This was in case for erecting stables so near the dwelling-house of the plaintiff as, by the noise of the horses and the smell of the litter, etc., to render the plaintiff's house uncomfortable to live in, and thereby much impair its value. The plaintiff proved that his wife, then Mrs. Bates, about 1839, purchased a (245) dwelling-house and lot, situate on one of the main streets in Wadesboro, and being the northwest corner lot of the square immediately west of the courthouse. The square, *Page 179 commencing on the street in front of the courthouse, runs 120 yards on Wade Street and 140 yards south on Green Street, and the plaintiff's lot had a front of 40 yards on Wade Street and extended back about 70 yards. The dwelling-house purchased by the plaintiff's wife fronted on Wade Street, and had been erected and used for a dwelling for thirty years or more. Mrs. Bates had the house moved some five or six yards back so as to have a small front yard, and refitted it and made some additions.
The defendant, in 1841, purchased the house and lot situate immediately opposite the courthouse, and being the northeast corner lot of the square above described. It extended 40 yards on Wade Street and 70 yards on Green Street. The defendant refitted and made many additions to the house, so as to fit it for a hotel.
The lot between the plaintiff's and the defendant's lots, which was 40 yards on Wade Street and extended back 70 yards, had several small buildings on it in front, which had been used as storehouses and shops for mechanics, and in the rear there was a small stable, fit for one or two horses, which had been used for some fifteen years, without a plank floor. In 1841 the defendant purchased this middle lot, removed the small houses in front, with a design of using the lot by erecting a stable suitable for his hotel. Mrs. Bates notified the defendant of her objections to his putting stables so near her dwelling, but the defendant, notwithstanding, erected a large frame stable at the southwest corner of the lot, 50 feet long and wide enough for two rows of stable. The stable was within three feet of the line alongside of the plaintiff's garden, and near a small stable and privy of the plaintiff. The distance from the back piazza of the plaintiff's dwelling to the nearest corner of the stable was 33 yards. The balance of the lot the defendant used as a stable or horse lot, and also built upon it a small log (246) stable fit for two horses between the large stable and the plaintiff's dwelling, the nearest corner being about 12 yards from the plaintiff's piazza, near his kitchen and smokehouse.
The plaintiff married Mrs. Bates in 1841, and resided afterwards with her in the said dwelling-house. The defendant's stable was completed and put in use on 1 March. The large stable had a plank floor, and could hold fifty horses. It was proved that the noise from the tramping of the horses, particularly on public occasions, could be heard by all residing on this square and the adjoining squares, night and day, and rendered the dwelling-house of the plaintiff uncomfortable and disagreeable, and that Mrs. Dargan, who was a nervous lady and in delicate health, was very much annoyed by it. Some evidence *Page 180 was offered tending to show that, before the writ issued, a disagreeable smell, arising from the defendant's stables, could be perceived in the house of the plaintiff in damp weather, when the wind was blowing from the south to the house, and that, although the defendant had a privy on his other lot, many persons used the stable for that purpose. Some evidence was offered tending to show that, before the writ issued, the defendant kept a stallion in the small stable, but not until the last of the summer, if at all, until the writ issued. The witnesses considered the value of the plaintiff's house, as a dwelling, impaired by the erection of the stables so near to it.
The court charged that a stable, like a kitchen or a privy, being a necessary appendage to a hotel, the defendant, in the reasonable exercise of his rights, was at liberty to erect the stables, taking the evidence as to the location of the several buildings to be true, provided he did so in such a manner as to cause no unnecessary damage to the plaintiff. A man is not required to forego the reasonable use of his own, although by using it he does damage to his neighbor to some extent. (247) It is damage absque injuria. A stable differs from a slaughter-pen, tanyard, or hogpen, because the latter are unnecessary and unfit for towns and should be put in remote and out-of-the-way places. If the defendant, before the writ issued, by neglecting to have his stables cleansed at proper times, had suffered the fifth to accumulate and become noisome, the plaintiff would be entitled to recover. So the defendant had no right to use the little stable, which was so near the plaintiff's dwelling, as a stand for his stallion, and if he did so, before this writ was issued, the plaintiff would be entitled to a verdict.
Verdict for the defendant. Motion for new trial for error in the charge, which was refused. Judgment, and the plaintiff appealed to the Supreme Court. It was, we think, a fair inference for the jury from the instructions, as a whole, that the defendant's stable was not a nuisance to the plaintiff, because the act of the defendant in building it was but a reasonable use of his own in erecting an useful appendage to his hotel, and therefore the damage to the plaintiff was not unnecessary. Thus regarded, the Court does not concur in the instruction. It is true that a stable in a town is not, like a slaughter-house or a stye, necessarily and prima facie a nuisance. There must be places in *Page 181 towns for keeping the horses of the people living in them or resorting thither; and if they do not annoy others, they are both harmless and useful erections. But, on the contrary, if they be so built, so kept or so used as to destroy the comforts of persons owning and occupying adjoining premises and impair their value as places of habitation, stables do thereby become nuisances. They are not (necessarily) so; but they may become so, and we think that of the defendant was in (248) fact so. Therefore, the instructions, as applied to this particular case, were calculated, we think, to mislead the jury. In respect to the filth and smells which might or did arise from it, the Court entirely concurs with the directions to the jury; and we suppose the jury must have thought that no serious inconvenience was sustained by the plaintiff's family from that cause. For in that respect a stable may be likened to a privy, which decency and convenience render indispensable. But the proprietor cannot protect himself under that plea if, by neglecting to cleanse it, he allows it to become offensive in the adjacent houses or grounds. So care must be taken to prevent a stable from incommoding the neighbors from the ordure deposited in it. But if the adjacent proprietors be annoyed by it in any other manner, which could be avoided, it in like manner becomes an actionable nuisance, though in itself a stable be a convenient and lawful erection. This stable, it appears, was a wooden building, with a plank floor so constructed that the stamping of the horses on it created such a noise day and night as could be heard, not only throughout the square on which it and the plaintiff's house were situated, but on all adjoining squares, and, in the opinion of the witnesses, impaired the value of the plaintiff's house as a dwelling. That, we think, amounts in law to such a disturbance and annoyance as to be an actionable nuisance. In Bradley v. Gill, 1 Lut., 69, it was held that building a smith's forge so near another's house and making such noises with the hammers that the owners could not sleep, was a nuisance, for which an action would lie; for, though the trade of a smith be a necessary one, it must be carried on so as not to injure others in the neighborhood. That case is cited and approved by Chief Baron Comyns, Com. Dig., Action on the case for a nuisance, A; and, indeed, the principle is in itself so reasonable that every one must admit it. If that be (249) true of a blacksmith's shop, because the noise of the hammers at unseasonable times deprived a person of his rest, it must be much worse from the stamping of fifty horses on boards laid on sleepers, so as to make a loud sound. It is obvious that the effect complained of must have arisen from the structure of the *Page 182 building. The defendant might have built his stable with an earthen floor, and thus avoided this annoyance. If it be said that probably a greater evil might have arisen from the greater difficulty of cleansing the stable, the answer is that the defendant had his choice at his risk, for, in truth, he had no right to erect a nuisance in either way, whether by noisome smells or disturbing noises. He cannot excuse one nuisance by urging that, if not committed in that form it might have been worse in another. But, in reality, neither was unavoidable. For, if the situation was such that the horses ought not to stand on the ground, the defendant might have paved the floor, or laid the boards on the earth, or used such as were so thick as not to sound under the hoofs of the horses so loud as to disturb or destroy the repose of the neighboring inhabitants and thereby lessen the value of their property. It appeared affirmatively, then, that the defendant had done "unnecessary damage" to the plaintiff; and we think it would have been proper so to instruct the jury. Therefore, in order that the inquiry may be submitted to them with proper explanations of the rights and duties of the parties, there must be a venire de novo.
Of course, it will be understood that an action will not lie in such a case for noises that are barely audible and only occasional, but only for such as really annoy the plaintiff's family and would annoy persons generally who might dwell in the house, so as to impair their rest and comfort materially.
PER CURIAM. Judgment accordingly.
Cited: Hyatt v. Myers, 73 N.C. 237; Privett v. Whitaker, ib., 556;Thomason v. R. R., 142 N.C. 313.
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