
    The Columbus Gas Light and Coke Company v. Jacob Freeland.
    1. What amount of annoyance or inconvenience will constitute a nuisance, being a question'of degree, dependent on varying circumstances, can not be precisely defined.
    2. Where, in an action for a nuisance, the judge, in his charge to the jury, said, in substance, that the degree of comfort to which the plaintiff was entitled, was that ordinarily enjoyed by other persons in his neighborhood, otherwise similarly situated, and that acts of the defendant preventing this, would con- ■ stitute a nuisance : Held, that if intended to caution the jury to adopt the ordinarystandard of comfort and convenience — to regard the notions of comfort and convenience entertained by persons generally, of ordinary tastes and susceptibilities — the remarks might be correct; but that as they may have led the jury into a mere comparison of the situation of the plaintiff with that of his neighbors — into an inquiry, simply, whether any difference was perceptible, and from the real question, whether the consequences resulting from the acts of the defendant — the difference of enjoyment, if any were found to exist— constituted an actual damage, they were calculated to mislead the jury.
    
      Error to the superior court of Franklin county.
    The petition of the plaintiff below, Jacob Freeland, stated, “ that he is seized in fee and possessed of the following premises, situate in the city of Columbus, to-wit: The east half of inlot No. 11 in Heffner & Hayden’s addition to said city of Columbus, with the appurtenances, and has owned, possessed, and occupied the same since the third day of August, 1857. That during all that time defendant has maintained, kept up, and carried on, in the immediate vicinity of said premises, the business of manufacturing gas and coke, whereby, and by means of the unwholesome and annoying odors, gases, and stenches arising from the conduct of said business, the health and comfort of plaintiff and family have been seriously affected, injured, and interfered with, and the said above described premises materially injured and depreciated in value. Plaintiff further says, that defendant has so deposited the waste material of said business during all that time, in the vicinity of the premises of the plaintiff, as to injure and affect a, well of water on the premises of said plaintiff, necessary for the proper enjoyment of said premises, and deprive the plaintiff of the use and enjoyment thereof.”. The plaintiff asked $1500 00 damages.
    The defendant, by answer, denied all the averments of the petition, except the seizin and possession of the plaintiff, and the carrying on by the defendant of the business described in the petition.
    On a trial before' a jury, it appears by the bill of exceptions, that “there being evidence, tending on the .one hand to prove, and on the other hand to disprove the allegations of the petition, it was urged and insisted in argument to the court, by the counsel for the defendant, that beyond the furnishing a very general rule for the guidance of the jury, such as is indicated by" the ruling of the supreme court of this state in the case of MeJElroy v. Goble, reported in 6 Ohio St. Rep. 187, and the cases therein referred to, it would not be competent and proper for this court to go, in the attempt tc define a nuisance, for the instruction of the j ury, and that it would be for the jury exclusively to determine what degree of hurt, ‘annoyance, inconvenience and damage, constitutes that real, material and substantial damage, which the law regards as, in any given circumstances, amounting to a nuisance; and that necessarily the jury must always be permitted to judge for themselves, and with reference to the existing modes of life and existing relations in society, what species and degree of enjoyment of property can be had by individuals situated as the plaintiff shows himself to be situated, as well as what species and degree of hurt, inconvenience, annoyance, on damage, constitutes the real substantial and material damage, which may be the foundation of an action such as this. But the court charged the jury as follows: ‘ The law of nuisance ¿rows out of the rule of doing to others, as we would they should do unto ourselves. So that if any person, by any means, so conducts himself, or his business, as to render his neighbor’s property unhealthy, or so uncomfortable that it can not be occupied, or enjoyed with the same degree of health or comfort that people ordinarily occupy or enjoy their property, that person is liable for causing a nuisance. The manufacture of gas is a lawful business; but like any other business, it must be so carried on as not to become a nuisance to others. If that can be done in the midat of a city, it may be lawfully carried on there; if not, it must be removed to some point where it will not offend any one to the extent I have named. A corporation stands the same as an individual, having the same rights and duties in this regard. It is not necessary that the offensive interference with another, shall be of a nature to affect the health, hut it is sufficient to constitute a nuisance, if the matter done so seriously prejudices or inconveniences another, that that other can not enjoy his property with the same comfort that persons commonly enjoy their property, when used in like manner. Every one is entitled to as pure and fresh air as nature furnishes to his neighborhood, taking into consideration the number of inhabitants, and man’s usual mode of living there; and if any person, by his business or otherwise, corrupts that air, so as to render it less pure, wholesome or agreeable, he is liable for creating a nuisance. By agreeable, I do not mean such as shall come up to the taste of every individual; but if the air be made offensive to any considerable portion of the people of that neighborhood, so as that they can not enjoy their property, as others commonly do in that or in like situated neighborhoods, then it is a nuisance. So, if a person by any act of his, affects the water of the well of another, so as that the water is made unhealthy, unfit for ordinary use, or so disagreeable to the taste that it can not be used or enjoyed in like manner as others commonly use and enjoy similar water in their wells, this is a nuisance. To apply these principles here, I may say, that if youfind the defendant has corrupted the air of that neighborhood, to an extent that it has become so impure, unhealthy, or offensive, that the plaintiff did not enjoy his property between the times named in the petition, as comfortably as people ordinarily enjoy their property, otherwise similarly situated, then your verdict must be for the plaintiff. And if you find that the defendant’s acts did affect the water in the plaintiff’s well, between the same dates, so that the water was made unhealthy, unfit for ordinary use, or so disagreeable to the taste that it could not be used and enjoyed by the plaintiff, as others commonly use and enjoy similar water in their wells, then you must find for the plaintiff. If, on the contrary, you find that neither of these things have occurred by reason of defendant’s acts, you will find for the defendant. So, if you find that the air or water was not rendered impure or unhealthy, and yet find that by defendant’s acts it was rendered disagreeable to a very limited number of persons, and not to people generally, then you will find for the defendant.”
    “ And the court in further charging the jury, further said to the jury, that if, finding for the plaintiff, they should assess the damages on the basis of noisome and disagreeable smells in the air and water, ‘ there must be some real, substantial 'damage to the plaintiff in this respect. But by this I do not mean, that he shall have had physician’s or nurse’s bills to pay, nor have been put to any actual expense, but he or his family must have been rendered more uncomfortable than persons ordinarily are, who are similarly situated in all things, except as to the annoyance complained of. If he has been so rendered uncomfortable, he has sustained an actual, substantial damage.’ And the counsel for defendant having askea' the court to charge the jury, that the plaintiff must not have contributed,-by his own negligence, to the injury of which he complains, and having argued to the jury that a reasonable and a prudent man, situated as was the plaintiff, would have cemented his well, and- would have altered the natural channel or bed of the run passing his premises, the court thus charged the jury: ‘ If you find, from the evidence, that the plaintiff contributed to the nuisance complained of, or if, by his own carelessness or negligence, the nuisance was created, or, being created by the defendant, the plaintiff’s carelessness or negligence damaged his property in any measure, when otherwise it would not have been so damaged, then he can not recover of defendant. But the plaintiff was entitled to enjoy his property as it was before the gas works were erected, and it was not carelessness, nor negligence on his part.to -fail to cement his well when he found its waters being affected, nor was it so, for him to fail to alter the natural channel or bed of the run passing his premises.’
    “At the close of the charge of the court to the jury, the counsel for defendant took exceptions to the proposition of the court lastly above stated, as to the right of enjoyment of the plaintiff, and as to the negligence imputed to him in argument. The said counsel further excepted to all the instructions of the court herein set forth, except the general statement of the rule respecting negligence in general, on the part of plaintiff’s suing for negligence, and .except also the discrimination made by the court between an ordinary and extraordinary taste and sense of the agreeable and disagreeable.
    “ And thereupon the said counsel moved the court to charge the jury as follows : ‘ If the plaintiff has not suffered a real, material and substantial injury he is not entitled to recover in this action. The jury are the judges of the question — what ;amounts to such real, material, and substantial injury. Th6 jury also are the judges of the question as to what is negligence on the part of the plaintiff, as to protecting himself against the injury complained of.’
    “ The instructions so asked being given, but no part of the instructions already given being withdrawn or modified, the defendant by his counsel excepts as before.”
    A verdict having been rendered for the plaintiff, a motion for a new trial was made and overruled, and the defendant again excepted, but the evidence was not embodied in the bill of exceptions.
    To reverse the judgment on the verdict a petition in error was filed in this court'.
    
      Warden $ JDresel and Galloway, for plaintiff in error.
    
      Rankin and Taylor, for defendant in error.
   GrHOLSON, J.

It has been observed, that “ two great legal principles are sometimes in apparent antagonism, the doctrine lying at the root of what is called the social compact, that the absolute owner of property may deal with it as he'likes, and the rule which so restricts the use and enjoyment of property as to prevent injury — i. e., legal injury to a neighbor and that, great care is “ often necessary in determining whether, or not a particular mode of enjoying property is innocent and lawful.” Broom on Common Law, 81. It is said in the case of Cooper v. Hall, 5 Ohio Rep. 321, that when the act complained of, is itself lawful, “it is only when some actual injury is done, that a right of action ensues. Every man has a right to use his own as to himself seems proper; but he must be careful so to use it, that no injury is done to another.” * * * “ The term nuisance signifies anything that causes hurt, inconvenience, annoyance or damage. If a thing complained of, causes neither of these, it is difficult to ■ discover upon what principles it can be called a nuisance, But if it causes either, in the least degree, the person creating it must be answerable for consequences. No matter how small the damage, the’ person sustaining it will have s right of action. But there must be some damage in fact, not merely in imagination.” * * * * “ Every riparian proprie-. tor of land, has a right to the use of the water flowing in the river, so long as it flows adjacent to his land. But he must so use it as not to injure an adjoining proprietor,-either above or below him. For any such injury he will be answerable. But to subject him to an action, the injury must be material, substantial. * * * It may be difficult, in some cases, to ascertain whether the injury be material; but it is a question proper for the consideration of a jury.”

In the case of Palmer v. Mulligan, 3 Caine Rep. 307, 314, cited as an authority for the decision in Cooper v. Hall, it was said by Livingston, J., that as well “ to secure to individuals the free and undisturbed enjoyment of their property, as to the public the benefits which must frequently redound to it from such uses, the operation of the maxim sic utere tuo ut alienum non Icedas, should be limited to such cases only where a manifest and serious damage is the result of such use or enjoyment, and where it is very clear indeed that the party had no right to use it in that way. Hence it becomes impossible, and, indeed, improper, to attempt to define every case which may occur, of this kind. Each must depend upon its own circumstances; and the fewer precedents of this kind which are set, the better.” It is said, in a recent work: “ In reference to the general question, what constitutes a nuisance, technically so called, a precise definition is, of course, impracticable, and the law is best explained by the particular instances of annoyance or injury which have been adjudged to be, or not to be nuisances.” 1 Hilliard on Torts, 631. This writer, and the one before quoted, Broom on Common Law, both cite as a true test and proper criterion, that given in Walter v. Selfe, 4 De G. & S. 315, and adopted in Soltan v. De Held, 2 Sim. N. S. 133, 159, and which, as stated by the latter, is: “Ought the inconvenience in question, to be considered, in fact, as more than fanciful, or as one of mere delicacy or fastidiousness ; as an inconvenience materially interfering with the ordinary comfort, physically, of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain, sober, and simple notions among the English people?”

It is evident that, what amount of annoyance or inconvenience will constitute a legal injury, resulting in actual damage, being a question of degree, dependent on varying circumstances, can not be precisely defined, and must be left to the good sense and sound discretion of the tribunal called upon to act. Any rule on the subject can only serve as a guard against an unreasonable exercise of that discretion. Thus, in the one above cited, we are cautioned to regard the proper mean — the ordinary standard of comfort and convenience, and not particular or exceptional cases above , nor, it may be added, below. Regard should be had to the notions of comfort and convenience entertained by persons generally, of ordinary tastes and susceptibilities. What such persons would no.t regard as an inconvenience materially interfering with their physical comfort, may be properly attributed, when alleged to be a nuisance, to the fancy, or fastidious taste, of the party. On the other hand, the charge of a nuisance, if it be of a thing offensive to persons generally, can not be escaped by showing that to some persons it is not at all unpleasant or disagreeable.

It is possible that, in the present case, the judge, in his charge, did not intend to do more than caution the jury against the adoption of an extreme standard by which to ascertain the degree of annoyance and inconvenience which would establish the charge of a nuisance and show an actual damage, and with that view, told the jury, that the degree of comfort to which the plaintiff below, in the enjoyment of his property was entitled, was that ordinarily enjoyed by other persons in his neighborhood, otherwise similarly situated. But a majority of the court think, that the proposition that the plaintiff below had equal rights with his neighbors to the enjoyment of air and water, which as an abstract one could not have been disputed, so often and in different connections brought before the jury by the judge, may have led the jury into a mere comparison of the situation of the plaintiff below with that of his neighbors — into an inquiry simply whether any difference was perceptible, and from -the real question, Avhether the consequences resulting from the acts of the defendant — the difference of enjoyment, if any wore found to exist — constituted an actual damage. It must necessarily happen when the cause which produces a disagreeable odor or offensive smell, is local, that the property of some persons will be more exposed to it, than that of others. But this alone will not give a right of action; it must still be shown that this exposure, though peculiar, results in that degree of annoyance and inconvenience which constitutes a legal injury, and gives a claim for damages.

The judge properly told the jury that the plaintiff in the action must have suffered a real, material and substantial injury, to entitle him to recover, and that it was for them to determine what amounted to such an injury. But to aid the jury in arriving at their conclusion, a definition or criterion, as to what would constitute a nuisance, was, at the same time, given, which, as understood by a majority of the court, was erroneous, and calculated to mislead the jury.

It is claimed that the court erred in saying to the jury that the plaintiff in the action, was entitled to enjoy his property as it was before the gas works were erected, and that it was not carelessness or negligence on his part to fail to cement his well when he found its waters being affected; nor was it so for him to fail to alter the natural channel or bed of the run passing his premises. There is nothing in the pleadings and no evidence is set out showing that these remarks could have been or were prejudicial to the plaintiff in error. We think it altogether probable that the duty of protecting his property in the manner claimed, could not be thrown on the plaintiff in the action. The only doubt that could arise would be, whether it was not a question, though a plain one, rather of fact than of law; and had the remarks of the judge been given as advice or suggestion to the jury, to receive such weight as they might think them entitled to, there would have been no objection; and the judge did tell the jury that they were “ the judges of the question as to what is negligence on the part of the plaintiff, as to protecting himself against the injury complained of.” It was in connection with the acts which it was claimed the plaintiff in the action should have done, to protect himself from wrongful acts of the defendant, that the remark was made that “ the plaintiff was entitled to enjoy his property as it was before the gas works were erected.” We do not understand the judge as intending, that the plaintiff, by a mere prior use or occupation of his property, could acquire any right to the prejudice of the defendant, or prevent it from any proper use of its property, or escape any care or protection of his own property, which would otherwise, under the circumstances, have been proper.

Judgment reversed.

•Sutliff and Peck, J.J., concurred.

Scott, C.J., dissented as to the construction given to the charge of the court below.

Brinkerhoff, J.

I think the judge below talked more than was necessary, and probably more than was expedient; that it would have been better for him simply to have left it to the jury to say whether the defendant was so using its property as materially, really and substantially to affect either the health or comfort of the plaintiff in the enjoyment of his property — he being regarded as a person of ordinary delicacy of taste and sensitiveness. But, although this may have been the better way, still I do not see any substantial error in the charge as given; and I think that, taking the whole charge together, and giving it a fair construction, he hit the nail upon the head about as fairly and squarely as was possible.  