
    William H. Leonard, Resp’t, v. James E. Spencer et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed February 10, 1888.)
    
    1. Nuisance—Right oí? a land owner, when especially injured, to HAVE A POND, WHICH CAUSED THE NUISANCE, REMOVED.
    Where a pond, maintained by the defendants for manufacturing purposes upon lands belonging to the plaintiff, and which adjoins other lands belonging to him, is a common nuisance, and especially injurious to the plaintiff, he may maintain an action to have the pond removed and the defendant restrained from restoring it, even though, by the terms of the deed by which the lands were conveyed to the defendants by a former owner of the lands of both plaintiff and defendant, a right to maintain and use the pond is expressly reserved to the defendant.
    2. Same—Right to air unpolluted—How lost or barred.
    It is a common law right to have the free use of the air in its natural, and unpolluted state, and an acquiescence in its being polluted, for any period short of twenty years, will not bar that right. To bar that right within a shorter period there must he such encouragement or other act by the party afterwards complaining as to make it a fraud in him to object.
    8. Same—When owner op land cannot maintain action to abate.
    The plaintiff purchased the seventy-five acres upon which his house stood in 1866, and he purchased the land embracing the mill-pond in question in 18; 8, subject to the rights and easements which the defendants claim therein. Held, that merely as owner of the land purchased in 1873, he could not maintain an action against the defendants to take down the mill-dam and thus destroy their easement in the pond.
    
      4. Same—When right to maintain action to abate is not lost.
    The plaintiff's rights as owner of the seventy-five acres purchased to 1866, growing out of his residence upon that land, and the special damages to him from the nuisance maintained by the defendants, was not affected by his purchase of the pond property in 1873.
    5. Same—The use of fond for a time dabs not bob the bight of action to abate a nuisance caused by it.
    Even if the plaintiff had united with the defendants for a time in keeping up the dam, and had used the waters of the pond for the purpose of running a mill, when he found that the operation of the mill and the defendants’ factory and the dam were producing this nuisance, and rendering the occupation of his seventy-five acres uncomfortable and dangerous-to health, he had the right to abandon the use of his mill and of the dam, and insist that the nuisance should be abated.
    6. Same—Abatement of not befused because it will cause gbeAt damage to party maintaining it.
    The equitable relief which plaintiff seeks should not be denied to him because the abatement of the nuisance will cause great damage to the defendants, if the continuance of the nuisance will cause great damage to the plaintiff.
    7. Same—Stockholder ob director in corporation maintaining a nuisance may sub to have it abated
    It is no bar to the maintenance of this action that the plaintiff was-a stockholder and director of the defendant corporation. He had a right to hold his stock and receive his dividends and yet complain of any nuisance which the corporation might commit or maintain, and sue for any damages which it might inflict upon him. There was no such acquiescence within the meaning of the law as deprived him of the remedy he now seeks for the abatement of the nuisance.
    8. Same—When director estopped.
    If, as director, he had in any way actually co-operated with others to cause the nuisance of which he now complains, he would not be entitled to any remedy for the damages which he sufferql.
    Appeal from a judgment of the supreme court, general term, second department, reversing a judgment in favor of the defendants, dismissing the complaint upon the merits entered at special term.
    _ The action was brought by the plaiptiff for the destruction and abatement of a dam which restrained the waters of the pond known as Kirby’s pond, situated in Bedford, and New Castle, Westchester county, and for a perpetual injunction restraining the defendants from rebuilding or renewing said dam.
    
      Martin J. Keogh, for app’lts; Wm. H. Robertson, for resp’t.
    
      
       Affirming 34 Hun, 341.
    
   Earl, J.

Besides denying the alterations contained in the complaint, the answer of the defendants sets up but two' defenses, one of which is that the mill pond ‘ ‘ has existed in the place where it now is for more than 100 years, and during all the time of its said existence the plaintiff or his grantors have, with the exception of about a year or two' last past, assented to and acquiesced in the maintenance of the said pond and the dam by which it was caused;” and the other is that “on or about the 1st day of February, 1864, Jane Kirby and Leonard Kirby being then the owners in fee of the lands now cóvered by said pond, and owned by the plaintiff, and also of the lands owned by the defendants, James E. Spencer and John S. Spencer and leased by them to the defendant the Spencer Optical Manufacturing Company as set forth in the amended complaint, did execute and deliver for a valuable consideration to Catherine H. Halstead, wife of Isaac Halstead, and Patience Ann Halstead a deed and conveyance in writing bearing date on that day, and afterwards on the 17th day of February, 1864, recorded, etc., wherein and whereby the said Jane Kirby and Leonard Kirby granted and conveyed to the said Catherine H. Halstead and Patience Ann Halstead the said lands now owned by the said defendants James E. Spencer and John S. Spencer and occupied by the defendant, the Spencer Optical Manufacturing Company, which deed contained the following covenants with others, to wit: “Also the right to the said party of the second part, her heirs and assigns forever, in common with Jane Kirby, her heirs and assigns forever, to the use of the waters of the large pond known as the ‘ Kirby Mill Pond ” with access at all times for both parties to the gates to turn the water on or off, the water to be used only during the regular working days and in the regular hours—that is, 11 hours during each day of 24 hours. And it is hereby expressly covenanted and agreed by and between the respective parties to these presents, and their heirs and assigns respectively, that neither party to these presents, hath or shall have, nor shall their heirs and assigns respectively have any right to use the water in the said large pond when it .falls below 4 feet from the top of the dam; but, whenever the water shall be running over the said mill dam, either party may use the water so long as it runs over the dam for so many hours a day as they wish.

It is also mutually agreed that the small pond, near the dwelling-house of Cornelia Geer, formerly of Jane Kirby, is to be kept full of water; that the upper and lower dam shall be kept always in order, and the expense, therefor, shall be borne equally, one-half thereof by the said Jane Kirby, her heirs and assigns, and one-half thereof by the said party of the second part to these presents, her heirs and assigns.” That Lhe plaintiff received by mesne conveyances from the said Jane Kirby and Leonard Kirby, and now holds title to and ownership of the lands covered by-said Kirby’s pond, now owned by him, subject, however,', to all the covenants aforesaid, and to all the easements br- and over the same in said deed conveyed to said Catherine H. Halstead and Patience A. Halstead, and that in the autumn , of 1873, the said Catherine H. Halstead and Isaac Halstead, her husband, and the said Patience A. Halstead, conveyed by deed to the defendants, James E. Spencer and John S. Spencer, the lands now held and owned by them, as set forth in the amended complaint, with all the privileges, rights, estates and easements in and to the lands now of the plaintiff, covered by said Kirby’s pond, which were granted or conveyed to. said Catherine H. Halstead and to Patience A. Halstead by said Jane ICirby and Leonard Kirby, as aforesaid, and that the said defendants are now the rightful owners and holders thereof.”

The trial judge found all the material facts alleged in the complaint as to the nuisance maintained by the defendants and its effects, to be true. As to the'acquiescence of the plaintiff he found substantially, as follows: That the pond is an ancient pond and existed in substantially the same condition as it now is at the time when, and for a great many years before the plaintiff became the owner of his dwelling-house, with notice of the rights and easements of the defendants and their grantors, in, to and over the pond and the lands covered thereby; that in the year 1877, and several years after the plaintiff had owned and resided in his dwelling-house, the defendants, James E. Spencer and John S. Spencer, being owners of the lands conveyed to them, as alleged in their answer, built thereon with the knowledge and acquiescence of the plaintiff and without objection on his part, a large factory for the manufacture of optical instruments, which was operated and worked by the water drawn from the pond as a reservoir, under the terms and conditions‘ of the covenants sét out in the answer; that thereafter the factory was burned down and another large factory for the same purpose and operated in the same way was built by the defendants at great expense, and with the full knowledge and acquiescence of the plaintiff, and without objection or. complaint on his part; that the defendant, the Spencer Optical Manufacturing Company is a corporation; that the plaintiff was a director and stockholder in the corporation, and had regularly, since he became a. stockholder, received and accepted, and still receives and accepts his share of the dividends representing his share of the profits in the .corporate business.

The trial judge also found the' conveyances affecting the pond referred to in the answer and .the conclusion of law upon which he based his decision in favor of the defendants is as follows: “That the plaintiff,"as the owner of said pond and the lands covered thereby, through mesne conveyances from the said Jane Kirby, is bound by all the covenants and agreements .contained in the said deed of the lands now occupied by the defendant, the Spencer Optical Manufacturing Company, to said Catherine H. Halstead and Patience Ann Halstead as aforesaid, including the rights of the said Catherine H. Halstead and Patience Ann Halstead, their heirs and assigns, to the use of said pond and the water thereof, as set forth in said deed, and is estopped from claiming that the said pond is a private nuisance to him or his family, and from maintaining this action against the defendants, the assignees of the said Halsteads, to have the same drained, and to have the said defendants’ rights, privileges and easements therein cut off.”

He made no ruling whatever as to the effect of the alleged acquiescence on the part of the plaintiff.

It is no bar to the maintenance of this action that the plaintiff was a stockholder and director of the defendant corporation. He had a small amount of the stock, and it does not appear in the case what action, if any, he ever took as a director. He had a right to hold his stock and receive his dividends and yet complain of any nuisance which the corporation might commit or maintain, and sue for any damages which it might inflict upon him. If it had appeared that as director he had in any way actually co-operated with others to cause the nuisance of which he now complains, he would not be entitled to any remedy for the damages which he suffered, but because he was a director and a stockholder he was not bound to permit the continuance of the nuisance and he could at any time refuse to go further and ask to have the nuisance' discontinued and abated.

There was no such acquiescence within the meaning of the law as deprives the plaintiff of the remedy which he now seeks for the abatement of this nuisance. It does not appear that he actively encouraged the defendants in the erection of their buildings and structures. They were erected upon their own land, and it was not within his power to interfere with or prevent their erection. All that can be said is that he did not make objection nor protest against their erection, and that he did not give notice that the operation of the dam for the uses of the factory would prove detrimental or injurious to him. But what is still more important, it does not appear that the defendants took any action whatever in reliance upon the silence or acquiescence of the plaintiff. Whether this pond was dangerous to the health of the people who lived near it was a question greatly disputed upon the trial.

A large number of witnesses gave evidence tending to show that it was not while others evidence tending to show that it was the cause of much discomfort and sickness. There is no evidence whatever that for any considerable "time before the commencement of this action the plaintiff was able so to solve this disputed question as to-be thoroughly convinced himself or to be able to establish that this pond was the cause of the sickness prevailing in his family and in other families in its vicinity. He did, from time to time, make objection to drawing down the water in the pond and exposing the bottom thereof to the-action of the sun and the winds. And finally, when the nuisance became intolerable and its effects appeared to him certain, he commenced this action. Under such circumstances we do not think that within any of the authorities cited there was such acquiescence on the part of the plaintiff as to bar the relief which he seeks. In Radenhurst v. Coate (6 Grant’s Ch. R., 139), a similar allegation of acquiescence was made against the plaintiff who sought to restrain a nuisance caused by the business of a soap and candle manufactory, carried on near the plaintiff’s dwelling house; and in that case Sprague, V. 0., said: “The omission to warn the defendant, and the subsequent forbearance to take any proceedings against him, are relied upon as disentitling the plaintiff to relief. We do not think that it is shown by the-evidence that there was any encouragement on the part of Mr. Radenhurst or that the defendant took any step or incurred any expense upon the faith of anything said or done-by Mr. Radenhurst, or that Mr. Radenhurst’s conduct had any influence in determining the defendant to do anything in regard to his factory. Putting it most strongly for the defendant that the evidence will warrant, there was an acquiescence for several years in the defendant’s carrying on his business as he did carry it on, but nothing more. It is a plain common law right to have the free use of the air in its natural, unpolluted state, and an acquiescence in its being polluted for any period short of twenty years will not bar that right. To bar that right within a shorter period there must be such encouragement or act by the party afterwards complaining as to make it a fraud in him to-object.” These observations are quite applicable to this case. There is no finding here and no inference that the defendant ever assented to or acquiesced in the use of the pond in such a way as to produce the nuisance of which he-now complains.

We are also of the opinion that the ground upon which the trial judge based his judgment is not sufficient to defeat this action. The plaintiff purchaséd the seventy-five acres upon which his house now stands in the year 1866, and he purchased the land embracing the mill-pond in 1873, subject to the rights and easements which the defendants now claim therein.

It is undoubtedly true that merely as owner of the land purchased in 1873, he could not maintain an action against the defendants to compel' them to take down the mill-dam and thus destroy their easement in the pond. But he also has rights as the owner of the seventy-five acres purchased in 1866, growing out of his residence upon that land, and the special damages to him from the nuisance maintained by the defendants. • As owner of that land he is under no estoppel If he had not made the purchase of the pond property in 1873, he would have been in a position to maintain this action. And how does the purchase of that property alter his position with reference to the seventy-five acres of land upon which he lives ? He has the right to protect that against this nuisance, and he is under no covenants and bound by no estoppel which takes that right away from him or renders it inoperative. Even if the plaintiff had united with the defendants for a time in keeping up the dam, and had used the waters of the pond for the purpose of running his grist-mill, yet when he found that the operation of the mill and the factory and the dam were producing this nuisance and destroying the health of his family, and rendering the occupation of his seventy-five acres uncomfortable and dangerous to health, he had the right to abandon the use of his grist-mill and of the dam, and insist that the nuisance should be abated. The equitable relief which he seeks should not be denied to him because the abatement of the nuisance will cause great damage to defendants, so long as the continuance of the nuisance will cause great, possibly greater damage to the plaintiff. Nor is there any proof or finding of such loches on the part of the plaintiff as ought to bar his claim to relief. The defendants’ factory was not upon plaintiff’s land, and they had the right to maintain the dam and use the water of the pond, but not in such way as to cause the nuisance complained of. There is no finding that plaintiff’s loches produced any action on the part of the defendants, and it is clear that the plaintiff could in no way have arrested the building of the factory. Assuming that the plaintiff is entitled to relief, there is no claim that the relief granted by this judgment is too broad.

We therefore reach the conclusion, after a careful considation of the whole case, that the facts found by the trial judge, entitled the plaintiff to the relief which he claimed, and that the judgment of the general term is right and should be affirmed.

All concur.  