
    Charles Davis and Others, Appellants, v. The Niagara Falls Tower Company, Respondent.
    
      Nuisance — maintaining a tower near Niagara Nalls upon which spray freezes and is subsequently blown as ice upon the glass roof of cm adjoining owner.
    
    An observation tower constructed of open iron work some ten feet distant from and rising about two hundred feet , above the roof of a museum building and within a few hundred feet of Niagara Falls, from which tower large pieces of ice, formed thereon during the winter from melting snow and spray blown from the falls, are at times carried by the wind upon the roof of the museum building, breaking through a heavy glass skylight, damaging valuable exhibits displayed below, and endangering the lives of visitors and of persons employed in the building, as w;ell from fragments of falling glass as from the ice itself, constitutes a nuisance, and the owner of the museum is entitled to a mandatory injunction restraining its maintenance in a manner calculated to cause a continuance of such injury.
    Appeal by the plaintiffs, Charles Davis and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Niagara on the 5th day of April, 1897, upon the decision of the court rendered after a trial at the Erie Special Term dismissing the complaint.
    
      
      John G. Milburn and Morris Gohn, Jr., for the appellants.-
    
      J. H. Metcalf ’ for the respondent.
   Hardin, P. J.:

This action was commenced Harch 14, 1896. The relief sought therein was a mandatory injunction enjoining and restraining the defendant from' maintaining upon its premises a certain tower, so that ice would accumulate thereon and fall from it- on the building of the plaintiffs, as well as for damages. The defense was substantially a general denial;. The action was tried at the Erie Special Term in January, 1897.

Since 1888 the plaintiffs have been copartners in business at the city of Niagara Falls., At all such times they were the owners and occupants of a parcel of land situate on the west side of River way, in the above-named city, and upon that lot is situated a four-story bridle and stone building, used and occupied by plaintiffs for the purpose of conducting a museum of various 'curiosities for exhibition to tourists and visitors to the Falls of Niagara, an admission fee being ■ charged by the plaintiffs therefor. Plaintiffs erected the building .in or about the year 1888 at a cost of $45,000. It is sixty-three feet wide, one hundred and twenty feet deep and fifty feet high. The interior thereof, used for such museum, is an open court ■ from the top thereof, and from the skylight which forms the roof, to the ground floor of the building. Around the court, upon the four floors or galleries of the building, the exhibits are arranged in glass-covered cases against or near the walls. Upon the' ground floor, immediately in the center of the court, is located a large glass case containing some of the more 'valuable exhibits of plaintiffs. Immediately over the court and lighting the building is a skylight thirty-five- feet wide, eighty-oné feet long, running to a cone, slanting to the north and south, and containing several hundred panes of heavy glass, one-quarter of an inch thick, each eighteen inches wide by sixty-three inches long, and subdivisions of such panes. The skylight was erected at the same time as the building and at a great cost for the purpose of affording proper light and protection to the building, and the building, and museum have been maintained in substantially the same condition at all times since, the erection of the said building. The business is a source of profit to the plaintiffs, who have derived their livelihood from the same during such period. Plaintiffs and their employees, three in number, are necessarily ■engaged upon the floor thereof under the skylight. The museum is visited by patrons and customers in the winter as well as in the summer time.

About 1893 the defendant purchased the lot immediately south ■of the premises occupied by plaintiffs and erected a hotel and tower, which it has since and now maintains. The tower was completed in the autumn of 1893, is constructed of open iron work, consists of uninclosed iron beams running from near the ground to a cone, and extends at varying distances from plaintiffs’ building about ■two hundred feet above the roof of the same, which is about the height ■of defendant’s hotel; Within the tower are two elevators used for carrying passengers to the top thereof for the purpose of viewing the scenery about Niagara Falls. This hotel is located within two feet of plaintiffs’ building. The legs of the tower at the top of.the hotel-constitute four corners .of a square, fifty feet apart at the base, thirty feet at the top, and at the top of the hotel building the two most northerly legs of the tower are ten feet from the southerly ■edge of plaintiffs’ building. All the structures in question are situate near and opposite Prospect Park, adjoining the falls, and within a few hundred feet of the same; and on many occasions during each winter since the tower has been constructed ice has formed thereon from sleet, melting snow or spray from the falls which has frozen upon the tower; and at all times during each winter when ice had so accumulated on the tower and a thaw has occurred, large quantities of ice from the tower have fallen and been blown upon the plaintiffs’ building, and the ice which has so fallen and been blown from the tower, has, on several occasions, suddenly and without warning, during the winters of 1894, 1895 and 1895-1896, fallen upon the skylight of plaintiffs’ building and, breaking through the glass therein, has fallen with great force to the floor of the building. Such falling ice has been of sufficient thickness to produce serious damage to plaintiffs’ ¡property, to endanger human life, and has carried with it pieces of glass which have in like manner injured the floor of, and the cases and the contents within, plaintiffs’ building; and such ice and pieces of glass have been of sufficient size on various occasions to injure, maim or kill persons if they had happened to fall upon them. Such falling ice has so injured the skylight as to allow rain and melting snow to run through the same upon plaintiffs’ exhibits, to the injury of plaintiffs’ building and its contents. The skylight and the tin roof surrounding the same on plaintiffs’ building have been damaged and injured on several occasions through such falling ice, and such injury has been aggravated through the impossibility of properly repairing the roof during the winter season. Such ice falls and is blown from the tower more particularly at time of thawing, when the prevalent, .wind is from the tower towards plaintiffs’ building. The floor of said ■ building upon which such ice and broken glass falls when ice breaks through the skylight is the place where the plaintiffs and their employees are engaged in performing their duties and where visitors to the museum view and inspect the collections. At all times during every winter season ice is liable to accumulate upon the tower; and, when there is a thaw, large quantities thereof are liable to fall and be blown from the tower upon plaintiffs’ building, doing damage to their property and involving 'a risk to human life. The injuries to plaintiffs’ building will probably recur each winter during the periods of thaw when ice has formed and accumulated on said tower,-and, by reason of the weather conditions which prevail at Niagara Falls, such forming and accumulating of ice on the tower during a period of several months each winter and such falling of ice in considerable quantities and sizes therefrom on various occasions each'winter is reasonably to be expected, and irreparable injury and damage to the plaintiffs and their property and business will probably continue, and the lives and limbs of plaintiffs, their-employees and patrons will probably continue to be in jeopardy so long as the present conditions continue to exist. The plaintiffs have sustained ' damage by reason of the falling and blowing of- ice from said tower upon the museum building to the amount of $2,500.

The plaintiffs made formal demand of the defendant before the commencement of this action that it pay the said damages and take such steps as might be necessary to protect plaintiffs’ building and its contents from further injury, but the defendant has neglected and omitted so to do. The tower is used by the defendant as an observatory, and as such has acquired a wide reputation, and the defendant has derived, and is now deriving, considerable profits from its use by tourists and others. It is a safe, substantial and suitable structure for the purposes for which it was erected and is used. The body of the tower is wholly within and upon the defendant’s own premises, and the uses made of it are for gain and profit'. The foregoing is a statement substantially of the facts as found by the justice before whom the case was tried. Exceptions were filed by the plaintiffs to several conclusions of' fact stated by the trial court and to his conclusions of law.

The court found, as conclusions of law, first, that the tower erected and maintained by the defendant, as hereinbefore stated, is not a private nuisance; and, second, that the plaintiffs’ complaint should be dismissed, with costs.

One of the plaintiffs gave evidence as follows: “The effect of this falling ice was that the roof has always leaked ever since the tower has been built, from the ice falling on it and breaking through. I have seen the ice accumulate. The ice accumulates by the spray blowing over there on the tower and accumulates on the legs of the tower and crossbeams, and also the feet or stairs on the outside of the elevator shaft. The ice forms on the steps and forms on the headers, and then when it thaws it falls off. 'The wind carries it. , I have seen it carry it thirty feet, a sheet of ice six or eight feet long and fourteen inches wide. I have seen it carried thirty feet on the other side of our building-. ■ I have seen them come down, four or five feet long, with a crash right through our roof. Not so much from icicles as from ice forming on the iron. I have observed icicles on different parts of the tower. I have observed these flat pieces of ice form on the tower. I have also seen ice form on the tower from other sources than the spray. I saw a great deal of ice form last year from snow left there, which thawed and became ice, and I saw those sheets blow right over on to our roof. These flat pieces that formed on the legs and blew off were formed from spray and snow. Our building and that of the defendant’s is about 600 feet from the brink of the Falls. Mist rises from the Falls of Niagara and blows over; whatever way the wind blows the mist goes with it, and if it strikes these places before it is frozen it will stick to anything it comes in contact with and forms ice. The frozen spray, which I have described, that forms on the tower, is just the same as that which forms on the trees in the park, and constitutes what is known as the ice scenery at Niagara Falls.”

Other evidence was given corroborating the statement; made by the plaintiffs, and tending to show that, by reason of the accumulation of ice upon the structure of the defendant, the plaintiffs have suffered injuries from time to time to the extent of some $2,500 as the evidence indicates.

The evidence established that the defendant refused, after notice,, to take any steps by way of preventing the injuries which the plaintiffs were receiving from the structure maintained by the defendant. The evidence clearly indicates' that the tower, as maintained by the defendant, is a menace to the property of the plaintiffs and to persons visiting their museum, and that from time to time serious-damage has occurred to the plaintiffs’ property and the lives of persons in and upon the plaintiffs’ premises have been endangered.

If the defendant’s structure had been erected at a greater distance from the premises of the plaintiffs the injuries now complained of by the plaintiffs would not have occurred. The evidence of the acts of the defendant in building the. structure and maintaining it in the manner in which it is maintained quite clearly establishes that the structure is a nuisance, by reason of which the plaintiffs suffer' damages.

In Penruddock's Case (5 Coke, 100 b) it was said: A man shall have an assize of nuisance for building a house higher than his house and so near his that the rain which falleth upon that house falleth irpon the plaintiff’s house.”

In Radcliff’s Executors v. Mayor (4 N. Y. 199), in the course of' the opinion, Bronson, J., said : “And one can not justify placing a spout on his house which throws the water on the land of his. neighbor.”

It is said in section 104 of Wood’s Law on Nuisances (2d ed.), viz.: “ While a person may erect a building upon the line of his land', yet he is bound at his peril to do it in such a manner that the water or snow and ice from its roof shall not fall upon his neighbor’s land, or even •upon his own, in such manner as to escape his neighbor’s land in large quantities or greater volume than would go there if no erection had been made.”

■ In Cogswell v. N. Y., N. H. & R. R. R. Co. (103 N. Y. 10) it appeared that the defendant liad erected, upon a lot adjoining the dwelling house owned by the plaintiff, an engine house and coal bins for its road, and used the sainé in operating it. The smoke, soot, cinders and coal dust caused by such use filled plaintiff’s house and rendered the air offensive and unwholesome and the house untenantable, and it was held that the engine house, as used, was a nuisance; and Andrews, J., at page 15, in referring to the opinion of Bronson, J., in Radcliff's Executors v. Mayor (supra), as to the general rule that a man may do what he will with his own property, quotes approvingly from Bronson, J., viz.: “ He may not, however, under color of enjoying his own, set up a nuisance which deprives, another of the enjoyment of his property.” That case was quoted with approval in Hill v. Mayor (139 N. Y. 502), and Morton v. Mayor (140 id. 212).

In McKeon v. See (51 N. Y. 300, affg. 4 Robt. 449) the defendant was carrying on a manufactory in a building adjoining buildings owned by the plaintiff. The defendant’s machinery was run by steam power, and its operation produced a jarring and shaking of plaintiff’s buildings to their injury, and to the annoyance of the occupants; it was held that a recovery could be had, and numerous cases were quoted in the opinion of Hunt, C., sustaining the right of recovery, and then he observed, viz.: “ These cases fully sustain the principle upon which the recovery was had in the present case. If the injury amounts to a nuisance, and a continuing one, the appropriate remedy is by a bill for an injunction.” (Citing Williams v. N. Y. C. R. R. Co., 16 N. Y. 97; 2 Story’s Eq. Juris. §§ 925-927.)

In Dunsbach v. Hollister (49 Hun, 352; S. C. affd., 132 N. Y. 602) the defendant, a dealer in molding sand, deposited upon his own lot, adjoining that of plaintiff, a large quantity of sand. No covering was placed over this sand, and the evidence tended to show that when the wind was in a southerly direction, and especially in dry weather, the sand was blown into the plaintiff’s house to the great annoyance and discomfort of the plaintiff and family, and to-the injury of her food, furniture and property in the house. In that case it was held that the plaintiff was entitled to recover such damages as had been sustained and to an injunction; and it was held, viz.: “ Where an injury is of such a character as to be the source of recurring personal annoyance, discomfort and inconvenience, in addition to the damage to property, a case is presented that cannot he adequately compensated in damage, and an injunction should be granted.”

In Campbell v. Seaman (63 N. Y. 568) it was said that “ every person is bound to maké a reasonable use of his. property so as to occasion no unnecessary damage or annoyance to his neighbor. If he make an rm'reasonable, unwarrantable or unlawful use of it, so as to produce material annoyance, inconvenience, discomfort or hurt to his neighbor, he will be guilty of a nuisance to his neighbor. And the' law will hold him responsible for the consequent damage. As to what is a reasonable use of one’s own property cannot be defined by any certain general rules, but must depend upon the circumstances of each case. A use of property in one locality and under some circumstances may be lawful and reasonable, which, under other circumstances, would ■ be unlawful, unreasonable and a nuisance. To constitute a nuisance, the use must be such as to jn’oduce a tangible and appreciable injury to neighboring property or such as to render its enjoyment specially uncomfortable or inconvenient.”

We think that the evidence in the case in hand brings it within the principles declared in the quotation we have just made; and that the use made by the defendant is not reasonable, and that its structure, maintained with the atmospheric conditions which exist, when we consider the consequences to the plaintiffs’ property, is unlawful. .(Bohan v. P. J. G. L. Co., 122 N. Y. 26; Shipley v. Fifty Associates, 106 Mass. 194.)

It is obvious that the spray from Niagara Falls, if allowed to pass over the land of the plaintiffs without the presence of this tower,, would not produce the injury of which the plaintiffs now complain, and that it is the extraordinary structure erected by the defendant that has occasioned.the large damages that have already been sustained by the plaintiffs, and which will occasion others likely to occur unless some provision shall be made by the defendant to guard against the action of the elements- which cause the moisture to adhere to the structure of the defendant and form large pieces of ice, which, with the aid of the wind, are carried upon the property of the plaintiffs.

It is not necessary to determine on this occasion whether such precautions and guards can be taken by the defendant as to avoid the succession of injuries such as has heretofore been sustained by the plaintiffs. That question will more appropriately be determined when it shall be presented in the trial court.

The foregoing views lead ns to the conclusion that a new trial should be ordered.

All concurred.

Judgment reversed and new trial ordered, with costs to the appellants to abide the event.  