Union Cemetery Co. v. Harrison

• Decision Date: 07 October 1924
• Docket Number: 6 Div. 269.
• Citation: 20 Ala.App. 291,101 So. 517
• Parties: UNION CEMETERY CO. v. HARRISON.
• Court: Alabama Court of Appeals

101 So. 517

20 Ala.App. 291

UNION CEMETERY CO. v. HARRISON.

6 Div. 269.

Court of Appeals of Alabama

October 7, 1924

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action for damages by Henry Harrison against the Union Cemetery Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Beddow & Oberdorfer, of Birmingham, for appellant.

Allen &amp McEwen, of Birmingham, for appellee.

BRICKEN P.J.

This is an action on the case by the appellee against the appellant to recover damages alleged to have resulted from a nuisance. There was a verdict and judgment for the plaintiff, and the defendant appealed.

The plaintiff's theory, as indicated by the pleadings and proof, is that noxious and disagreeable odors arising from a cemetery conducted by the defendant polluted the atmosphere about his residence to his injury and discomfort.

The whole law of nuisance rests upon the maxim of the common law "Sic utere tuo alienum non lædas"-every man must so use his own property as not to interfere with that of his neighbor. Farris & McCurdy v. Dudley, 78 Ala. 127, 56 Am. Rep. 24; Kinney v. Koopman & Gerdes, 116 Ala. 310, 22 So. 593, 37 L. R. A. 497, 67 Am. St. Rep. 119.

"Anything constructed on a person's premises, which, of itself or by its intended use, directly injures a neighbor in the proper use and enjoyment of his property, is a nuisance." Grady v. Wolsner, 46 Ala. 381, 7 Am. Rep. 593; Hundley v. Harrison et al. 123 Ala. 292, 26 So. 294. And the principle is for the protection of one having a leasehold interest who suffers injury therefrom, as well as the holder of a fee-simple title. Hosmer v. Republic I. & S. Co., 179 Ala. 415, 60 So. 619, 43 L. R. A. (N. S.) 871; 20 R. C. L. 459, par. 76; Code 1907, § 5193; First Ave. Coal & Lumber Co. v. Johnson, 171 Ala. 470, 54 So. 598, 32 L. R. A. (N. S.) 522.

The right to pure air is incident to the ownership of land, and is entitled to the same protection as any other valuable right. "No man has a right to interfere with the supply of pure air that flows over another's land, any more than he has to interfere with the soil itself." Romano et al. v. B. R., L. & P. Co., 182 Ala. 335, 62 So. 677, 46 L. R. A. (N. S.) 642, Ann. Cas. 1915D, 776; 20 R. C. L. 421, par. 36.

"A cemetery or place for the disposal of the dead is not, according to the decided weight of authority, considered a nuisance per se, but a particular place of sepulture may become a nuisance as a matter of fact. The location and extent of grounds, as well as the mode of burial, are facts to be considered in determining the character of such place." 20 R. C. L. 411, par. 28; Kingsbury v. Flowers, 65 Ala. 479, 39 Am. Rep. 14.

If a cemetery is so conducted that noxious, deleterious, and disagreeable odors issue therefrom to the discomfort of another in the use of his premises, it is a nuisance in fact. Hundley v. Harrison, 123 Ala. 292, 26 So. 294; Romano et al. v. B. R., L. & P. Co., supra; Belview Cemetery Co. v. McEvers, 168 Ala. 535, 53 So. 272; Bryan v. Birmingham, 154 Ala. 447, 45 So. 922, 129 Am. St. Rep. 63.

The complaint in this case, as last amended, consists of counts 1, 2, and 3, to which demurrers were interposed, which were overruled by the trial court. The appellant now insists that these counts merely state conclusions, and not facts, and do not show with that degree of certainty requisite to good pleading, when plaintiff's cause of action arose. "In cases of damages by nuisance it is considered that the injurious consequences resulting from the nuisance, rather than the act which produces the nuisance, is the cause of action, and hence it is held that the cause of action does not arise until harmful consequences occur. *** Negligence of the defendant is not, ordinarily, an element," and, if averred, such averments may be disregarded as surplusage. Alabama Western R. R. Co. v. Wilson, 1 Ala. App. 306, 312, 55 So. 932; S. A. & M. R. R. Co. v. Buford, 106 Ala. 303, 17 So. 395. This is a rule of pleading pertinent in the analyses of the complaint in this case.

It seems to have been the pleader's purpose to aver in each of the counts that "noxious, unhealthful, damaging, disagreeable, and offensive odors, issuing from defendant's premises, polluted the air around and in plaintiff's dwelling, rendering it unpleasant, uncomfortable, unhealthy, and unfit for human habitation," and from this condition plaintiff suffered the damages catalogued in the complaint. These counts are not subject to the objection that they aver mere conclusions. Adler & Co. v. Pruitt, 169 Ala. 213, 225, 53 So. 315, 32 L. R. A. (N. S.) 889, 20 R. C. L. 469, par. 85. But the first count does not show, except by implication or intendment, that the noxious odors emanate from defendant's cemetery, and both the first and second counts are lacking in specific averments as to the time of the injury. They do not show, except by implication, that plaintiff's occupancy of the premises "near the cemetery" was during its ownership and control by the defendant. Numerous grounds of demurrer, and especially grounds 34 and 36, point out this defect. We are of the opinion that the court erred in overruling these demurrers to counts 1 and 2. Tallassee Falls Mfg. Co. v. First National Bank, 159 Ala. 315, 49 So. 246; Mobile, J. & K. C. R. R. Co. v. Bay Shore Lumber Co., 158 Ala. 622, 48 So. 377; Williams v. McKissack, 125 Ala. 544, 27 So. 922; Shipman's Com. Law Pl. (2d Ed.) 389.

In Kearney v. Farrell, 28 Conn. 317, 73 Am. Dec. 677, it was held competent for witnesses who are acquainted with the effect which privies and pigsties have upon the air about them, and who had examined the premises in question since the commencement of the suit, to give their opinion, together with the facts upon which it was based, that that the effluvia from the privy and sty constituting the alleged nuisance is calculated to make the plaintiff's house uncomfortable. In Kirchgraber v. Lloyd, 59 Mo.App. 59, where the alleged nuisance was the noxious fumes and smoke from defendant's brickkiln it was held that a witness who had operated brickkilns and lived near them, after examining the plaintiff's premises and location of defendant's brickkiln, could give his opinion as to the probable effects of the smoke and fumes on the plaintiff's

premises.

Wood on Nuisances (3d Ed.) § 610, lays down the rule that: "To establish the fact of nuisance, where the question is whether the maintenance of a privy, pigsty, etc., emitting noxious stenches near another's dwelling or place of business is a nuisance, the opinion of witnesses who have personally examined the premises, and are acquainted by personal observation with the effect which such uses produce upon the air, are competent to show that effluvia from such uses must necessarily render the plaintiff's premises uncomfortable as a place of abode or business. And the same principle applies to nuisances arising from other causes, as from smoke, noxious vapors, interference with water courses, etc." Steel City Chemical Co. v. Jenkins, 17 Ala. App. 221, 84 So. 408.

In Stouts Mt. Coal & Coke Co. v. Tedder, 189 Ala. 637 66 So. 619, where the...