Smiths v. McConathy

• Decision Date: 31 July 1848
• Parties: SMITHS v. MCCONATHY.
• Court: Missouri Supreme Court

11 Mo. 517

SMITHS

v.MCCONATHY.

Supreme Court of Missouri.

July Term, 1848.

ERROR TO BOONE CIRCUIT COURT.

CLARK & YOUNG, for Plaintiffs.

1. The court erred in refusing to permit plaintiffs to prove that the water in the Bonne Femme creek was rendered unfit for the use of horses and other stock and for other domestic purposes at the farm of the plaintiffs; and that the fish in the creek were destroyed and rendered unfit for use by the distillery. 2 Starkie's Ev. 541. 2. It was error in the court to refuse the 3rd instruction asked by the plaintiffs. 2 Starkie, 540-1; Veeder v. Veeder, 1 Denio, 257; Staple v. Spring, 10 Mass. R. 74; Woodman et al. v. Tufts et al. 9 N. Hamp. R. 88; Greenleaf, 387. 3. The evidence given in the case, established beyond doubt, the erection and continuance of the nuisance by defendant, and the great injury done to the rights of plaintiffs; the verdict of the jury was therefore evidently against the evidence and law of the case, and the court should have set it aside and granted a new trial, and the refusal to do so is relied upon as sufficient to reverse the case. 4. The instructions given by the court for the defendant are not law, and particularly the first instruction. Unexplained, it was well calculated to mislead the jury.

GORDON & LEONARD, for Defendant.

1. The declaration is for a nuisance to the dwelling-house and farm of the plaintiffs by the production of offensive smells, that rendered the occupation of them uncomfortable and unhealthy and is for no other description of injury whatever. The 1st connt specifies the manner in which the smells were produced, while the second count is general, omitting the statement of the manner of their production. The 1st count states the injurious acts committed by the defendant, the erection of the distillery and hog styes--the feeding of hogs in the styes with the slops from the distillery and the placing of the offal from the distilleries and styes upon the ground and in the creek, and then alleges, that thereby the defendant produced in the plaintiffs' house and on their farm smells so offensive as to render their occupation of them unwholesome and uncomfortable. This is the substance of the charge, and the whole charge. There is no allegation in the declaration that the fish in the creek were destroyed or rendered unfit for use, or that the water of the creek was in any manner injured. The counts are in the usual form for injuries of the former description, and not at all in conformity with the precedents for destroying the fish or injuring the water of a running stream. The proof therefore tendered by the plaintiffs, that the water and fish of the creek were rendered unfit for use, was properly rejected, while even the proof allowed to the plaintiffs that the offal killed the fish and in this manner produced offensive smells, was more then questionable. 1 Denio, 257, Veeder v. Veeder.

2. The injury complained of is to the possession and not to the freehold or inheritance, and therefore the proof offered that the offensive smells rendered the farm less valuable was rightly rejected, while the plaintiffs were at the same time allowed to prove that their use and occupation of it, was during the time of the alleged nuisance, less valuable than it otherwise would have been.

3. The court in the plaintiffs' 1st and 2nd instructions directed the jury that “if the offensive smells rendered the occupation of the plaintiffs' premises uncomfortable or unhealthy, or disturbed them in the use and occupation of their farm, they ought to find for the plaintiffs.” Every offensive odor is not a nuisance. A mere inconvenience or a slight disturbance will not answer; there must be some substantial damage. It was impossible however for the court to define to the jury with mathematical precision what degree of intensity in the offensive smells would constitute them a nuisance; but the criterion adopted in the two instructions given as above, put the case to the jury on as favorable grounds for the plaintiffs as the law would permit; and when the court was asked by the plaintiffs to go still further and declare in the words of their 3rd and 4th instructions that “if it prevented them from enjoying their premises in as ample a manner as they otherwise would have done, they ought to find for the plaintiffs,” the instructions were properly rejected. It may be suggested that there is no substantial difference between the rule contained in the 1st and 2nd and that contained in the 3rd and 4th instructions offered by the plaintiffs; and if so, the refusal of the last, after giving the first, cannot of course, be assigned as error. 32 Eng. Cond. L. R. 629; 2 Greenl. Ev., p. 384, § 474; Wheaton's Sel. N. P., title Nuisance, 1137.

4. To entitle the plaintiffs to a verdict for an alleged nuisance of the character of the one charged, it must be shown, first, that the defendant committed some of the alleged injurious acts, and second that these acts occasioned some damage to the plaintiffs, and this is the substance of the plaintiffs' first instruction. Nor was there anything here to mislead the jury, for they were at the same time told in the instructions given at the instance of the plaintiffs, that “if these acts rendered the occupation of the premises unhealthy or uncomfortable, or disturbed the plaintiffs in their use of them, they must find for the plaintiffs, and assess them such damages as the jury should believe they had sustained during the time complained of. 2 Greenl. Ev., 383.

5. The plaintiffs acquired the property after the erection of the nuisance complained of, and therefore cannot sue, until they give the defendant notice to remove it. And this objection may now be insisted on. The plaintiffs presented their whole case to the jury, and that case is preserved in the bill of exceptions. No notice was given, and if this judgment were now reversed upon a new trial, no recovery could be had for want of the notice, and of course this court will not reverse. Woodman et al. v. Tufts et al. 9 N. Hamp. R. 88; 2 Greenl. Ev. 385; 1 Chitty's Pl. 101; Plummer v. Harper, 3 N. Hamp. R. 88; Pennruddock's case, 5 Coke, 100.

6. Whether the alleged acts amounted to a nuisance was a matter peculiarly within the province of the jury, and the jury upon a fair ruling of the law of the case, having pronounced against the alleged nuisance, and the court having concurred in the finding, there is nothing in the evidence preserved, to inducc this court to reverse the verdict on account of the verdict being against evidence.

7. The plaintiffs' 5th instruction related exclusively to the measure of damages, and whether correctly refused or not is now immaterial as the jury found against the alleged nuisance and that finding could not have been changed or at all affected by the instruction, if it had been given.

NAPTON, J.

This was an action of trespass on the case for a nuisance. The first count in the declaration charged that the defendant on a day specified erected on his land a distillery and divers slop pools and hog styes, and that defendant fed a large number of hogs in these pools and styes with the slops from said distillery; that large quantities of slops and offal passed from said styes into a certain creek, called Bonne Femme, the waters of which ran in a direction from the land of the defendant, towards, through, and over the lands of the plaintiffs, whereby divers noxious and offensive smells and stenches arising from the offal and slops entered said dwelling-house and premises aforesaid and rendered the same unwholesome, and annoyed, incommoded and greatly distrbed the plaintiffs in the possession and enjoy ment of said dwelling-house and farm, and that they were hindered in their business of farming, &c. The second count charges the defendant with having wrongfully and injuriously caused and procured divers noxious and offensive smells, vapors, & c., to arise and ascend near the dwelling-house of the plaintiffs and on the farm of the plaintiffs, by means of which the dwelling-house and farm were rendered uncomfortable and unhealthy and unfit for habitation, &c.

The plea was not guilty. At the trial, the plaintiffs gave evidence tending to prove the facts alleged in the declaration. They offered to prove further, that the waters of the Bonne Femme creek were rendered unwholesome by means of the nuisance complained of, and unfit for the use of the horses and cattle and other stock on the...