Borough of Allentown v. Saeger (8 Harris, 421) | Brown, deceased, was a member. A coal pit was rule this case. James Kelly did not represent these plaintiffs in the bill he filed, and that proceeding can have no effect as notice or claim by them. Judgment affirmed. opened upon this five acre tract, coke ovens were built thereon by Brown & Cochran, and the manufacture of coke has been carried on there ever since, the establishment being known as the Jimtown Works. There was nothing expressed in the PER CURIAM. AGNEW, C. J., and WOOD- terms of sale either of the coal by Ewing to WARD, J., absent. Oct. & Nov. '78, 106. Brown et al. v. Torrence. Brown, or of the five acre tract by Torrence to Cochran, relative to the manufacture of coke from the coal, or upon the land thus sold. Torrence brought this action, alleging, as the Nov. 21, 1878. elements of injury for which damages were demanded, the cracking and sinking of his surface by reason of the mining of the coal beneath it for Sterling Mines, and the loss thereby of a surface stream; the pollution of Hickman Run above his land by the sulphur water from the pit mouth, and by the ashes and refuse from the ovens on the five acre tract; and the injury to all vegetation upon his farm by the smoke, gas, and heat from the ovens at both Sterling Mines and Jimtown Works. Vendor and vendee-Vendee's liability for injury to vendor by vendee's use of land sold-Damages-Mining rights-Injury to vegetation by smoke and heat from coke ovens. Without contract or some relation of privity regarding the use to be made of land sold, the vendee stands to his vendor just as he does to others, and the maxim applies sic utere tuo ut alienum non lædas. A. sold to B. coal underlying certain lands, and, B. having begun the manufacture of coke therefrom, A. sold a portion of the surface to C. C. sold a part of his surface to D., and a firm in which D. and B. were partners afterwards built coke ovens thereupon, and began to make coke. In an action by C. against B. to recover damages for injuries caused by mining the coal and manufacturing coke: Held (affirming the judgment of the Court below), that C., standing in no relation of contract or privity to justify these injuries, was entitled to recover. A person whose land has been injured by the negligent mining of coal beneath it, or whose crops have been injured by heat and smoke from coke ovens, is entitled to recover such damages as the jury finds from the evidence he has sustained. Error to the Court of Common Pleas of Fayette County. Case, by David M. Torrence against Samuel S. Brown, impleaded with J. M. Schoonmaker, administrator of William H. Brown, deceased. The facts were as follows: In 1867, John K. Ewing sold to W. H. Brown, deceased, the coal under certain tracts of land in Fayette County, and also a portion of surface land, upon which Brown erected coke ovens, and began to manufacture coke from the coal so sold, his works being known as Sterling Mines. June 14, 1870, Torrence purchased of Ewing, for $7000, the surface of a tract of land, containing ninety-eight acres contiguous to the surface sold Brown. The coal under the Torrence surface was part of that sold to Brown, and he had begun to mine it, and convert it into coke before the purchase by Torrence. The same day that he purchased from Ewing, Torrence conveyed to John M. Cochran five acres fifty-eight perches of his surface for $1070. Cochran afterwards conveyed to Brown & Cochran, a firm of which said At the trial (before WILLSON, P. J.) plaintiff asked the Court to charge, substantially, that, if the jury believe from the evidence that defendant's intestate removed the coal from under plaintiff's land without properly supporting the surface, and in consequence the surface cracked and sunk, then plaintiff is entitled to such damages as the jury believe, from the evidence, he has sustained. Affirmed. Plaintiff also asked the Court to charge: (7) That, if the jury believe, from the evidence, that the land or crops of said plaintiff, or any portion thereof, have been injured by the heat, smoke, or dirt from the coke ovens of defendant's intestate, the plaintiff is entitled to a verdict for such damages as the jury believe from the evidence he has sustained thereby. Affirmed. Defendant asked the Court to charge: (6) That, if plaintiff's vendor, before the sale to piaintiff, had sold a part of his land and the coal under the residue to the defendant's intestate, and if at that time there were some coke ovens in use on that part of the land so sold, and the defendant's intestate had erected others before the sale to plaintiff, and was then using them in the making of coke, the plaintiff cannot recover in this action for any damage done to his land by the smoke and heat caused by the continued use of said ovens in an ordinary and proper manner. Refused. Verdict and judgment for plaintiff ($1150.00), whereupon defendant took this writ, assigning for error, inter alia, the answers of the Court to the points above stated. Wm. H. Playford (with him Chas E. Boyle), for plaintiff in error. Torrence, by his purchase of the surface from a vendor who had previously sold the coal, and by his own sale of the five-acre tract, is estopped being such a nuisance as would entitle one to recover from complaining of the necessary incidents and damages for injuries to adjoining property. results of the ordinary and proper use of the coal and the land for the purposes contemplated when they were bought respectively by Brown and Cochran. If machinery used in a factory is of such a character that in its use it so shakes the ground as to do actual physical injury or damage to adjoining buildings, by shaking down or cracking plastering or walls, the parties doing such injury are liable therefor. The principles of Sanderson v. Penna. Coal Company (6 WEEKLY NOTES, 97) should be re-affecting bodily comfort is, whether the inconvenience The criterion of liability for a supposed private nuisance laxed in this case. There the purchase was made should be considered as more than one of mere delicacy several years before the establishment of the col- or fastidiousness, or an inconvenience materially interliery which afterwards polluted the stream, and fering with the ordinary comfort of human existence. the purity of the stream was one of the inducements to the purchase. Here the coal was sold before Torrence purchased. Nathaniel Ewing, contra, cited— Richard's Appeal, 7 Sm. 113. Coram STOWE, P. J., and a jury. Case, to recover damages for injury to the plaintiff's house, and for personal annoyance. The plaintiffs owned a frame house, alongside St. Helen's Smelting Co. v. Tipping, 11 H. L. Cas. of which the defendants erected a shovel factory 642. Bainbridge on Mines, sec. 468 et seq. (the two buildings touching), in which there were Smith v. Phillips, 8 Phila. Rep. 10, and cases there several large tilt-hammers and a steam hammer cited. Sanderson v. Penna. Coal Co., supra. November 28, 1878. THE COURT. The verdict of the jury establishes the fact that the surface of the plaintiff's land was injured by the negligence of the defendant's intestate in mining the coal underneath, and that the grass and vegetation have been injured by the deleterious gases thrown off from the coke ovens of the defendant. It does not appear from the evidence that the plaintiff stood in any relation of contract or privity to justify these injuries. The mere fact that one man sells land to another cannot, of itseif, justify any use the vendee afterwards chooses to apply his land to. He stands to his vendor, without a contract or some relation of privity, just as he does to others, and the maxim applies, sic utere tuo ut alienum non lædas. PER CURIAM. Judgment affirmed. Common Pleas—Law. C. P. No. 1, of Allegheny Co. Co. Nuisance-Noise-Vibration Case to recover damages for injury to real estate and for personal annoyance, caused by factory in a populous manufacturing city-Criterion of liability. The mere fact that a factory may be used for the making of useful or necessary articles of trade does not prevent its in pretty constant use, from 7 A. M. till 6 P. M., and at times until 9 P. M. The declaration contained, inter alia, separate counts for injuries to the plastering of plaintiffs' house, caused by the shaking of the ground by the hammers; for depreciation in the value of the property arising from the same cause, and for annoyance arising from the noise of the hammers. Considerable testimony was taken to show physical injury caused to the plaintiffs' property, but the claim for damages for depreciation in value was not pressed, the testimony not warranting it. E. P. Stone, for plaintiffs. STOWE, P. J., charged the jury as follows:The general rule of law is, that one may not use his property so as to do injury to another; but this is subject to the qualification that he may use it in the ordinary way, or for such purposes as it is commonly used in the community in which the property is located. One therefore does not subject himself to damages for using his property in the ordinary way under such circumstances, though such use may be some disadvantage or annoyance to his neighbor. Thus I am not liable for the ordinary smoke coming from the chimneys of my dwelling house, though it be the means of annoying or damaging my neighbor by throwing soot or other dirt from smoke upon him. In other words, in a community like this, where, in the language of AGNEW, C. J., "An everyday cloud of smoke from thousands of chimneys hangs like a pall over it," the people who live within the sphere of its influence do so from choice, and voluntarily subject themselves to its peculiarities and its discomforts for the greater benefit they think they derive from their residence or their business there. As said in another case: "If a man lives in a town, of necessity he must to the life of the masses of our people. (St. submit himself to the consequences of the obli- Helen's Smelting Co. v. Tipping, 11 H. L. Cas. gations of trades which may be carried on in his 642.) immediate neighborhood which are actually ne- The Court then instructed the jury as to the cessary for trade or commerce; also for the enjoy-measure of damages in case they thought the plainment of property and for the benefit of the in- tiff was entitled to recover. habitants of the town." The verdict was for plaintiff for 64 cents damages. [See Richardson v. Oberholtzer, 2 WEEKLY NOTES, 332; Harrison v. St. Mark's Church, 3 Id. 384; Briggs v. Votler, 4 Id. 272; Sellers v. Penna. R. R. Co., 1 Id. 295.] Where the annoyance or injury arising from the use and consequent clatter or motion to adjoining property or machinery is in question, its solution becomes a matter of considerable difficulty-not perhaps so much in reference to the principle of law governing such cases as in its proper application to the particular case in hand. Notwithstanding what we have said before, we cannot say that the mere fact that a factory may C. P. No. I be used for the making of useful or necessary articles of trade, even in this community, prevents its being such a nuisance as would prevent one injured from recovering damages. A glue factory is a nuisance in a populated place if it emits, as I believe it necessarily does, disagreeable and offensive odors. So a powder factory is a nuisance, under the same circumstances, because of the constant danger from explosion. It is also clear that, even here, where a factory is erected near or adjoining the house of another, and the machinery is such as in its use so shakes the ground upon which it is erected as by shaking the adjoining property to do actual physical injury or damage to buildings or structures thereon, ordinarily well and substantially built, by shaking down or cracking plastering or walls, or otherwise doing actual damage thereto, the parties causing such injury are liable therefor. So as to noise, if that is so great as to be injurious to health, or to be such an annoyance as would cause actual, substantial discomfort, it would be actionable. By this I mean such annoyance as materially interferes with the ordinary comfort incident to human existence under the general habits and customs of the community in which one resides. It seems to me quite clear that for such smoke, vapors, or smells, as may emanate from a neighbor's premises as the necessary result of a legal business or use which are merely disagreeable, and ordinary or peculiar to the general community in which one resides, no action is maintainable. To make such actionable they must produce some sensible and substantial effect upon physical comfort. The criterion of liability for a supposed private nuisance, affecting the bodily comfort of the plaintiff, is whether the inconvenience should be considered as more than one of mere delicacy or fastidiousness, or an inconvenience materially interfering with the ordinary comfort of human existence, not merely according to elegant or dainty modes and habits of living, but according to the plain and simple modes which are incident Nov. 23, 1878. Bradley v. Brown. Landlord and tenant-Surrender of term by tenant Acceptance thereof by landlord-A landlord may receive the key of premises without interfering with the occupancy by the tenant -He is not bound to let the premises suffer, but may take possession for the purpose of caring for them. Rule for judgment for want of sufficient affidavit of defence. Covenant against the surety on a lease. The original affidavit of defence set forth that prior to the expiration of the term, the tenant gave written notice to the landlord that he was going to move out of the premises, they being untenantable in consequence of their unhealthy condition; that accordingly at the time specified he did send word to the agent of landlord that he had moved out, paid the rent up to the date of removal, and left the key with the agent, who the next day took possession and put a bill on the house and finally rented it. A supplemental affidavit set forth that the tenant or his wife sent written notice to the landlord that they were going to move out of the said house and surrender possession of the same and of the term under the lease, and in pursuance thereof sent the key, &c., as stated in the original affidavit. Riding and Tully, for rule. The affidavit fails to allege acceptance of the surrender, and consequently is insufficient. Philada. Fire Ex. Co. v. Brainerd, 2 WEEKLY NOTES, 473. Bv. H3 Id. 132. Marcellus v. Ker, 6 Whart. 501. George Junkin, contra. THE COURT. The allegations of the original affidavit did not amount to an acceptance. The landlord might take the key and yet not interfere with occupancy by the tenant. He is not obliged to allow the premises to go to destruction and may take possession to care for them. The supplemental affidavit carries the case a step farther averring previous notice of an intention to sur Taylor et al. v. Rockefeller et al. Removal of causes-Act of Congress of 3d March, 1875-Citizenship of parties-Time within which cause may be removed-Con troversy wholly between citizens of different States and fully determinable as between them -Conflict of jurisdiction Decision of State Court, when binding and when void. A petition for the removal of a suit in equity to the United States Circuit Court, with accompanying bond, was filed in a State Court during the term in which the bill was filed, but subsequently to the filing of the answer and the appointment by the latter Court of a receiver: Held, that the petition was filed in time under the Act of Congress of 3d March, 1875, requiring the filing to be made before or at the term at which the cause could be first tried, and before the trial thereof." No order or allowance of the State Court for a removal of the cause is necessary under the Act of 3d March, 1875. Under that Act, upon the filing of a proper petition and bond, in due season, the suit is withdrawn from the jurisdiction of the State Court, provided the petition and record exhibit a case properly removable. The jurisdiction of the State Court is not ousted unless the petition and record show a case of which the United States Court has jurisdiction; but the judgment of the State Court to that effect is not binding upon the United States Court; and if the latter Court holds that the cause has been properly removed, a contrary decision by the State Court has no effect. on the Circuit Courts all the jurisdiction which, under the Constitution, it was in the power of Congress to confer." Per STRONG, J. Semble, that, upon a legitimate construction of the Constitution, the Federal jurisdiction in such a case exists. Semble, that, prior to the Act of 3d March, 1875, no removal could be had unless each of the plaintiffs could have sued each of the defendants in the Federal Court; though the ruling did not apply except as to indispensable parties, and perhaps not where distinct interests were represented by distinct parties, of whom some could sue, or were liable to be sued, in the Federal Courts. But under that Act the power of removal is enlarged and may be enjoyed where in a suit there are several controversies of which one is wholly between citizens of different States, and can be fully determined as between them. And this is true though others of the same party with the petitioners for removal, actually interested in other controversies embraced in the same suit, could not, on account of having the same citizenship with some of the other party, have themselves removed the suit. Upon the question of citizenship under the Act, the Court looks to the citizenship of the trustee, not of the cestui que trust. Where the plaintiffs, who were all citizens of a different State from that of the defendants, trustees, in a suit against the latter, joined their cestuis que trustent as codefendants, the jurisdiction of the United States Court is not affected by the citizenship of any of the cestuis que trustent. Semble, that the "controversy" mentioned in the Act of 3d March, 1875, between the petitioners and the opposite party, need not be the main controversy in the case. A controversy wholly between citizens of different States, fully determinable as between them, entitles either of such parties to removal, though not fully determinable as between the remaining parties. The Circuit Court, upon such removal, obtains jurisdiction over the whole cause, the remaining controversies therein being treated as incidental to that which authorized the removal. Motion to remand case to State Court. mon Pleas of Butler County, Pennsylvania, on A bill in equity was filed in the Court of ComFebruary 8, 1878, by H. L. Taylor, John Pitcairn, Jr., and John Satterfield, against William J. Warden, Charles Lockhart, William Frew, The Atlantic Refining Co., Charles Pratt, Henry P. Rogers, H. A. Pratt, John D. Rockefeller, and Henry M. Flagler, alleging, that the plaintiffs, with one Vandegrift and one Foreman, sold an undivided interest in their oil producing properties to, and entered into a partnership with, the defendants (without mentioning their names); that the object of the partnership was the purchase and operation of oil producing territory, Quare, whether the Federal Courts have jurisdiction of a cause in which some of the indispensable parties on and the production and sale of petroleum in either side are citizens of the same State as that of some, its crude state. It further alleged that at the but not all, of the indispensable parties on the other side. time of entering into the partnership, a written They have not, "if the rule of construction applied to contract (which was made part of the bill) was the Judiciary Act of 1789, and the Acts of 1866 and 1867, executed between certain trustees, named Taylor is applicable to the later Act of 3 March, 1875. But the later Act, for the first time, adopts the language of the and Bushnell, of the first part, the plaintiffs and Constitution, and seems to have been intended to confer Foreman and Vandegrift, of the second part, Any cause which might have been commenced in the Circuit Court, either because of its subject matter or the citizenship of the parties, may be removed from a State Court into the Federal one. and the defendants, Flagler and Rockefeller, of | petition further alleged that the controversy was the third part, stating the terms under which the wholly between citizens of different States-the title to the lands should be purchased, held, and complainants, citizens of New York and Penndisposed of, and fixing a method of dissolving, sylvania, and the petitioners defendants, citiand limitation to, the partnership. It further al- zens of Ohio-and that it was brought for the leged, that the defendants other than Rockefeller purpose of restraining and enjoining the petiand Flagler, were parties to a conveyance of land tioners. That although Warden and others to the trustees named in the foregoing contract, were joined as defendants in the bill, they were that they had assented to it in writing, and de- only nominally parties, and that the controversy clared that their conveyance was made for the was capable of a final determination between purposes set forth in it. the complainants and the petitioning defendants alone. It further set forth that the petition was filed before the term at which the cause could have been first legally tried, and that a bond had been filed with good and sufficient surety conditioned as required by law. The petition prayed that the Court should proceed no further in the case, but should order its removal and certify the record to the Circuit Court of the United States for the Western District of Pennsylvania. The contract itself showed the parties to it to be Taylor and Bushnell, trustees, parties of the first part, who were to hold the lands conveyed to them, to operate, control, and sell them for the sole and exclusive benefit of Taylor, Vandegrift, Pitcairn, Foreman, and Satterfield, parties of the second part, and Rockefeller and Flagler, of the third part. It stipulated that in case profits were divided, they, together with all proceeds of sale, should be divided monthly, or oftener if the executive committee should so decide, and paid, one half to Taylor, for the parties of the second part, and the other half to Flagler, for the parties of the third part. None of the defendants, other than Rockefeller and Flagler, were parties to the contract at the time of its execution. The bill then alleged a breach of the agreement on the part of the defendants, and prayed (1) that the partnership under the agreement should be dissolved; (2) for an account and payment in accordance with it; (3) for discovery in aid of the account, and (4) for an order restraining the defendants from disposing of, or improperly interfering with, the property of the partnership, pendente lite. The case was docketed to March term, 1878. On February 21, 1878, an answer was filed by the defendants, denying the material allegations of the bill; on the same day the case was argued upon a motion for the appointment of a receiver, and on the 25th of February following, a decree was entered, appointing a receiver. The Court (McJUNKIN, P. J.), after argument, filed an elaborate opinion, in which, after conceding that the application for removal was made in time, and that the bond offered was sufficient, he refused to order the removal of the cause, on the ground that from the record, which was the only legal evidence of the facts, it could not be discovered that the controversy was one that could be wholly decided and determined between the complainants and the petitioning defendants without the presence of the other defendants, and that therefore, notwithstanding the difference of citizenship, the case did not come within the terms of Federal legislation in regard to the removal of causes from the State Courts, even of the Statute of 3d March, 1875. (See 25 Pitts. L. J. 137.) The petitioners, Rockefeller and Flagler, thereupon filed a certified copy of the record in this Court. The complainants now moved to remand the case to the Court of Common Pleas of Butler County. George Shiras, Jr., M. W. Acheson, and John M. Miller, for the motion. Rufus P. Ranney, MeJunkin & Campbell, Hampton & Dalzell, and Robert Woods & D. T. Watson, contra. June 17, 1878. THE COURT (STRONG, Justice, delivering the opinion) : On March 5, 1878, a petition was presented and filed by Rockefeller and Flagler, two of the defendants, setting forth that they were citizens of Ohio, that of the other defendants, Warden, Lockhardt, Frew, and the Atlantic Refining Co., were citizens of Pennsylvania, and that the Pratts and Rogers, the other defendants, were Three reasons are assigned in support of the citizens of New York. That of the complain- motion to remand this case to the State Court. ants, Taylor was a citizen of New York, and the They are as follows: First, that the application others of Pennsylvania. That the citizenship to remove the case into this Court was not made existed as stated, at the time of the commence- in time; secondly, that if the application was in ment of the litigation, and continued down to time the record discloses that the State Court, in the time of the filing of the petition. That the the due and orderly exercise of its own jurisdiccontroversy was of a civil nature, in equity. and tion, has adjudged that the record and petition that the sum in dispute exceeded, exclusive of did not exhibit a case proper for removal under costs, the sum of five hundred dollars. The the acts of Congress, and has refused to part |
