I am unable to agree with either the opinion, to which I shall refer as the majority *Page 23 opinion, or the concurring opinion of Judge Blake, and I am especially opposed to the rule announced in the majority opinion and the overruling of our decisions, for the reason that I feel the conclusion reached in the majority opinion is contrary to the long-established rule in this state, which rule I believe to be supported by reason and the almost universal holdings of all other courts and text writers.
I may say at the outset that I have no fault to find with the rule announced in the majority opinion as applied to injunctive relief, and I may say further at this time that the only case cited in the majority opinion to sustain the rule is Ebur v.Alloy Metal Wire Co., 304 Pa. 177, 155 A. 280, a case in which only injunctive relief was asked, or, in other words, it was sought to enjoin the operation of a plant. It was not an action for damages, as is the instant case.
I doubt if it will be possible to find any authority, and certainly no convincing authority, wherein the rule as to damages is different from that announced by this court in the cases to which I shall hereinafter refer, which rule I believe justified the trial court in allowing damages to respondent in this case, under the facts found by the trial court.
The majority opinion contains a correct statement of the facts, so far as it goes, but I feel that there should be added thereto certain facts as found by the court in finding No. 15. This finding is amply supported by the evidence, and the majority opinion does not state otherwise. One of the assignments of error is based upon this finding, which states:
"The court finds from a preponderance of all the evidence that an appreciable and substantial quantity of dust reaches the plaintiff's property from the defendant's plant and that this quantity is sufficient to produce an unpleasant and uncomfortable situation on *Page 24 the premises during a considerable part of the time. This dust, possessing the characteristics previously described, permeates the house and out-buildings whether the windows and doors are closed or not; it tends to adhere to the surfaces which it reaches if even slightly moistened, because of its propensity for setting or scaling. This commonly occurs upon the sides of the buildings or personal property out of doors, and upon foliage, especially if there is any dew, and tends to change their appearance. It causes these articles to assume a grayish color, rather unnatural and unattractive. It interferes with household affairs, such as the washing and drying of clothes, and increases the frequency with which the house and its contents must be cleaned and dusted. If the wind is in such direction that it is carrying the dust directly from the plant to the plaintiff's property, the amount of dust deposited inside the home is such that by the time the interior of the home is cleaned and dusted, it is ready to be gone over again. The deposit of dust makes painting difficult and decreases the life of the paint. Itdamages the roof and shortens the life of the roof. If removed from the surfaces by the elements or by human labor, it is renewed by further deposits with sufficient frequency so that it may be said that it is usually present in some degree. Although harmless to, it is also noticeable upon the persons of the occupants of the plaintiff's premises, causing an unpleasant sensation of uncleanliness. The evidence establishes the propensity of the dust for thus affecting individuals andinjuring property upon plaintiff's premises. The court finds that a normal, ordinary individual, such as the plaintiff, is subject to substantial inconvenience and discomfort by the repeated and recurring discharges of dust upon the plaintiff's premises by the defendant." (Italics mine.)
The record sustains each and every part of the above finding, and does not sustain appellant's contention that the damage was trivial and of no material consequence. The evidence certainly does not fairly preponderate against this finding, and it cannot and should *Page 25 not be disturbed. Tutewiler v. Shannon, 8 Wash. 2d 23,111 P.2d 215.
Error is also assigned upon the giving of finding of fact No. 16, wherein the court found:
"That on account of the discomfort, annoyance, inconvenience,and damage suffered by the plaintiff as a result of the dust emanating from the defendant's plant during the period of two years prior to the commencement of this action, to the time of trial, the plaintiff has been damaged in the sum of $500.00." (Italics mine.)
I am of the opinion that the facts sustain finding No. 16.
It may be conceded that it is difficult in this kind of a case to calculate, in terms of dollars and cents, and with any degree of precision, the damages which respondent may have suffered on account of personal discomfort, annoyance, and inconvenience caused by this dust condition. Any finding of such an item of general damages must necessarily, to a certain extent, be arbitrary. The court fixed respondent's damages at five hundred dollars, after a consideration of all the facts and circumstances disclosed by the evidence in the case, and on the theory that the damages must be compensating and not punitive. Matters of this kind obviously must rest, to a great extent, in the sound discretion of the trial judge. I am of the opinion that the trial court did not abuse its discretion in this case.
I now desire to discuss our own cases covering situations such as that here presented. In these cases I believe a rule has been announced and followed which justifies the conclusions and judgment of the trial court. Reference will also be made to some outside authority.
In the case of Hardin v. Olympic Portland Cement Co.,89 Wash. 320, 154 P. 450, we considered the question of whether or not one who operated a cement *Page 26 plant must respond in damages to one who alleged and proved that
"In the process of the manufacture and in the handling and disposing of the cement, noxious fumes and gases and particles of cement materials and cement were thrown out from the plant and carried by the prevailing winds in, over, and upon respondents' premises, penetrating the dwelling house and rooms, and injuring and destroying vegetation, and that respondents' premises are no longer desirable, comfortable, or valuable as residence property; that they have been greatly depreciated in value, and that, by reason of the things alleged in the complaint, this depreciation is permanent."
In holding the company liable, although there was no showing of negligence in the manner of the operation of its plant, we stated:
"No one has a right, however, to pursue a lawful business, if thereby he injures his neighbor . . . without compensating such for the damages actually sustained. . . . In such case, when the injury and damage are established, the measure thereof should be that most beneficial to the injured party, as he is entitled to have the benefit and enjoyment of his property intact."
The rule of liability in this state for cases of this type was clearly stated by this court in Bartel v. Ridgefield Lbr. Co.,131 Wash. 183, 229 P. 306, where, after referring to the cases of Smith v. St. Paul, M. M.R. Co., 39 Wash. 355, 81 P. 840;Farnandis v. Great Northern R. Co., 41 Wash. 486, 84 P. 18;Mitchell v. Lea Lbr. Co., 43 Wash. 195, 86 P. 405; Woodardv. West Side Mill Co., 43 Wash. 308, 86 P. 579; DeKay v.North Yakima Valley R. Co., 71 Wash. 648, 129 P. 574, and other cases and authority, and after a careful consideration given to the whole problem, the following rule was announced: *Page 27
"The rule governing in the foregoing and many other cases is not that one may use his own property as he sees fit, so long as he uses it in the usual manner and without negligence, but that one may put his property to any use he sees fit, so long as he does not thereby materially damage someone else or his property, and that negligence is not the sole test of responsibility. Where a trade or business is carried on in such manner as to materially interfere with the reasonable and comfortable enjoyment byanother of his property or which occasions material injury to the property itself, a wrong is done for which an action for damages will lie, without regard to the locality where such business is carried on and notwithstanding the business be entirely lawful, and notwithstanding the best and most approved appliances and methods may be used in the construction and management of the business." (Italics mine.)
I am clearly of the opinion that, in the instant case under the rule of the Bartel case, supra, a wrong has been done for which an action for damages will lie. The trial court found, and, as I have said, such finding is amply supported by the evidence, that respondent, as a normal, ordinary individual, has suffered substantial inconvenience and discomfort by the repeated and recurring discharges of dust upon his premises. This, in my opinion, establishes a basis for appellant's liability.
The rule announced in the Bartel case has never been repudiated. Not only has it remained the law of this state, but the rule therein announced has been reaffirmed by subsequent decisions, particularly by Mattson v. Defiance Lbr. Co.,154 Wash. 503, 282 P. 848, and Weller v. Snoqualmie Falls Lbr.Co., 155 Wash. 526, 285 P. 446.
Appellant seeks to distinguish the instant case from the above cited cases, on the ground that in each of those cases there was shown to have been a material *Page 28 physical injury to the property, whereas it is contended in the instant case that recovery is sought solely for the interference with respondent's personal comfort and enjoyment of his home disconnected from any injury to the premises as such.
It is not entirely correct to say, as appellant does all through its brief, that there is no showing of any damage to respondent's premises. It is true that in its memorandum opinion the trial court stated that no recovery would be allowed for damage to respondent's freehold interest, because there was no showing of depreciation in its market value for sale or rental purposes. But no finding of fact to this effect was made, and an express finding was made (finding No. 15) that this deposit of dust made painting difficult and decreased the life of paint, that it damaged the roof and shortened the life thereof, and that the evidence established the propensity of the dust for affecting individuals and injuring property upon respondent's premises.
I am not of the opinion, therefore, that the trial court granted recovery based solely upon a consideration of respondent's personal discomfort, annoyance, and inconvenience, without any regard for damage done to his property. Nevertheless I shall assume that appellant's contention is correct, and shall discuss the question raised thereby.
It will be noted that the rule in the Bartel case is stated in the alternative:
"Where a trade or business is carried on in such manner as to materially interfere with the reasonable and comfortable enjoyment by another of his property or which occasions material injury to the property itself, a wrong is done for which an action for damages will lie." (Italics mine.) *Page 29
However, in the Bartel case the court found that the plaintiff's property had been materially damaged, and therefore the language used in the above quoted rule was broader in scope than necessary for the purpose of that decision. Likewise, in theMattson and Weller cases, supra, it was found that damage had been done to the properties of the respective plaintiffs. I have discovered no case in this state squarely involving the question of recovery for personal inconvenience dissociated with any injury to property. However, I call attention to Rem. Rev. Stat., § 944 [P.C. § 8232], which provides that an action for damages because of a nuisance "may be brought by any person whose property is injuriously affected or whose personal enjoyment islessened by the nuisance." (Italics mine.) It would seem that under this statute there is no question but that respondent is entitled to recover for his personal inconvenience and discomfort. No mention is made of the above section in either the majority or concurring opinion.
Furthermore, it seems to be quite firmly established in other jurisdictions that recovery will be permitted in this class of cases for personal discomfort unattended by property depreciation.
The supreme court of the United States, in the case ofBaltimore Potomac R. Co. v. Fifth Baptist Church,108 U.S. 317, 27 L. Ed. 739, 2 S. Ct. 719, in considering this question, stated:
"Mere depreciation of the property was not the only element for consideration. That might, indeed, be entirely disregarded. The plaintiff was entitled to recover because of the inconvenience and discomfort caused to the congregation assembled, thus necessarily tending to destroy the use of the building for the purposes for which it was erected and dedicated. The property might not be depreciated in its salable or market value, if the building had been entirely closed *Page 30 for those purposes by the noise, smoke, and odors of the defendant shops. It might then, perhaps, have brought in the market as great a price to be used for some other purpose. But, as the court below very properly said to the jury, the congregation had the same right to the comfortable enjoyment of its house for church purposes that a private gentleman has to the comfortable enjoyment of his own house, and it is the discomfort and annoyance in its use for those purposes which is the primary consideration in allowing damages. As with a blow on the face, there may be no arithmetical rule for the estimate of damages. There is, however, an injury, the extent of which the jury may measure."
The following statement of the rule is found in Judson v. LosAngeles Suburban Gas Co., 157 Cal. 168, 106 P. 581, 26 L.R.A. (N.S.) 183:
"The fact that respondent proved no damage to the dwelling house or herbage on his land nor to the rental, or vendible value of the property, does not prevent the court from awarding damages. In the very nature of things the amount of detriment sustained is not susceptible of exact pecuniary computation. It is for the court to say what sum of money the plaintiff should receive in view of the discomfort or annoyance to which he has been subjected. (Wood on Nuisances, Secs. 563, 866; Tuebner v.Cal. St. Ry. Co., 66 Cal. 175, [4 P. 1162]; Gavigan v.Atlantic etc. Co., 186 Pa. St. 604, [40 A. 834]; Berger v.Minneapolis, etc. Co., 60 Minn. 296, [62 N.W. 336]; Hockaday v.Wortham, 22 Tex. Civ. App. 419, [54 S.W. 1094])."
See, also, Oklahoma City v. Tytenicz, 171 Okla. 519,43 P.2d 747.
It would seem there were both logic and justice in this rule. One whose occupancy of his own dwelling house is rendered uncomfortable suffers in just as real a sense as one whose occupancy is rendered impossible. The difference is one of degree only. Damages are more readily and accurately calculable in the latter *Page 31 case, but the difficulty of assessing damages in monetary terms in the former case is not a valid reason for denying their existence.
While, as I have stated, the first part of the rule announced in the Bartel case may not have been necessary to the decision in that case and the other cases referred to, it was, in my opinion, a correct statement of a legal principle, which was amply supported by authority, and which I believe the cases referred to recognized. I am of the opinion, therefore, that respondent's damage was substantial, and was of a type for which the law gives redress, under the rule announced in the Bartel case.
It is no defense to this action that appellant's business was being conducted in substantially the same manner, with substantially the same effect upon respondent's property, long before respondent acquired that property and lived thereon. We stated in the Bartel case, supra:
"It is said, however, that, when appellants bought their property and moved on to it, the respondent's mill was in operation in substantially the same manner as now, and that they, having come to the nuisance, may not recover. We cannot support this doctrine, nor is it supported by the authorities. In Bredev. Minnesota Crushed Stone Co., supra, [143 Minn. 374,173 N.W. 805, 6 A.L.R. 1092], discussing this question, the court said:
"`The fact that many of the plaintiffs acquired their property after defendant began to operate its quarry is of no particular importance. But little is now left of the doctrine under which a person coming to a nuisance had no right to complain of it.'"
See, also, Susquehanna Fertilizer Co. v. Malone, 73 Md. 268,20 A. 900, 25 Am. St. 595, 9 L.R.A. 737; North American CementCorp. v. Price, 164 Md. 234, 164 A. 545. *Page 32
The Bartel case, supra, and the other authorities cited, absolutely refuse to recognize the rule upon which the majority opinion is based.
Appellant states that respondent contended in the lower court that the operation of appellant's plant is a public nuisance. Appellant then admits, for the sake of argument only, that such operation constitutes a nuisance, on account of resulting material annoyance and inconvenience to Powell and the general public, and that to that extent the nuisance is public. Appellant then states that, if this be so, respondent cannot recover, since he has shown no special injury to himself, different from that, if any, suffered by the general public.
I am of the opinion that it is unnecessary to decide whether or not the operation of appellant's cement plant, because of the dust condition resulting therefrom, constitutes a public nuisance, because our statute provides that private persons may maintain civil actions for public nuisances if they are specially injurious to such individual. Rem. Rev. Stat., § 9921 [P.C. § 9131-75]. This seems to be the universally accepted rule, even in the absence of statute. It must therefore be admitted that, even if the operation of appellant's plant constitutes a public nuisance, it is also a private nuisance as to respondent, if he has proved that he has suffered special injury, distinct from any injury which he, as a member of the public, might suffer from the invasion of public rights. I am of the opinion, therefore, that the public nuisance aspect of appellant's operations is entirely irrelevant to the question of respondent's right to recover.
Appellant, in support of its contention, argues that every resident of the town of Concrete is subject to inconvenience and discomfort in the same degree as respondent, and that therefore respondent is not specially *Page 33 injured. I am unable to follow appellant in this contention. The trial court found, and the evidence amply supports such finding, that, in being denied the comfortable enjoyment of his own home for personal residence purposes, respondent has been damaged in the sum of five hundred dollars. I am clearly of the opinion that the personal discomfort, annoyance, and inconvenience which respondent has suffered in the occupancy of his own premises because of the dust condition prevailing in and about those premises, is certainly an injury peculiar to himself, differing in kind from that suffered by the public generally.
In the case of Wilcox v. Henry, 35 Wash. 591, 77 P. 1055, an action was brought by a resident in the neigborhood to enjoin the defendant from continuing to operate a slaughter house in such a manner as to emit noxious odors therefrom, to the injury of plaintiff and other residents of the neighborhood. The court, after holding that the defendant's operations constituted a public nuisance, upheld plaintiff's right to injunctive relief, against practically the same argument as that made by appellant in the instant case. In the cited case, it appeared that the residents generally in the neighborhood of this slaughter house suffered from the offensive odors which were permitted to emanate from it. Nevertheless we held that, to the extent which the nuisance infringed upon the plaintiff's right to the comfortable enjoyment of his own premises, it caused him special injury from which he was entitled to relief. The distinction between the public and the private character of a nuisance is illustrated in the cited case, by a quotation appearing therein from Wood, Nuisances (3d ed.), § 669:
"`By common injury is meant an injury of the same kind and character, and such as naturally and necessarily *Page 34 arises from a given cause, but not necessarily similar in degree, or equal in amount. If the injury is the same in kind to all, it is a common injury, although one may actually be injured or damaged more than another. To illustrate, we will take the case of a slaughter house erected upon a public street. To all who come within the sphere of its operation or effects, it is a nuisance, and offends the senses by its noxious smells. It is a common nuisance in such locality, and in its general effects produces a common injury. But to those living upon the street and within its immediate sphere, it is both a common and a private nuisance. Common in its general effects, but private in its special effects upon those living there. To the public generally it produces no injury except such as is common to all; but to those owning property in its neighborhood, or residing there, it produces a special injury, in that it detracts from the enjoyment of their habitations, produces intolerable physical discomforts, and diminishes the value of their premises for the purposes to which they have been devoted.'"
The same author, in § 671, further states:
"So, too, in the case of a noxious trade upon a highway, but away from habitations, so long as every person sustains a common injury only therefrom as by being annoyed by its offensive and unwholesome smells, it is a purely public injury; but if its effects extend to the dwellings or places of business of any persons to such an extent as to render their occupancy materially uncomfortable, then it becomes a private nuisance to those whose dwellings or places of business are so affected, and they may have their action therefor, although there are many persons who are thus affected, and the result will be to promote a multitude of suits."
I am of the opinion that the citation last above set out constitutes the rule in this state, and is contrary to the conclusion reached in the concurring opinion.
While appellant has raised two questions not discussed by the majority or concurring opinion, it does *Page 35 not appear necessary to discuss those questions in this opinion, in view of the grounds upon which the majority and concurring opinions are based. However, I may say that I am not in accord with the contention of appellant that the action is barred by the statute of limitations. I think this question is settled contrary to appellant's contention by the case of Weller v. SnoqualmieFalls Lbr. Co., 155 Wash. 526, 285 P. 446. Neither can I agree that the court erred in entering judgment for costs in favor of respondent.
For the reasons herein assigned, I am of the opinion that the judgment of the trial court is right and should be affirmed.