
    Louisa Rosenheimer, Respondent, v. The Standard Gas Light Company, Appellent.
    
      Nuisance—liability of a gas manufacturing corporation to the owner of adjacent' property—the exercise of care in the methods of manufacturéis not a defense — the franchise conferred by chapter 248, Laws of 1886, does not relieve the corporation- — elements of damage.
    
    A corporation engaged in the manufacture of gas from naphtha is liable in damages to the owner of adjacent property as for the maintenance of a private-nuisance, where it appears that the consequences of the process of manufacture employed by the corporation are the emission of noxious fumes which, have impaired the owner’s health, the generation of heavy smoke which, wafted by the wind, causes a deposit of black and sticky substances upon articles inside and outside her house, and the emission of loud, penetrating and disagreeable noises and vibrations which are particularly noticeable at night,, disturbing her sleep and impairing her health.
    The exercise of carq to prevent annoyance or discomfort, and to minimize the' injurious consequences incident to the method of manufacture employed by the corporation, do.es not affect the question of liability.
    The fact that the franchise to manufacture gas was conferred upon the corporation by chapter 248 of the Laws of 1886 does not relieve it from liability, there being nothing in the statute requiring the corporation to manufacture gas in any particular way, at any particular place, or under any special conditions.
    The provision in the statute limiting the price to be charged by the corporation for the gas does not confer upon the-corporation implied'power to manufacture the gas, by any process whatever, in the cheapest and most economical manner, regardless of the consequence to third persons. In such a case the elements of damage are the diminution in the rental value of the plaintiff’s property and the impairment of the plaintiff’s health.
    
      Semble, that the same rule applies whether the property is in the possession of a tenant or in the occupation of the owner.
    Appeal by the defendant,. The Standard Gas Light Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of January, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of January, 1898, denying the defendant’s motion for á new trial made upon the minutes.
    
      Henry Thompson, for the appellant.
    
      E. W. Tyler, for the respondent.
   Patterson, J.:

It is sought in this, action to recover damages for injuries resulting from the maintenance of a nuisance on the defendant’s, property. On the trial the plaintiff had a verdict, from the judgment entered upon which and from an order denying a motion for a new trial the defendant appeals. The important question presented is that of the defendant’s liability, the plaintiff’s contention in that regard being, that the use or manner. of use of the defendant’s property constitutes a private nuisance; while the defendant insists that such use is authorized by law, does not exceed what is required by the necessities of the business in which it is lawfully engaged, and that consequential injuries to the plaintiff are only such inconveniences as one must suffer or sustain to persónal or property rights by the lawful use by another of his own property.

The plaintiff is the owner’of a parcel of land situate on the-northerly side of One Hundred and Sixteenth street, near Avenue A, in the city of New York. On her land was a dwelling house in which she and her family resided for some years prior to December, 1893, and there was also erected on such land a 'small building used as an office by the plaintiff’s husband in the conduct of his business. The defendant is a corporation duly organized in February, 1896, under a statute of the State of New York to carry on the business of manufacturing illuminating gas and distributing it to customers. It erected upon its premises, which are directly opposite those of the plaintiff, a large and costly plant, and from and after the completion of its works in or about the year 1887 it has manufactured gas from naphtha. In the processes of manufacture and in other details of the conduct of its business certain consequences ensue which are claimed by the plaintiff to constitute the alleged nuisance. They are according to the plaintiff’s representation, the emission of fumes destructive to the health and comfort of those required to be and remain in proximity to the defendant’s works, the generation and emission of heavy smoke having a disagreeable and unwholesome smell, which wafted by the wind causes a deposit of black and sticky substances upon clothes and other articles outside of her house and upon the. furniture and other articles in the house. It is also asserted that in blowing' up the fires on the defendant’s premises and in the chimneys of the defendant’s factories, loud, penetrating and disagreeable noises and vibrations occur, especially noticeable at night, disturbing sleep, and which impaired the health of the plaintiff; and, generally, that from the time the defendant’s works were first erected and put in operation and continuously since then, great annoyance, discomfort and ill health have been caused by offensive, noxious, unhealthy and sickening odors of .the naphtha and of the fumes generated by the processes of the manufacture of the naphtha into gas, and by other processes of the defendant, and that injury to the plaintiff’s health and damage to her property have ensued, and she has not been able to ■enjoy such use and occupation of her property as she would have •enjoyed if the nuisance had not been maintained. She also avers that the value of the use and occupation of the premises has been rendered far less than it otherwise would have been, and she claimed ■damages for injuries to her health and the decline in rental value of the premises caused by the existence of the alleged nuisance.

The-defendant denies those allegations of the plaintiff which charge the effects of the operation of defendant’s works as constituting a nuisance, and sets forth affirmatively its incorporation, and an obligation under a contract made with the State of New York pursuant to one ■of the conditions of its charter; it further alleges that it is engaged in furnishing large quantities of gas to customers in the city of New York, including the corporation of the city of New York, at greatly reduced rates as required by its contract with the State, and that it confers a great benefit to its customers and to the city .of New York by reason thereof; and it further sets forth that, in the construction of its works for the manufacture, of gas and in the storage of naphtha, and in. the maintenance and operation of its plant, it exercised the greatest care and pains to prevent the escape of naphtha or of any disagreeable fumes or vapor into the surrounding atmosphere, and that the apparatus constructed and used by it for the storage of naphtha and the manufacture of gas, renders it practically impossible ■for the naphtha or any disagreeable fumes to'escape into the surrounding atmosphere, and is in the highest degree efficient, cleanly and destitute of noisome or offensive odors, fumes or vapors, and is. of the best construction and manufacture known; that the plant is erected, and that the manufacture of gas is conducted in the most careful, skillful and scientific manner, and with scrupulous regard to the comfort, convenience and safety of all the residents in the vicinity of the defendant’s works. It denies that the business carried on by the defendant in the manufacture of gas or in the operation of its works is or was a nuisance, of ■ is noxious, noisome or offensive,' or renders living in the neighborhood, or in the plaintiff’s premises, uncomfortable, or disagreeable or undesirable, either as a residence or as a. place for carrying on business; and it. denies that by reason of any of the acts of the defendant in erecting the buildings or in carrying on its business, plaintiff’s land and premises have been or are damaged-in rental value, or that the value of the use and occupation of the premises has been rendered less to the plaintiff by any act or acts of the defendant.. ■ '

The initial inquiry arises upon the evidence, and is: What are the results or consequences of the defendant’s use of its property and plant ? Do they only subject the plaintiff to such inconveniences and annoyances as flow- from the lawful use by a person of his own property, or are they such as are unlawful in consequence of the unreasonable use by a person of his property, regard 'being had to time, place and circumstances? The liability of the-defendant is to be ascertained by the same rule that would apply in an action between private individuals. Generally speaking, the test of the permissible use of one’s own land is not whether the use or the act causes injury to his neighbor’s property, or that the injury was the natural consequence, or that the act is in the nature of a nuisance, but the inquiry is, was the act or use a reasonable exercise of the dominion which the owner of property has by virtue of his ownership over his property, having regard to all interests affected, his own and those of his neighbors, and having in view also public policy.” (Booth, v. R., W. & O. T. R. R. Co., 140 N. Y. 277.) But the particular use of property may amount to a private nuisance, and to quote again from the case cited, “ whether a particular act or thing constitutes a nuisance may depend on the circumstances and surroundings. ■ The use of premises for mechanical or other purposes causing great noise, disturbing the peace and quiet of those living in the vicinity and rendering life uncomfortable or filling the air with noxious vapors or causing vibration of the neighboring dwellings, constitute nuisances, and such use is not justified by the right of property. (Fish v. Dodge, 4 Denio, 311; McKeon v. See, 51 N. Y. 300 ; Cogswell v. R. R. Co., supra.)

The pleadings in the case at bar raise very plainly the issue as to the existence, of a private nuisance, and the verdict of the jury established the affirmative of that issue. An examination of the whole evidence shows that the jury were justified in reaching that conclusion. Apart from the circumstance of an alleged accident-which caused a special inconvenience and which the jury were instructed to disregard if they believed it to be an accident, substantially all that was claimed by the plaintiff respecting the injurious character and results of the use of the processes and the incidents of manufacturing gas by the defendant, was fully proven. It thus appearing that the .acts of the defendant being such as between private individuals would constitute a. nuisance, and that injury to the plaintiff’s person and property ensued therefrom, the next inquiry is, whether there is anything in the status of' the defendant or in the rights acquired by it, which exonerates it from liability for the consequences of its acts constituting a private nuisance. That exemption is claimed by the defendant for the reason that it, as a chartered corporation, holds a franchise from the State of New York to manufacture gas; that it is, therefore, lawfully engaged in a business, in the conduct of which those things complained of by the plaintiff are necessary incidents, and that it carries on all its processes of manufacture by methods producti ve of as little inconvenience as possible to those in the vicinity of its works, and that its apparatus and- appliances are adapted to that end, and that it exercises the greatest care in that regard. The exercise of care to prevent annoyance and discomfort, or to reduce to a minimum the injurious consequences incident to the manufacture of gas, cannot affect the question of liability so long as that care is ineffectual, for there was no duty to construct or. operate the gas works imposed by law on this private corporation organized for ■ gain; nor does the mere fact that the defendant- is engaged in the lawful manufacture of gas save it from liability for the injuries resulting to neighboring property owners from that manufacture, for the use of. one’s'own land for the purposes of lawful trade may-become, and as the jury have found in this case did become, a nuisance.. The rule in the State of New York upon this subject must be regarded as finally settled. Where franchises are conferred upon a corporation the terms of- the statute giving the authority are not necessarily imperative or permissive, and the mere fact of the delegation of the right to manufacture -does not' confer a license to commit a nuisance, although what is contemplated, by the statute cannot be done without it.

There is no variation of this rule as applied to different kinds of corporations, whether they be municipal, or manufacturing or carrying, or any other kind. In Cogswell v. N. Y., N. H. & H. R. R. Co. (103 N. Y. 10) it is said: The statutory sanction which will justify an injury to private property must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that- it can fairly be said that the Legislature contemplated the doing of the very act which occasioned the injury. This is but an application of the reasonable rule that statutes in derogation of private rights, or which may result in' imposing burdens upon private property, must be strictly construed. For it cannot be presumed - from a general grant of authority that the Legislature intended to authorize acts to the injury of third persons where no compensation is provided except upon condition of obtaining their consent. This construction of statutory powers applies with peculiar force to grants of corporate powers- toprivate corporations,, which are set up as a justification of corporate acts to the detriment of private property.” That was an action against a railroad company for the use of one of its eiigine houses in such a manner as to constitute a private nuisance. In Morton v. The Mayor (140 N. Y. 207) the same rule was applied to a municipal corporation in maintaining a pumping station adjacent to the plaintiff’s property, which pumping station was used for the supply and distribution of Croton water in the city of New York. In that case the court reiterated the declaration that there had been grafted an.important limitation upon the principle that legal liability in damages cannot arise from acts done by a corporation in the performance of that which it had legislative authority to do, and which resulted in consequential injuries to another, and which, as between individuals, would be regarded as a nuisance. That limitation is that the authority which will shelter an actual nuisance must be express, or a clear and unquestionable implication from powers conferred, certain and unambiguous, and such as to show that the Legislature must have intended and contemplated the doing of the very act in question.” That formulation of the limitation is almost identical with the language in which the same rule is announeed in Hill v. The Mayor (139 N. Y. 501). Its application to a corporation engaged in the .manufacture of gas was made in Bohan v. Port Jervis Gas Light Co. (122 N. Y. 18). In the prevailing opinion in that case the leading authorities accessible up to the time of its decision are carefully examined and the following propositions are sanctioned therein, viz., that where a lawful business is canned on by a person on his own premises in such a manner as to become a nuisance to adjacent property owners, a liability in damages exists, although the acts constituting the nuisance are inseparably connected with the business so carried on, and the damages resulting are a necessary consequence thereof, and if those acts in themselves constitute a nuisance, negligence need not be proven to authorize a recovery; that every owner of land is bound to make a reasonable use of his property, having respect for his neighbors’ rights; that a use which causes noxious smells and vapors resulting in injury to the property or persons of those in the neighborhood, is not reasonable, and is a nuisance qger se, and that corporations authorized by statute to carry on business of a quasi public character are under the same obligations as a private party in this regard, and immunity cannot be claimed from statutory . authority unless that authority extends by express delegation or by clear and unquestionable implication to the very acts - which • Occasioned the injury. Whatever may have been decided by courts in other jurisdictions, it is unnecessary for us to consider.' The adjudications- made by the court of last resort in this State have definitely settled the law applicable to this case upon the principal point involved.

Turning then to the source of the defendant’s rights and powers as contained in the statute under which it was incorporated, we find nothing therein expressly giving the right to do those things complained of by the plaintiff, nor do we find anything from which an implication may be drawn that the Legislature contemplated conferring authority to commit such acts. .

It is stated in the record that chapter 248 of the Laws of 1886 is the charter of the Standard Gas Light Company. By that statute the defendant was authorized and empowered to lay conductors and mains for conducting gas. through and under the streets, avenues, squares and public- places of the city of New York, and as a consideration therefor the defendant was required to file in the office of the comptroller of the city of New York a stipulation or agreement that all gas supplied through such conductors and mains shall have-an - illuminating power of a certain degree and that -no greater-price or charge for supplying gas should be made or received by the company than at the rate of one dollar and fifty cents a thousand feet; and that for gas supplied to the public buildings ór offices of the corporation of the city of New York the charge should not exceed one dollar and twenty-five cents a thousand feet, and that gas supplied for the public lamps in the streets of New York should be furnished at a maximum rate not to exceed twelve dollars and fifty cents per annum. ■ There is nothing whatever in this statute which requires the defendant to manufacture gas in any particular way, at-any-particular place or under any special conditions. Nothing - whatever is said with regard to its plant or its., processes of manufacture. It is claimed that, in consequence of the provisions relating to charges to be made for gas, an authority is to be implied that the defendant might manufacture it by any processes, from any substance, in the cheapest and most economical manner, and regardless of any consequences to third persons.. There was .nothing, in ’ this -statute -that compelled the defendant to do anything unless it chose to do it. The regulation of price gave no exemption from liability to the defendant. If it chose to accept a franchise and manufacture under it, it did so under the same conditions as any •other manufacturing or trading corporation operating under a franchise; that is to say, subject to all liabilities imposed upon it by law in connection with the conduct of its business.

We have seen that upon the facts which must have been found by the jury, a case of a private nuisance was made out; hut it is claimed by the defendant that in the instructions given by the judge there was a radical error, which broadened the liability of the defendant and placed it upon an altogether untenable ground. In his charge, the judge said to the jury : “The plaintiff was entitled to enjoy her property as before the gas works were put up.” And again : “ The plaintiff, I repeat, was entitled to enjoy her property as before the gas works were put up.” Those two sentences, separated from their context and considered without reference to the connection in which they were uttered, are made the subject of an exception,- and it is suggested that from them the jury were entitled to consider that the plaintiff had the right to enjoy her property in the same way as if no buildings had been put up by the defendant at all, and, therefore, it could be inferred that even for the ordinary inconveniences which result to one owner of land from an adjoining owner’s building upon his property an action might be maintained.

Nothing of the sort was meant or intended by the judge, and the connection in which the sentences quoted were used shows clearly that their application was as to the existence of a nuisance and not otherwise. In the very paragraph in which the first sentence occurs the court told the jury that they must find, by a clear preponderance of evidence, that certain facts existed which would constitute a private nuisance, and that if they constituted such a nuisance, then the plaintiff would be entitled to recover such damage as appeared from the testimony to result proximately from the injury. They were told that a nuisance could not be justified, or its maintenance permitted, by showing that the injury occurred in the conduct of a lawful business carried on with skill and care; that legislative and municipal authority might protect the defendant from indictment, but did not afford protection where property rights of occupants were invaded. Then follows the sentence first referred to. When the remark was repeated,, it was in direct connection with a statement that gas com panies authorized by charter to erect their gas works* and carry them on for the purpose of manufacturing gas, are responsible for noxious smells if they constitute a nuisance. And further, when the attention of the judge was called by exception to the remarks, criticised, he said: “ That is stated in connection with the balance of the instructions. ■ Ton must not pick out a particular line, from what I have said and forget the balance of the instructions.” That was said to the . jury, and they knew, as we can see from the whole structure of the charge, that the remark objected to was made in connection with the right to enjoy the property free from a nuisance. In the additional charge made, on the jury returning for further instructions, the court restated very clearly the rule of liability, and expressly charged, in the words of the defendant’s counsel, that “ unless the plaintiff has satisfied the jury that the defendant wrongfully maintained such a nuisance that their verdict must be for the defendant.” It is quite evident that the jury could not have been misled by the instructions which have béen referred to.

■ The measure of damages, as stated by the court, was the: correct one. The nuisance consisted in the manner of use of property. The effects of that nuisance were the impaired health of the plaintiff and the diminution in the rental value of her property. The jury were instructed to find separately the amount of damages for each species of injury. That awarded for the impairment of health was almost insignificant. It was an element of damage. It was caused by the noxious fumes emitted and by other annoyances,, and was a direct result thereof. In Chapman v. City of Rochester (110 N. Y. 273). a recovery was sustained both for injury to the property and health of a plaintiff. The damages to. property, temporary in their nature and continuing while the nuisance lasts, can only be measured by the diminution in rental value, or the difference between the- rental value free from the effects, of the nuisance and subject to it. The same rule applies-whether the property is in the possession of a tenant or in the occupation of the owner.' (Francis v. Schoellkopf 53 N. Y. 152.) The reporter’s syllabus of that case was criticised in Bohm v. M. E. R. R. Co. (129 N. Y. 596), but not as respects the point now under consideration, The case of Mortimer v. Manhattan R. Co. (129 N. Y. 81) is a case where the property was in the possession of tenants. Wiel v. Stewart (19 Hun, 272) is a case where the property was in the possession-of the. plaintiff, who was held entitled to recover the difference in rental value. (See, also, Tallman v. M. E. R. R. Co., 121 N. Y. 119; Lawrence v. M. E. R. Co., 126 id. 483; Woolsey v. N. Y. E. R. R. Co., 134 id. 328.) The general measure of damages applicable to a case of this kind is the actual diminution in rental value: by reason of the defendant’s acts, and we conceive it to be the same-rule as was applied to the trespasses of elevated railways, where actions were.brought and recoveries had for past damages.

Upon the trial of this action the court was requested to require-the jury to make specific answers to certain questions in the nature-of special findings of fact, which request the court refused to comply with. It was a matter absolutely in the discretion of the trial-judge, and as that discretion was not improperly exercised, we are not disposed to interfere with the ruling of the court thereupon.

The judgment and order appealed from must be affirmed, with costs.-

Van Bruñt, P. J., Barrett, Rtjmsey and McLaughlin, JJ.r concurred.

Judgment and order affirmed, with costs.  