327. BARNES v. HATHORN SUPREME JUDICIAL COURT OF MAINE. 1866 54 Me. 124 ON exceptions, from Nisi Prius, Dickerson, J., presiding. Gilbert, for the plaintiff. KENT, J. The facts, which the plaintiff proved or offered to prove, on which the presiding judge ordered a nonsuit, are substantially as follows: That the husband of the defendant, Mary Hathorn, in 1846, built a tomb on the premises now owned by her, and within 44 feet from the west side of the plaintiff's house and the windows of his parlor, sitting room, and dining-room, all of which rooms were on that side of his house; That dead bodies were from time to time deposited in said tomb, until about the year 1856, when nine such bodies were in the tomb; That such an effluvia was emitted from them that the plaintiff's house became unwholesome, and, after an examination of the premises by physicians, the defendant caused them to be removed from the tomb; That the tomb remained unoccupied for six years, and until October, 1865, when the defendant caused the tomb to be opened and another dead body to be deposited for burial therein; That there was a wooden frame building over the tomb, which was whitewashed; that the tomb was of brick, with ventilators at each end; That the plaintiff had resided for twenty-five years, and still resides, in a house owned by himself and on his lot of about three acres; That the defendant's land adjoins his, and the dividing-line is 14 feet from his dwelling-house, and her lot contains about 130 acres; That the erection and occupation of the tomb, as alleged in the writ, diminished the market value of the plaintiff's house and lot from $1000 to $1500; and That his life in the occupancy of his premises is made uncomfortable by the apprehension of danger arising from the use of said tomb as a burial place. The plaintiff introduced two physicians, who testified that the effect of burying dead bodies in the tomb might be unwholesome and injurious to the occupants of the house; if much miasma, long continued and concentrated from them, it might be fatal; and that any emission from such bodies might be injurious to the physical and mental system; and, without any effluvia, it might injuriously affect the inmates of the house by exciting the imagination. The action is for injury to the plaintiff by reason of a nuisance continued by the defendant. The question before us is whether, upon the case as above stated, a nonsuit was properly ordered. What is a nuisance? In considering this question, when the complaint is based upon the use of another of his own property, we are first met by the general doctrine of the right of every man to regulate, im prove, and control his own property; to make such erections as his own judgment, taste, or interest may suggest; to be master of his own, without dictation or interference by his neighbors. On the other hand, we meet that equally well established and exceedingly comprehensive rule of the common law "sic utere tuo, ut alienum non laedas"— which is the legal application of the gospel rule of doing unto others as we would that they should do unto us. The difficulty is in drawing the line in particular cases, so as to recognize and enforce both rules, within reasonable limitations. It is quite clear that the law does not recognize any legal right in any one to compel his neighbor to follow his tastes, wishes or preferences, or to consult his mere convenience. He cannot dictate the style of architecture or, generally, the location of the buildings, or maintain that an unsightly or ill-proportioned edifice is a nuisance because it offends his eye or his too cultivated taste. Nor can he interfere because he has idle and unfounded fears of ill effects from the use of the adjoining lot. There may be many acts which, to the eyes of others, appear to be unneighborly and even unkind, and entirely unnecessary to the full enjoyment of the property, — vexatious and irritating, and the source of constant mental annoyance, and yet they may be but the legal exercise of the right of dominion, and therefore cannot be deemed nuisances. . . . There is one class of cases, arising from the exercise of trades or business, which are in their nature offensive, or which renders the occupation of buildings near them, unhealthy, or decidedly uncomfortable. Many of these cases may be found collected in a very recent case in this State: Norcross v. Thoms, 51 Maine, 503, and more fully in the case of Brown v. Perkins, 12 Gray, 97. It is unnecessary for us to repeat them here. From the general tenor of the reported cases, we find that certain doctrines are recognized and acted upon. One is, that some trades, occupations, or acts are regarded as in themselves and inherently noxious or offensive and prejudicial, without extraneous proof. In other cases they are not necessarily nuisances, but may become so from location or some extraneous fact. Another well-established doctrine is, that it is not necessary to prove that the air is poisoned or rendered positively unhealthy; it is enough if the matter alleged to be a nuisance is offensive to the senses, or in any way renders the enjoyment of life and property uncomfortable. State v. Haines, 30 Maine, 65; Rex v. White, 1 Burr. 337; Fish v. Dodge, 4 Denio, 311; State v. Pierse, 4 McCord, 472; Catlin v. Valentine, 9 Paige, 575; Rex v. Neil, 2 Carr. & Payne, 485. . . . The case finds that the erection and continuance of a private tomb is the nuisance complained of. A man may have a legal right to build such a tomb on his own land, as a general proposition. It is not in itself and inherently a nuisance to his neighbors. If a nuisance at all, it becomes so from its locality or other extraneous facts. However unwise or inexpedient it may be, in the judgment of reflecting men, to deposit the remains of deceased relations or friends in private burying places on private lands, considering the constant change in the title of real estate in our country, and the almost certainty that in one or two generations no one will be left to care for or protect the graves, yet we know of no law which prohibits such erections or interments. But such tombs may be or may become nuisances. On the facts stated, this particular tomb was, at one time, beyond dispute, a very serious nuisance, when it "was occupied by nine dead bodies which emitted such an effluvia as to render the plaintiff's house unwholesome"; and as, after an examination of the premises by several physicians, all the bodies were removed, it could hardly be questioned that it was then a nuisance. But the defendant says that, after these bodies were removed, it ceased to be of such a character. Whilst the tomb remained for six years unoccupied, the only ground on which it could be then called a nuisance, probably, was its unpleasant proximity to the house of the plaintiff. It was only some fifteen paces from the windows of his dining and sitting room. It was certainly not a very cheering or exhilarating prospect which met the plaintiff's vision, whenever he looked abroad. How far, to a man of ordinarily nervous temperament, or to one of a sensitive nature, who shrunk from the constant view of this fixed memorial of death and decay, this erection might prove injurious to health, it is impossible to say. But, that it must have affected his comfort and happiness in the occupation of his dwelling may be less questionable. There seems to have been no necessity for this close proximity, as the defendant's farm consisted of at least one hundred and thirty acres. On what ground this spot, almost under the droppings from the plaintiff's house, was chosen, instead of some retired place, in this large farm, does not appear, and is not, perhaps, material in our examination of the case. But, it seems, after six years from the time of removal, the defendant again opens the tomb and commences the deposit of deceased friends anew. One such body had been thus placed in the tomb, before this action was brought. This act would seem to indicate an intention to again use it for the place of interment of her family. Now, considering the result stated as having been produced by the former occupation, might not a man of ordinary firmness and judgment be reasonably apprehensive of danger? In addition to this, we have the testimony of the physicians called on the trial, that any emission from dead bodies in that tomb might be injurious to health, bodily and mentally. It had proved so before, and might again. A single body might not be so liable to create deadly or noxious effluvia as a larger number. But it would be of the same general character, and might of itself prove uncomfortable, if not positively unhealthy. The defendant made no disavowal of an intention to place other bodies there. On the whole, we are of opinion, that the case should have been submitted to the jury on the evidence, with proper instructions, and that the nonsuit was not properly ordered. Exceptions sustained. Nonsuit set aside and new trial granted. CUTTING, WALTON, BARROWS, DANFORTH, and TAPLEY, JJ., concurred. DICKERSON, J., dissenting. This is an action of review, and comes before us on exceptions to the ruling of the presiding judge in ordering a nonsuit. Several questions arise under the bill of exceptions. 1. Whether allowing an unoccupied tomb, built of brick with ventilators at each end, covered with a wooden frame building, whitewashed, and situated forty-four feet from the dwelling-house of the adjacent proprietor, to remain on one's premises is a nuisance per se. The injurious act imputed to the defendant in review is claimed to be a private nuisance which renders the dwelling-house of the plaintiff in review uncomfortable, unhealthy, and valueless, as a residence. SO The law of nuisance is designed to enforce the observance of that fundamental moral maxim: "sic utere tuo, ut alienum non laedas". use your own as not to injure another. This rule, however, must have a reasonable construction, or it would become oppressive in many instances, and defeat the benevolent purpose it was designed to subserve. In populous villages and cities, a tree cannot be planted or a building erected without in some degree diminishing the quantity of light enjoyed by the adjacent proprietor. The smoke emitted from every additional chimney increases the quantity of unconsumed materials in the atmossphere, impairs its purity, and is oftentimes a source of annoyance and discomfort to others; so is the sound of the factory bell, the steam engine, and railroad car. . . . The better interpretation of this rule of human conduct is that which harmonizes with that other maxim of the law, of equal authority, de minimis non curat lex, the law takes no notice of trifles. Persons cannot insist upon their extreme rights, and bring suits for every trifling inconvenience, annoyance, or discomfort they may experience on account of the use others may make of thier own property. . . . It is not the kind of erection, or the thing kept, but the use made of it, and the time, place, and manner of keeping, that determine the legal status in this respect. The structure may be faulty in its architectural proportions, and ill adapted for the purpose intended, or it may be even grotesque in its appearance, yet, if not used so as to cause substantial discomfort to the adjacent proprietors, these circumstances will not render it a nuisance. So, the article kept or used, or the business carried on, though dangerous in its character, may be so managed in respect to time, place, and manner, as to be harmless in the eye of the law. The tomb erected by the devisor of the plaintiff in review, and by her allowed to remain on the devised premises, was a lawful erection; for, whatever may be thought of the policy of private burial, the right is unquestionable. In an unoccupied state, it could not have caused the defendant in review such substantial discomfort as the law imputes to a nuisance. It may have been offensive to his tastes, but the law does not enter the domain of the fine arts, and establish styles of architecture; and the apprehension of injury from future deposits therein that might never be made, and noxious smells that might never arise therefrom, is altogether too remote, not to say fanciful, to base an action at law upon. . . The nonsuit was properly ordered, and there should be judgment for the original plaintiff. 328. WESTCOTT v. MIDDLETON COURT OF CHANCERY OF NEW JERSEY. 1887 43 N. J. Eq. 478, 11 Atl. 490 BIRD, V. C. The parties to this controversy own adjoining lots in the city of Camden. The complainant occupies his as a dwelling-house and for offices. The defendant occupies the basement and first floor of his dwelling to carry on the business of an undertaker, using the front room as an office, the second room as a place to keep supplies, and the second and third stories with his family. On the lot of the defendant, back of the first and second rooms, is a kitchen or extension, between which and the lot of the defendant is an open space going back to the rear of the lot, which is one hundred and eighty feet deep. In this open space is a hydrant. The cellar of the defendant is used for storing lumber, which, as occasion requires, he takes out in the rear, through this open space, to a shop which is at the extreme rear end of his lot, there to be used in making boxes. The complaint is, that the defendant is guilty of maintaining a nuisance in the maintenance of this business of undertaking, and that the complainant is entitled to the aid of this Court in being relieved therefrom. There is a charge that the defendant disturbs the complainant in the manufacture of boxes. This point is practically abandoned. But the complainant insists, in the first place, that this business is carried on in an unlawful manner; and, in the second place, that the defendant has no right to carry on this business where he does. The proof shows that the defendant buries from one hundred to one hundred and fifty persons a year, and the vehicles which he uses for that purpose are driving to and from his place of residence about four times in every case, so that, from five to six hundred times during the year, the complainant has the opportunity, if he attends thereto, to be reminded that death has taken place, that some one is a corpse, and that preparations are being made for the funeral, or that some one has just been buried. In every such case the defendant uses a large box, in which the corpse is preserved, as far as possible, from decomposition, by the use of ice in another box, made of tin, which is placed directly over the corpse. Formerly the tin box opened underneath, by a tube running down through the box contain |