
    Dunsbach v. Hollister.
    (Supreme Court, General Term, Third Department.
    
    July 2, 1888.)
    1. Nuisance—What is—Finding by Jury—Injunction.
    Defendant maintained an uncovered pile of moulding sand near plaintiff's residence, from which sand was blown when the wind was in a certain direction, causing annoyance and discomfort to the inmates of such residence, and injury to the furniture. Held that,_ while such act was lawful if properly conducted, a finding that the same was so improperly conducted as to constitute a nuisance for which defendant was liable in damages was warranted by the evidence, and that an injunction properly issued restraining the continuance of the nuisance.
    
    2. Same—Action for Damages—Instructions—Unproved Negligence.
    In an action for damages caused by such nuisance, the court charged: “If it [the sand] is of such a nature that it may be cast about "by the wind, and blown to the house of a neighbor, then the man putting it there must prevent it, if he can by any reasonable means. ” 'The court then suggested various means of preventing it, such as a board roof, tarpaulin cover, keeping it wet, etc., and remarked that it was for the jury to see if there was any means to prevent the blowing of the sand. Held, that such remark, in the connection in which it occurred, was not improper, as leaving the jury to imagine some uncharged and unproved negligence.
    3. Same—Action for Damages—Pleading—Due Care.
    Such injury is not caused by act of God, for which defendant is not responsible, there being no showing that care had been taken to guard against ordinary winds, and that the injury was caused by a gale of unexpected violence.
    4. Same—Injunction to Restrain—Notice.
    It is unnecessary to notify defendant of the injurious effect of such act before bringing an action for damages and an injunction.
    5. Appeal—Review—Objections not Raised Below.
    In such action a witness was asked to state the rental value of plaintiff’s residence “without these piles of sand being there, and blowing as described. ” Held that, the witness having been himself examined as to the blowing of the sand, an objection to the (question that it left it to the witness to consider the effect of the evidence given, by a group of witnesses would not be considered on appeal, it not having been made on that ground at the trial.
    Appeal from circuit court, Saratoga county.
    Action for damages by Naomi Dunsbach against William H. Hollister for the maintenance of a nuisance, and an injunction restraining its further continuance. Judgment for plaintiff, and defendant appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      Doyle & Fitts, for appellant. J. F. Crawford and J. W. Verbeck, for respondent.
    
      
       As to what constitutes a nuisance, see Gilford v. Hospital, 1 N. Y. Supp. 448, and note.
    
   Landon, J.

The defendant, a dealer in moulding sand, for several years constantly kept a large pile of it deposited upon hiá own lot, adjoining the Brie canal, in the village of Crescent. The sand was obtained in the vicinity, and deposited by defendant upon his lot, to be sent by canal to his various customers. Directly across the highway from this pile of sand is the plaintiff’s house. This is large and substantial, and is and has been occupied by the plaintiff and her family for a number of years. The pile of sand usually covers a space of about 170 by 35 feet, and varies in height from 8 to 15 feet. The edge of it approaches within 30 feet of the plaintiff's house at the nearest point. Mo covering is placed over the sand. The evidence tends to show that, when the wind is in a southerly direction, the sand, especially in dry weather, is 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. The complaint charges that the defendant left this pile of sand “wholly uncovered during the period aforesaid,” and also charges that the defendant’s business, as conducted by him, was and is a nuisance. The jury rendered a verdict of $250 for damages, and thereupon the court awarded an injunction restraining the defendant from “keeping, piling, or placing any moulding sand upon lands opposite or nearly opposite to, or near or adjacent to, plaintiff’s said dwelling-house, * * * so that the same maybe blown or carried by the winds into or upon the said dwelling-house and premises of the plaintiff.”

The defendant’s business is lawful, if properly conducted. It is not a nuisance jper se, but may be so negligently conducted as practically to become a nuisance. Megligence, therefore, must be shown to entitle the plaintiff to a recovery for damages. Losee v. Buchanan, 51 N. Y. 476, and cases there cited. This the trial court held. We think the evidence was sufficient to justify the jury in their verdict. The only negligence charged in the complaint, and established by the evidence and verdict, is in leaving the pile of sand uncovered, and therefore liable to be blown into the plaintiff’s house. If the injury for which the recovery of damages was had was shown by the evidence to be of such constantly recurring character as to render a multiplicity of suits necessary in order fully to compensate the plaintiff, then the court properly awarded an injunction. 2 Story, Eq. Jur. §925. If the injury was of such a character as to be the source of recurring personal annoyance, discomfort, and inconvenience, in addition to the damage to the property itself, then a case was presented which could not be adequately compensated in damages, and an injunction was proper. Id.

There is no occasion to disturb the judgment, unless the exceptions urged by the defendant require it. The defendant’s exceptionsare mainly based upon the assumption that a lawful business lawfully conducted cannot constitute a nuisance, although others are in consequence injuriously affected. Uline v. Railroad Co., 101 N. Y. 107, 4 N. E. Rep. 536, and numerous cases there cited, are referred to. The proposition is not contested. But a lawful business negligently conducted is not a lawful business lawfully conducted; and that is the distinction in this case,—a distinction which no case repudiates. A railroad company lawfully incorporated, and authorized to take property near my property, may thereby greatly injure my property and business; but, if it has done or omitted nothing with respect to my property or business which the law required of it, I have no legal cause of complaint. But, if it negligently exercises its lawful powers to my injury, then it violates the duty it owes to me, and I have legal cause of complaint. Bellinger v. Railroad Co., 23 N. Y. 42. This defendant has the right to carry on his sand business in a lawful manner. The rule that you must use your own so as not to inj ure another is not of universal application,—the railroad cases above cited illustrate that; but the rule has at least this extent: you must not use your own so as to injure another, if you obviously can, with reasonable care and without unreasonable effort or expense, avoid it. The question becomes one of relative obligation or duty, and the violation of this duty is negligence. Mow here, can there be any doubt which is the more reasonable,—that the defendant shall build sheds or put some covering over his sand, or that the plaintiff must abandon her property?

Exception is taken to the remark of the court in the charge that it was for the jury to see if there were any means that would prevent the blowing of the sand. The separation of this isolated portion of the charge from the portion with which it was connected, is misleading. That the pile of sand was uncovered, was undisputed. The court charged. “If it [the sand] is of such a nature that it may be cast about by the wind, and blown to the house of a neighbor, then the man putting it there must prevent it, if he can by any reasonable means.” The court then suggested various means of preventing it; such as a board roof, tarpaulin cover, keeping it wet. Then followed the remark to which exception is taken, that it was for the jury to see if there was any means to prevent the blowing of the sand. The jury were not left to imagine some uncharged and unproved negligence, as in Leonard v. Collins, 70 N. Y. 90. They were permitted to say whether leaving the sand uncovered was negligence, and it was not improper to suggest to them how it might be covered up. Any way would be enough. Some easy ways there certainly were, and perhaps there were more; but one would suffice. It was not the duty of the plaintiff to prove the best way. 2 Story, Eq. Jur. § 927d.

The defendant claims that he is not liable, for the reason that no notice was proven to have been given him, before suit brought, of the injurious effect of his business. If the defendant.had not created the nuisance, but innocently had suffered it to continue, there are cases to the effect that notice should be given. Vanderwiele v. Taylor, 65 N. Y. 341. In the case cited the distinction is taken that the defendant did not accumulate the water on his premises, nor do anything to cause its accumulation there to the injury of the plaintiff, but it accumulated there by natural causes, and therefore no obligation rested upon him to do anything to protect the plaintiff until he had notice that something ought to be done. The reason which excused the defendant in that case shows his liability in this.

The defendant contends that if the injury was caused by violent winds, it was an act of God, for which defendant is not responsible. Sheldon v. Sherman, 42 N. Y. 484. This is not the act of God without the negligent act of the defendant concurring. If the requisite care had been taken to guard against the action of usual and ordinary winds, and the damage had been caused by a gale of unexpected violence, possibly the defendant would not have been liable. But no such case is presented.

Error is alleged in overruling defendant’s objections to this question, put to the witness Buck; “What, in your opinion, was the fair rental value of plaintiff’s house from 1879 to 1885 without this pile of sand being there, and blowing as described?” The objection is now urged upon the ground that the “blowing as described” left it to the witness to consider the effect of the evidence given by a group of witnesses, and to accept such as he believed, and reject the rest. Reynolds v. Robinson, 64 N. Y.. 589; Seymour v. Fellows, 77 N. Y. 178. But here the witness had been himself examined in regard to the plaintiff’s premises, the pile of sand, and the blowing of it by the wind. The objection taken upon the trial did not assume that he was to speak upon the effect of the testimony of others. If that distinct objection had been taken, it might have been obviated. The judgment should be affirmed, with costs.

Learned, P. J., and Ingalls, J., concur.  