#### Frey, Appellant, *v.*The Queen City Paper Co., Appellee.

*65(No. 435

Decided March 29, 1946.)

*Mr. Michael E. Norris,*for appellant.

*Mr. Robert A. Prince*and *Messrs. Shipman & Ship-man,*for appellee.

Hornbeck, P. J.

This is an appeal on questions of law from a judgment for defendant after the trial judge had sustained a demurrer at the conclusion of plaintiff’s case.

The action originally proceeded as one for an injunction restraining the continuance of a nuisance and for property damages and damages hy reason of personal inconvenience. Upon the trial of the cause plaintiff withdrew his prayer for injunction and the cause proceeded on his claim for damages. The nuisance of which plaintiff complained and upon which he predicated his cause of action was the operation, on and after March *4,*1943, by defendant of a furnace and heating plant, installed November 15,1942, which plant it was claimed was fed by a certain type of very fine coal which was forced or drawn into the furnace by a fan or blower and particles of coal, both burned and unburned, by reason of this forced operation, were released and drawn into the outside atmosphere by way *66of a smokestack on a building of defendant company.

The amended petition averred and the evidence tended to support the claim that particles of matter emanating from the stack of defendant company’s plant were blown over and upon the premises of which plaintiff was joint owner and onto the roof, spouting, window sills and roof channels of the buildings on such premises; that the fly ashjpenetrated window ledges and entered the living room and sleeping quarters of plaintiff’s home; that the sediment was deposited on the porches, walks, curbs and gutters; that it fell upon the persons and clothing of plaintiff and members of his family; that it was blown and carried into the home and accumulated on the* furniture, floors, carpets and linoleum; that it was deposited on the ground and in the grass and vegetation of plaintiff’s premises; that it prevented the growing of garden produce; and that it had reduced the value of plaintiff’s real estate.

Plaintiff’s evidence consisted not only of testimony of an expert witness who had made chemical tests of material which he testified came from one source and which he stated an analysis showed to be fly ash, but of plaintiff, his wife and neighbors who had observed the conditions about plaintiff’s premises. Among other testimony, it developed that plaintiff had placed storm windows on one side of his house and they had not been taken off or raised for years because of the soot from the stack on defendant’s plant; that it was necessary to sweep the porches and walks several times a day; that the residue would accumulate to a depth of one and one-half inches or more in places during a period of a few hours; that the fly ash was present in the grass and because of the ash the earth had become brittle as one would walk over it; that the ash was in all parts of the house including the dining room and *67bed rooms, and had even penetrated into food; that it was unbearable to sit on plaintiff’s porch without something on the head; and that plaintiff at one time during the period involved had carted away 10 wheelbarrow loads consisting mostly of .the fly ash. The only testimony as to the extent of the pecuniary damage to the realty was proffered by a real estate agent who said that the sale value of the property had been, by reason of the deposit upon the land, reduced from 15 to 20 per cent, but there was-no proof of the market value of the land at any time prior to the acts complained of or during the period covered by the amended petition.

The trial' judge sustained the demurrer upon the - theory that there was no measuring stick by which he could determine the extent of plaintiff’s damage.

As we understand, the claim of defendant in this court is that defendant does not question the right of plaintiff to recover damages if it could be determined that the material, the deposit of which it is claimed caused the damages, had come from the stack of defendant’s plant. This position is taken largely because it developed that there was a railroad some two squares from plaintiff’s premises and there was alsp a switch engine which moved upon the premises of defendant and it appeared that these locomotives would discharge material like that- which came from defendant’s stack.

It is true that Williams, the expert, stated that a locomotive does send out fly ash and material that would resemble the material in the containers. He stated also that the similarity in shape of the deposits indicated that they came from a common source and that the locomotive would throw off fly ash only when operated under full draft. Without respect to this *68testimony alone, plaintiff and other of his witnesses stated that none of the ill effects which they had noted by reason of the deposit upon the lot and the buildings, outside and inside, had been caused from any deposit coming from locomotives.

The effect of the testimony offered by plaintiff is such that, giving to it that favorable intendment which was required upon the demurrer, it clearly tended to prove that the deposit of fly ash of which complaint is made in the amended petition came from the stack of defendant’s plant. The rule well recognized is that upon motion to direct a verdict, which is analogous to the demurrer in this case, the evidence must be given the most favorable interpretation in behalf of plaintiff and will not support a judgment against him unless he has failed to provide evidence tending to establish an essential element of his case and failed to prove any fact from which a reasonable inference tending to prove that element may be drawn. *Pope, Admx.,*v. *Mudge,*108 Ohio St., 192, 140 N. E., 501; *Babbitt*v. *Say, Admr.,*120 Ohio St., 177, 165 N. E., 721; *Cleveland Ry. Co.*v. *Krofta,*125 Ohio St., 126, 180 N. E., 641; *Martin, Jr.,*v. *Heintz,*126 Ohio St., 227, 184 *N.*E., 852.

The judgment entry recites that the court finds:

“First, that any inconvenience of detriment which may have occurred to affect the property of the plaintiff was removed before the hearing of the case; second, that the plaintiff failed to establish any damages. ’ ’

The first ground is not supported by the record because at least two witnesses brought evidence into court, on the day they testified, that the deposit was still being thrown upon the premises of plaintiff. However, if that statement in the entry was in accord with *69the record it would not support the sustaining of the demurrer because the period of time covered by the averments of the amended petition would extend from March 5,1943, the beginning of the complaint of plaintiff, to the date when the amended petition was filed. Had it been the purpose of plaintiff to rely upon a condition existing up to and subsisting at the time of trial a supplemental petition should have been filed.

Upon the second part of the finding in the judgment entry, we might support the conclusion of the trial judge that there was insufficient proof of the measure of damages to the real estate as such and likewise to the furniture or household effects of the plaintiff. Such a finding as to the household effects is supported by *Beiser*v. *Grever & Twaite Co.,*8 N. P., 398, 11 O. D. (N. P.), 444, upon which the trial judge relied.

However, there is a third element of damage pleaded, which the evidence tended to support and which, in our judgment, should have been considered and determined in favor of the plaintiff upon the case made when the demurrer w^s interposed. This element is the damage by way of physical discomfort to the plaintiff in the enjoyment of his home and premises.

We are not without authority in Ohio on this question. In *McClung*v. *North Bend Coal & Coke Co.,*9 C. C., 259, 6 C. D., 243, second paragraph of the syllabus, the court said:

*“A*private nuisance may be created by casting either smoke, soot, or gases upon the property of another to his physical discomfort or injury while in lawful possession thereof, or to the substantial injury of vegetation, trees, or buildings thereon. ’ *’*

In *Graham & Wagner, Inc.,*v. *Ridge,*41 Ohio App., 288, 179 N. E., 693, the action, was restricted, to damages for injury to property and health occasioned by *70the creation and maintenance of a private nuisance. Judge Slierick, at pages 292 and 293, quoting from 20 Ruling Case Law, 470, said:

“In assessing the damages for the maintenance of a nuisance in the neighborhood of a residence or dwelling, the jury may look to such injury as occurs to the use of the property as a residence, taking into consideration the discomfort and annoyance which the owner has suffered from the nuisance.”

Indeed that case affords some support for the claim that the plaintiff here had a right to have the trial court consider the extent of his ,-damage to his real property although there was no express testimony as to the measure of this damage in dollars and cents. See page 293 of the opinion.

But, the nuisance in the instant case being continuing and one that can be abated, the measure of damages is not the decrease in value of the fee but the impaired value of the use of the premises.

In *Dieringer*v. *Wehrman,*12 W. L. B., 222, 9 Dec. Rep., 355, the action was by the owners who were not the occupants. It was there held the measure of damages would be whatever they sustained in the diminution of rents, in the failure to rent the property, and for injury to the property or the cost of repairs.

In *City of Mansfield*v. *Hunt,*19 C. C., 488, at page 497, 10 C. D., 567, at page 573, it is said:

“In a case for injury to the comfortable enjoyment of property, by the owner and occupant thereof, no precise rule for ascertaining the damage can be given, as, in the very nature of things, the subject matter affected is not susceptible of exact measurement; therefore the jury must be left to say what in their judgment the plaintiff ought to have in money, and what the defendant ought to pay, in view of the discomfort *71or annoyance to which the plaintiff and his family have been subjected by the nuisance * ***

In *Ohio Stock Food Co.*v. *Gintling,*22 Ohio App., 82, 153 N. E., 341, third paragraph of the syllabus, the court says:

“The owner of a homestead is entitled to damages for annoyances and inconveniences suffered by him which have been occasioned by a nuisance, though he shows no damage to the dwelling house or improvements upon said property.”

Outside Ohio the weight of authority supports the right of the plaintiff in this case to have the court pass upon the extent of his damage upon the evidence which he presented. See 39 American Jurisprudence, 398, Section 136, wherein it is stated:

“The owner of a residence or dwelling house occupied by him as a home is entitled to just compensation for annoyance, discomfort, and inconvenience caused by a nuisance on adjoining property.” Recovery is not limited to damages to plaintiff’s property and its rental value.

In an annotation in 142 A. L. R., 1316, it is said: “The authorities strongly preponderate in support of the doctrine that an occupant of real estate (whether owner or not) may recover damages for personal discomfort, annoyance, etc., resulting to him from a nuisance, in addition to, or separate from, damages suffered in respect of the market value of the premises, or injuries to or destruction of buildings, crops, etc., thereon. ’ ’

Cases are cited from 12 states of the United States, including the base of *Olpp*v. *Hocking Valley Ry. Co.,*22 N. P. (N. S.), 433, 31 O. D. (N. P.), 453.

A leading case is *Judson*v. *Los Angeles Suburban Gas Co.,*157 Cal., 168, 106 P., 581, 26 L. R. A. (N. S.), *72183, which held that, for the nuisance there pleaded, damages may be awarded although it did not appear that the value of the property was depreciated, the rental value impaired, or the health of the occupants injured, and although the discomfort caused is not constant. The damages awarded were for discomfort or annoyance caused in the use of plaintiff’s property. Upon the question of the nature of proof as to the extent of damages it was said in the opinion at page 172:

“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 ixi view of the discomfort or annoyance to which he has been subjected.”

In the *Juclson case,*which was predicated upon a nuisance created by the operation of a gas-manufacturing plant in the creation of smoke, odor and noise interfering with the comfortable enjoyment of plaintiff’s property, it was urged defensively that the main line of an electric railway passed very near plaintiff’s studio and the tracks of two steam railways were within a few hundred feet of his property. The court there said:

“The fact that other sources of possible discomfort to plaintiff existed in the neighborhood of his property is no defense to an action of this kind.” Citing *Robinson*v. *Baugh,*31 Mich., 290.

In *Dauberman*v. *Grant,*198 Cal., 586, 246 P., 319, 48 A. L. R., 1244, the sixth paragraph of the syllabus is:

“In such action [nuisance], it was not necessary to the recovery of damages caused by the nuisance of smoke and soot to prove actual damages to plaintiff’s property. She was entitled to recover for the personal discomfort and annoyance to which she had been sub*73jected and it was a question for the trial court to determine the amount of the compensation which she should receive.”

Without further discussion of the authorities, we are satisfied that upon the state of the record at the conclusion of plaintiff’s case there was sufficient proof of damage in the particulars hereinbefore discussed to require that the court overrule the demurrer to the evidence and to put the defendant upon proof of its defense.

Judgment reversed and cause remanded for new trial.

*Judgment reversed.*

Miller and Wiseman, JJ., concur.