 146; 53 N Y. 152; 3 Black. Comm. 216; 54 Am. Dec. 347; 38 Am. Dec. 567; 47 Am. Dec. 254; 97 Am. Dec. 654; 89 Am. Dec. 392; 79 Am. Dec. 444; 67 Am. Dec. 665; 81 Am. Dec. 573; 98 Am. Dec. 221; 81 Am. Dec. 588; 17 Am. Rep. 516; 63 NT. Y. 568; 1 Burr. 337; Cool. Torts 712; 43 Am. Rep. 519; 133 Mass. 289; 13 Allen 95; 100 Mass. 76; Wood IsTuis. § 601, 612, 617; 1 Allen 592; 4 C. E. Green 294; 9 N J. Eq. 186; 9 Ired. 244; 3 Pa. St. 300; 33 Conn. 121; 1 II. & N 34; 1 Stockt. 186; 4 Demo 311; 2 P. Wins. 266; 17 Tex. 489; 5 Barb. 79; 6 Barb. 313; 9 Eng. L. & Eq. 104; 29 W. Va 48; 49 Am. Dec. 421; 42 Am. Rep. 534; 40 Am. Rep. 738; 20 Am. Rep. 63; 10 Am. Rep. 659; 9 Am. Dec;. 181;. 81 Am. Dec. 538; 53 Am. Dee. 730; Wood Nuis. § 611 et scq.
In the year 1888, Barna Powell, plaintiff below, brought his bill in the Circuit Court of Wood county, against the Bentley & Gerwig Furniture Company, a partnership, defendants below and appellants, to perpetually enjoin and restrain said company from the use of their furniture factory as a nuisance to plaintiff in the use and enjoyment of his lot and dwelling house thereon. Defendants tiled a demurrer, which was overruled; then answered, and the plaintiff replied generally. The depositions of thirty eight witnesses were taken to be read on behalf of the plaintiff, and of twenty seven witnesses to be read on behalf of defendants. On the 12th of August, 1890, the cause came on to be heard, when the Circuit Court pronounced a final decree, by which defendants were perpetually enjoined and restrained from so operating their furniture factory, machines, engines etc., as to produce loud, disagreeable, annoying, and injurious noises, interfering with the ordinary use, physical comfort and enjoyment by plaintiff, his family and other occupants of his house, lot and premises. From this decree defendants have appealed.
The proof shows that on the 6th of June, 1889, plaintiff brought against defendants an action of trespass on the case for damages for the nuisance asked to be enjoined, which action at law was pending in the same court on the law side, when the decree complained of was pronounced.
History of common law nuisance: The common-law doctrine of nuisance is as old as the common-law itself. Our oldest law-writers treat of the subject. See citations from Glanville and Bracton in Bigelow, Lead. Cas. Torts. 462.
Its foundation: It is founded on what we call the absolute rights of liberty and property. Each man has the right to that which he has made his own, and wdthout control or diminution, save by the laws of the land. If each has it, all have it; so that it follows from this that each one must so use his property and rights as not to injure those of others. Each has his right for himself, and owes a corresponding duty to the other.
Definition: Some definitions are too broad to be useful; some too narrow to be true. The violation of this duty is the best general description of a nuisance.
Common nuisance: A common nuisance affects the people at large, and is an offence against the State, but an action may be brought in his own name by any one who suffers damage peculiar in kind or degree beyend what is common to him and to others.
Private nuisance: A private nuisance affects one or more as private citizens, and not as a part of the public, and is ground for a civil suit only.
Subject-matter: Generally it affects the use or enjoyment of real property, and, as we see, by the old definitions was confined to this; but modern law takes a wider range. It is closely related to the law of servitudes.
Statute law: Our statute law upon the subject relates to public nuisances, such as dams obstructing ordinary navigation or the passage offish etc. (Code, c. 44); sale of intoxicating liquors (Code, c. 32, s. 18); power of County Court to abate nuisances (Code, c. 39, s. 25); power of cities, towns and villages to abate, (Code, c. 47, s. 28,); power of justices of the peace (Code, c. 150, s. 20 c).
In Wingfield v. Crenshaw, 4 Hen. & M. 474 (Chancellor Taylor) it was held that a court of equity ought not to interpose in the case of a nuisance, except where the law would not afford an immediate nor an adequate remedy before irreparable injury might be done. In Miller v. Trueheart, 4 Leigh, 569, plaintiff had secured judgment at law against owner of mill-dam which had been washed away, and which he was about to rebuild. It was held that the injunction should be granted, unless it appeared from the verdict of a jury, on an issue for that purpose, that the proposed expedient (to avoid the nuisance) would be effectual. Amick v. Tharp, 13 Gratt. 564, relates to flooding back-water. "W. Va. cases on the subject are very few. In Snyder v. Cabell, 29 W. va. 48 (1 S. E. Rep. 241) a skatingrink was restrained as a nuisance. This case is much relied on by plaintiff. Medford v. Levy, 31 W. va. 649 (8 S. E. Rep. 302) holds that annoyances, which in themselves would not amount to a private nuisance, may become nuisances when done wantonly and maliciously, and I suppose the natural and ordinary use of property in so negligent a manner as to cause unnecessary harm and annoyance, not being reasonable, would be deemed a nuisance.
The old common-law remedies by action: These were two: (1) Quod permittat prosternere. This was in the nature of a writ of right, and therefore subject to great delays. It commanded the defendant to permit the plaintiff to abate the nuisance, or show cause against the same; and plaintiff could have judgment to abate the nuisance, and for damages against the defendant. (2) An assize of nuisance, in which the sheriff was commanded to summon a jury to view the premises, and, if they found for the plaintiff, he had judgment to have the nuisance abated, and for damages. It is to be noticed that the jury were to view the premises. Both had long been out of use in Blackstone's day; with us they were never in use, as far as I know. The assize of nuisance lay only against the wrongdoer himself, but not against the alienee of the tenement wherein the nuisance was situated. This was the immediate reason for making that equitable provision in Stat. Westm. 2, 18 Edw. I. c. 24. This was in the year 1285 (3 Bl. Comm. pp. 216, 222) and has been the occasion of our modern changes in common-law pleading. We see that in the assize of nuisance the jury were to view the premises; this may be done now in the case at law, at the request of either party. Code, c. 116, s. 30.)
Modern remedies: The right to abate: This is treated of by Bracton, who wrote six hundred and twenty eight years ago, and the remedy survives to the present time; but a party should not be advised to take the law into his own hands except in a case of...
To continue reading
Request your trial