By the Court, Bronson, Ch. J.
It is a rule of the common law that a man should so use his own as not to hurt another; and therefore if one carry on a lawful trade or business in such a manner as to prove a nuisance to his neighbor, he must answer in damages. There are many cases in the books where this doctrine has been applied; and among the number are those where a man erects a smith’s-forge, swine-sty, lime-kiln, privy, or tallow-furnace so near the dwelling-house of another as to render it unfit for habitation. (Bradley v. Gill, Lutw. 29; Aldred’s case, 9 Coke, 58; Jones v. Powell, Hutton, 135; Morley v. Pragnell, Cro. Car. 510.) It is not necessary to a right of action that the owner should have been driven from his dwelling: it is enough that the enjoyment of life arid property has been rendered uncomfortable. (Per Lord Mansfield, in Rex v. White, 1 Burr. 337.) Although the manufacturing of steam engine boilers is a lawful business, it was carried on in such a manner in this case as to make it a great annoyance to the plaintiff; and she is undoubtedly entitled to redress by action. If the suit had been against Messrs. Jagger & Co., the immediate actors in the wrong, the right to recover would have been quite clear. But whether the defendant is liable is a more difficult question.
It is said that the defendant is liable, because he was the owner of the shop in which the wrong was done; and we are referred to the case of Bush v. Steinman, (1 B. & P. 404,) where the owner of a house, who had contracted with a surveyor to put it in repair for a stipulated sum of money, was held answerable to a third person who had suffered an injury in consequence of the improper act of one of the workmen in making the repairs, although the workman was neither the servant, nor under the control of the owner of the house. That case has been seriously, and I am inclined to think, justly questioned in England. (Laugher v. Pointer, (5 B. & C. 547.) But it is not now necessary to inquire whether it can be sup ported; for there was not there, as there was here, a tenant in possession of the property; and the repairs were made by, and for the immediate benefit of the owner. When one erects a nuisance, he is answerable for the continuance of it, as well as for the original wrong. And this is so not only where he has demised the property to another with the nuisance upon it, and reserved a rent; (Rosewell v. Prior, 12 Mod. 635, 1 Ld. Ray., 713, and 2 Salk. 460, S. C.,) but where the erection was made upon the land of another, and he has no right to enter for the purpose of removing it. (Thompson v. Gibson, 7 Meeson & Welsby, 456.) The continuance is a new nuisance ; (per Sewall, J., in Staple v. Spring, 10 Mass. 74.) And the party cannot excuse himself by saying it is not in his power to redress the wrong. He must find out some way of putting an end to the injury. But none of the cases go far enough to aid the plaintiff, unless the defendant can be regarded as the author of the nuisance. He did not manufacture the engine boilers, nor were they made for him. But the jury have found that he let the shop for the purpose of having the boilers manufactured there ; and if he knew that it would prove a nuisance to the plaintiff, I think the action may be sustained. One who demises his property for the purpose of having it used in such a way as must prove offensive to others, may himself be treated as the author of the mischief. We held at the last term, that a man who had rented a tenement for the purpose of having it kept as a bawdy house, and derived an increased rent from that mode of using the property, might be indicted and punished for keeping the house. (The People v. Erwin, ante, p. 129.) We think this both good law and good morals. In that case, however, the letting was for a purpose unlawful and wicked, in itself, while here the thing to be done was in itself both innocent and lawful. It could only become a nuisance under special circumstances. For that reason I think the instruction to the jury should have been modified by the additional inquiry, whether, from the nature of the business or otherwise, the defendant knew, or had reason to believe, that the making of steam engine boilers in his shop would be likely to prove injurious to the plaintiff. The defendant had carrier, on his business as a blacksmith in the shop, without any annoyance to the plaintiff; and he may have supposed that the making of the boilers would prove equally inoffensive. He cannot be justly charged with the wrong which was actually committed by others, who were not in his employment, unless he knew, or had reason to believe, that he was letting the property for a use which must prove injurious to the plaintiff.
It was clearly wrong to allow the witness to express an opinion as to the amount of damage. (Norman v. Wells, 17 Wend. 136, 161.) It was the business of the witness to state facts; and of the jury to assess the damages.
The jury assessed the damages at a sum beyond the amount laid in the declaration ; and the plaintiff, instead of remitting the excess, as should have been done, and taking judgment for the residue, has entered a judgment for the whole amount of damages found by the jury. This is error. (Curtiss v. Lawrence, 17 John. 111; Dox v. Dey, 3 Wend. 356; Hoblins v. Kimble, 1 Bulst. 49; Cheveley v. Morris, 2 W. Black. 1300; 1 Chit. Pl. 372, ed. of ’37.) The plaintiff relies on the case of Jackson v. Covert, (5 Wend. 139,) but it does not touch the question. The point discussed there, though not necessarily decided, was, whether on appeal by the defendant from the judgment of a justice, the common pleas can give judgment for a sum exceeding the jurisdiction of the justice’s court. Not a word was said about a judgment for damages beyond the amount laid in the declaration; and clearly the court did not intend to depart from the settled law on that subject.
Judgment reversed.
See The Mayor, &c. of New-York v. Bailey, (2 Denlo, 433, 443, 446,) per Walworth, caancellor, and Hand, senator.