Rowland v. N.Y. Stable Manure Co.

• Decision Date: 12 July 1917
• Docket Number: No. 42/192.,42/192.
• Citation: 101 A. 521,88 N.J.Eq. 168
• Parties: ROWLAND et al. v. NEW YORK STABLE MANURE CO.
• Court: New Jersey Court of Chancery

101 A. 521

88 N.J.Eq. 168

ROWLAND et al.

v. NEW YORK STABLE MANURE CO.

No. 42/192.

Court of Chancery of New Jersey.

July 12, 1917.

Bill between William J. Rowland and others and the New York Stable Manure Company to abate a nuisance. Granted.

John P. Kirkpatrick and Russell E. Watson, both of New Brunswick, for complainants. Edgar W. Hunt, of Lambertville, and Spencer Weart and Edward H. Hoos, both of Jersey City, for defendant.

BACKES, V. C. This is a bill to abate a nuisance to habitations, caused by offensive odors arising from manure piles. The defendant's business is that of gathering horse manure from stables in New York, Brooklyn, and Jersey City, and shipping it direct to farmers and dealers in fertilizers, except during the crop-growing season, when the collections are stored at the defendant's plant on the Rocky Hill branch of the Pennsylvania Railroad near Monmouth Junction. Storing begins about May 1st, and continues until the latter part of September, when reshipments commence, lasting until the end of the year. On an average, 20 carloads of manure, of 25 to 30 tons each, are received daily; the annual accumulations approximating 40,000 tons. The cars are unloaded by cranes and dredges, and the manure is stacked in ricks 20 feet high, about 1,000 feet long, and from 30 to 50 feet in width. To keep the manure from burning—the animal heat is so intense as to be physically unendurable—requires soaking with water for a period of three weeks. The water is drawn from what is called the "Black Pool," which is replenished by the drainage from the manure ricks. A shrinkage in weight of about 25 per cent. results, doubtless, from drainage and evaporation. The complainants allege that these manure piles and the Black Pool emit foul, nauseating, and sickening odors, corrupting the air and penetrating their homes, greatly to their inconvenience and discomfort

The principles of law applicable to this kind of nuisance have been so often reiterated that I pause before restating Chancellor Zabriskie's pertinent declarations in Cleveland v. Citizens' Gaslight Co., 20 N. J. Eq. 201:

"Any business, however lawful, which causes annoyances that materially interfere with the ordinary comfort, physically, of human existence, is a nuisance that should be restrained; and smoke, noise, and bad odors, even when not injurious to health, may render a dwelling so uncomfortable as to drive from it any one not compelled by poverty to remain. Unpleasant odors, from the very constitution of our nature, render us uncomfortable, and, when continued or repeated, make life uncomfortable. To live comfortably is the chief and most reasonable object of men in acquiring property as the means of attaining it; and any interference with our neighbor in the comfortable enjoyment of life is a wrong which the law will redress. The only question is: What amounts to that discomfort from which the law will protect?"

The complainants, ten in number (four were admitted during the course of the trial) and their witnesses, reside within a radius of a mile or so of the defendant's plant, in different directions, encircling it, and their evidence (of a score and more) leaves not the shadow of a doubt-that they suffered much annoyance and misery from these offensive and disturbing smells. It would be impracticable here, and it would serve no practicable purpose, to recount their testimony. Their definitions and characterizations of the ill-smelling odors vary with the witnesses' power of description; as one of the witnesses tersely put it, "it is hard to describe a bad smell." A summary of their experiences and the effects and results of the smells, by which, after all, the question of nuisance is to be determined, is that, whenever the wind blew towards them from the direction of the manure heaps, the atmosphere was so laden with the malodor as to cause nausea, headache, and vomiting, to cause them to forego their meals altogether, or to leave them unfinished, to seek shelter in their homes with the doors and windows tightly closed, to at nighttime suddenly awaken them from sound slumber, and to deprive them of sleep, or compel them to seek sleep with the windows down and doors shut. Children were driven into their houses from play, and members of families from their porches and lawns. All of these things did not, of course, happen to all of the witnesses, but nearly all of them to some, and some to all or members of their families, in their turn, or in groups, as the winds favored during the hot summer months; and especially were they affected during sultry, damp, and foggy periods, when the vapors could be seen arising from the storage grounds and wafted towards their homes. The effluvium was constant, the inflictions intermittent and recurrent, as the air currents shifted. The testimony of the complainants as to this state of affairs is supported by some of the witnesses called by the defendant, and is not overcome by others, who testified that the odors smelled like stable manure and that they were not distressed. I am ready to believe that the smell was like that of stable manure; but stable manure plus noisome gases and vapors generated by these enormous heaps of dung, during the cooling process. It requires no proof to satisfy me of the great difference in volume and pungency of odors emitted by ordinary barnyard manure piles, and those that come from immense deposits, such as the defendant stores; for I need only recall the stifling and overpowering stenches that came from the horse stable manure stored in large quantities on the Newark meadows some years ago, and I believe by this very defendant company, and how we were obliged to close car windows and doors, and stop breathing, while traveling by; and, indeed, we experience the same disagreeable sensations in our present daily travel, when passing long trains freighted with this animal excrement. The evidence makes out a clear case of nuisance to the complainants in the comfortable enjoyment of their homes—denounced by judges and text-writers as among the worst class of nuisances—and of a type similar to many reported in our books, which this court suppressed. Ross v. Butler, 19 N. J. Eq. 291, 97 Am. Dec. 654; Cleveland v. Citizens' Gaslight Co., supra; Meigs v. Lister, 23 N. J. Eq. 199; Pennsylvania R. R. v. Angel, 41 N. J. Eq. 316, 7 Atl. 432, 56 Am. Rep. 1; Rausch v. Glazer, 74 Atl. 39; Laird v. Atlantic Coast Sanitary Co., 73 N. J. Eq. 49, 67 Atl. 387; Kroeeker v. Camden Coke Co., 82 N. J. Eq. 373, 88 Atl. 955.

The nuisance determined, I will take up, in the order submitted by the defendants' counsel on the argument and in the briefs, the various objections to granting complainants relief.

Before answer filed, a motion was made to strike out the bill as amended, on the ground of multifariousness. The gravamen of the bill, as originally drawn, was nuisance to habitation by defiling the air, and by the amendment an additional injury to one of the complainants was alleged by reason of the pollution, from the "Black Pool," of a natural stream running through his property. Decision was reserved until final hearing, with the understanding that, if it went against the complainants, the amendment was to be withdrawn and an independent bill filed, with the further stipulation that testimony was to be taken on both branches of the case and used in the second suit, if one became necessary. Under the former practice, the joining of these causes of action would have been improper (Davidson v. Isham, 9 N. J. Eq. 186; Morris & Essex Railroad Co. v. Prudden, 20 N. J. Eq. 530), and would not have been permitted under the rule of this court promulgated by Chancellor Zabriskie at the March term, 1869. Rowbotham v. Jones, 47 N. J. Eq. 337, 20 Atl. 731, 19 L. R. A. 663. But, by the supplement to "An act respecting the Court of Chancery" (P. L. 1915, p. 184), the joinder is now allowed. Sections 24 and 25 of subdivision 3 of paragraph "Schedule A" provide:

"24. Separate Causes of Action.—Persons interested in separate causes of action may join as complainants or be joined as defendants, respectively, if the causes of action have a common question of law or fact, and arose out of the same transaction or series of transactions.

"25. 'Transactions.'—The transactions referred to in the preceding section include any transaction which grew out of the subject-matter in regard to which the controversy has arisen."

'This remedial provision, which has for its object the simplification of chancery procedure, by uniting in one suit all manner of complaint growing out of the same subject-matter, ought to receive most liberal judicial construction. The causes of action joined in this bill—the corruption of the atmosphere and the pollution of water—arose out of the same transaction, viz., the defendant's maintenance of its manure storage ground, to which the same fundamental principles of law are applicable, generally; and, while proof of one offense does not establish the other, the two causes of complaint are so closely allied in connection with the subject-matter of the controversy as to, for all practical purposes, embody a common question of fact within the letter and spirit of the legislation. Either a common question of law or a common question of fact warrants a joinder; and the use of the disjunctive particle is an indication of the broad sweep of the legislative intent, along with the trend of the times, towards economy of time, labor, and costs of litigation.

By plea, the defendant challenges the complainants' right to maintain this suit without first showing that application had been made to the local board of health to take proceedings, and that the board had, without just cause, neglected or refused to do so. The police power of the state or local boards of health to abate nuisances, and to apply to this court to enjoin them, is limited by the statute to those "hazardous" or "injurious to...