Pottstown Gas Co. v. Murphy ( 1861 )

The opinion of the court was delivered,

by Lowrie, C. J.

The court was right in saying that this is not a question of negligence, but of nuisance, for so is the declaration. IIow, then, did they define nuisance ? First, of smells. Wantonly, unnecessarily, or oppressively causing such smells as to annoy the plaintiff below in a special and peculiar degree beyond others in the immediate vicinity, and to create an abiding nuisance, to the particular injury of the plaintiff’s property.

We cannot call this a perfect definition ; but, taken in connection with the instruction that “ a certain degree of offensive odour is unavoidably incident to the business, and must be endured by the public,” it seems to us that it must have been understood by the jury as well and as favourably to the defendant as the most perfect one could have been.

Then, as to the corruption of the plaintiff’s ground and well, by the fluids percolating from the defendant’s works. This was disposed of in a similar way. But the defendants think that as a corporation, authorized by statute to carry on this business, and to purchase in fee simple such real estate as may be necessary for it, they are not answerable for such consequential damages as are complained of here. We cannot adopt this view. No such exemption is involved in the fact of incorporation, nor in the privilege of buying land. The principle they invoke applies only where 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 where such damages are not part of the compensation required.

Judgment affirmed.

Strong, J., dissented.