Farver v. American Car & Foundry Co.

Opinion bv Hendekson, J.,

The right of the plaintiff to the use and enjoyment of his own property cannot be questioned. The general obligation of the defendant to so use its property as not to injure others is equally clear. Its right to injure its neighbor only exists under special circumstances arising from necessity in the enjoyment of its own- property. “The defendant’s right to injufe another’s land at all to any extent is an exception, and the burden is always upon him to bring himself within it: ” Pfeiffer v. Brown, 165 Pa. 267 . To secure exemption under the exception referred to, it must be made to appear that the injury complained of results from the natural use and enjoyment of the defendant’s property. With this exception, every owner holds his property on the implied obligation that he will so use it as not to prevent another owner from enjoying the use of his property. This principle was said in Dennis v. Eckhardt, 3 Grant, 390 , to be essential to the maintenance of civilization itself. The use of property beyond this limit resulting in injury of a substantial character creates a nuisance. The defendant is not engaged in the exercise of a public franchise, and its charter gives to it no greater right than ; would belong to an individual; nor does the fact that it is largely'engaged in business secure to it an immunity not belonging io one operating less extensively. It is doubtless true that the business in which the defendant is engaged is of great public importance, but it has no standing different from that of- other manufacturing enterprises. It is a private business conducted for private gain, and under the absolute control of the owner. It is promoting its own interests in its own way. The investment of a large amount of money does not seCufe the right to injure one having a comparatively small estate, nor does the erection of extensive works justify the violation of another’s right: Penna. Lead Co.’s App., 96 Pa. 116 ; Evans v. Reading Chemical Fertilizing Co., 160 Pa. 209 ; Robb v. Carnegie, 145 Pa. 324 ; Gavigan v. Atlantic Refining Co., 186 Pa. 604 ; Campbell v. Bessemer Coke Co., 23 Pa. Superior Ct. 374 .

*584 The plaintiff’s evidence tended to show that he became the owner of his property in 1882. Several years afterward and shortly before the plaintiff became the owner of the plant, forges were erected within about eighty feet of the plaintiff’s house. After the plaintiff took possession, additional forges were erected. The stacks were about thirty feet high, with dampers at the top, interfering with the upward flow of the smoke and gas. Large volumes of smoke, gas, and sulphurous fumes were carried onto the plaintiff’s premises and into his house, thereby subjecting him and his family to great discomfort and distress. It was at times necessary to close the windows of the house in warm weather, and the plaintiff and his family were prevented from occupying the porch because of the smoke and fumes emitted from the stacks. Their sleep was also disturbed by the vibrations caused by steam hammers erected near the plaintiff’s house. The evidence in the case was contradictory, and it became a question of fact therefore for the jury whether the defendants plant was a nuisance or not. It was not necessary for the plaintiff to show that the business of the defendant was carried on recklessly or not properly managed. His case was made out if he showed that the defendant’s business, though lawful in itself, was carried, on greatly to his injuiy: Gavigan v. Refining Co., supra. The plaintiff must show that the injury was not one common to those living in the vicinity of the plant, but one peculiar to him and substantial in its character. This also is a question of fact which was properly submitted to the jury.

The evidence excepted to in the third and fourth assignments of error was competent for the purpose for which it was offered. It was not introduced as a basis for recovery for physical injury, but to show the character of the nuisance complained of by the plaintiff. It was averred in the declaration that the plaintiff’s home was rendered uncomfortable, unhealthy, and filled with noxious and offensive vapors, fumes, smoke and smell. This charge might be sustained not only by evidence of what could be seen, but also by evidence of what could be felt. The effect of the facts complained of on the inmates of the house as tending to prove a nuisance was clearly admissible.

As no injury to the real estate was shown, the rule for the *585 measure of damages stated in Gavigan v. Refining Co., supra, is applicable in this case. The cases are not distinguishable in principle, and the injuries complained of are practically the same.

The judgment is affirmed.