Dauberman v. Grant

LENNON, J.

This appeal is from a judgment enjoining defendant from maintaining a chimney or smoke-stack on the premises adjoining those of the plaintiff in such a manner that smoke therefrom shall be conveyed into the plaintiff’s dwelling-house, and also enjoining the defendant from

[589]

maintaining his building or shop on lands adjoining the property of plaintiff in such a way that the storm or rain water shall flow upon the premises of the plaintiff, and for damages in the sum of five hundred dollars. Plaintiff also sought to have the defendant enjoined from maintaining and operating a steam-hammer upon his premises, alleging that the foundation, walls, and ceilings of her dwelling-house had been cracked by reason of the vibration attendant upon the use and operation of said steam-hammer, and seeking damages for such injury in the sum of six thousand dollars. The case was tried without a jury. Upon the phase of the case last mentioned the trial court found in favor of the defendant to the effect that the neighborhood was an industrial neighborhood and that the operation of the steam-hammer was not a nuisance and that the vibrations caused by the said steam-hammer had not damaged the dwelling-house of the plaintiff in any amount. The trial court, however, did find that the maintenance and operation of the smoke-stack and the precipitation of the rain water upon the lands of the plaintiff constituted a nuisance.

The defendant, as ground for a reversal, insists that the evidence does not support the finding as to the existence of a nuisance in the particulars last stated. In this behalf it is argued that the mere maintenance of a chimney or smokestack in connection with the operation of an industrial plant in an industrial neighborhood cannot be decreed to be a nuisance in the absence of a finding that, in addition to the emanation of smoke from the smoke-stack, soot, and sparks were caused to be conveyed and deposited upon the property of the plaintiff, as the result of the operation of defendant’s plant.

Responding to defendant’s contention that “mere smoke” will not constitute a nuisance, it will be noted that there is evidence in the record that not only smoke but soot as well issued from defendant’s smoke-stack and permeated the air and penetrated plaintiff’s premises, to her annoyance and inconvenience.