Lane v. Concord , 70 N.H. 485 ( 1900 )

The plaintiff's action was not for an alleged violation of the ordinance, but for the creating of a nuisance to her injury. To maintain her action, it was incumbent on her to establish the propositions that the defendants committed the acts complained of, and that such acts wrongfully injured and damaged her in her person or estate. But in the determination of the latter issue, the ordinance was merely competent evidence to be considered by the jury, in connection with all the circumstances of the case, on the question of the defendants' liability (State v. Railroad, 58 N.H. 408, 410; Brember v. Jones, 67 N.H. 374; Bly v. Street Railway, 67 N.H. 474, 478, and cases cited), unless a different rule is applicable to them than that to which others are subjected, which we do not understand to be so. The ordinance not being conclusive as to others violating its provisions, there would seem to be no sound reason why it should be held to be conclusive as to the defendants. If the city councils were to be regarded as mere private agents of the defendants, it might be otherwise. But they are not to be so regarded. "They are public officers, having their duties prescribed by law for the general welfare," and, therefore, as such officers, the passage of the ordinance by them in the performance of these duties imposed no different liability upon the defendants than it did upon others. See Rossire v. Boston, 4 Allen 57, 58, and Smith v. Epping, 69 N.H. 558, 560. It follows that if the defendants' acts were in violation of the ordinance, it would not as matter of law entitle the plaintiff to a recovery, and if it would not, the requested ruling, that the ordinance was conclusive on the question of reasonable use, was properly refused.

The instruction as to the legal meaning and effect of the ordinance was correct. The plaintiff's ground of complaint to it is, that under it she was compelled to establish that the substances deposited on the lot by the defendants were injurious to health, in order to get any benefit from the ordinance, even as evidence bearing on their reasonable use. This imposed no wrongful burden upon her. If, as is claimed in her behalf, the ordinance was passed under the legislative authority conferred by section 10, chapter 50, of the Public Statutes, the only specific and definite authority granted which affects this case is "to prohibit any person from bringing, depositing, or leaving within the city any dead carcass or unwholesome substance." But this prohibition evidently applies only to those substances which injuriously cause injury to health. Whether the legislature might have gone farther and included all the substances enumerated in the ordinance, it is therefore unnecessary to inquire. It is enough for the present purpose that it has not done so, and consequently the entire ordinance has not, as contended by the plaintiff, "all the force and effect of a statute."

It is elementary that ordinances, other than those passed by virtue of an express grant or power, must be reasonable and not oppressive, and that when they are in contravention of a common right they are void. So tested, the sweeping effect of the ordinance in hand claimed by the plaintiff cannot be sustained upon the facts before us. It would be a clear and direct restraint upon and invasion of the right of property, and an unreasonable infringement of private rights, without any compensating advantages, by depriving the lot-owner of his reasonable and common right of filling, grading, improving, and beneficially enjoying it, and therefore the ordinance can be sustained only for the preservation of the public health. "When an ordinance is entire, each part being essential and connected with the rest, the invalidity of one part renders the whole invalid; but when it consists of several distinct and independent parts, as when [as in the present case] it prohibits disjunctively two or more acts, the invalidity of one part does not affect the validity of others." 17 Am. Eng. Enc. Law 265, 266. The true test to be applied to the defendants' acts, aside from their effect on the public health, was their reasonableness or unreasonableness under all the circumstances (Ladd v. Brick Co., 68 N.H. 185, 186); and this was the test applied at the trial.

For injuries which unavoidably result from the ordinary use of property, no nuisance can arise; and as a general rule, every person has the right to subject his property to such uses as will in his judgment best subserve his interests. This rule has its exception, however, for it is doubtless true that every one is bound to make a reasonable use of his own property so as to occasion no unnecessary damage to others; but what constitutes such a use cannot be precisely defined, and must depend upon the circumstances of each case. Nevertheless, we think it may be stated as a general doctrine that, in order to constitute a nuisance from the use of one's property, the use must be such as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment specially uncomfortable and inconvenient. See Campbell v. Seaman, 63 N.Y. 568, — 20 Am. Rep. 567, 572; Sparhawk v. Railway, 54 Pa. St. 401; Rhodes v. Dunbar, 57 Pa. St. 274; Wahle v. Reinbach, 76 Ill. 322; Barnes v. Hathorn, 54 Me. 124; Columbus etc. Coke Co., v. Freeland,12 Ohio St. 392; St. Helen's Smelting Co. v. Tipping, 11 H.L. Cas. 642; Salvin v. Coal Co., L.R. 9 Ch. App. Cas. 705.

In this view of the law, as well as of the use to which the lot was subjected by the defendants and the occasion for such use, we are of opinion the jury were properly instructed that the unsightly appearance of the lot was not a cause entitling the plaintiff to damages, and that unless she was injured by gases or something else coming from the city lot on to her premises, she had no right to complain. Unless "gases or something else" did come upon her land from that lot, it is not perceived how she could have suffered any legal injury from the substances deposited thereon, for it is apparently well settled that the unsightly condition of one's premises does not of itself afford a right of action to a more aesthetic adjoining owner. Wood Nuis. (2d ed.) 4-6, 15, 16, and authorities cited. Persons living in cities or other thickly settled communities must necessarily suffer some discomforts and annoyances from each other; but for these they are supposed to be fully compensated by the advantages incident to such communities.

Exceptions overruled.

CHASE, J., did not sit: the others concurred.