Document MJGNj0EJVoNgQwr463eGMKzKx

436 GEORGE D. CLAYTON to comply with terms of the law; nor because there are no appliances^ to prevent the prohibited fumes or smoke. .^ Because the law can regulate a business to the extent of closiffgsp expedient to familiarize oneself with cases brought to test. Esser$j'|llf earliest cases involving smoke and other pollutants of the air were t$gfg "nuisance" clause where there was no specific ordinance prohibiting j|il| or condition that was obnoxious. One of the earliest cases settled on thei"nil clause was People v. Detroit White Lead Works, 82 Michigan 471,.4^1 (1890). A large paint factory operating in the midst of a populousgijtfi was prosecuted for "consistently producing odors, smoke and soot of s'ubfl character, and to such an extent that they produce headache, nauseajt^ and other pains and aches injurious to health." The corporation and S|ls| were convicted of violating a Detroit ordinance prohibiting any. fafe|| allowing any nuisance on the premises within the limits of Detroit, e.ye|| the business was carried on in a careful manner and nothing was done not a reasonable and necessary incident to the business. The court said 3i$ ever such a business becomes a nuisance, it must give way to the righy public, and the owners thereof must either devise some means tos^| nuisance or must remove or cease the business. 'It may not be cont| the injury of the health of those living in its vicinity." Note that the ' 1890. On the other hand, contrary to the above ruling, in several cases|ii private nuisanceg...the..bJisinesses..involved~-wera--found---not"guilty-oh;% because the court said they were using the best-known modernappm prevent smoke and fumes, as in Downs v. Greer Beatty Clay Co.> 29jdMra 328, 58 A.L.R. 1226 (1905); and Price v. Carey Mfg. Co., 310 Pa. 557J 849 (1933). . : ,wjf Glucose Refining Co. v. City of Chicago, 138 Fed. 209, 215 ('1901 settled on the basis that smoke and fumes constitute a nuisance, as w(@k western Laundry v. Des Moines, 239 U. S. 486, 60 L ed. 396, 401-. (191,5m is often quoted and used in settling other cases to this day. In its decisi'o|K laundry case the court said, "Nor is there any valid Federal Constitution jection in the fact that the regulation may require the discontinuance ofjbe^propertv or subj ect .the-Occupant.-todarge -expense-in-combK uigAv " terms.ofitheJaw oriQrdinance.". - Many interesting questions have arisen in connection withi couw several of-which-are of import to industry: ."s 1. How much damage must be shown by the person oT-.personsJiriiiiiii^ --2;--D6es-acoming-tT3'theTnjisaHce""lnfluence a decision? 3. Where there is more than one source of pollution, must plaintnjL damage from each one specifically? :: In reply to the first, actual damage need not be shown. The "rea'-onaijjWs of the ordinance is usually the deciding factor. The courts have been uieju-u? AIR POLLUTION 437 ISKKmng to the t' rue meaning of the word - damage," having ruled against SRpjf in a number of cases because they held that the resulting condition So^rdamage" but rather an "inconvenience." It is. interesting to note that ||||*1 instances in Missouri, Ohio, and Minnesota, where decisions were made fji.vorlqf' the industry or business, it. was only on the grounds that the city or ^^55jbringing suit did not have the power to do so. More and more in i|||l|ars. this has been changed by the "enabling legislation" enacted by the Eppitfe'reference to question 2, generally the "right of habitation" , takes ^Sjln'ce. over the right of industry or trade. Where population growth apaBBaffia.nuisance, the decisions of the courts were: ". . . it is the duty of those ^^^^e.-to.put an end to it" (Mahone v. Autry -[1951] 55 N. Mex. Ill, 227, nS&BgpL". . . one cannot erect a nuisance upon his land adjoining, yacant by another, and thus measurably control the uses to which his |^^PseJand may in the future be subjected" (City of Rochester v. Charlotte jspapik--- AVVjt)y.-reference to question 3, instances in which one source was not responl||!|c&nqugh pollution to constitute a nuisance, but the total contribution of gSofimore sources of pollution was a nuisance, were adjudged cases of joint vpmty.SRecent rulings have held those responsible for the various contributions B^Mlidtitort feasors" or at least not in position to object if the court divides SSmBlge's between them as best it can. In another case (Permanente Metals Mns^/KsfoT-GGA--9-[-l-946] )--wher.e..the. court found it was not possible to n^tiiat!cibetween the damage arising from injury attributable to the defendant, gBm^gerjwhich had another origin, the trier of the facts "should be left to m^^^^^the evidence the best possible estimate." In Learned v. Castle, 78 |ajM',y4g&iF>.,,. a wrongdoer who contributes to a damage, cannot escape, entirely ^M|aBi3)broportional contribution to the result cannot.be accurately measured." B. PRESENT STATUS Iplfoination of the state statutes shows that all states have the requisite "ngage in air-pollution control activities orto.delegate such authority fer political units if these do not already possess such power. Many '^^^^Sqt^rhaye~.the-authoci.tyti.tQ Jmplementviairjppllu^ipnnpnograms, pgMjqpe states it was first necessary to pass "enabling' legislation" to Bmp-' clarify the authority of the local governments- In California, Jersey, Pennsylvania, and Wisconsin either, sorp^o.r.. alK.counties fifenpaMhoriaed to .conduct airtppllution control programs.. New York has ^^ItKBFr^t'o'tmVmF'CtWHSh'ips')"------------ -----------------------------------------the past and present legislative data reveals the trend for ^^Hl||er,.areas to be under one air-pollution control-authority. Many feTeg^M,p^bodies have submitted bills designed to create state-wide air[l^oi||ohtrpl:Programs; to date very few such bills have become, law. Los