Boston Ferrule Co. v. Hills , 20 L.R.A. 844 ( 1893 )

Holmes, J.

The fair interpretation of the plaintiff’s bill is that the floor above its rooms naturally and properly has holes in it, and that the defendants knowingly carry on their business in such a way as to send fumes of acid and large quantities of sand through these holes upon the plaintiff’s premises, and thereby to corrode and spoil its machinery and goods.

As between adjoining proprietors, one of them has no right as against the others to do what is complained of here, and it would be no answer to an action to say that the plaintiff might have shut his windows. There would be no need to allege in terms that the business was unsuitable to- be carried on in that place, or that there was negligence in the mode of carrying it on. As the damage was a manifest consequence of the defendants’ business, the fact that they could not help it if they carried on that business would be immaterial. See the form of declaration in Tipping v. St. Helen's Smelting Co. 4 B. & S. 608, and St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642.

The only justification that could be urged would be that the interests of adjoining owners necessarily conflict, that they are both intrinsically meritorious, that the law has to adjust them by drawing a quasi physical line, and that the damage complained of was on the right side of that line and must be put up with by the plaintiff, as was held, for instance, in Middlesex Co. v. McCue, 149 Mass. 103, and Rogers v. Elliott, 146 Mass. 349. But if the allegations in regard to the injury were fully proved, there can be no question that this defence would not prevail. The discharge of acid fumes upon neighboring land in sufficient quantities to do substantial harm is deemed so clearly beyond the limit of reasonable use of a man’s premises that courts have held as matter of law that it is actionable. Wesson v. Washburn Iron Co. 13 Allen, 95, 104. Rex v. White, 1 Burr. 333. Crump v. Lambert, L. R. 3 Eq. 409. Cooke v. Forbes, L. R. 5 Eq. 166. This may be subject to the question of the uses to which the land in the neighborhood is adapted, but that question is not before us at this stage.

If the defendants are not liable, supposing the damage to be under their control as alleged, it must be on the ground that tenants of different floors of the same manufacturing building have a right to do more towards making each other’s premises uninhabitable than owners of adjoining houses in a city could do. As any line of adjustment between conflicting rights must be drawn on practical grounds, there is no doubt that it may vary under different circumstances. For instance, in England, in view of the national importance of their great manufactures, juries are instructed that, in counties where great works are carried on, parties must not stand on extreme rights. St. Helen’s Smelting Co. v. Tipping, 11 H. L. Cas. 642. But we cannot rule, as matter of law, that the defendants are not liable. It may be said that the plaintiff need not have hired rooms in this building, and that, if it did, it took the risk. No doubt, when once it is decided that a certain liability or risk shall be attached to a voluntary relation, the party entering into that relation takes that risk. But what risks shall be attached to any relation is a pure question of policy in the first instance. The argument is, that in a broad sense the plaintiff has come to the nuisance, even if, as here, the plaintiff’s lease is earlier than the defendants’. But a man is as free not to buy the fee as he is not to hire, and it is wholly immaterial that a purchaser has come to the nuisance. Commonwealth v. Upton, 6 Gray, 473, 475. Tipping v. St. Helen's Smelting Co. L. R. 1 Ch. 66. It seems that the law is the same as to lessees. Wood, Nuisances, (2d ed.) §§ 574, 575.

If there are any special reasons why the defendants should be allowed to do what they do, they should be alleged in the answer. The question before us is whether there is a general right to invade lower premises with acid fumes and sand, in the mode described, in a manufacturing building, if the aggressor finds it necessary for his business. We are not prepared to admit the existence of such a right. Demurrer overruled.