#### ATLAS J. DARGAN *vs.*JAMES W. WADDILL.

A stable in a town is nol, like a slaughter pen or a hog style, necessarily or *¡¡rima facie*a nuisance. But if it be so built, so kept, or so used, as to destroy the comfort of persons owning and occupying adjoining premises and impairing their value as places of habitation, it does thereby become a nuisance.

If the adjacent proprietors be annoyed by it in any manner, which could be avoided, it becomes an actionable nuisance, though a stable in itself be a convenient and lawful erection.

Appeal from the Superior Court of Law of Anson County, at the Fall Term, 1848, his Honor Judge Pearson presiding.

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, &c., 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 the year 1839, purchased a dwelling house and lot, situate on one of the main streets in Wadesboro’, *245and being the north-west corner lot, of the square immediately west of the Court House. The square, commencing on the street in front of the Court House, 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 Court House, and being the North-east 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 an Hotel.

The lot, between the plaintff’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 store-houses and shops for Mechanicsf 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 18-11, 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 str-ble at the South-west corner of the lot. fifty feet long and wideenough fortwo rowsof stable. Thestablewas within three feet of the line along side 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 *246lot, and also built upon it a small log- 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 smoke house

The plaintiff married Mrs. Bates in 1S41, and resided afterwards with her in the said dwelling house. The defendant’s stable was completed and put in use on the 1st of 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, wras very much annoyed by it. Some evidence was offered tending to show, that, before the writ issued, a disagreeable smell, arising from the defendants stables, could be perceived in the house of the plaintiff in damp weather, when the wind was blow*, ing from the South to the house, and that, although the defendant had a privy on his other lot, man}' 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 after 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 an 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 *247does damage to bis neighbor to some extent. It. is damage *absque*injuria. A stable differs from a slaughter-pen, tan-yard, or hog-pen,,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 filth 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 defendant. Motion for new trial for error in the charge, which was refused. Judgment, and the plaintiff appealed to the Supreme Court.

*Strange,*lor the plaintiff.

*P. TL Winston*and *Iredell,*for the defendant.

Ruffin, C. J.

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 sty, necessarily and *prima facie*a nuisance. There must be places in 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 comfort of persons owning and occupying adjoining.premises and impair their value as places of hab. itation, stables do thereby becpme nuisances. They are *248not necessarily so ; but they may become so, and we think that of the defendant was in 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 in. convenience 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. Bui 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 the 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 *action*able 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 neighbourhood. That case is cited and approved by Chief Baron Corny ns. *Com. Dig. Action on the case for a nuisance,*A-\and, indeed, the principle is in itself so rea*249sonable that every one must admit it, If'’that be true of a black smith’s shop, because the noise of the hapnmers at unseasonable times deprived a person of his jest, it must be much worse from the stamping of fifty horses on hoards 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 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 de* stroy 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