November 8, 1915. The opinion of the Court was delivered by This is an action for damages alleged to have resulted to plaintiff from a nuisance (a fertilizer mixing plant, near plaintiff's residence) and to enjoin the continuance thereof. Defendant moved to strike out certain allegations of the complaint as irrelevant. The motion was granted as to some of them, and refused as to others. Defendant then interposed a demurrer to the complaint, on the ground that it failed to state a cause of action for a private nuisance, which was overruled. At the close of plaintiff's testimony, defendant moved to strike out all testimony tending to prove damages from odors, noise, dust, and sickness caused by odors or dust, and for a nonsuit, on the ground that, if there was any testimony tending to prove a nuisance, it was a public and not a private nuisance. This motion was refused. At the close of all the testimony, defendant moved for direction of the verdict, on the same grounds that it had moved for nonsuit, and that motion was refused. The jury having failed to agree on a verdict, a mistrial was ordered, and defendant appealed, assigning error in each of these rulings. *Page 449
Appellee objects to the consideration of the appeal from the refusal of the Court to strike out certain allegations of the complaint and to grant the motions for nonsuit and direction of the verdict, on the ground that the rulings and orders as to those matters are not appealable, until after final judgment. Ordinarily, that is so, and the objection would be well taken, if the appeal were based solely upon such matters. The reason of the rule is to prevent unnecessary delay in the trial of causes by appeals from interlocutory orders which may have no prejudicial effect upon the final judgment. But, as the order overruling the demurrer is appealable, the reason for the rule does not apply, and it will be better for both parties in the further progress of the case to have these questions decided.
The allegation that plaintiff's mother and sister live with her and suffer as alleged, though not strictly necessary to the statement of plaintiff's cause of action, was not irrelevant thereto, because it tends to show the nature and extent of plaintiff's damages, since she has the right to have them live with her and enjoy the comforts of her home. In a like case, a plaintiff might allege injuries to his wife and children, or the keeper of a hotel or boarding house, to his guests, not to enable him to recover damages for what they suffered, but to show the nature and extent of his own damages.
As the case must go back for trial on the merits, and as any statement or discussion of the testimony by the Court might result prejudicially to one side or the other, it is sufficient to say, with regard to the motions for nonsuit and direction of the verdict, that plaintiff's testimony tended to prove the allegations of her complaint, and defendant's testimony tended to disprove them. Therefore, if the complaint stated a cause of action for a private nuisance, no doubt the learned counsel for defendant will concede that the Court was bound to let the jury decide the issues of fact. *Page 450
The question of paramount importance, then, is: Did the complaint (the material allegations of which will be reported) state a cause of action for a private nuisance? Defendant's contention is, not that the facts alleged are not sufficient to constitute a nuisance, but that, if they constitute a nuisance at all, it is a public nuisance, and, therefore, the complaint is insufficient, because there is no allegation that plaintiff suffered any special or particular injury, differing in kind from that suffered by the public.
To prevent multiplicity of actions, promote justice, and secure the public tranquility, Courts refuse to entertain private actions to remedy purely public nuisances. These may and should be remedied through the public process of indictment. But the Courts recognize the fact that a public nuisance may affect some members of the public in a different manner and inflict upon them injury of a different kind from that suffered by the general public; and, when this is so, it is, as to them, a private nuisance, for which they may have the private remedy of an action. But that which is per se, or prima facie, a public nuisance, is presumed to affect all the public alike, that is, in the same manner, though it may not affect all to the same extent. Therefore, the rule is that when a plaintiff complains of that which is per se, or prima facie, a public nuisance, he must allege some injury to himself differing in kind, and not merely in degree, from that suffered by the general public; and, if he fails to state such injury, he states no cause of action, and this for the reason above stated that the Courts will not allow him to have a private remedy for that which affects all the public alike. The cases cited by appellant were cases in which the things complained of were per se, or prima facie, public nuisances, and, therefore, the rule above stated was held to apply. But the rule does not apply, and there is no reason for its application, when a plaintiff states, as his cause of action, that which is primafacie only a private nuisance, even though it may appear *Page 451 from his complaint that a determinate number of other persons are or may be similarly affected by it, for a nuisance may affect a considerable number of persons in the same manner and yet not be a public nuisance, and, in that event, if the individuals so affected were denied the private remedy of an action, they would be without any remedy at all, because, if it is not a public nuisance, it is not subject to indictment.
Now, clearly, a fertilizer mixing plant is not a "nuisanceper se," that is, a thing which is a nuisance anywhere and under all circumstances. If it is a nuisance at all, it is what is called a "nuisance per accidens," that is, by reason of its location and other circumstances, such as the community in which it is located, or the manner in which it is constructed or conducted. It follows that plaintiff's cause of action is based upon that which is prima facie only a private nuisance, and, therefore, it was not necessary to the sufficiency of her complaint that she should have alleged injury to herself differing in kind from that suffered by others who may have been affected. The complaint will be searched in vain for any allegations of fact which show that the things complained of amount to a public nuisance. The demurrer was, therefore, properly overruled.
Judgment affirmed. *Page 452