#### PETTIT v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, General Term, Third Department.

July 14, 1894.)

Nuisance—Pumping Station Near Highway. ,

A pumping station maintained toy a railroad company near a highway-is not a nuisance, though the smoke from the engine used in pumping sometimes settles down on the highway and frightens horses.

Appeal from circuit court, G-reene county.

Action by Emeline Pettit against the New York Central & Hudson River Railroad Company. There, was a judgment of nonsuit,, and plaintiff appeals.

Affirmed.

*1138This action was brought to recover for personal injuries sustained by the plaintiff on the 21st day of March, 1892, by being thrown from a wagon while the horses attached thereto were running, the horses having been frightened by the smoke emitted from the smokestack of a stationary engine used and operated by the defendant for pumping water from a creek about one-half mile westerly from the station of said railroad, at Coxsackie, Greene county, N. Y., which water is carried through conduits to a watering tank at or near said railroad station, and is there used for watering engines.

The decision of Mr. Justice Fursman on granting the nonsuit is as follows:

This question is not altogether free from difficulty. I foresaw yesterday that it must arise from the direction which the evidence was taking under the examination of counsel. Whenever a franchise is granted by the legislature to erect a structure or to carry on a business, the erection of the structure or the carrying on of the business is not and cannot of itself be unlawful or a nuisance. It may become a nuisance by reason of the manner of its operation or of its construction, or by reason of its location, under certain circumstances. The structure being thus authorized by the legislature, and it being therefore legal, and not a nuisance of itself, everything that is necessarily and naturally incident to its operation is embraced within the franchise, and is therefore not a nuisance, although it may operate as a nuisance and damage to the injury of some. In such a case the law says it is damnum absque injuria,—an injury from which damages do not flow. Now, this structure was a lawful structure, and was authorized by the legislature, because it is within the franchise granted by the general railroad act. It is a necessary incident to the operation of the railroad that they should take water, and, where they cannot obtain it by gravity, they can take it by operation of pumps. They can operate pumps by steam, and use the coal which generates and discharges smoke, and of course generates and discharges steam, and which is necessarily accompanied by considerable noise. These things are lawful, because they are naturally and necessarily incident to the operation of the machine, which itself is authorized by the franchise granted by the legislature. If, however, this machine is so located that its operation necessarily becomes a nuisance to others, when its location might ■have been such that it need not and would not become a nuisance to others. 1 think the law is that it may be declared a nuisance by reason of such location, and damages may be recovered by one who receives injuries or damages ¡peculiar to himself.

Now, there are two difficulties, it is claimed, in the way of recovery in this case. The first is that the evidence does not show this pump and the operation of it to be a public nuisance. The proof as to the location (and :so far it is in accordance with the allegation in the complaint) is that it •was erected alongside of a highway (a much frequented highway); that it emitted smoke and steam, and made some noise. The injury, so far as the plaintiff was concerned, is wholly attributed in the proof to the smoke emu-ting out of this pumping machine, and descending upon and across the highway and its vicinity. There is no pretense or claim in the proof that the • emission of steam or the noise of machinery had anything to do with the •frightening of these horses, Now, the proof is that it is only when the wind is in a certain quarter that the smoke crosses the highway at this point; .and there is no proof whether the wind is in that quarter and the smoke therefore comes across the highway once a day, once a week, or once a year. It did on this occasion, the wind being northerly, and the proof being that, when the wind was northerly, the smoke crossed the highway at this point. Now, is it to be said that.a structure is a nuisance, because it is so located that, at some particular time and under some particular circumstances, which are not proved to be frequent or common or usual, a certain result may flow, such as in this case?

Another objection raised is that the complaint does not allege that this machine was originally improperly located,—located so that, by reason of its location, it became a nuisance, or that, by reason of its location (its opera*1139tian in this location), it is maintained as a nuisance. I think the complaint is defective in this particular. I do not think that upon either of these grounds the plaintiff has maintained a cause of action on the proof, and I, although reluctantly, grant a nonsuit.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

N. A. Calkins, for appellant.

Ashbel Green (F. L. Westbrook, of counsel), for respondent.

PER CURIAM.

We think the judgment should be affirmed, for the reasons stated by the learned trial judge in granting the motion for a nonsuit; and see Flinn v. Railroad Co., 142 N. Y. 11, 36 N. E. 1046. The trial judge was correct in holding that the evidence did not show that the pump and the operation of it were a public nuisance. We think, on the evidence, he was not. required to submit the question as to its being such to the jury; hence the case of Morton v. Mayor, etc., 140 N. Y. 207, 35 N. E. 490, and kindred cases cited by appellant, do not apply. All that was shown was that, when the wind blew in a certain direction and in certain conditions of the atmosphere, the smoke from the defendant’s pump building settled down on the highway. It did not appear how often this happened. If defendant’s building and its operation were a nuisance, no railroad company could run its trains along or near a highway or through a public street, because, when the wind should blow in a certain direction and in certain conditions of the atmosphere, the smoke from its engines would settle down, as it often does, on the street. For the same reason, a manufacturing establishment could not be located on or near a highway or street. Morton v. Mayor, etc., supra, was a case where the city placed a building with pumping machinery on its premises, adjoining those of plaintiff, and it was shown that the noise and vibration produced by the operation of the machinery rendered plaintiff's premises untenable. The other cases cited by plaintiff are of the same character. They were all cases of undoubted nuisances, the effect of which, in each instance, was to practically deprive the complaining party of his property. Those authorities were very different from this case, where all that appears is that, when the wind is in a certain direction, occasionally (how often is not shown) the smoke from the defendant’s structure settled down on the highway. The judgment should be affirmed, with costs. All concur.