Swift v. Broyles

• Decision Date: 18 July 1902
• Citation: 42 S.E. 277,115 Ga. 885
• Parties: SWIFT v. BROYLES.
• Court: Georgia Supreme Court

42 S.E. 277

115 Ga. 885

SWIFT v. BROYLES.

Supreme Court of Georgia

July 18, 1902

Syllabus by the Court.

1. Proof of a tortious invasion of one's property rights cannot, unless supplemented by evidence disclosing the extent of the loss thereby inflicted upon the injured party, afford a basis for the recovery by him of more than nominal damages.

2. The owner of a dwelling house which he himself occupies as a home is entitled to just compensation for the annoyance and discomfort occasioned by the maintenance, by another, of a nuisance on adjacent premises; and, in fixing the amount of damages to be awarded in such a case, proof of depreciation in rental value of the dwelling house, caused by such nuisance, may be looked to as furnishing a proper evidentiary guide for determining the extent of the annoyance and discomfort actually suffered.

Error from city court of Atlanta; A. E. Calhoun, Judge.

Action by Robert A. Broyles against Gustavus F. Swift. Judgment for plaintiff. Defendant brings error. Reversed.

Hoke Smith and H. C. Peeples, for plaintiff in error.

Arnold & Arnold and Nash R. Broyles, for defendant in error.

LUMPKIN P.J.

The plaintiff below, Robert A. Broyles, brought against Gustavus F. Swift a suit for damages, and recovered therein a verdict for $1,000.

The case made by the plaintiff's petition was, in brief, as follows: "Petitioner is, and for three years past has been, the owner of *** a tract of land consisting of about six (6) acres, and lying in the county of Fulton, and on the west side of what is known as the 'Marietta Road.' *** Plaintiff's property has upon it a large dwelling house, a large barn and carriage house, a servant's house; is covered with grass and vegetation; has a large garden upon it; and has upon it oak, peach, apple, plum, and pine trees in abundance. *** About the month of January, in the year 1899, the defendant began the operation of certain chemical works 'in the immediate neighborhood of' plaintiff's property, and began the manufacture of fertilizer and the use of strong acids in the manufacture of the same. *** The various acids and noxious gases and odors which have been emitted by the defendant from [these] works in the operation of said plant have had the effect to ruin and totally destroy the property of plaintiff; have ruined and destroyed it as a home and residence for plaintiff and family; have killed and destroyed all of the vegetation on it," as well as "all of the trees aforesaid; and the constant presence of the said noxious gases upon the premises have totally destroyed the same for residence purposes." The noxious gases and other "harmful and injurious substances sent out into the air by defendant in the operation of" said plant continuously pervade the premises of the plaintiff, "prevent the comfortable and safe occupancy of the house upon said premises; kill all the vegetation thereon; and are a nuisance dangerous to property and health." Plaintiff has, as a result of such nuisance, been damaged in the sum of $2,000, in that the rental value of his property has been depreciated to the extent of $25 per month; trees of the value of $500 have been killed; the injury done to other trees amounts to a like sum and the vegetables planted in his garden have been destroyed entailing upon him an annual loss of $300. An answer was filed by the defendant, in which he denied the allegations of fact upon which the plaintiff relied for a recovery. After a hearing of the case on its merits, with the result already stated, Swift made a motion for a new trial, which was overruled, and he excepted. The case, as here presented, is controlled by the questions dealt with in the discussion which follows.

1. If, in point of fact, the defendant was guilty of the wrongs complained of, the plaintiff, as owner of the premises described in his petition, was entitled to recover damages for all permanent injuries done to his freehold estate; and, as he occupied the premises himself, he also had a right to demand just compensation for such injuries as temporarily deprived him of the unrestricted use and full enjoyment of the same. Danielly v. Cheeves, 94 Ga. 264, 21 S.E. 524; Holmes v. City of Atlanta, 113 Ga. 961, 39 S.E. 458; City of Nashville v. Comar, 88 Tenn. 415, 12 S.W. 1027; Carli v. Depot Co., 32 Minn. 101, 20 N.W. 89; City of Chicago v. Huenerbein, 85 Ill. 594, 28 Am.Rep. 626; Emery v. City of Lowell, 109 Mass. 197. There was testimony in his behalf which tended to show that a number of pine trees growing on his place were killed, and all of his fruit and shade trees seriously affected, by noxious gases which escaped into the air from the defendant's works. Evidence as to the value of these pine trees was submitted, but no proof was offered from which any fair and reasonable estimate could be made of the amount of damages sustained by reason of the injuries done to such of the trees as had not been killed. Total annihilation of all plant life in the plaintiff's garden was also shown. The extent of the loss thereby incurred by him was, however, left as much in the air as the destroying agencies which he claims played havoc with his vegetables could possibly have been. It necessarily follows that the trial judge should, as he was in writing requested to do by defendant's counsel, have instructed the jury that they were not, save only as to the trees actually destroyed, authorized to find for the plaintiff more than nominal damages for any of the above-mentioned injuries suffered by him.

2. Undoubtedly, it was his right to receive additional compensation for any annoyance or discomfort occasioned by the air in and about his dwelling house being permeated with noisome gases and offensive odors discharged from the defendant's fertilizer plant. Baltimore & P. R. Co v. Fifth Baptist Church, 108 U.S. 317, 27 L.Ed. 739; Railroad Co. v. Grabill, 50 Ill. 241; Graessle v. Carpenter, 70 Iowa 166, 30 N.W. 392; Wesson v. Iron Co., 13 Allen, 95, 90 Am.Dec. 181; Emery v. City of Lowell, 109 Mass. 197; Pierce v. Wagner, 29 Minn. 355, 13 N.W. 170; 1 Wood, Nuis. (3d Ed.) § 511; 2 Wood, Nuis. (3d Ed.) §§ 561-563. Where there is such a wrongful interference with "the comfortable enjoyment of property by a person in possession, no precise rule for ascertaining the damage can be given, as, in the very nature of things, the subject-matter affected is not susceptible of exact...