Campbell v. Bessemer Coke Co.

Opinion bv

Henderson, J.,

. The two assignments of error raise the same question. The first is in effect a demurrer to the plaintiff’s evidence, and the second a complaint of the refusal of the court to give binding instructions to the jury in favor of the defendant. The jury having found in favor of the plaintiff, the question for-consideration is, whether the facts established constitute a cause of action.

The plaintiff is the owner of a lot in the village of Bradenville in Westmoreland county, which he purchased in 1883. About two ^years thereafter he erected a brick dwelling house on the lot, where he has since resided. In 1899 the defendant company purchased coal lands and a coke plant in Derry township, Westmoreland county, in which township the village of Bradenville is located, and immediately thereafter engaged in the manufacture of coke. In the fall of that year the company erected sixty-seven new ovens near those theretofore operated and in the village of Bradenville. The new block of ovens is about two hundred feet distant from the dwelling house of the plaintiff, at the nearest point. The plaintiff’s evidence shows that the erection and operating of the ovens constructed in 1899 has resulted insubstantial damage to his property, caused by smoke, vapor and acid fumes thrown off in the manufacture of coke. The plaintiff’s evidence is direct upon this point, and if believed by the jury, justified the conclusion reached by the verdict.

The defendant contends that it is engaged in a lawful business conducted in a lawful manner without negligence or malice, and that any damage resulting to the plaintiff is damnum absque injuria.

If the subject presented were a new one, we should feel justified in discussing it at greater length. We do not consider it an open question in this state, nor are we disposed to advance beyond the limit marked by previous adjudications. The plaintiff has a clear right to the use and enjoyment of his own property. The defendant has no right to injure it except under special circumstances arising from necessity in the enjoyment of its own property. It was said in Pfeiffer v. Brown, 165 Pa. 267, that “ the defendant’s right to injure another’s land at all, to any extent, is an exception, and the burden is always upon him to bring himself within it.” In the case of a conflict in the enjoyment of property the owner’s right will prevail, but in order to avoid liability for damages which may result from such use, it must appear that the injury is not avoidable, or that its avoidance would incur such expense as would be practically prohibitive of the enjoyment of the property.

In order to bring the defendant’s case within the exception referred to, the defendant must show that the injury complained of is the natural and necessary consequence of the exercise of its legal rights by the defendant in the development of its property. To permit such injuries from considerations of convenience or economy would abrogate the rule sic utere tuo ut alienum non laedas. The defendant is not engaged in the exercise of a public franchise, and is not therefore entitled to the exemption from liability for damages which attaches to a railroad or other public corporation. Nor is the manufacture of coke at the place complained of, the natural and necessary use of the plaintiff’s property. It was decided in Robb v. Carnegie, 145 Pa. 324, that “ the production of iron or steel or glass or coke while of great public importance, stands on no different ground from any other branch of manufacturing, or from the cultivation of agricultural products. They are needed for use and consumption by the public, but they are the results of private enterprise conducted for private profit and under the absolute control of the producer.” In the same case it was said that “ the interests in conflict in this case are not therefore those of the public and of an individual, but those of two private owners who stand on equal ground as engaged in their own private business.”

The case referred to was an action for damages for injury resulting from the manufacture of coke, and it was there held that the selection of a location for the manufacture of coke was the selection of a manufacturing site, and subject to the same considerations as though glass or lumber or iron had been the commodity to be produced instead of coke.

The same principle is supported in Brown et al. v. Torrence, 88 Pa. 186, and Herbert v. Rainey, 162 Pa. 525. The cases of Pennsylvania Coal Company v. Sanderson, 113 Pa. 126, and Harvey v. Coal Company, 201 Pa. 63, decide that an owner of property is not responsible for injuries to another which are the natural and necessary result of the development of his own land by the owner. They do not go far enough to hold that the manufacture of coke by the defendant on its own land from coal produced by it on land in the vicinity is the natural and necessary use of its own property for the development of its resources. The plaintiff’s evidence tends to show that the injury complained of was peculiar to his own property, was real and substantial, and susceptible of pecuniary estimate. On the authority of the cases above cited and others which might be referred to, the learned judge committed no error in submitting to the jury the question whether the plaintiff actually sustained the injuries complained of. The judgment is therefore affirmed.