Cal.)

MCINTOSH v. BRIMMER et al.

MCINTOSH v. BRIMMER

(230 P.)

(Civ. 4212.) (District Court of Appeal, Second District, Division 2, California. Sept. 24, 1924. Hearing Denied by Supreme Court Nov. 20, 1924.)

1. Nuisance 3(10)-Complaint held to allege nuisance in maintenance of chicken corrals.

Complaint, alleging defendant's maintenance of chicken corrals in such proximity to plaintiff's property that dust caused by feeding in and on ground which was neither cemented nor covered with straw was carried onto plaintiff's property and there damaged walnut trees and grapes, held to state cause of action.

2. Nuisance 4-Location and fact injury is only occasional considered, though not conclusive on question of reasonable use.

Location, priority of occupation, and fact that injury is only occasional, are matters to be considered in determining whether use of property is reasonable, though they are not conclusive.

3. Nuisance

4-Personal discomfort rule inapplicable to injury to property.

Rule that, where the nuisance complained of is an act producing a personal discomfort only, person complaining must submit to interests of public generally, does not apply where injury complained of is to property.

4. Nuisance 4-Personal discomfort of normal persons essential.

The law of nuisance where personal discomfort is ground of complaint is applied only to normal persons of ordinary sensibilities. 5. Nuisance 32-Failure to specifically allege unreasonable use held not to render complaint bad.

Complaint charging nuisance in manner of defendant's maintenance of chicken corrals held not objectionable for failure to specifically charge "unreasonable use," where only inference from facts alleged was that of unreasonable use.

6. Nuisance 32-Failure of complaint to allege distance between plaintiff's and defendant's property held not fatal defect.

Complaint, in action to enjoin existing nuisance arising from defendant's maintenance of chicken corrals in manner to cause dust to be carried to plaintiff's property, held not objectionable for failure to designate distance between the two properties.

7. Appeal and error 1071 (5)-That immaterial findings are not supported by evidence

is harmless error.

That immaterial findings are not supported by evidence is harmless error. 8. Nuisance

33-Evidence held to sustain finding dust from chicken corrals was not of pure soil.

Evidence held to sustain finding that dust

blown from defendant's chicken corrals onto plaintiff's grapes was not of pure soil, but was impregnated with effluvia and of the nature of humus.

203

9. Nuisance 33-Evidence held insufficient to establish dust damaging plaintiff was caused by own cultivation.

Evidence held insufficient to establish that dust damaging plaintiff's grapes and trees was due in part from his own cultivation, rather than wholly from defendant's chicken corrals. 10. Appeal and error 1071 (1)—Error in

finding as to acreage damage held immaterial in view of finding as to definite amount of damage.

Error in finding as to acreage of vineyard damaged by dust from defendant's chicken corrals held immaterial, in view of definite finding as to extent of plaintiff's injury. 11. Nuisance

36-Decree enjoining nuisance held not too indefinite.

Where nuisance results from business, not a nuisance per se, decree should not absolutely prohibit its further prosecution, and decree enjoining defendants from maintaining chicken corrals in manner to produce dust in such quantities as to damage adjoining property held not objectionable as being indefinite.

12. Nuisance 33-Evidence as to whether others had objected to nuisance held inadmissible.

In action to enjoin defendant's maintenance of chicken corrals in manner to create dust, damaging adjoining property, objection to question whether others than plaintiff had objected to the dust held properly sustained.

13. Nuisance 33-Evidence as to how defendant's premises compared with others held inadmissible.

In action to enjoin defendant's maintenance of chicken corrals in manner to discharge dust upon plaintiff's property, objection to question as to how nearby ranches compared with defendant's in respect to sanitary conditions held properly sustained.

Appeal from Superior Court, Los Angeles County; Albert Lee Stephens, Judge.

Suit by Robert McIntosh against George Brimmer and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Ford & Bodkin and H. L. Watt, all of Los
Angeles, for appellants.
Haas & Dunnigan, of Los Angeles, for re-
spondent.

FINLAYSON, P. J. This is an action to abate a nuisance by enjoining defendants from continuing to conduct their chicken corrals in such a manner that the dust therefrom will injure plaintiff's trees, vines, and grapes, and to recover damages for past injuries. The judgment, which was in favor of plaintiff, awarded damages in the sum of three hundred dollars and enjoined defendants from maintaining the nuisance. From this judgment the defendants have appealed.

The case presented by the complaint is substantially this: Plaintiff is the lessee of a 30-acre parcel of land in Los Angeles county at the northeast corner of Pomona and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

204

On a 5-acre

(Cal.

and to the east and northeast of that certain roadway or street situate between the lands by plaintiff, and in the complaint herein deoccupied by defendants and the lands occupied maintaining or keeping chickens or other poulscribed. try upon the lands so occupied by said defendNothing herein contained shall be construed as preventing said defendants from ants, provided that the said defendants, their agents, servares, and employees, shall so do in a manne. which will prevent dust from being produced on said lands in such quantity as street or roadway running between the lands will cause the same to be carried across said of said defendants and the lands of said plaintiff in said complaint described."

plaint does not state a cause of action, it being claimed that the pleading fails to show [1] Appellants' first point is that the comthat appellants are maintaining an actionable states all the facts necessary to entitle respondent to the relief granted him. We may nuisance. In our opinion, the complaint not say, as appellants urge us to declare, that dust arising from chicken corrals in such quantities as to cause substantial damage to respondent's property by injuring his

San Gabriel boulevards, the southerly half of, his land being planted to walnut trees and the northerly half to grapevines. ing house, occupied by plaintiff, is on the A dwellnortherly half of the tract. parcel of land, situated on the westerly side of San Gabriel boulevard, opposite plaintiff's walnut grove and diagonally from his vineyard, defendants are maintaining a chicken ranch on which they have a large number of chickens, estimated by plaintiff to be between 6,000 and 7,000. The chickens are confined in separate corrals which occupy the greater portion of defendants' 5-acre tract. These corrals are not cemented, the floors thereof consisting of the natural soils kept in a dry condition. Defendants scatter the chicken feed on the ground in the corrals. There is nothing on the ground, such as straw, to prevent the scratching of the chickens from raising dust. By reason of the carelessness of defendants, their negligent manner of feeding the chickens, and their failure to wet the ground or to cover its surface with some material that will prevent the fowls from tearing up the soil, great volumes of dust are produced by the scratch-trees, vines, and grapes is not a nuisance, ing of the chickens on the dry surface, particularly at feeding times. Clouds of this dust are daily carried to plaintiff's land by the prevailing winds, which blow from southwest to northeast. The dust settles on plaintiff's walnut trees, vines, and grapes, and enters his dwelling house. leaves and to the fruit, thereby rendering It clings to the the grapes unmarketable except at greatly reduced prices; by reason whereof plaintiff, so he alleges, has been damaged in the sum of $400, his vines and walnut trees will become stunted and retarded in their growth, and he will suffer great and irreparable injury if defendants shall continue to conduct their chicken ranch in the manner heretofore pursued by them.

These allegations of the complaint the trial court found, in substance and effect, to be true, except that certain unimportant details, not necessary to be enumerated, were not found precisely as alleged in the complaint. The court also found that if the defendants should employ modern and reasonable methods, such as wetting the ground or paving it, or feeding chickens in inclosed sheds or buildings or in straw litter, the production of dust in large volumes may be prevented. That part of the decree which gives to plaintiff injunctive relief reads:

"It is hereby That the defendants and each of them, their * adjudged: * servants, agents, and employees, be and they are hereby enjoined and restrained from so maintaining, caring for, or feeding any chickens on the lands and premises occupied by said defendants, and in plaintiff's complaint described, or any part or parcel thereof, so as to produce and which would or could produce such quantities of dust that the same or any part thereof will be carried by the winds across

even though this case is one of the first, if not the very first, of its kind. Upon the application of well-settled principles we think it clear that the maintenance of the chicken ranch in the manner described in the complaint is a nuisance. plication. neither recent in origin nor doubtful in apThose principles are

alienum non lædes," is the foundation of [2] The ancient maxim, "sic utere tuo ut make an unreasonable use of his own premises to the material injury of his neighbor's the well-established rule that no one may property. While every person has exclusive dominion over his land and may subject it to such uses as will subserve his wishes and and regard for his neighbors' rights. Whethprivate interests, he is bound to have respect a nuisance depends upon a number of circumstances: Locality and surroundings, the er or not a use which in itself is lawful is number of people living there, the prior use, whether it is continual or occasional, and the nature and extent of the nuisance and of the injury caused thereby. rule controls the subject. The law relating to private nuisances is one of degree. No hard and fast of facts might be unreasonable under anothuse that would be reasonable under one set though matters to be considered, are not er. Location, priority of occupation, and the conclusive but are to be considered in confact that the injury is only occasional, nection with all the circumstances of the particular case; and whether the use is unreasonable or not is an inference to be drawn from all the facts. McCarty v. Natural Carbonic Gas Co., 189 N. Y. 40, 81 N. E. 549, 13 L. R. A. (N. S.) 465, 12 Ann. Cas. 840.

A

Cal.)

MCINTOSH v. BRIMMER

(230 P.)

In Brede v Minnesota Crushed Stone Co., 143 Minn. 374, 173 N. W. 805, 6 A. L. R: 1092, it was held that the operation of a plant for quarrying and grinding limestone should be so restricted by injunction as to prevent the escape of dust which substantially interferes with the comfort of inhabitants, in the vicinity. In so holding the court &

acts complained of in any particular case cause an injury to property or only to the personal comfort of the complaining party. For there is a marked distinction between an action for nuisance in respect to an act producing a material injury to property, as where trees or fruit are injured by dust or noxious gases, and an action brought in respect to an act producing personal discom-clared that relief should be granted fort only, such, for example, as noises, disagreeable smells, et cetera. As to the latter, the person complaining of the annoyance / must submit, in the interest of the public generally, to the discomfort usually incident to the circumstances of the place and the trades carried on around him. But the same rule does not apply where the injury is to property. See St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. 642.

"The reports are filled with cases where the doctrine which is applicable to the case at Refbar has been explained and applied. erence to a few of them will suffice. In the leading case of Fletcher v. Rylands, L. R. 1 Exch. 265, it was said:

"The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbor's reservoir, or whose cellar is invaded by the filth from his neighbor's privy, or whose habitation is made unhealthy by the fumes and noisome vapors of his neighbor's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbor, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbor's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should at his peril keep it there so that no mischief may accrue, or answer for the natural and anticipated And upon authority, this we consequences. think is established to be the law, whether the things so brought be beasts, or water, or filth, or stenches."

In Dunsbach v. Hollister, 49 Hun, 352, 2 N. Y. S. 94, affirmed 132 N. Y. 602, 30 N. E. 1152, the defendant was held liable for maintaining on his own land an uncovered pile of molding sand, from which, when the wind was in a certain direction, the sand was blown into plaintiff's residence, causing the inmates discomfort and injuring the furniture.

In Pennoyer v. Allen, 56 Wis. 502, 14 N. W. 609, 43 Am. Rep. 728, it was held that any business which necessarily and customarily impregnates large volumes of the atmosphere with disagreeable, unwholesome, or offensive matter may become a nuisance to those occupying property in the vicinity, in case it is too near and the atmosphere is so contaminated as to substantially impair the comfort or enjoyment of the neighbors.

gh

the business be a lawful one, and refuted the
broad doctrine that a landowner may de-
velop the resources of his property regard-
less of consequences incidental thereto.

The following additional authorities may be referred to as further illustrations of the rule which supports our conclusion that this complaint states a cause of action: Tuebner v. California St. R. R. Co., 66 Cal. 171, 4 P. 1162; Sullivan v. Royer, 72 Cal, 248, 13 P. 655, 1 Am. St. Rep. 51; Judson v. Los Angeles Suburban Gas Co., 157 Cal. 168, 106 P. 581, 26 L. R. A. (N. S.) 183, 21 Ann. Cas. 1247; also the cases cited in the notes to Tate v. Mull, 147 Ga. 195, 93 S. E. 212, 3 A. L. R. 312, and Pitner v. Shugart Bros., 150 Ga. 340, 103 S. E. 791, 11 A. L. R. 1401, under the caption "Dust as Nuisance."

[4] Appellants cite with much confidence the case of Wade v. Miller, 188 Mass. 6, 73 N. E. 849, 69 L. R. A, 820. There is nothing in that case to shake our conclusion that this complaint states a cause of action. There the alleged nuisance consisted of the characteristic noises and odors issuing from a The well-kept and clean chicken house and yard, and affected personal comfort only. noises and odors did not affect injuriously the health or sensibilities of a normal person, but merely caused annoyance to an invalid. The law of nuisance, where personal discomfort is the ground of complaint, is apIn the instant case plied only to normal persons-to persons of ordinary sensibilities. the nuisance caused a direct and material injury to property, resulting in a substantial financial loss to respondent.

The rule applicable here is the one which was announced by the Lord Chancellor in St. Helen's Smelting Co. v. Tipping, supra. It was There, as here, the injury, or a considerable part of it, was to trees and fruits. held that there was an actionable nuisance. [5] There is no merit in the claim that the complaint fails to show that appellants' use of their land was unreasonable. True, the words "unreasonable use" do not appear in the complaint; but the only inference which can be drawn from all of the alleged facts is that the use was, as to respondent, unlawful and unreasonable. It cannot be said that a person's use of his property is reasonable and lawful where that use directly and substantially causes damage to the property of another which could have been avoided with reasonable care and without unreasonable Dunsbach v. Hollister, effort or expense. supra. What constitutes a reasonable use of

one's property cannot be defined by any certain, general rule, but this much seems indisputable: A reasonable use can never be construed to include those uses which produce destructive volumes of dust, to the material injury of the property of those who dwell in the neighborhood. See Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18, 25 N. E. 246, 9 L. R. Ă. 711.

It was said in McCarty v. Natural Carbonic Gas Co., supra, that the "extent, more than the nature, of the injury, the quantum, rather than the damnum, constitutes the nuisance." Some dust is generally created by the natural and ordinary use of land in or near a settlement; and while this may sometimes be annoying to the neighbors, it is a part of the price paid for living where there are neighbors. But when the dust is so unusual and excessive as to cause substantial and direct injury to the property of a neighbor, causing him a material financial loss, the use is unreasonable. In Tuebner v. Cal ifornia Street R. R. Co., supra, our Supreme Court says:

"A person may not use his own property, even in and about a business in itself lawful, if it be used in such a manner as to seriously interfere with another in the enjoyment of his right in the use of his property."

"Nor can any use of one's own land," says the court in Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 20 A. 900, 9 L. R. A. 737, 25 Am. St. Rep. 595, "be said to be a reasonable use, which deprives an adjoining owner of the lawful use and enjoyment of his property." (Italics ours.)

In Bohan v. Port Jervis Gas Light Co., supra, the New York Court of Appeals says: "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."

The rule applicable to the present case is forcefully stated by the Supreme Court of Wisconsin in Pennoyer v. Allen, supra:

to such an extent, as to substantially impair the comfort or enjoyment of such adjacent occupants. When such comfort and enjoyment are so impaired, and compensation is demanded, it is no defense to show that such business was conducted in a reasonable and proper manner, and with more than ordinary cleanliness, and that the odors so sent over and upon such adjacent premises were only such as were incident to the business when properly conducted. It is the interruption of such enjoyment and the destruction of such comfort that furnishes the ground of action, and it is no satisfaction to the injured party to be inaggravation. The business is lawful; but such formed that it might have been done with more interruption and destruction is an invasion of private rights, and to that extent unlawful. It is not so much the manner of doing as the proximity of such a business to the adjacent occupant which causes the annoyance. A business necessarily contaminating the atmosphere to the extent indicated should be located where it will not necessarily deprive others of the enjoyment of their property, or lessen their comfort while occupying the same."

[6] It is claimed that the complaint does not designate with sufficient certainty the distance from appellants' chicken ranch to respondent's land. If this were an action to enjoin in advance the creation of a contemplated nuisance, i. e., if it were an action to enjoin a threatened act, not yet begun but which might or might not become a nuisance if and when it is consummated-and that was the situation presented by the case cited by appellants, O'Reilly v. Perkins, 22 R. I. 364, 48 A. 6-then it would have been incumbent upon the plaintiff to allege every fact which might be necessary to enable the court to see that plaintiff's apprehension of an appreciable injury to his property was well

founded. In such an action it doubtless would be necessary to allege with reasonable certainty the distance between the two properties. But this is not an action to enjoin the creation of that which respondent only apprehends will result in dust being carried to his property. Here, if the allegations of the complaint be true-and the court found that they are true-it has already been demon strated ex post facto that appellants' chicken ranch is so close to respondent's land and the two properties are so situated with respect to each other that the dense clouds of dust which are raised by the scratching of the chickens do settle upon and injure respondent's trees, vines and grapes.

"The ownership of land carries with it the rightful use of the atmosphere while passing over it. Title to land gives to the owner the right to impregnate the air upon and over the same with such smoke, vapor, and smells as he desires, provided he does not contaminate the atmosphere to such an extent as to substantially interfere with the comfort or enjoyment of others, or impair the use of their property. But air is movable, and constantly [7] It next is claimed that certain of the flowing from the premises of one to those of findings are not supported by the evidence. another, and hence, when it becomes thickly Many, if not all, of the findings thus objected impregnated with putrid substances, it neces- to relate to immaterial matters, and if they sarily flows onto the adjacent premises in one are not sustained by the evidence the error is direction or another. This being so, it follows harmless. For example the court found that that any business which necessarily and constantly impregnates large volumes of the atthe approximate number of chickens mainmosphere with disagreeable, unwholesome, or tained by appellants is between 3,000 and offensive matter, may become a nuisance to 4,000, whereas the evidence shows, so it is those occupying adjacent property, in case it claimed, that appellants kept but 2,800 chick

(230 P.)

the number of chickens kept in appellants' | great clouds, and that his property was subcorrals was great enough to cause the clouds of dust of which respondent complains; and the test is not the number of chickens kept by appellants, but the quantum of dust raised by the chickens, whatever their number.