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acceptance of the invitation to ride on the land with a frame dwelling house thereon, known as the "Anna Therese." Said house is situated in a country district suitable for country homes, "al

carrier's cars, and the fact that the passenger was carried gratuitously did not deprive her of her right of action if injured by the negligence of the carrier.

though not as yet so appropriated by others than the
plaintiff." The defendant is a foreign corporation

engaged in the manufacture of carbonic acid gas in
a semi-fluid form convenient for shipment to market
by compressing the natural gas found on its prem-
ises, and for this purpose it maintains a plant con-
taining machinery operated by steam which is gen-
erated from two boilers with a capacity of 100 hors
It has two smokestacks, each 90 feet high,
power.
From two and one-half to four tons of soft coal are
situated 840 feet from the residence of the plaintiff.
used daily by the defendant, and its chimneys con-
tinuously pour forth "a thick black smoke, large in
volume, and larger, denser and thicker when the fires
are freshened twice" every hour during the twenty-
four that the plant is in operation, Sundays ex-
cepted.

Justice Rugg, of the Supreme Judicial Court of Massachusetts, writing the opinion in Elliott v. Baker, 80 Northeastern Reporter, 450, severely scores the practice of directors of a corporation, as disclosed in that case, to issue stock to coonfederates, by which they expected to gain control of the corporation. He says the directors of a corporation act in a strictly fiduciary capacity, and they cannot manipulate the property of which they have control, primarily with the intent to secure the majority of the stock or of directors in any particular interest. Such action is not a fair exercise of the power with which they are clothed. That this constitutes a timely and needed object-lesson to directors oping it and sometimes obscuring it from view." Suid

of corporations, just at this time, will not be any where disputed.

:0:

Private Nuisance.

USE OF SOFT COAL IN FACTORY CAUSING DISCOMFORT
AND FINANCIAL LOSS TO PLAINTIFF IN ADJACENT
RESIDENCE.

NEW YORK COURT OF APPEALS.
Decided June 4, 1907.

RICHARD H. MCCARTY, respondent, v. NATURAL CAR-
BONIC GAS COMPANY, appellant.

Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department modifying and affirming a judgment entered upon the decision of the court at Special Term.

Henry T. Fay for appellant; George R. Salisbury for respondent.

VANN, J.-This action was brought to restrain the defendant from so operating its manufactory as to cause smoke, soot, and dust emitted from its chimneys to gather and settle about the dwelling house of the plaintiff, to his annoyance and injury.

The trial court found the following facts in substance: For four years prior to the 13th of July, 1904, when this action was commenced, the plaintiff owned certain premises on South Broadway, in the village of Saratoga Springs, consisting of a lot of

When the wind is right the smoke blows down upon the plaintiff's house and comes upon and around it. When the atmosphere is dense "clouds of smoke proceeding from the defendant's chimneys gather and settle about the plaintiff's house, envel

smoke "has caused the exterior of the house of the plaintiff to become discolored with soot and has caused plaintiff and his family much discomfort and annoyance and some financial injury." The defendant causes this damage and injury by the use of soft coal, yet by the use of anthracite coal it would obtain the same result in manufacturing, although at a greater expense, and if the use of soft coal were abandoned the discomfort experienced by the plaintiff would be entirely avoided. "The present use of soft coal is not a necessary use for the practical management and running of its plant," and under all the circumstances of the case the present discomfort of the plaintiff is not occasioned by any reasonable use by the defendant of its own property." The plaintiff had owned his property for several years before the defendant erected its factory. Another factory like the defendant's was located in the neighborhood before the plaintiff purchased, but as it uses anthracite coal it has never caused any annoyance. The rental value of the plaintiff's house has been injured by the use of soft coal by th» defendant to t'e extent of $800, and he has incurred expense for cleaning rugs to the extent of $18 more.

The court, after repeating as conclusions of law its findings of fact in relation to reasonable and necessary use, further found as conclusions of law that "the defendant should be enjoined, restrained and forbidden from burning soft coal on its said plant in the village of Saratoga Springs, N. Y., for the purpose of generating steam," and that "the plaintiff herein is entitled to the sum of $818 damages and is also entitled to the costs of the action."

in the arts and agencies of civilized society (CampUpon appeal to the Appellate Division the judgment bell v. Seaman, supra). What is reasonable is somewas modified by deducting from the damages awarded the sum of $18 as of the date when the

times a question of law and at others a question of judgment was entered, and as so modified the judg- culiar, numerous or complicated circumstances, it fact. When it depends upon an inference, from pement was unanimously affirmed.

The action of the courts below withdraws the evidence from our view, except for the consideration of exceptions relating thereto, and leaves but one question upon the merits for us to decide, and that is whether the facts found support the conclusions of law. In other words, in a country district suitable

for country homes, does the use of soft coal in a factory so situated that thick, black smoke therefrom, great in volume and dense in quality, envelopes and

discolors a neighboring dwelling house, causing much discomfort and some financial loss to the occupants, constitute a nuisance, when such use of soft coal is not necessary for the practical running of the plant and is not a reasonable use of the manufacturer's property?

The principles governing the decision of that question are neither recent in origin nor doubtful in application. The ancient maxim of sic utere tuo ut alienum non laedas is the foundation of the well established rule that no one may make an unreasonable use of his own premises to the material injury of his neighbor's premises, and if he does the latter has a right of action, even if he is not driven from his dwelling, provided the enjoyment of life and property is materially lessened. (Campbell v. Seaman, 63 N. Y. 568; Cogswell v. N. Y., N. H. & H. R. R., 103 N. Y. 10; Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18; Morton v. Mayor, etc., of N. Y., 140 N. Y. 207; Garvey v. L. I. R. R., 159 N. Y. 323; Bly v. Edison Elec. Illum. Co., 172 N. Y. 1; Pritchard v. Edison Elec. Illum. Co., 179 N. Y. 364.)

The law relating to private nuisances is a law of degree and turns on the question of fact whether the use is reasonable or not under all the circumstances. No hard and fast rule controls the subject, for a use that is reasonable under one set of facts would be unreasonable under another. Whether the use of property to carry on a lawful business, which cre ates smoke or noxious gases in excessive quantities, amounts to a nuisance depends on the facts of each particular case (21 Am. & Eng. Eney, of Law. 2d ed., 692). Location, priority of occupation and the fact that the injury is only occasional are not conclusive, but are to be considered in connection with all the evidence and the inference drawn from all the facts proved whether the controlling fact exists that the use is unreasonable. If that fact is found, a nuisance is established and the plaintiff is entitled to relief in some form. Unless that fact is found, or it is an inference of law from other facts found, no nuisance is established, even if the plaintiff shows that he has suffered some damage, annoyance and injury. Those evils are at times incidental to civilized life and the sufferer finds compensation

is usually a question of fact. Whether the use of property by one person is reasonable, with reference to the comfortable enjoyment of his own property by another, generally depends upon many and varied

facts, such as location, nature of the use, character of the neighborhood, extent and frequency of the in

jury, the effect on the enjoyment of life, health and property and the like. Such was the nature of the question in this case, which, we think, is one of

fact.

The case last cited involved injury to ornamental shrubbery on land adjacent to a village from the noxious gases of a brick factory, which dug the clay on its own premises, and the exhaustive opinion of Judge EARL holds, with the concurrence of all the judges, that articles of luxury are as much under the protection of the law as articles of necessity; that it is immaterial that the injury is only occa sional; that the right to an injunction is not af fected by the fact that the brick kiln was used before the plaintiff purchased his land, and that, if the use is such "as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment specially uncomfortable or inconvenient," ," it constitutes a nuisance.

In the well-known Cogswell case (supra) a railroad company had erected an engine house near a dwelling house in a city and the smoke, cinders and coal dust, carried by the winds, filled the house, injured articles therein and rendered the air offensive and the house uncomfortable. It was held that the

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engine house, as used, was within every definition a nuisance, for which, as between individuals, an action would lie for damages and for which a court of equity would afford a remedy by injunction." All the judges united with Judge ANDREWS in saying: · However necessary it may be for the defendant that its engine house should be located where it is, this constitutes no justification for the injury suf fered by the plaintiff, nor is it any answer to the action that it exercises all practicable care in its management. It may have the right, which it claims, to acquire land by purchase for the accommodation of its business, but it must secure such a location as will enable it to conduct its operations without violating the just rights of others. Public policy, indeed, requires that in adjusting the mutual rela tions between railroads and individuals courts should not stand upon the assertion of extreme rights for either side, but in this case the facts leave no room for doubt that the plaintiff has suffered a substantial and unauthorized injury."

The Bohan case (supra) involved the comfortable enjoyment of neighboring property owing to noxious

odors from gas works carried on by a corporation this may sometimes be annoying to neighbors it is organized under the general statute. part of the price paid for living where there are neighbors. But when the smoke is so unusual and excessive as to materially interfere with the ordinary comfort of human existence, the trier of the facts, taking into account all the circumstances, such as public utility, locality, immediate surroundings and the like, may find the use unreasonable. This is not a case where the defendant cannot carry on its business without injury to neighboring property, for all damage can be avoided by the use of hard coal, as is done by one of its competitors in the same kind of business in the same locality, or possibly by the use of some modern appliance such as a smoke consumer, although either would involve an increase in expense. It is better, however, that profits should be somewhat reduced than to compel a householder to abandon his home, especially when he did not come to the nuisance," but was there before. "The safety of property generally is superior in right to a particular use of a single piece of property by its owner. It renders the enjoyment of all property more secure by preventing such use of one piece by one man as may injure all his neighbors." (Sullivan v. Dunham, 161 N. Y. 290, 300.)

The court charged the jury that the question for them to determine was: "Did the odor pollute the air so as to substantially render plaintiff's property unfit for comfortable enjoyment?" The jury found for the plaintiff, and the court held that the act complained of constituted a nuisance per se. The court refused to charge "that unless the jury should find that the works of the defendant were defective, or that they were out of repair, or that the persons in charge of manufacturing gas at these works were unskillful and incapable, their verdict should be for the defendant." It further refused to charge "that if the odors which affect the plaintiff are those that are inseparable from the manufacture of gas with the most approved apparatus and with the utmost skill and care, and do not result from any defects in the works or from want of care in their management, the defendant is not liable." Both requests were refused and the exceptions to the rulings were held to raise no error. The thorough review of all the prior cases makes it unnecessary for us to mention them, and an able dissenting opinion added emphasis to the decision, for it showed that nothing had beer. overlooked, and that no argument was left unused. The leading authorities in all jurisdictions hold that the question is whether the defendant makes a reasonable or, as some judges express themselves, a proper use of his own property. Sometimes negli gence to referred to as an element in the question. Judge LANDON once pointedly said: "A lawful business negligently conducted is not a lawful business lawfully conducted," but, as the quotation implies, since a negligent use of one's own property to the injury of another is an unreasonable use, the ultimate question after all is whether the use is reasonable. (Dunsbach v. Hollister, 49 Hun., 352, 354.) Negligence, wrong business methods, improper appliances and the like may bear upon but do not control the question of reasonable use. If the use is reasonable there can be no private nuisance, but if the use is unreasonable and results in substantial injury, an actionable nuisance exists. Trifling results are disregarded, for the courts proceed with great caution and will not interfere with the use of property by the owner thereof unless such use is unreasonable, the injury material and actual, not fanciful or sentimental. Lex non favet votis delicatorum. (Genet v. Del. & Hud. Canal Co., 122 N. Y. 505, 529; Wood on Nuisances, 3d ed. 679; Jaggard on Torts, 744; Garrett on Law of Nuisances, 146.)

The defendant's business is lawful and not a nuisance per se, although it has been found that as carried on it is a nuisance in fact. The extent more than the nature of the injury, the quantum, rather than the damnum, constitutes the nuisance. smoke is generally created by the natural and ordinary use of land near a village or city, and while

Some

The use made of property may be unpleasant, unsightly, or, to some extent, annoying and disagreeable to the occupants of neighboring property with out creating a nuisance. When, however, it not only interferes materially with the physical comfort of persons in their own homes, but also causes some financial injury to the owner, it constitutes a nuisance. That is the case, and the facts found compel an affirmance except in one particular.

The conclusion of law that the defendant should be enjoined from burning soft coal on its premises to make steam is too broad, for it is unlimited as to time or circumstances, and the judgment follows the conclusion. If the defendant, by the use of some appliance now known or which may become known hereafter, can burn soft coal in its factory without injury to the plaintiff it cannot lawfully be deprived of that right. If the plaintiff should convert his house into a factory, using soft coal, he would The defendant, not be entitled to an injunction. therefore, should be permitted to apply at Special Term, upon proper notice at any time, for a modification of the decree at the foot thereof, permitting it to burn soft coal upon proof of such a change of facts as to make such use of its property no longer unreasonable. Subject to this modification, the judg ment should be affirmed, with costs.

O'BRIEN, J. (dissenting).—The plaintiff recovered a judgment in this case, enjoining the defendant from the transaction of business on its own land. Damages have also been awarded to the plaintiff as compensation for the injury complained of.

The

question arising upon the appeal is whether the facts found in the case sustain the conclusion of law.

The act of the defendant which is the basis of the recovery is that it is burning soft coal to generate steam in the manufacture of natural carbonic gas. The plaintiff has no right to complain of the manner in which the defendant is transacting its business unless it is in violation of some legal right which he may assert against the defendant. It is important, therefore, to state the facts which the court found, and which it is contended support the judgment. The claim of the plaintiff is that his dwelling house, in consequence of the business which the defendant is engaged in, has been rendered uncomfortable. It is found that this dwelling house is situated in a district so sparsely settled that it may properly be called neither a residence, factory nor business neighborhood. It is a country district near the village of Saratoga, which is appropriate for country homes, although not as yet so appropriated by others than the plaintiff himself. The defendant is and has been for some time engaged in the manufacture and development of natural carbonic gas, maintain ing a plant with buildings and machinery thereon for that purpose upon lands adjoining the plain tiff's premises. This plant is operated by steam power used to compress natural gas extracted from mineral springs into semi-solid form convenient for shipment to the market. There are several frame buildings, an iron gasometer and two ninety-feet smokestacks. These smokestacks are eight hundred and forty feet distant from the plaintiff's residence. | Soft coal is used in the boilers to generate the steam for the purpose of operating the plant, and from about two and one-half to four tons of soft coal are used daily by the defendant corporation. It may, I think, be assumed, although the fact is not found distinctly, that the defendant's business must be carried on, if at all, in the vicinity of mineral springs, and hence the defendant's plant was located with reference to that fact.

Of course, volumes of smoke are emitted from the smokestack produced by the use of soft coal, especially when the fires are freshened, as they are twice an hour. It is also found that there are times when the direction of the wind is such that the smoke blows down upon the plaintiff's house, and at other times when the atmosphere is dense and the wind right that clouds of smoke proceeding from the chimneys gather and settle about the plaintiff's house, sometimes obscuring it from view. This annoyance it seems is not continuous, but exists when the wind is in the right direction and the atmosphere is dense. The language of the finding on this subject is this: "That said smoke, when the wind is in the proper direction and the condition of the atmosphere is right, comes down and around plaintiff's house and premises." That the smoke and soot emitted from the chimneys have caused the exterior

of the plaintiff's house to become discolored and have caused plaintiff and his family discomfort and annoyance and some financial injury, and that this is all caused by the use of soft coal." It is also found that the defendant could obviate this inconvenience or annoyance by the use of anthracite coal in its plant and would obtain the same result in manufacture, although at greater expense, and, hence, that the present use of soft coal is not a necessary use for the practical management and running of its plant.

The court, in its findings, expressly negatived some facts which the plaintiff sought to establish. It is found that no injury has been occasioned by the use of soft coal by the defendant to the trees or shrubbery of the plaintiff; that the use of soft coal by the defendant has not caused any injury to the health of the plaintiff or his family for which dam ages could be recovered; that there is nothing to show that plaintiff's house would not by this time require washing and painting even if it had not been soiled by the smoke from the defendant's plant; that no permanent injury has been done by the use of soft coal by the defendant to the plaintiff's furniture or to the interior decorations of his house. As a conclusion of law the court held and decided that the use of soft coal by the defendant in the opera tion of its plant is not a reasonable or necessary use, and that the discomfort and damage to the plaintiff are occasioned by the unreasonable use by the defendant of its property, and, therefore, that the defendant should be enjoined, restrained and forbidden from burning soft coal in the operation of its plant for the purpose of generating steam. There is no finding in the record that the defendant was guilty of any negligence in the operation of its plant or the conduct of its business, nor is there any finding that the use of soft coal as described in the fiudings referred to is per se a nuisance. The appeal, therefore, presents the single question whether, upon the facts found, there is any support for the judg

ment.

The principal authority upon which the learned counsel for the plaintiff relies in support of the judg Iment is the case of Bohan v. Port Jervis G. L. Co., 122 N. Y. 18. It seems to me that there is a very material distinction between that case and the one at bar. The act there complained of was the use of naphtha in the manufacture of gas. The defendant erected a tank on its own premises, the southern side of which was within a few feet of plaintiff's premises. It was found that naphtha is an offensive, noxious, unhealthy and sickening mineral substance, destructive to the health and comfort of those required to be and remain in close proximity to it; that the defendant's tank was erected and is maintained in a negligent and unskillful manner, and by reason of the negligence and want of care upon part of the defendant in the construction, use of and maintenance of said tank, and the negligent and

the

unskillful manufacture of gas from naphtha the defendant maintains a nuisance injurious to the comfort and enjoyment of the plaintiff and to the rental value of his premises. So that there was an allega. tion in that case not only of negligence on the part of the defendant, but it was charged with maintaining a nuisance; and the character of naphtha as described in the allegation is widely different from anything that may be said in regard to the emission of smoke resulting from the use of soft coal. More over, the location of the tank within a few fect of the plaintiff's premises was an important element in the case which is absent from the case at bar. That case was tried before a jury and a general verdict rendered in favor of the plaintiff, so that all the facts alleged in the complaint must be deemed to have been found by the jury against the defendant. In the case at bar the trial was before the court, and the judgment rests upon distinct findings of fact. The findings in this case practically negatived all the facts which were the basis of the recovery in the case referred to.

Dodge, 131 N. Y. 153; Bryden v. Bryden, 11 Johns. 187; Hunt v. Maybee, 7 N..Y. 266; Dalcomb v. Buffalo, etc., R. R., 27 Barb. 221; Cumpston v. McNair, 1 Wend. 457; Carroll v. Upton, 3 N. Y. 272; Craig v. Parkis, 40 N. Y. 181; Hedges v. H. R. R. R., 49 N. Y. 223; Martin-Barris Co. v. Jackson, 24 App. Div. 354; People ex rel. Hogan v. French, 119 N. Y. 493.) The citation of so many authorities in support of the proposition stated would seem to be a work of supererogation, but inasmuch as it is contended with great earnestness that the finding is one of fact, I thought it useful to cite the authorities that decide the point which was presented in various forms and under a great variety of circumstances.

Assuming, as I think we must, that the finding is simply a statement of law, the case is reduced to the simple inquiry whether the use of soft coal by the defendant, in the transaction of its business, is, as matter of law, violative of some legal right of the plaintiff as against the defendant. In the Bohan case (supra) the rule that in general controls such a controversy as this was stated in this language: It is quite true that in the case at bar the court "The principle that one cannot recover for injuries held as a conclusion of law that the use of soft coal sustained from lawful acts done on one's own propin the operation of the defendant's plant was not a erty without negligence and without malice is well reasonable or necessary use of its own property. founded in the law. Everyone has the right to the That, of course, is not in any sense a finding of fact, reasonable enjoyment of his own property, and so but a conclusion of law. What acts are to be con- long as the use to which he devotes it violates no sidered reasonable or unreasonable is a question rights of others, there is no legal cause of action which has been very much discussed, and there is against him. The wants of mankind demand that abundance of authority on the subject. When we property be put to many and various uses and emsay that an act is reasonable we mean that it is con- ployments, and one may have upon his property any formable or agreeable to reason. A reasonable act kind of lawful business, and so long as it is not a signifies such an act as the law requires or permits. nuisance, and is not managed so as to become such, (1 Blackstone's Com. 70; 2 Bouvier, Rawle's rev., he is not responsible for any damage that his neigh828.) A reasonable use by one of his own property bor accidentally or unavoidably sustains. Such is a conclusion derived from reason or the intellec- losses the law regards as damnum absque injuria.” tual process of argument. In this case there is no That case was decided in the Second Division of this dispute whatever in regard to the facts. The defend- court and encountered a vigorous dissent in which ant used soft coal to generate steam, and that is the two members of the court joined. The result does end of the discussion as to the facts, but whether not, in my opinion, necessarily control the decision such use is a reasonable use is a pure question of in the case at bar. The law applicable to the queslaw. If the defendant acted reasonably in establish- tions involved in the present case has been stated I ing its factory near a mineral spring and operated it, and settled in a more recent case in this court. using soft coal to generate steam, that is the end of refer to the case of Booth v. Rome, W. & O. R. R., the discussion so far as it concerns the defendant. 140 N. Y. 267. In that case the decision of this There is no principle of law better established than court was unanimous and the opinion was written this: When the direct fact in issue is established by by Chief Judge Andrews, in which the principle was undisputed evidence, and such fact is decisive of the stated in the following language: "The general case, a question of law is raised, and the court should rule that no one has absolute freedom in the use of decide it. It is not for the jury to find in such a his property, but is restrained by the co-existence of case as this that the defendant's conduct of its busi equal rights in his neighbor to the use of his propness was unreasonable. That is something which erty, so that each in exercising his right must do no the court must decide as matter of law, and in this act which causes injury to his neighbor, is so well case the finding of the court is one of law and not of understood, is so universally recognized, and stands fact. (Wright v. Bank of Metropolis, 110 N. Y. so impregnably in the necessities of the social state, 237; Avery v. N. Y. C. & H. R. R. R., 121 N. Y. 31; that its vindication by argument would be superfluRyan v. M. R. Co., id. 126; Moore v. Francis, id. ous. The maxim which embodies it is sometimes 199; Hazzard v. Flury, 120 N. Y. 223; Reilly v. loosely interpreted as forbidding all use by one of his

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