Bloomfield & Rochester Natural Gas Co. v. Richardson, 63 Barb.,

It is, therefore, a business of a public nature and utility for which the state can control and make provision. Justice Harlan in delivering the opinion in the case of the New Orleans Gas Co. v. The Louisiana Light Co., 115 U. S.,650-669, says: "The manufacture of gas and its distribution for public and private use by means of pipes laid under legislative authority in the streets and ways of a city is not an ordinary business in which every one may engage, but is a franchise belonging to the government to be granted for the accomplishment of public objects to whomsoever and upon what terms it pleases. It is a business of a public nature and meets a public necessity for which the state may make provision. It is one which, so far from affecting the public injuriously, is to become one of the most important agencies of civilization for the promotion of the public convenience and public safety."

It is undoubtedly true that in the manufacture of gas the escape of some is unavoidable, and it may inconvenience those who live in the immediate vicinity of the works, but the necessities of the people living in large cities and villages impose some inconvenience to others, and have compelled recognition of the principle that each member of society must submit to annoyance consequent upon the use of property provided such use is reasonable as respects the owner and those immediately affected in view of time, place and other circumstances. St. Helen's Smelting Co v. Tipping, 11 House of Lords cases, 642-646; Cooley on Torts, 598–601.

We are aware that a different view has been expressed in reference to gas works. Carhart v. The Auburn Gas Light Co., 22 Barb., 297-312.

But notwithstanding this, our conclusions are that in view of the circumstances, the public character and utility, the business is lawful, authorized by the legislature, and that it is not a nuisance if properly conducted. It may, however, be carried on in such a manner as to unnecessarily affect and injure others, in which case it would become a nuisance. If we are correct in this view the question of negligence was involved in the case and should have been submitted to the jury. As we have seen, time, place and circumstances have an important bearing upon the question. A person may negligently select an improper place for the establishment of his business. That which would be proper and tolerated in one locality would not be in another. Negligence may also exist in the construction as well as in the management and operation. Each person should conduct his business with the best approved apparatus, with such skill and care as experienced and prudent persons may possess in order that he may do his neighbor as little harm as possible. People v. Sands, 1 Johns., 78-88.

We do not understand it to be claimed that the defendant was guilty of maintaining a public nuisance. Or that it is chargeable with any fault or negligence in the selection of the locality in which it erected its works. It is claimed that they were con

N. Y. STATE REP., VOL. XXXIII.

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tructed of the best material according to the best known plans and operated with the highest degree of skill and care. For twenty years they were operated without complaint. The plaintiff subsequent to the location of the defendant purchased the adjacent property and took up her residence thereon. It is true that she claimed to be affected from the odors that came from the naptha tank constructed after she became a resident there. It is possible that the defendant negligently located its tank in an improper place, but that question was not submitted to the jury. Neither was the question as to whether the odor proceeding from the entire gas works constituted a nuisance. It was also true that there was some evidence tending to show that the plaintiff's health had been affected. She testified that on some occasions she had been affected with nausea, but the question as to whether the works affected the health of the public or of the plaintiff was not submitted. On the contrary it was expressly taken from the jury by the instruction to which the exception was taken, in which the court stated that it would be a nuisance "whether it affected the health of the plaintiff and her family or not."

Thus far we have proceeded upon the theory that the business was lawful, proper and reasonable, and was not a nuisance if properly managed and conducted, and that consequently the question of negligence was involved. But we are also inclined to the view that the business is authorized by the legislature and is for that reason protected unless negligence may be shown. As we have seen, the business is of a public nature and utility, subject to the control of the legislature, and all individuals living upon the lines of its pipes may demand and enforce service therefrom. It was authorized to acquire land by purchase on which to erect its works. It is true the legislature has not expressly designated any particular lot or parcel of land upon which its works should be erected. The selection of the place was left to the company, and in making its selection it was doubtless bound to take into consideration the nature of the business and the surrounding locality, and so locate as to produce as little harm to others as possible. As we have seen, no complaint has been made in reference to the selection of the locality that was made by the defendant in 1860. The anthority to manufacture and supply gas for lighting the streets, public and private buildings of the village of Port Jervis is express, and if it is conducted in a proper place, with the most approved apparatus, with the utmost skill and care, and without the escape of odors that are not inseparable from such manufacture, there can be no liability for consequential injury to others. The learned general term was of the opinion that the case of Cogswell v. 1 he New York, New Haven & Hartford Railroad Company, supra, held adversely to this view, but we do not so understand that case. The New York & New Haven Railroad Company had purchased a lot adjacent to the plaintiff's dwelling and had erected thereon an engine house and coal bins for the use of its roads. The engine-house was designed to accommodate eleven locomotives and had eleven smoke stacks extending above the

roof to about the height of the third story window of plaintiff's house. The coal bins were unprovided with covers to prevent the dust from the coal stored therein from passing into and upon the plaintiff's dwelling. The smoke, gases, soot and cinders from the smoke stacks and the dust from the coal bins when loading and unloading the coal produced the damage complained of. The facts found clearly established negligence. The court, it is true, held that in that case the defendant was not protected by any authority that it had from the legislature, there being no express authority for the selection of the lot on which this engine-house was constructed, and that the selection made was an improper one. Our views are fully in accord with the principles decided in that

case.

In the case of Heeg v. Licht, 80 N. Y., 579, the defendant had constructed upon his premises a powder magazine in which he kept stored a quantity of powder which without apparent cause exploded, damaging the plaintiff's building. It was held that the plaintiff could recover without showing carelessness or negligence. Miller, J., in delivering the opinion of the court says: The fact that the magazine was liable to such a contingency which could not be guarded against or averted by the greatest degree of care and vigilance evinces its dangerous character, and might in some localities render it a private nuisance. In such a case the rule which exonerates a party engaged in a lawful business when free from negligence has no application." The rule we have contended for is thus recognized and conceded. There is a distinction between an action for a nuisance in respect to an act producing a material injury to property and one in respect to an act producing personal discomfort. This difference is clearly pointed out in the case of St. Helens Smelting Co. v. Tipping, supra.

We have already shown that any business which endangers the safety or health of others is a common nuisance and must give way for the public good, and that in such negligence was not involved. The keeping of gun powder may not constitute a nuisance per se; that depends upon the locality and quantity. A thimbleful might not be dangerous, whilst fifty barrels full might be. It thus becomes a question of fact as to whether it is danerous, and if it is found to be then it is a nuisance per se. The court very properly distinguished this case from those in which the business engaged in is lawful and not dangerous, which in and of itself is not a nuisance when properly conducted, but may become such by the negligent manner in which it is carried on.

The claim that the defendant in order to be brought within the protection of the statute must have the right of eminent domain, and acquire the land upon which its works are constructed by proceedings to condemn, is not sustained by any well considered case. What difference can it make whether the land is acquired by voluntary purchase or by proceedings to condemn? It is the business which is expressly authorized by the statute, and in order to carry it on the right to acquire land on which to conduct it is given. As we have already shown, no claim has been made that the defendant's works were improperly

located, and it is consequently not apparent how the question of location can deprive it of the protection of the statute. It is true that a railroad corporation is given the right of eminent domain and may acquire lands for the purposes of its incorporation by proceedings to condemn, but in order to institute such proceedings it must be shown that they are unable to agree upon the purchase thereof. If they can agree, then the proceedings. cannot be instituted. Can it be that such a company would be liable for the maintaining of a nuisance by reason of the noise, jar and smoke of its passing trains, because it has acquired the right of way by voluntary purchase instead of by proceedings to condemn? We think not. The answer would be that it makes no difference how the company acquired the title to the land upon which it was operating its road.

The defendant's business is of a public nature and utility. If it is a nuisance per se, and without the protection of the statute, an individual may procure it to be enjoined and thus drive it from place to place, whilst another individual living upon the line of its mains may compel the company by mandamus to proceed with its business and supply his residence with illuminating gas, thus producing a condition in which the company would be liable if it did, and would also be liable if it did not.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Judgment affirmed, with costs.

All concur, except FOLLETT, Ch. J., and HAIGHT, J., who dissent.

FRANK W. ELLWOOD, Resp't, v. THE CITY OF ROCHESTER et al., App'lts.'

(Court of Appeals, Second Division, Filed October 7, 1890.)

MUNICIPAL CORPORATIONS--ASSESSMENTS.

An ordinance directing an assessment designated the portion of the city which the common council deemed would be benefited by the improvement, and commanded the commissioners to make assessments on all the lots in said portion as nearly as may be to the advantage which each should be deemed to acquire. The commissioners divided the territory into two districts, one as receiving a special and one a general benefit, and assessed the first a certain sum per foot without regard to value, and the latter by a percentage on the value of the property. Held, that the commissioners were not authorized to make such division, and that thereby plaintiff's property, which was in the district determined to be specially benefited, was increased, and the assessment was illegal.

APPEAL from an order and judgment of the general term of the supreme court, fifth department, affirming that portion of a judgment entered upon the report of a referee which vacated and set aside an assessment against plaintiff's property.

Henry J. Sullivan, for app'lts; Oscar Craig, for resp't.

PARKER, J.-This action is addressed to the equitable jurisdiction of the court, for the purpose of securing the removal of an apparent lien on plaintiff's land and a cloud upon his title 'Affirming 6 N. Y. State Rep., 132.

growing out of proceedings taken to open a street in the city of Rochester which resulted in an assessment for special benefits of which plaintiff complains.

The general term in affirming the judgment rendered in favor of the plaintiff have so thoroughly discussed the questions involved as to render it unnecessary for this court to do more than briefly state the ground which requires an affirmance of the judgment.

The common council, pursuant to the requirements of $ 170 and 172 of the revised city charter, chapter 14, Laws of 1880, in the ordinance directing the assessment, designated the portion of the city which they deemed would be benefited by the improvement, and commanded the commissioners of assessment "to make an assessment upon all the lots and parcels of land and houses within the portion or part of said city so designated of the said amount of expenses in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire by the making of said improvement."

Upon the commissioners, therefore, devolved the duty merely of making the assessment within the territory designated in proportion to the benefits to be derived from the improvement.

They were bound to assume that every separate piece of real estate derived some benefit and advantage, for the common council had so determined. And they were without authority to modify such determination. Hassen v. City of Rochester, 65 N. Y., 516; 67 id., 528.

But the commissioners, in disregard of the determination of the common council that all of the lands embraced within the desig nated limits would be specially benefited by the improvement, proceeded to divide the territory into two districts, one of which they decided would receive a special benefit from such improvement and the other a general benefit. The sub-district deemed especially benefited, they assessed by apportioning to and upon each lot a sum per foot front, without reference to the value of the buildings or improvements thereon. The amount of the assessment upon the sub-district deemed generally benefited they placed thereon by a general assessment by percentages on the real property therein, taking the valuations from the last assessment roll for general city and county taxes, making changes of value in accordance with their judgment, and placing different percentages upon the various streets, having reference to their location with respect to the improvement. The referee has so found and the general term has approved the finding. The effect of such unauthorized action was to contract the area of special benefits as determined by the common council. Within the lines prescribed by that body the commissioners arbitrarily established another line, and beyond its confines they determined there were no special benefits, but only general benefits, and upon which they proceeded to make an assessment by a totally different rule than that adopted in the sub-district which they decided to be specially benefited.

Plaintiff's lands were situate in the sub-district which the commissioners arbitrarily determined would derive special advantage as against the residue of the designated territory.

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