Barnes v. Hathorn

Kent, J.

The facts, which the plaintiff proved or offered to prove, on which the presiding Judge ordered a non-suit, are substantially as follows : — that the husband of the defendant, Mary Hathorn, in 1846, built a tomb on the premises now owned by her — and, within 44 feet from the west side of the plaintiff’s house, and the windows of his parlor, sitting-room and dining-room, all of which rooms were on that side of his house; that dead bodies were from time to time deposited in said tomb, until about the year 1856, when nine such bodies were in the tomb; that such an effluvia was emitted from them that the plaintiff’s house became unwholesome, and, after an examination of the premises by physicians, the defendant caused them to be removed from the tomb; that the tomb remained unoccupied for six years, and until October, 1865, when the defendant caused the tomb to be opened and another dead body to be deposited for burial therein ; that there was a wooden frame building over the tomb, which was whitewashéd; that the tomb was of brick, with ventilators at each end ; that the plaintiff had resided for 25 years, and still resides, in a house owned by himself and on his lot of about three acres; that the defendant’s land adjoins his, and the dividing line is 14 feet from his dwellinghouse, and her lot contains about 130 acres; that the erection and occupation of the tomb, as alleged in the writ, diminished the market value of the plaintiff’s house and lot from §1000 to $1500, and that his life in the occupancy of his premises is made uncomfortable by the apprehension of danger arising from the use of said tomb as a burial place.

The plaintiff introduced two physicians, who testified that the effect of burying dead bodies in the tomb might be unwholesome and injurious to the occupants of the house; if much miasma, long continued and concentrated from them, it might be fatal; and that any emission from such bodies might be injurious to the physical and mental system ; and, without any effluvia, it might injuriously affect the inmates of the house by exciting the imagination.

The action is for injury to the plaintiff by reason of a nuisance continued by the defendant.

The question before us is whether, upon the case as above stated, a nonsuit was properly ordered.

. What is a nuisance ? In considering this question, when the complaint is based upon the use of another of his own property, we are first met by the general doctrine of the right of every man to regulate, improve and control his own property; to make such erections as his own judgment, taste or interest may suggest; to be master of his own, without dictation or interference by his neighbors. On the other hand, we meet that equally well established and exceedingly comprehensive rule of the common law — "sic utere tuo, ut alienum non laedcis” — which is the legal application of the gospel rule of doing unto others as we would that they should do unto us.

The difficulty is in drawing the line in particular cases, so as to recognize and enforce both rules, within reasonable limitations. It is quite clear that the law does not recognize any legal right in any one to compel his neighbor to follow his tastes, wishes or preferences, or to consult his mere convenience. He cannot dictate the style of architecture or, generally, the location of the buildings — or maintain that an unsightly or ill-proportioned edifice is a nuisance because it offends his eye, or his too cultivated taste. Nor can he interfere because he has idle and unfounded fears of ill effects from' the use of the adjoining lot. There may be many acts which, to the eyes of others, appear to be un- , neighborly and even unkind, and entirely unnecessary to | the full enjoyment of the property — vexatious and irritat-ling, and the source of constant mental annoyance, and yet jthey may be but the legal exercise of the right of dominion, |and therefore cannot be deemed nuisances. The diminution of the market value of adjacent buildings, by such use, i will not of itself make it a nuisance. But there is a limit S to such right. No man is at liberty to use his own without any reference to the health, comfort or reasonable enjoy- ' ment of like public or private rights by others. Every man gives up something of this absolute right of dominion and use of his own, to be regulated or restrained by law, so that others may not be hurt or hindered unreasonably in the use and enjoyment of their property. This is the fundamental principle of all regulated" civil communities, and without it society could hardly exist, except by the law of the strongest. This illegal, unreasonable and unjustifiable use to the injury of another, or of the public, the law denominates a nuisance. Such use may be a public nuisance, and it is so when it affects the community generally. When it affects an individual it is called a private nuisance. If, however, an individual sustains special damage to himself, beyond that common to the public by reason of a public nuisance, he may maintain an action for such special injury.

"Nuisance signifies anything that worketh hurt, inconvenience or damage.” 3’Black. Com., 215. "Private nuis-anees may be defined, anything done to the hurt or annoyance of lands, tenements or hereditaments of another.” lb.

"Nuisances to a dwellinghonse, are all acts done by another from without, which renders the enjoyment of life within the house, uncomfortable, whether it be by infecting the air with noisome smells, or with gasses injurious to health, or by exciting the constant apprehension of dangers.” 2 Greenl. on Ev., § 466.

The general rule of law has been applied to many cases varying in their character and circumstances. We are at present chiefly interested in those relating to dwelling-houses, the habitations of men, although it is useful to examine the whole range of authorities, to extract, if possible, the true principles applicable to the subject.

There is one class of cases, arising from the exercise of trades or business, which are in their nature offensive, or which renders the occupation of buildings near them, unhealthy, or decidedly uncomfortable. Many of these cases may be found collected in a very recent case in this State. Norcross v. Thoms, 51 Maine, 503, and more fully in the case of Brown v. Perkins, 12 Gray, 97. It is unnecessary for us to repeat them here. From the general tenor of the reported cases, we find that certain doctrines are recognized and acted upon. One is, that some trades, occupations or acts are regarded as in themselves and inherently noxious,> or offensive and prejudicial, without extraneous proof. In other cases they arc not necessarily nuisances, but may become so from location or some extraneous fact. Another well established doctrine is, that it is not necessary to prove that the air is poisoned or rendered positively unhealthy; it is enough if the matter alleged to be a nuisance is offensive to the senses, or in any way renders the enjoyment cf life and property uncomfortable. State v. Haines, 30 Maine, 65; Rex v. White, 1 Burr., 337; Fish v. Dodge, 4 Denio, 311; State v. Pierse, 4 McCord, 472; Catlin v. Valentine, 9 Paige, 575; Rex v. Neil, 2 Carr & Payne, 485.

Exciting, constant and reasonable apprehension of danger, although no actual injury has been occasioned, has been held to be a nuisance. Thus, the keeping of large quantities of gunpowder near inhabited dwellings, or by suffering an adjoining tenement to become ruinous and in danger of falling. 2 Greenl. on Ev., § 466, and cases before cited,

The definitions and rules applicable to cases as they arise, must be general, and each case must be brought to the test of the principles laid down. Usually, therefore, it becomes a mixed question of law and fact, whether, on the case proved, the existence of a nuisance is established, or not. If, however, it is clear upon the facts, that a jury would not be authorized to find that a nuisance did exist, the Judge would be justified in ordering a nonsuit.

The case finds that the erection and continuance of a private tomb is the nuisance complained of. A man may ■have a legal right to build such a tomb on his own land, as a general proposition. It is not in itself and inherently a nuisance to his neighbors. If a nuisance at all, it becomes so from its locality or other extraneous facts. However unwise or inexpedient it may be, in the judgment of reflecting men to deposit the remains of deceased relations or friends in private burying places on private lands, considering the constant change in the title of real estate in our country, and the almost certainty that in one or two generations no one will be left to care for or protect the graves, yet we know of no law which prohibits such erections or interments. But such tombs may be or may become nuisances. On the facts stated, this particular tomb was, at one time, beyond dispute, a very serious nuisance, when it " was occupied by nine dead bodies which emitted such an effluvia as to render the plaintiff’s house unwholesome and, after an examination of the premises by several physicians, all the bodies were removed, it could hardly be questioned that it was then a nuisance. But the defendant says that, after these bodies were removed, it ceased to be of .such a character. Whilst the tomb remained 'for six years unoccupied, the only ground on which it could be then called a nuisance, probably, was its unpleasant proximity to the house of the plaintiff. It was only some fifteen paces from the windows of his dining and sitting room. It was certainly not a very cheering or exhilerating prospect which met the plaintiff’s vision, whenever he looked abroad. How far, to a man of ordinarily nervous temperament, or to one of a sensitive nature, who shrunk from the constant view of this fixed memorial of death and decay, this erection might prove injurious to health, it is impossible to say.

But, that it must have affected his comfort and happiness in the occupation of his dwelling may be less questionable. There seems to have been no necessity for this close proximity, as the defendant’s farm consisted of at least one hundred and thirty acres. On what ground this spot, almost under the droppings from the plaintiff’s house, was chosen, instead of some retired place, on this large farm, does not appear, and is not, perhaps, material in our examination of the case.

But, it seems, after six years from the time of removal, the defendant again opens the tomb and commences the deposit of deceased friends anew. One such body had been thus placed in the tomb, before this action was brought. This act would seem to indicate an intention to again use it for the place of interment of her family. Now, considering the result stated as having been produced by the former occupation, might not a man of ordinary firmness and judgment be reasonably apprehensive of danger ?

In addition to this, we have the testimony of the physicians called on the trial, that any emission from dead bodies in that tomb might bo injurious to health, bodily and mentally. It had proved so before, and might again. A single body might not be so liable to create deadly or noxious effluvia as a larger number. But it would be of the same general character, and might of itself prove uncomfortable, if not positively unhealthy. The defendant made no disavowal of an intention to place other bodies there.

On the whole, we are of opinion, that the case should ■y have been submitted to the jury on the evidence, with prosper instructions, and that the nonsuit was not properly or-y^dered. Exceptions sustained.

Nonsuit set aside and new trial granted.

Cutting, WaltoN, Barrows, Danrorth and Tapley, JJ., concurred.