Margaret Bohan, Respondent, v. the Port Jervis Gaslight Company, Appellant

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 20

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 21 The plaintiff made no complaint of the existence of a nuisance upon defendant's property prior to 1880, when defendant first introduced the use of naphtha in the manufacture of its gas, and it was a disputed question on the trial, upon which there was a strong conflict of testimony, whether the smells from the defendant's works, after it began to use naphtha, were more offensive than when it used coal.

This question, it must be assumed, the jury determined in favor of the plaintiff's contention.

The court charged the jury that, to constitute a nuisance, it was essential that the smells and odors from the defendant's works should be sufficient "to contaminate and pullute the air and substantially interfere with the plaintiff's enjoyment of her property," and 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." An exception was taken by the defendant to this part of the charge.

The rule stated by the learned judge was in accordance with all the authorities. If one carry on a lawful trade or business in such a manner as to prove a nuisance to his neighbor, he must answer in damages, and it is not necessary to a right of action that the owner should be driven from his dwelling; it is enough that the enjoyment of life and property be rendered uncomfortable. (Rex v. White, 1 Burr, 337; S.H.S. Co. v.Tipping, 11 H.L. Cas. 642; Fish v. Dodge, 4 Denio, 311;Catlin v. Valentine, 9 Paige, 575; Campbell v. Seaman, 63 N.Y. 568 ; Cogswell v. N.Y., N.H. H.R.R. Co., 103 id. 10; Wood on Nuis. § 497.)

It was claimed by the defendant, and the court refused a request to charge, "that unless the jury should find that the *Page 24 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;" and "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." An exception to this ruling raises the principal question discussed in the case.

While every person has exclusive dominion over his own property and may subject it to such uses as will subserve his wishes and private interests, he is bound to have respect and regard for his neighbor's rights.

The maxim "Sic utere tuo ut alienum non laedas" limits his powers. He must make a reasonable use of his property, and a reasonable use can never be construed to include those uses which produce destructive vapors and noxious smells, and that result in material injury to the property and to the comfort of the existence of those who dwell in the neighborhood.

The reports are filled with cases where this doctrine has been applied, and it may be confidently asserted that no authority can be produced, holding that negligence is essential to establish a cause of action for injuries of such a character. A reference to a few authorities will sustain this assertion.

In Campbell v. Seaman (supra) there was no allegation of negligence in the complaint, and there was an allegation of due care in the answer. There was no finding of negligence, and this court affirmed a recovery.

In Heeg v. Licht ( 80 N.Y. 579 ), an action for injuries arising from the explosion of fire-works, the trial court charged the jury that they must find for the defendant, "unless they found that the defendant carelessly and negligently kept the gunpowder on his premises." And he refused to charge upon the plaintiff's request "that the powder magazine was dangerous in itself to plaintiff, and was a private nuisance, and defendant was liable to the plaintiff, whether it was carelessly *Page 25 kept or not." There was a verdict for the defendant, and this court reversed the judgment, holding that the charge was erroneous. In Cogswell v. N.Y. N.H.R.R. Co. (supra), the Special Term found, as facts, that in the construction of the engine-house and coal-bins, and in the use of its premises the defendant exercised due care, so far as the same was practicable, and it refused to find, upon plaintiff's request, "that in the construction of the engine-house, chimney, smoke-pipe and coal-bins, it had not exercised, and does not now exercise, such reasonable and proper care as was necessary not to injure the plaintiff's property." A judgment for the defendant was reversed, this court holding that the engine-house as used was a nuisance, and that it was not an answer to the action that the defendant exercised all practicable care in its management. In PottstownGas Co. v. Murphy (39 Penn. St. 257), the charge of the court, and the refusals to charge, were very similar to the charge in this case. The Supreme Court of Pennsylvania overruled the exceptions, holding that negligence was not essential to a right of recovery. To the same effect see Cleveland v. C.G.L. Co. ( 20 N.J. Eq. 201 ); O.G.L. C. Co. v. Thompson ( 39 Ill. 598 ); Wood on Nuis. (2d ed.) § 553.

The principle, that one cannot recover for injuries sustained from lawful acts done on one's own property without negligence and without malice, is well founded in the law. Every one has the right to the reasonable enjoyment of his own property, and so long as the use to which he devotes it violates no rights of others, there is no legal cause of action against him.

The wants of mankind demand that property be put to many and various uses and employments, and one may have, upon his property, any kind of lawful business, and so long as it is not a nuisance, and is not managed so as to become such, he is not responsible for any damage that his neighbor accidently and unavoidably sustains. Such losses the law regards as damnumabsque injuria. And under this principle, if the steam boiler on the defendant's property, or the gas retort, or the naphtha tanks had exploded and injured the plaintiff's property, it would have been necessary for her to *Page 26 prove negligence, on the defendant's part, to entitle her to recover. (Losee v. Buchannan, 51 N.Y. 476 .)

But where the damage is the necessary consequence of just what the defendant is doing, or is incident to the business itself, or the manner in which it is conducted, the law of negligence has no application and the law of nuisance applies. (Hay v. CohoesCo., 2 N.Y. 159 ; McKeon v. See, 51 id. 300.)

The exception to the refusal to charge the first proposition above quoted was not, therefore, well taken.

It is contended, however, by the defendant, that the acts of the legislature relating to gas companies are a protection from liability for consequential injuries flowing from the manufacture of gas, or the prosecution of the business, when want of care forms no element of the cause of injury, and it is sought to apply to this case the broad principle that that which the law authorizes cannot be a nuisance, although it may occasion damages to individual rights and property.

The cases cited to sustain this proposition are ones where municipal corporations were engaged in grading and improving public streets and highways. (Radcliff v. Mayor, etc., 4 N.Y. 195 ; Transportation Co. v. Chicago, 99 U.S. 635 .) Or where the act causing the injury was done by corporations in the construction of works upon property acquired under the power of eminent domain. (Bellinger v. N.Y.C.R.R. Co., 23 N.Y. 42 .)

In these cases, in doing the acts complained of, the defendants acted in the performance of a public duty imposed upon them by the legislature, or in the exercise of a right conferred by law, and it is well settled that persons appointed or authorized by law to perform a public duty, or to do acts of a public character are not answerable for consequential damages if they act within their jurisdiction and with care and skill. (Trans. Co. v.Chicago, supra; Uline v. N.Y.C. H.R.R.R. Co., 101 N.Y. 98 ;Conklin v. N.Y., O. W.R. Co., 102 id. 105; Cooley on Const. Lim. [5th ed.] 671.

This principle cannot, however, be applied to cases like the one under consideration. *Page 27

The defendant is incorporated under chapter 37, Laws of 1848, which authorizes in general terms the creation of corporations for manufacturing and supplying illuminating gas. It acquired by that act its corporate life and character, and the power to purchase and hold such real and personal property as might be necessary to enable it to carry on its business.

By section 18 of the act named, it is given the power to lay its conductors through the streets of the city, village or town in which it is located, with the consent of the municipal authorities of such city, etc., and by chapter 311 of the Laws of 1859, it is required to furnish gas to any applicant within 100 feet of its mains.

It may be conceded that the business of manufacturing and distributing gas through the public streets for public and private use is a business of a public character, and the individual possessing such right has a franchise granted by the state for a public object, and that it meets a public necessity for which the state may make provision.

But the state has not seen fit to confer upon the corporations formed under the act cited, the power of eminent domain, and they cannot, therefore, locate their works where they will.

In their ability to acquire real estate upon which to establish their manufactury, they have no greater power than any citizen of the state, and having acquired property they rest under the same obligation as other citizens, to make a reasonable use of it and to respect and regard the rights of their neighbors.

The proposition contended for by the learned counsel for the defendant has, in recent years, received full consideration in the courts of England and of this country, and the rule is now established that the statutory authority which will justify an injury to private property and afford immunity for acts which would otherwise be a nuisance must be express, or must be a clear and unquestionable implication from powers expressly conferred, and it must appear that the legislature contemplated the doing of the very act which occasioned the injury. (Cogswell v. N.Y.,N.H. H.R.R. Co., 103 N.Y. 10 ; B. P.R.R. Co. v. Fifth Bap.Ch., 108 U.S. 317 ; *Page 28 Hill v. Managers of Met. Asylum Dist., L.R. [4 Q.B.] 433; L.R. [6 App. Cas.] 193; Pottstown Gas Co. v. Murphy, 39 Penn. St. 257; Eames v. N.E.W. Co., 11 Metc. 570; Commonwealth v.Kidder, 107 Mass. 188 .)

In Pottstown Gas Co. v. Murphy, the Supreme Court of Pennsylvania said: "The principle invoked applies only when an incorporation clothed with a portion of the state's right of eminent domain takes private property for public use on making proper compensation, and when such damages are not a part of the compensation required."

In Eames v. N.E. Worsted Co., Chief Justice SHAW said: "The Mill Act affords no warrant or justification for erecting or maintaining a nuisance."

In Commonwealth v. Kidder, in considering the effect of a statute authorizing the storing and manufacturing of naphtha and petroleum, the Supreme Court of Massachusetts said: "The reasonable, if not necessary, inference is that it was not the intention of the legislature to establish a new rule in this regard, but to leave the question whether the manufacturing is carried on at such places and in such a manner as to be unwholesome and offensive to the public, and on that account indictable as a nuisance, to be determined by the rules of the common law."

In B. P.R.R. Co. v. Fifth Bap. Ch., it was said: "The authority of the company to construct such works as it might deem necessary and expedient for the completion and maintenance of its road did not authorize it to place them where it may think proper without reference to the property and rights of others. Grants of privileges or power to corporate bodies like those in question confer no license to use them in disregard of the private rights of others, and with immunity for their invasion."

And in Hill v. Managers of Met. Asylum Dist., Lord WATSON said: "When the terms of the statute are not imperative, but permissive, when it is left to the discretion of the persons empowered to determine whether the general powers committed to them shall be put in execution or not, I *Page 29 think the fair inference is that the legislature intended that discretion to be exercised in strict conformity with private rights, and did not intend to confer license to commit nuisance in any place which might be selected."

There is nothing in Truman v. L.B. S.C.R. Co., L.R. [25 Ch. Div.] 45) conflicting with this rule.

The House of Lords in that case recognized fully the rule applied in Hill v. Managers of Met. Asylum Dist., and held that the purpose for which the land was acquired by the defendants being expressly authorized by the act of parliament, and being incidental and necessary to the authorized use of the railway for cattle traffic, the company were authorized to do what they did.

The legislature may authorize acts which would otherwise be a nuisance when they affect or relate to matters in which the public have an interest, or over which the public have control, such as highways or public streams.

In such cases the legislative authorization exempts from liability to suits civil or criminal at the instance of the state, but it does not affect the claims of a private citizen for damages for any special inconvenience and discomfort not experienced by the public at large. (Crittenden v. Wilson, 5 Cow. 165; Brown v. C. S.R.R. Co., 12 N.Y. 486 ; Sinnickson v. Johnsons, 17 N.J.L. 151 ; B. P.R.R. Co. v. Bap. Church,supra.)

These views lead to the conclusion that the defendant obtained no immunity from liability for consequential injuries sustained by property surrounding its works by reason of its incorporation, or the privilege conferred upon the business by the acts of the legislature, and that the facts of the case do not take it out of the operation of the rules of law applicable to ordinary common-law nuisances.

The legislature has given to the corporations created to manufacture gas the right to lay down their conductors in the public streets subject to the control and regulation of the municipal authorities, and for acts done in the execution of that privilege they are exempt from prosecution at the suit of the people. *Page 30

The choice, however, of the place to locate their works, and the selection of materials from which to manufacture gas, has been left to the corporations, and those things must be performed with reference to the rights of others.

The fact appears in this case that for twenty years the defendant conducted its business without annoyance to anyone. For the sake of economy (so it alleges) it adopted, in 1880, a new process and new materials from which to make its gas. The result, under the finding of the jury, has been to impair the value of the plaintiff's property and substantially interfere with its comfortable enjoyment. If the defendant's contention should prevail, there would be no restraint upon the location of the business, and no limit to the offensive character of the materials it might use. It would thus have an immunity which the law denies to every other citizen.

We think the proof permitted the conclusion that the defendant had created a nuisance, and that there was no error in the charge of the court, or the refusal to charge.

The judgment must be affirmed.