McCarty v. Natural Carbonic Gas Co.


Defendant allegedly emitted smoke from its chimney factory, which gathered within the home of the Plaintiff to “his annoyance and injury.”  Defendant is a foreign corporation that manufactured carbonic acid.  The plant releases “a thick black smoke, large in volume and larger, denser and thicker when the fires are freshened twice every hour” for 24 hours except on Sundays.  When the wind blows in a particular direction, the smoke goes straight into Plaintiff’s home.  This is caused specifically by the use of soft coal, which is not necessary for the plant to function, as the Defendant could use “anthracite coal at greater expense.”  “The rental value of the Plaintiff’s house has been injured by the use of soft coal by the Defendant to the extent of $800, and he has incurred expense for cleaning rugs to the extent of $18 more.”  The trial court enjoined the use of the coal and awarded Plaintiff damages.


“In a country district suitable for country homes, does the use of soft coal in a factory so situated that thick, black smoke therefrom, great in volume and dense in quality, envelopes an discolors a neighboring dwelling house, causing much discomfort and some financial loss to the occupants, constitute a nuisance, when such use of soft coal is not necessary for the practical running of the plant and is not a reasonable use the manufacturer’s property.”


Yes, affirmed.  The court follows the rule that “no one make an unreasonable use of his own premises to the material injury of his neighbor’s premises, and if he does the latter has a right of action even if he is not driven from his dwelling, provided the enjoyment of life and property is materially lessened.”  Here, the court’s decision turns on whether Defendant’s use of his property was reasonable under the facts.   Reasonable use depends on facts such as “location, nature of the use, character of the neighborhood, extent and frequency of the injury, the effect on the enjoyment of life, health, and property and the like.”

The court focused on the extent of the injury, stating that some smoke was natural in such a location, but a lot of smoke is not reasonable.  The corporation may continue to exist where the use of soft coal is enjoined, although its profits will be diminished.  It is better to reduce the corporation’s profits than force the homeowner to abandon his home.


Nothing in the facts show permanent injury to the Plaintiff.  The Plaintiff may incur some additional costs of cleaning the home or washing and painting.  “… each member of society must submit to annoyances consequent upon the ordinary and common use of property, provided such use is reasonable, both as respects the owner of the property and those immediately affected by the use, in view of time, place and other circumstances.”  There is nothing in the record that shows the use of anthracite coal would destroy Defendant’s business entirely.

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