Powell v. Bentley & Gerwig Furniture Co.
| Decision Date | 07 March 1891 |
| Citation | 12 S.E. 1085,34 W.Va. 804 |
| Parties | POWELL v. BENTLEY & GERWIG FURNITURE CO. |
| Court | West Virginia Supreme Court |
Submitted January 31, 1891.
Syllabus by the Court.
1. 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.
2. 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 nuisance is made in some way to appear clearly beyond all ground of fair questioning.
Appeal and supersedeas from circuit court, Wood county.
Van Winkle & Ambler and J. A. Hutchinson, for appellants.
Okey Johnson, for appellee.
In the year 1888, Barna Powell, plaintiff below, brought his bill in the circuit court of Wood county against 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 filed a demurer, which was overruled; then answered, to which plaintiff replied generally. The depositions of 38 witnesses were taken to be read on behalf of the plaintiff, and of 27 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 which decree defendants have appealed. The proof shows that on 6th 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 Glanvill 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 without 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 offense against the state, but an action may be brought in his own name by any one who suffers damage peculiar in kind or degree beyond 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 of fish, etc., (chapter 44, p. 350, Code W.Va.;) sale of intoxicating liquors, (section 18, c. 32, p. 237, Id.;) power of county court to abate nuisances, (section 25, c. 39, p. 285, Id.;) power of cities, towns, and villages to abate, (section 28, c. 47, p. 415, Id.;) power of justices of the peace, (section 20c, c. 150, p. 916, Id.) Virginia and West Virginia cases on the subject. Our own cases on the subject are very few. 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 until 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 Grat. 564, relates to flooding back-water. In Snyder v. Cabell, 29 W.Va. 48, 1 S.E. 241, a skating-rink was restrained as a nuisance. This case is much relied on by plaintiff. Medford v. Levy, 31 W.Va. 649, 8 S.E. 302, holds that annoyances that 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 wrong-doer 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 St. Westm. 2, 13 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. Section 30, c. 116, p. 760, Code W.Va.
Modern remedies. The right to abate: This is treated of by Bracton, who wrote 628 years ago, and the remedy survives to the present time; but a party should not by advised to take the law into his own hands except in a case of great urgency, for he does so at his own risk, and a great hazard, should he be in the wrong, or go too far.
Things to be considered in determining what is a nuisance: Every man, as we have seen, has the exclusive dominion and the right to the full and exclusive enjoyment of his own property, to do with it as he pleases. His neighbor has the same right over his own property. Hence it follows, as the duty of each to so use his own as not to injure that of the other, each one's duty qualifies his own right, and creates a corresponding right in the other.
Harm without legal injury: But this duty must be taken with qualifications, for, in the nature of things and of society, it is not reasonable that every annoyance should constitute an injury such as the law will remedy or prevent. One may therefore make a reasonable use of his right, though it may create some annoyance or inconvenience to his neighbor. But, even in such case, an annoyance lawful in itself may become unlawful when done maliciously.
Useful or necessary trades: So, also, public policy and general convenience require that on this head something more shall be conceded to useful and beneficial work than to useless and idle amusements, but where this line of difference is to be drawn can only be determined by the facts of each particular case.
Homes and factories: According to our settled notions and habits there are convenient places,--one for the home, one for the factory; but, as often happens, the two must be so near each...
To continue reading
Request your trial