Farrell v. New York Steam Co.

The evidence shows that, when the wind is in the east, some cinders and soot from the smokestacks of the building belonging to the defendant fall upon plaintiff’s premises; that occasionally the occupants of said premises are somewhat disturbed by noises made by the iron shutters of the furnace on defendant’s premises, and by the unloading of coal belonging to defendant; that foul ■odors are, to a greater or less extent, produced by the defendant’s pouring water on heated ashes; and that more or less heat comes from the boilers belonging to and used by the defendant. But the evidence does not show that any of the above-mentioned things were caused by the negligence of the defendant, or that, taken altogether, they amount to a nuisance, or materially, lessen plaintiff’s beneficial enjoyment of his property. In the respects above mentioned, this case is unlike Cogswell v. Railroad Co., 103 N. Y. 10 , 8 N. E. 537 , Bohan v. Light Co., 122 N. Y. 18 , 25 N. E. 246 , and Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 317 , 2 Sup. Ct. 719 , in which cases it was held that the acts complained of were nuisances. The defendant is engaged in a lawful business. In the language of the court of appeals in Booth v. Railroad Co., 140 N. Y. 280 , 35 N. E. 592 , while the protection of property is one of the great reasons for government, it is the equal protection to all that the law seeks to procure. The rule governing the rights of adjacent landowners in the use of their property seeks an adjustment of conflicting interests through a reconciliation by compromise, each surrendering something of his absolute freedom in order that both may live. To prevent the defendant from using its lot.as it is using it, at the instance of the plaintiff, would not be a compromise between existing rights, but an extinguishment of the rights of the defendant for the

Complaint dismissed without costs.