
    Margaret Bohan, Resp’t, v. The Port Jervis Gas Light Co., App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 7, 1890.)
    
    1. Nuisance—Naptha gas—Noxious smells.
    The making of gas from naptha which gives off an odor polluting the air so as to substantially render plaintiff’s property unfit for comfortable enjoyment, constitutes a, nuisance; it is not necessary that she he driven from her dwelling.
    2. Same—Seasonable use.
    A reasonable use can never be construed to include those uses which produce destructive vapors and noxious smells, and that result in material injury to the property and to the comfort of the existence of those who dwell in the neighborhood.
    S. Same.
    A manufactory creating such odors need not be shown to the jury to be defective or out of repair or in charge of unskillful or incapable workmen to be pronounced a nuisance.
    4. Same.
    The defendant obtained no immunity from liability for consequential injuries sustained by property surrounding its works by reason of its incorporation, or the privileges conferred upon the business by the acts of the legislature.
    (Follett, Oh. J., and Haight, J., dissent.)
    Appeal from a judgment of the general term of the supreme court, second department, affirming a judgment entered upon a verdict.
    The amended complaint, after setting out the incorporation of the defendant, and that it was, and for several years prior to the commencement of the action had been engaged in the manufacture of gas, and that the plaintiff and defendant were owners of adjoining property, alleged that about the year 1880, the defendant erected a new tank for the purpose of its gas works on its said premises, the southern side of which stands within a few feet of plaintiff’s premises.
    That about the year 1880, the defendant began and ever since has, and still does manufacture its gas at said works from naptha, and that said tank was and still is used to store said naptha for the purposes aforesaid; that naptha is an offensive, noxious, unhealthy and sickening mineral substance, destructive to the health and comfort of those required to be and remain in close proximity to it. That said tank was erected and is maintained in a negligent and unskillful manner, and by reason of the negligence and want of care upon the part of the defendant in the construction, use of and maintenance of said tank * * * and also by reason of the erection and use of said tank and said works, and the negligent and unskillful manufacture of gas from naptha, the defendant has since August, 1880, and still does maintain a nuisance injurious to the comfort and enjoyment of the plaintiff, and injurious to the rental value of the said premises. The defendant in its answer admitted the erection of the tank, and that it was engaged in manufacturing gas from naptha, and alleged that it used naptha because it was more economical than coal, and denied negligence in the erection of its works or in the conduct of its business.
    It alleged that its business was carried on with all practicable care and skill, and by the use of the most approved machinery and the employment of skillful and competent persons. That it was engaged in a lawful business authorized by the statutes of the state, and that its gas was used in lighting the'streets and public places of the village of Port Jervis, and that the consequences to the plaintiff therefrom were such as necessarily arose from the prosecution of its business.
    It appeared on the trial that defendant had been engaged in manufacturing gas on the premises in question since 1860. Prior to 1880 it manufactured gas from coal, but since August of that year all its gas was manufactured from naptha.
    The plaintiff gave no evidence of negligence on the part of the defendant, either in the construction or maintenance of its works or the conduct of its business.
    For the failure to give such proof, the defendant moved to dismiss the complaint, which was denied, and an exception was taken. Further facts appear in the opinion.
    
      Lewis E. Carr, for app’lt; John W. Ljyon, for resp’t.
    
      
       Affirming 10 N. Y. State Rep., 374.
    
   Brown, J.

The plaintiff made no complaint of the existence of a nuisance upon defendant’s property prior to 1880, when defendant first introduced the use of naptha in the manufacture of its gas, and it was a disputed question on the trial upon which there was a strong conflict of testimony whether the smells from the defendant’s works, after it began to use naptha, were more offensive than when it used coal.

This question, it must be assumed, the jury determined in favor of the plaintiff’s contention.

The court charged the jury that, to constitute a nuisance, it was essential that the smells and odors from the defendant’s works should be sufficient “to contaminate and pollute the air and substantially interfere with the plaintiff’s enjoyment of her property,” and that the question for them to determine was “ did the odor pollute the air so as to substantially render plaintiff’s property unfit for comfortable enjoyment.” An exception was taken by the defendant to this part of the charge.

The rule stated by the learned trial judge was in accordance with all the authorities. If one carry on a lawful trade or business in such a manner as to prove a nuisance to his neighbor, he must answer in damages, and it is not necessary to a right of action that the owner should be driven from his dwelling; it is enough that the enjoyment of life and property be rendered uncomfortable. Rex v. White, 1 Burr., 337; St. Helens Smelting Co. v. Tipping, 11 H. L. Cases, 642; Fish v. Dodge, 4 Den., 311; Catlin v. Valentine, 9 Paige, 576; Campbell v. Seaman, 63 N. Y., 568 ; Cogswell v. N.Y.,N.H&H. R. R. Co., 103 id., 10; 3 N. Y. State Rep., 56; Wood’s Law of Nuisance, § 497, and cases cited.

It was claimed by the defendant, and the court refused a request to charge, “ that unless the jury should find that the works of the defendant were defective or that they were out of repair or that the persons in charge of manufacturing gas at these works were unskillful and incapable, their verdict should be for the defendant ; ” and “ that if the odors which affect the plaintiff are those that are inseparable from the manufacture of gas with the most approved apparatus and with the utmost skill and care, and do not result from any defects in the works, or from want of care in their management, the defendant is not liable.” An exception to this ruling raises the principal question discussed in the case.

While every person has exclusive dominion over his own property and may subject it to such uses as will subserve his wishes and private interests, he is bound to have respect and regard for his neighbor’s rights.

The maxim, “ Sic utere iuo ut alienum non laedas,” limits his powers. He must make a reasonable use of his property and a reasonable use can never be construed to include those uses which produce destructive vapors and noxious smells, and that result in material injury to the property and to the comfort of the existence of those who shall dwell in the neighborhood.

The reports are filled with cases'where this doctrine has been applied, and it may be confidently asserted that no authority can be produced holding that negligence is essential to establish a cause of action for injuries of such a character. A reference to a few authorities will sustain this assertion.

In Campbell v. Seaman, supra, there was no allegation of negligence in the complaint and there was an allegation of due care in the answer. There was no finding of negligence and this court affirmed a recovery.

In Heeg v. Licht, 80 N. Y., 579, an action for injuries arising from the explosion of fire works, the trial court charged the jury that they must find for the defendant, “ unless they found that the defendant carelessly and negligently kept the gunpowder on his premises.” And he refused to charge upon the plaintiff’s request, “that the powder magazine was dangerous in itself to plaintiff and was a private nuisance and defendant was liable to the plaintiff whether it was carelessly kept or not.”

There was a verdict for the defendant and this court reversed the judgment, holding that the charge was erroneous. In Cogs-well v. N.Y.,N. H. & H. R. R. Co., supra, the special term found as facts that in the construction of the engine house and coal bins, and in the use of its premises, the defendant exercised due care, so far as the same was practicable, and it refused to find, upon plaintiff’s request, “ that in the construction of the engine house, chimney, smoke-pipe and coal bins, it had not exercised, and does not now exercise, such reasonable and proper care as was necessary not to injure the plaintiff’s property.”

A judgment for the defendant was reversed, this court holding that the engine house, as used, was a nuisance, and that it was not an answer to the action that the defendant exercised all practicable care in its management. In Pottstown Gas Co. v. Murphy, 39 Pa. St., 257, the charge of the court and the refusals to charge were very similar to the charge in this case. The supreme court of Pennsylvania overruled the exceptions, holding that negligence was not essential to a right of recovery. To the same effect see Cleveland v. Citizens' Gas Light Co., 20 N. J. Eq., 201; Ottawa Gas Light Co. v. Thompson, 39 Ill., 598; Wood’s Law of Nuisance, 2d ed., § 553.

The principle that one cannot recover for injuries sustained from lawful acts done on one’s own property without negligence and without malice is well founded in the law. Every one has the right to the reasonable enjoyment of his own property, and so long as the use to which he devotes it violates no rights of others there is no legal cause of action against him.

The wants of mankind demand that property be put to many and various uses and employments, and one may have upon his property any kind of lawful business, and so long as it is not a nuisance and is not managed so as to become such he is not responsible for any damage that his neighbor accidentally and unavoidably sustains. Such losses the law regards as damnum absque injuria. And under this principle if the steam boiler on the defendant’s property, or the gas retort, or the naptha tanks, had exploded and injured the plaintiff’s property, it would have been necessary for her to prove negligence on the defendant’s part to entitle her to recover. Losee v. Buchanan, 51 N. Y., 476.

But where the damage is the necessary consequence of just what the defendant is doing, or is incident to the business itself, or the manner in which it is conducted, the law of negligence has no application and the law of nuisance applies. Hay v. Cohoes Co., 2 Comst., 159; McKeon v. See, 51 N. Y., 300.

The exception to the refusal to charge the first proposition above quoted was not, therefore, well taken.

It is contended, however, by the defendant, that the acts of the legislature relating to gas companies are a protection from liability for consequential injuries flowing from the manufacture of gas, or the prosecution of the business, when want of care forms no element of the cause of injury, and it is sought to apply to this case the broad principle that that which the law authorizes cannot be a nuisance, although it may occasion damages to individual rights and property.

The cases cited to sustain this proposition are ones where municipal corporations were engaged in grading and improving public streets and highways, Radcliff's ex'rs. v. Mayor etc. of Brooklyn, 4 N. Y., 195; Transportation Co. v. Chicago, 99 U. S., 635, or where the act causing the injury was done by corporations in the construction of works upon property acquired under the power of eminent domain. Bellinger v. N. Y. Central R. R. Co., 23 N. Y., 42.

In these cases, in doing the acts complained of, the defendants acted in the performance of a public duty imposed upon them by the legislature or in the exercise of a right conferred by law, and it is well settled that persons appointed or authorized by law to perform a public duty, or to do acts of a public character, are not answerable for consequential damages if they act within their jurisdiction and with care and skill. Transportation Co. v. Chicago, supra, 641 and cases cited; Uline v. N. Y. C. & H. R. R. Co., 101 N. Y., 98; Conklin v. N. Y., O. & W. R. R. Co., 102 id., 107; 1 N. Y. State Rep., 677; Cooley’s Constitutional Limitation, 5th ed., 671, et seq and cases cited in notes.

This principle cannot, however, be applied to cases like the one under consideration. The defendant is incorporated under chapter 37, Laws of 1848, which authorizes in general terms the creation of corporations for manufacturing and supplying illuminating gas. It acquired by that act its corporate life and character, and the power to purchase and hold such real and personal property as might be necessary to enable it to carry on its business.

By § 18 of the act named it is given the power to lay its conductors through the streets of the city, village or town in which it is located, with the consent of the municipal authorities of such city, etc., and by chapter 311 of the Laws of 1859 it is required to furnish gas to any applicant within one hundred feet of its mains.

It may be conceded that the business of manufacturing and distributing gas through the public streets for public and private use is a business of a public character, and the individual possessing such right has a franchise granted by the state for a public object, and that it meets a public necessity for which the state may make provision.

But the state has not seen fit to confer upon the corporations formed under the act cited the power of eminent domain, and they cannot, therefore, locate their works where they will

In their ability to acquire real estate upon which to establish their manufactory they have no greater power than any citizen of the state, and having acquired property they rest under the same obligation as other citizens to make a reasonable use of it and to respect and regard the rights of their neighbors.

The proposition contended for by the learned counsel for the defendant has in recent years received full consideration in the courts of England and of this country, and the rule is now established that the statutory authority which will justify an injury to private property, and afford immunity for acts which would otherwise be a nuisance, must be express, or must be a clear and unquestionable implication from powers expressly conferred, and it must appear that the legislature contemplated the doing of the very act which occasioned the injury. Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N.Y., 10; 3 N. Y. State Rep., 56; B.& P. R. R. Co. v. Fifth Bap. Ch., 108 U. S., 317; Hill v. Managers of Met. Asylum Dist., L. R., 4 Q. B. D., 433; S. C., on appeal, 6 App. Cas., 193; Pottstown Gas Co. v. Murphy, 39 Pa., 257; Eames v. N. E. Worsted Co., 11 Metc., 570; Commonwealth v. Kidder, 107 Mass., 188.

In Pottstown Gas Co. v. Murphy the supreme court of Pennsylvania said “the principle invoked applies when an incorporation, clothed with a portion of the state’s right of eminent domain, takes private property for public use on making proper compensation, and when such damages are not a part of the compensation required.”

In Eames v. N. E. Worsted Co. Chief Justice Shaw said: “ The Mill act affords no warrant' or justification for erecting or maintaining a nuisance.”

In Commonwealth v. Kidder, in considering the effect of a statute authorizing the storing and manufacturing of naptha and petroleum, the supreme court of Massachusetts said: The reasonable, if not necessary, inference is, that it was not the intention of the legislature to establish a new rule in this regard, but to leave the question whether the manufacturing is carried on at such places, and in such a manner as to be unwholesome and offensive to the public, and on that account indictable as a nuisance, to be determined by the rules of the common law.”

In B. & P. R. R. Co. v. Fifth Baptist Church it was said: “ The authority of the company to construct such works as it might deem necessary and expedient for the completion and maintenance of its road, did not authorize it to place them where it may think proper, without reference to the property and rights of others. Grants of privileges or powér to corporate bodies like those in question confer no license to use them in disregard of the private rights of others and with immunity for their invasion.”

And in Hill v. Managers of Met. Asylum Dist., Lord Watson said: “When the terms of the statute are not imperative but permissive, when it is left to the discretion of the persons empowered to determine whether the general powers committed to them shall be put in execution or not,T think the fair inference is that the legislature intended that discretion to be exercised in strict conformity with private rights, and did not intend to confer license to commit nuisance in any place which might be selected.”

There is nothing in L., B. & S. C. R. Co. v. Truman, 11 Appeal Cases, 45, conflicting with this rule.

The House of Lords, in that case, recognized fully the role applied in Hill v. Managers of Met. Asylum Dist., and held that the purpose for which the land was acquired by the defendants being expressly authorized by act of parliament, and being incidental and necessary to the authorized use of the railway for cattle traffic, the company were authorized to do what they did.

The legislature may authorize acts which womd otherwise he a nuisance, when they affect or relate to matters in which the public have an interest, or over which the public have control, such as highways or public streams.

In such case the legislative authorization exempts from liability to suits, civil or criminal, at the instance of the state, but it docs not affect the claim of private citizens for damages for any special inconvenience or discomfort not experienced by the public at large. Crittenden v. Wilson, 5 Cowen, 165; Brown v. Cayuga R. R. Co., 12 N. Y., 486 ; Sinninickson v. Johnsons, 17 N. J. Law Rep., 151; B. & P. R. R. Co. v. Bap. Church, supra.

These views lead to the conclusion that the defendant obtained no immunity from liability for consequential injuries sustained by property surrounding its works by reason of its incorporation, ór the privileges conferred upon the business by the acts of the legislature, and that the facts of the case do not take it out of the operation of the rules of law applicable to ordinary common law nuisances.

The legislature has given to the corporations created to manufacture gas the right to lay down their conductors in the public streets, subject to the control and regulation of the municipal authorities, and for acts done in the execution of that privilege they are exempt from prosecution at the suit of the people.

The choice, however, of the place to locate their works, and the selection of materials from which to manufacture gas, has been left to the corporations, and those things must be performed with reference to the rights of others.

The fact appears in this case that for twenty years the defendant conducted its business without annoyance to any one. For the sake of economy (so it alleges) it adopted in 1880 a new process and new materials from which to make its gas. The result under the finding of the jury has been to impair the value of the plaintiff’s property and substantially interfere with its comfortable enjoyment. If <the defendant’s contention should prevail there would be no restraint upon the location of the business, and no limit to the offensive character of the 'materials it might use. It would thus have an immunity which the law denies to every other citizen.

We think the proof permitted the conclusion that the defendant had created a nuisance, and that there was no error in the charge of the court or the refusals to charge.

The judgment must be affirmed.

Haight, J.

(dissenting).—This action was brought to recover damages alleged to have been sustained by the plaintiff in consequence of offensive odors proceeding from the gas works of the defendant, and to obtain an injunction restraining the defendant from permitting further emissions of such odors.

The complaint alleges negligent and unskillful construction of the works and also negligence in the use and maintenance thereof.

The trial resulted in a verdict for damages upon which the court awarded a judgment for an injunction.

Upon the trial it appeared that the defendant was incorporated under chap. 37 of the Laws of 1848, for the purpose of manufacturing and supplying the streets, public places and inhabitants of the village of Port Jervis with illuminating gas; that its works were constructed in the year 1860 upon lands purchased for that purpose, since which time it has continued the manufacture of gas ; that prior to 1880 coal was used in such manufacture, but since that time naptha has been used instead; that in making the change from coal to naptha two storage tanks were constructed, one of which was constructed near to the plaintiff’s premises. It further appeared that the plaintiff lived upon the premises adjoining those of the defendant and that she had been the owner thereof since the year 1878. It further appeared that in all works with the most approved apparatus and managed with the utmost skill and care there was some odor which was inseparable from the manufacture of gas.

It was claimed upon her part that prior to 1880 there was a smell of gas coming from the works of the defendant, but not near as strong as since the change to naptha; that since that time the air has been impure and that there has been a disagreeable smell at all times; that at certain times it is greater than at others, causing a nauseous disagreeable feeling obliging her to close the windows of her house to keep out the smells. Whilst on the part of the defendant it was claimed that the odor proceeding from the works was not near as strong since the change from coal to naptha; that the works were constructed in the best possible manner according to plans of the most approved character and were managed in the highest degree of care and skill.

In submitting the case to the jury the defendant’s counsel asked the- court to charge, “that unless the jury find that the works of the defendant were defective, or that they were out of repair, or that the persons in charge of manufacturing gas at the works were unskillful and incapable, their verdict should be for the defendant,” also, “that if the odors which affected the plaintiff were those that were inseparable from the manufacture of gas with the most approved apparatus and with the utmost skill and care, and do not result from any defect in the works or from want of care in their management, the defendant is not liable in this action,” and also, “that if the jury find that the plaintiff became the owner of the premises described in the complaint after- the erection of the defendant’s works, and after it was engaged in the manufacture of gas therein, she took them subject to such odors as were inseparable from the manufacture of gas conducted in the most careful and skillful manner, and with the most approved machinery for that purpose.” These requests were severally refused and an exception taken, and the court charged the jury that “if this defendant’s works gave out foul odors or noxious vapors to an extent sufficient to contaminate or pollute the air and substantially to interfere with the plaintiff’s enjoyment of her property, then that would be a nuisance as against her, and this plaintiff would be entitled to recover,” to which charge the defendant excepted.

The question is thus presented as to whether the works of the defendant are, in the absence of negligence either in their construction or operation, a nuisance per se, for if the odors emanating therefrom are inseparable from the manufacture of gas with the most approved apparatus and with the utmost skill and care, and do not result from any defects in their management, it follows that all works for the manufacture of gas are nuisances as to those living near enough to the plant to be affected by the odor, even though they located there subsequent to the works. The question is one of importance. It is not free from difficulty, and the author-t ities treating upon the subject are not in entire harmony.

A nuisance, as it is ordinarily understood, is that w'hich is offensive and annoys and disturbs. A common or public nuisance is that which affects the people and is a violation of a public right either by direct encroachment upon public property or by doing some act which tends to a common injury, or by the omitting of that which the common good requires, and which it is the duty of a person to do. Public nuisances are founded upon wrongs that arise from the unreasonable, unwarrantable or unlawful use of property or from improper, indecent or unlawful conduct working an obstruction or injury to the public and producing material annoyance, inconvenience and discomfort Founded upon a wrong it is indictable and punishable as for a misdemeanor. It is the duty of individuals to observe the rights of the public and to refrain from doing of that which materially injures and annoys or inconveniences the people, and this extends'even to business which would otherwise be lawful, for the public health, safety,convenience, comfort or morals is of paramount importance, and that which affects or impairs it must give way for the general good. In such cases the question of negligence is not involved, for its injurious effect upon the public makes it a wrong which it is the duty of the courts to punish rather than to protect. But a private nuisance rests upon a different principle. It is not necessarily founded upon a wrong, and consequently cannot be indicted and punished as for an offense. It is founded upon injuries that result from the violation of private rights and produce damages to but one or few persons. Injury and damage are essential elements, and yet they may both exist and still the act or thing producing them not be a.nuisance. Every person has a right to the reasonable enjoyment of his own property, and so long as the use to which he devotes it violates no rights of another, however much damage others may sustain therefrom, his use is lawful and it is damnum absque injuria. Thurston v. Hancock, 12 Mass., 222.

So that a person may suffer inconvenience and be annoyed, and if the act or thing is lawful and no rights are violated, it is not such a nuisance as the law will afford a redress, but if his rights are violated, as for instance if a trespass has been committed upon his land by the construction of the eaves of a house so that the water will drip thereon, or by the construction of a ditch or sewer so that the water will flow over and upon his premises, or if a brick kiln be burned so near his premises as that the noxious gases generated therefrom are borne upon his premises, killing and destroying his trees and vegetation, it will be a nuisance for which he may be awarded damages. Campbell v. Seaman, 63 N. Y., 568.

Hence it follows that in some instances a party who devotes his premises to a use that is strictly lawful in itself may, even though his intentions are laudable and motives good, violate the rights of those adjoining him, causing them injury and damage, and thus become liable as for a nuisance It, therefore, becomes important that “the courts should proceed with caution and carefully consider the rights of the parties and not declare a lawful business a nuisance except in cases where rights have*been invaded resulting in material injury and damage. .

People living in cities and large towns must submit to some inconvenience, annoyance and discomforts. They must yield some of their rights to the necessity of business which, from the nature of things, must be carried on in populous cities. Many things have to be tolerated that, under other circumstances, would be abated, the necessity for their existence outweighing the ill results that proceed therefrom. Therefore, as to business which is lawful and reasonable, and is not of itself a nuisance when properly conducted, which is carried on upon one’s own premises, invading no right of a neighbor, it is not such a nuisance as the law will afford redress, even though it produces an inconvenience and annoyance, unless such inconvenience and annoyance is the result of negligence and carelessness; but where the business is of that character as to become a common nuisance, the damages may be recovered, even though no negligence is shown. Rockwood v. Wilson, 11 Cush., 221, 226.

The distinction between the two cases is that in the former the business is not of that nature as to injuriously affect others, but may become so by the negligent manner in which it is carried on; whilst in the latter case the nature of the business is such as must necessarily be injurious, even though managed with the greatest care and skill. Wood’s Law of Nuisances, 2d ed., § 127.

Again, there is another class of cases, in which the question of negligence is material, as, for instance, where the legislature has authorized the doing of that which would otherwise be a nuisance. In such cases the person is shielded from liability for damages that ensue, unless he is chargeable with negligence for the manner in which the act was done. Radcliff v. The Mayor, etc., 4 N. Y., 195; Bellinger v. N. Y. C. R. R., 23 id., 42; Kellinger v. The Forty-Second Street & Grand Street Ferry Railroad Company, 50 id., 206-212; Uline v. N. Y. C. & H. R. R. Co., 101 id., 98-107; Conklin v. N. Y., O. & W. R. Co., 102 id., 107; 1 N. Y. State Rep., 677; Ottenot v. N. Y., L. & W. R. Co., 28 id., 483.

As, for instance, a person may be annoyed and inconvenienced by the noise and tread of passing railroad trains, and yet, where the railroad is lawfully built and is managed with proper care and skill, it is not a nuisance, even though it passes near to a dwelling-house, and materially disturbs the quiet and slumber of the occupants. Beseman v. Pa. R. Co, 50 N. J. Law, 235. But the authority of the legislature should doubtless be express, Cogswell v. N. Y., N. H. & H. Railroad Co., 103 N. Y., 10; 3 N. Y. State Rep., 56, and relate to matters of public utility, in which the people have an interest and the right of control Baltimore & Potomac Railroad Company v. Fifth Baptist Church, 108 U. S., 317-332.

We are thus brought back to the question as to whether the business of manufacturing gas by the defendant is in and of itself a nuisance. As we have seen, the defendant was incorporated under the general laws of the state for the purpose of manufacturing illuminating gas, and under the provisions of chapter 311 of the Laws of 1859, § 6, it is inquired to furnish gas for lighting purposes to any applicant within 100 feet of any main laid by it for the distribution of' gas. It is subject to legislative control, and its meters to the inspection and test of the public inspector appointed by the Governor for that purpose. The legislature may give it the power to exercise the right of eminent domain. And the discharge of its duty to individuals and the public my be compelled by mandamus. People ex rel. Kennedy v. The Manhattan Gas Light Company, 45 Barb., 136 ; Williams v. The Mutual Gas Co., 52 Mich., 499; In the Matter of the Bloomfield & Rochester Natural Gas Co. v. Richardson, 63 Barb., 437.

It is, therefore, a business of a public nature and utility for which the state can control and make provision. Justice Harlan in delivering the opinion in the case of the New Orleans Gas Co. v. The Louisiana Light Co., 115 U. S.,650-669, says: “ The manufacture of gas and its distribution for public and private use by means of pipes laid under legislative authority in the streets and ways of a city is not an ordinary business in which every one may engage, but is a franchise belonging to the government to be granted for "the accomplishment of public objects to whomsoever and upon what terms it pleases. It is a business of a public nature and meets a public necessity for which the state may make provision. .It is one which, so far from affecting the public injuriously, is to become one of the most important agencies of civilization for the promotion of the public convenience and public safety.”

It is undoubtedly true that in the manufacture of gas the escape of some is unavoidable, and it may inconvenience those who live in the immediate vicinity of the works, but the necessities of the people living in large cities and villages impose some inconvenience to others, and have compelled recognition of the principle that each member of society must submit to annoyance consequent upon the use of property provided such use is reasonable as respects the owner and those immediately affected in view of time, place and other circumstances. St. Helen’s Smelting Co v. Tipping, 11 House of Lords cases, 642-646; Cooley on Torts, 598-601.

We are aware that a different view has been expressed in reference to gas works. Carhart v. The Auburn Gas Light Co., 22 Barb., 297-312.

But notwithstanding this, our conclusions are that in view of the circumstances, the public character and utility, the business is lawful, authorized by the legislature, and that it is not a nuisance if properly conducted. It may, however, be carried on in such a manner as to unnecessarily affect and injure others, in which case it would become a nuisance. If we are correct in this view the question of negligence was involved in the case and should have been submitted to the jury. As we have seen, time, place and circumstances have an important bearing upon the question. A person may negligently select an improper place for the establishment of his business. That which would be proper and tolerated in one locality would not be in another. Hegligence may also exist in the construction as well as in the management and operation. Each person should conduct his business with the best approved apparatus, with such skill and care as experienced and prudent persons may possess in order that he may do his neighbor as little harm as possible. People v. Sands, 1 Johns., 78-88.

We do not understand it to be claimed that the defendant was guilty of maintaining a public nuisance. Or that it is chargeable with any fault or .negligence in the selection of the locality in which it erected its works. It is claimed that they were contructed of the best material according to the best known plans and operated with the highest degree of skill and care. For-twenty years they were operated without complaint. The plaintiff subsequent to the location of the defendant purchased the adjacent property and took up her residence thereon. It is true1 that she claimed to be affected from the odors that came from the naptha tank constructed after she became a resident there. It is possible that the defendant negligently located its tank in an improper place, but that question was not submitted to the jury. Neither was the question as to whether the odor proceeding from the entire gas works constituted a nuisance. It was-also true that there was some evidence tending to show that the plaintiff’s health had been affected. She testified that on some occasions she had been affected with nausea, but the question as to whether the works affected the health of the public or of the-plaintiff was not submitted. On the contrary it was expressly taken from the jury by the instruction to which the exception was taken, in which the court stated that it would be a nuisance “ whether it affected the health of the plaintiff and her family or not.”

Thus far we have proceeded upon the theory that the business was lawful, proper and reasonable, and was not a nuisance if properly managed and conducted, and that consequently the question of negligence was involved. But we are also inclined to the view that the business is authorized by the legislature and is for that reason protected unless negligence may be shown. As we have-seen, the business is of a public nature and utility, subject to the control of the legislature, and all individuals living upon the lines of its pipes may demand and enforce service therefrom. It was authorized to acquire land by purchase on which to erect its works. It is true the legislature has not expressly designated any particular lot or parcel of land upon which its works should be erected. The selection of the place was left to the company, and in making its selection it was doubtless bound to take into consideration the nature of the business and the surrounding locality, and so locate as to produce as little harm to others as possible. As we have seen, no complaint has been made in reference to the selection of the locality that was made by the defendant m 1860. The authority to manufacture and supply gas for lighting the streets, public and private buildings of the village of Port Jervis is express, and if it is conducted in a proper place, with the most-approved apparatus, with the utmost skill and care, and without the escape of odors that are not inseparable from such manufacture, there can be no liability for consequential injury to others.

The learned general term was of the opinion that the case of Cogswell v. The New York, New Haven & Hartford Railroad Company, supra, held adversely to this view, but we do not so understand that case. The New York & New Haven Railroad Company had purchased a lot adjacent to the plaintiff’s dwelling and had erected thereon an engine house and coal bins for the use of its-roads. The engine-house was designed to accommodate eleven locomotives and had eleven smoke stacks extending above the roof to about the height of the third story window of plaintiff’s house. The coal bins were unprovided with covers to prevent the ■dust from the coal stored therein from passing into and upon the plaintiff’s dwelling. The smoke, gases, soot and cinders from the ■smoke stacks and the dust from the coal bins when loading and unloading the coal produced the damage complained of. The facts found clearly established negligence. The court, it is true, held that in that case the defendant was not protected by any authority that it had from the legislature, there being no express authority for the selection of the lot on which this engine-house was constructed, and that the selection made was an improper one. ■Our views are fully in accord with the principles decided in that case.

In the case of Heeg v. Licht, 80 N. Y., 579, the defendant had constructed upon his premises a powder magazine in which he kept stored a quantity of powder which without apparent cause exploded, damaging the plaintiff’s building. It was held that the plaintiff could recover without showing carelessness or negligence.

Miller, J., in delivering the opinion of the court says: “The fact that the magazine was liable to such a contingency which could not be guarded against or averted by the greatest degree of care and vigilance evinces its dangerous character, and might in ;some localities render it a private nuisance. In such a case the rule which exonerates a party engaged in a lawful business when free from negligence has no application.” The rule we have contended for is thus recognized and conceded. There is a distinction between an action for a nuisance in respect to an act producing a material injury to property and one in respect to an act producing personal discomfort. This difference is clearly pointed out in the case of St. Helens Smelting Co. v. Tipping, supra.

We have already shown that any business which endangers the safety or health of others is a common nuisance and must give way for the public good, and that in such negligence was not involved. The keeping of gun powder may not constitute a nuisance per se; that depends upon the locality and quantity. A thimbleful might not be dangerous, whilst fifty barrels full might be. It thus becomes a question of fact as to whether it is danerous, and if it is found to be then it is a nuisance per se. The court very properly distinguished this case from those in which the business engaged in is lawful and not dangerous, which in and of itself is not a nuisance when properly conducted, but may become such by the negligent manner in which it is carried on.

The claim that the defendant in order to be brought within the protection of the statute must have the right of eminent domain, and acquire the land upon which its works are constructed by proceedings to condemn, is not sustained by any well considered case. What difference can it make whether the land is acquired by voluntary purchase or by proceedings to condemn ? It is the business which is expressly authorized by the statute, and in order to carry it on the right to acquire land on which to conduct it is given. As we have already shown, no -claim has been made that the defendant’s works were improperly located, and it is consequently not apparent how the question of location can deprive it of the protection of the statute. It is true that a railroad corporation is given the right of eminent, domain and may acquire lands for the purposes of its incorporation by proceedings to condemn, but in order to institute such proceedings it must be shown that they are unable to agree upon the purchase thereof. If they can agree, then the proceedings, cannot be instituted. Can it be that such, a company would be liable for the maintaining of a nuisance by reason of the noise,, jar and smoke of its passing trains, because it has acquired the right of way by voluntary purchase instead of by proceedings to condemn ? We think not. The answer would be that it makes no difference how the company acquired the title to the land upon which it was operating its road.

The defendant’s business is of a public nature and utility. If it is a nuisance per se, and without the protection of the statute,, an individual may procure it to be enjoined and thus drive it from place to place, whilst another individual living upon the line of its mains may compel the company by mandamus to proceed with its business and supply his residence with illuminating gas, thus producing a condition in which the company would be liable if it did, and would also be liable if it did not

The judgment should be reversed and a new trial granted, with costs to abide the event.

Judgment affirmed, with costs.

All concur, except Follett, Oh. J., and Haight, J., who dissent. _  