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Legal: Pennsylvania Case

This Court concludes that the defendants should be permanently enjoined from using their wood­burning stove.

ORDER AND DECREE NISI

AND NOW, this 6 th day of February 1998, it is hereby ORDERED AND DECREED that the defendants are permanently enjoined from using their wood­burning stove. Plaintiffs' claims for damages, counsel fees and costs are hereby DENIED.

The Decree Nisi will be made final unless exceptions are filed within ten (10) days of the date of this Order.
 

BY THE COURT:

Bernard A. Moore


IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA

CIVIL ACTION ­ EQUITY

JOYCE McGRATH and : NO. 94­03805

MICHAEL SNODGRASS, h/w

vs.

WILLIAM R. DURHAM and BARBARA DURHAM h/w

I. Findings of Fact

ADJUDICATION AND DECREE NISI

1. The plaintiffs in this case, Joyce McGrath and her husband, Michael Snodgrass, live at xxxx, Audubon, Montgomery County, Pennsylvania (Tr. P. 74).

2. The plaintiffs purchased the property located at xxx in Audubon on September 30, 1983.

3. At the time that the plaintiffs purchased their property, they were planning to have children in the future, and therefore liked the fact that the property had a yard that the children could later play in, and also liked the fact that the property was on a cul­de­sac (Tr.p.76).

4. At the time that the plaintiffs purchased their property, they also found attractive the fact that the property had a rear deck upon which they could sit and enjoy the "real nice view out back" (Tr. p.76).

5. After purchasing their property, the plaintiffs did, in fact, have three children: ­Their first child was born on March 10, 1987; their second child was born in August 1988; and their third child was born in June 1993 (Tr. p.80­81).

6. The defendants in this case, William Durham, and his wife, Barbara Durham, live at xxxx in Audubon, Montgomery County, Pennsylvania (Tr. p.15).

7. The defendants purchased their property in 1972 when the house located on that property was brand new (Tr. p.16).

8. The plaintiffs' property located , and the defendants' property located yyyy, each contain approximately one­half acre in size (Tr. p.l9).

9. The plaintiffs' property and the defendants' property abut each other (Tr. p.16).

10. The general relationship of the properties to each other is accurately reflected on the plot plans of xxxx, marked as plaintiffs' Trial Exhibits 9 and 9A (Tr. p.17­18).

11. As the plot plans indicate, xxxx is a cul­de­sac road that dead­ends into Middle School Drive (Tr. p.l8).

12. When the defendants purchased their property, their house came with a properly functioning gas central hot­air heating system (Tr. p.23).

13. This gas central hot­air heating system was the sole heating source provided during the initial construction of the defendants' house (Tr. p.31).

14. During the five year period between 1972­1976, the defendants used their gas central hot­air heating system as the sole means of heating their house (Tr. p.24).

15. The defendants never have had any problems with their gas central heating system, and it is still in working condition (Tr. p.23­24).

16. No one in the defendants' family has allergies to gas or gas heat, and the defendants have admitted that their central gas hot­air heating system could still be used as the sole means of heating their house (Tr. p.24­25).

17. The defendants, however, some time in 1976 purchased a woodburning stove, installed it, and first used it during the fall of 1977 (Tr. p.26).

18. The defendants' wood­burning stove was manufactured in Norway, and therefore was not manufactured to meet any U.S. standards or specifications (Tr. p.37).

19. The defendants' wood­burning stove has never been certified by any United States federal agency (such as the Environmental Protection Agency) for use within the United States (Tr. p.37).

20. Since the defendants' wood­burning stove was first used, the defendants have used it as their primary heating source (Tr. p.28).

21. The defendants are still using the same wood­burning stove now, even though it is more than 20 years old (Tr. p.37).

22. The defendants' wood­burning stove does not have a catalatic converter like other more modern stoves (Tr. p.37).

23. Despite being aware that since approximately 1988 the United States Environmental Protection Agency has begun certifying certain wood­burning stoves for use within the United States, the defendants have not replaced their wood­burning stove with any EPA­certified woodburning stove (Tr. Vol.II p.68­69).

24. Since at least the winter of 1989­1990, the defendants have used their wood­burning stove as their primary heat source during the months of September through April of each year, and sometimes into the; month of May (Tr. p.37­38).

25. Since the winter of 1989­1990, therefore, the defendants have used their wood­burning stove over eight months per year (Tr. p.38).

26. Since at least the winter of 1989­1990, during the months of December through February, the defendants have used their wood­burning stove 24 hours per day every day (Tr. p.38).

27. Since at least the winter of 1989­1990, during the months of November and March, the defendants have used their wood­burning stove daily, although not necessarily 24 hours per day each day (Tr. p.38).

28. It has been a practice of Mr. Durham to "bank" the woodburning stove occasionally before going off to work (Tr. p.44).

29. By "banking" his wood­burning stove, Mr. Durham closes the damper somewhat, thereby slowing the rate of burn, and reducing the amount of wood actually burned (Tr. p.44­45).

30. By his own admission, Mr. Durham's practice of banking his wood­burning stove actually creates more smoke being discharged from his stove (Tr. p.45­46).

31. The defendant's practice of "banking" his wood­burning stove before going to work has the effect of increasing the amount of certain natural air contaminants contained in wood smoke, such as carbon monoxide and particulate matter (Tr. p.384­386) (See also Tr. p.313, 322 where defendants' own expert report refers to the contents of wood smoke as "contaminants").

32. Some of the contents of wood smoke, such as PNAs, are recognized as potential causes of lung cancer (Tr. p.319).

33. One of the other contents of wood smoke, particulate matter, are microscopic particles that are invisible and can enter a person's home from the outside even with the doors and windows shut (Tr. p.259­260).

34. Exposure to carbon monoxide can cause headaches, and exposure to wood smoke generally can produce negative health impacts (Tr. p.258­259).

35. The defendant himself, from his own readings on the subject of wood smoke, acknowledges that inhaling wood smoke can be unfavorable to own's health (Tr. p.68).

36. In particular, the defendant has acknowledged that wood smoke contains small, invisible particles that can be harmful (Tr. p. 68).

37. To enable the defendants to use their wood­burning stove as extensively as they have since at least the winter of 1989­1990, the defendants have received a truck­load delivery of trees approximately once every two years (Tr. Vol.II p.43).

38. Most recently, the defendants received a truck load delivery' of trees in September 1997 (Tr. p.39).

39. The September 1997 truck load delivery of trees is shown in photographs marked as plaintiffs' Exhibits 14 and 15 (Tr. p. 40).

40. There can be as many as 25 trees on a truck, with the trees being as long as 20 feet in length (Tr. p. 42).

41. The trees are off­loaded by crane onto the defendants' driveway, which is located between the plaintiffs' property and the defendants' property (Tr. p.40, 43).

42. Once the trees are off­loaded from the flatbed' truck by crane, the defendants use a chain saw to cut the individual trees into smaller pieces, averaging 12 to 16 inches in length (Tr. p.42; Tr. Vol.II p.46).

43. The chain sawing activity takes approximately 13 to 14 hours (Tr. p.42­43).

44. Once the trees have been chain sawed, the defendants then split the wood, which takes approximately 3 weeks to accomplish (Tr. p.42­43; Tr. Vol.II p.47).

45. Once the wood has been split, the wood is then stacked into piles which can be as high as 7 feet in height (Tr. p.43­44).

46. The wood is stacked between the plaintiffs' property and the defendants' property (Tr. p.44).

47. As part of the defendants, installation of their wood­burning stove, which Mr. Durham did himself, the defendants also installed a vent through their roof which was capped Car. Vol. II p.39­40, and p.60).

48. By capping off the vent of their wood­burning stove, the defendants have acted to cut off the natural rise of wood smoke from their house, and thereby have served to cause the smoke plume to go off sideways, as opposed to upwards, making it easier for the smoke plume to travel down across their roof (Tr. p.255­256).

49. The defendant, Mr. Durham, concedes that at least when the wind is blowing from his property onto the plaintiffs' property, smoke from his wood­burning stove is carried toward the plaintiffs' property (Tr. p.46).

50. Indeed, Mr. Durham has admitted that he personally has seen smoke from his wood­burning stove cross the property line and enter into the airspace above the plaintiffs' property (Tr. p.46).

51. Mr. Durham further has admitted that this has happened on more than one occasion over the years (Tr. p.46).

52. Mrs. Durham likewise has testified that she "assumes" that she has seen smoke from their wood­burning stove cross over onto the plaintiffs' property (Tr. p.72).

53. The plaintiffs also have testified that wood smoke comes from the defendants' property, crosses the property line, and comes onto the plaintiffs' property (Tr. p.223).

54. Plaintiff Joyce McGrath, for example, has testified that there have been times when she has physically seen the smoke "rolling across" her grass from the defendants' property (Tr. p.91­92).

55. Plaintiff Michael Snodgrass similarly has testified that he has seen smoke from the defendants' property "billowing" on the plaintiffs' front yard (Tr. p.222).

56. Plaintiffs have testified, without contradiction, that they have smelled smoke from the defendants' property on their property "quite frequently" (Tr. p.92).

57. According to contemporaneous calendar entries made by plaintiff Joyce McGrath, smoke from the defendants' wood­burning stove has entered onto the plaintiffs' property approximately 140 times during the past two heating seasons, i.e. 1995­1996 and 1996­1997 (Tr. p.104).

58. Likewise, according to a smoke log that­plaintiff Joyce McGrath kept for approximately six­weeks during the period October 1993 through December 1993, smoke came onto the plaintiffs' property from the defendants' use of their wood­burning stove approximately 50% of the time when the plaintiffs were home (Tr. p.ll0).

59. Due to the wood smoke coming from the defendants' property, the plaintiffs have testified, without contradiction, that they are never able to open the windows of their home during the heating season, although they would like to do so on nice days (Tr. p.93, 121).

60. Due to the wood smoke from the defendants' property, the plaintiffs have also testified, without contradiction, that they do not allow their young children to play outside in the front yard when it is smokey (Tr. p.119, and 218­219).

61. Due to the wood smoke coming from the defendants' property, the plaintiffs also have testified, without contradiction, that they are unable to use their rear deck during the heating season (Tr. p.219­220).

62. Even with their doors and windows shut' the plaintiffs have testified, without contradiction, that smoke from the defendants' property enters into their house (Tr. p.90).

63. In particular, the plaintiffs have smelled smoke in various rooms of their house, such as their kitchen, in the office on the second floor, inside their front door, and indeed even in their bedroom (Tr. p.90­91, and 221­222).

64. At times, the odor of smoke has been serious enough in the plaintiffs' bedroom to wake them up during the middle of the night (Tr. p.93 and 221).

65. Occasionally, the smell of smoke is so strong within their house, that they actually think something is burning (Tr. p. 221).

66. Plaintiff Joyce McGrath has testified that, at times, the smoke is so thick that just breathing it is physically painful (Tr. p.123).

67. Both plaintiffs have testified, without contradiction, that inhaling the defendants' wood smoke burns their noses and airways (Tr. p.123­124, 219).

68. Similarly, exposure to the defendants wood smoke irritates the plaintiffs' eyes: plaintiff Joyce McGrath has testified that the smoke stings her eyes: and plaintiff Michael Snodgrass has testified that exposure to the defendants' wood smoke makes his eyes water (Tr. p.124, 219).

69. Plaintiff Joyce McGrath also has testified that inhalation of the defendants' wood smoke has caused her chest pain and headaches upon occasion (Tr. p.124).

70. Due to the ill­effects caused to her health from exposure to the defendants' wood smoke, plaintiff Joyce McGrath has been forced to seek out and receive medical treatment (Tr. p.125).

71. The plaintiffs' children also have been noticed to have hacking coughs at night after exposure to the defendants' wood smoke (Tr. p.124).

72. Apart from the physical harm caused to the plaintiffs from exposure to the defendants' wood smoke, plaintiff Joyce McGrath also has testified that the constant exposure to the defendants' wood smoke has weighed heavily on her mind (Tr. p. 120).

73. Plaintiff Joyce McGrath, for instance, has testified that, during the heating season, when she is returning home from being away, and pulling into her driveway, one of the first things that she thinks about is whether or not she is going to be accosted by the defendants' wood smoke (Tr. p.120.)

74. Similarly, plaintiff Joyce McGrath has testified that she thinks about the possibility of being accosted by the defendants' wood smoke even before she opens the front door to go get the newspaper or to get the mail (Tr. p.119­121).

75. The mental stress caused by the continuing exposure to the defendants' wood smoke has caused Ms. McGrath to have sleepless nights, and has also caused her to seek psychological counseling (Tr. p.122 and 127).

76. Such is the pervasive nature of smoke coming from the defendants' wood­burning stove that the plaintiffs, over the past few years, have been forced to undertake a number of measures in an effort to mitigate the amount of smoke coming onto their property. The plaintiffs have, in this regard: removed hedges from the border of their property that were thought to trap smoke and put in a retaining wall; installed a doubled­sided six­foot fence along the property line between the defendants' property and the plaintiffs' property in an effort to keep the smoke from rolling across the lawn; the plaintiffs have installed a new glass storm door at their front door area; the plaintiffs have installed a new, more airtight, exterior garage door; the plaintiffs have installed a new, more airtight, interior garage door; and the plaintiffs have also been required to finish their basement area so as to give their children a place to play since they cannot play outside frequently during the heating season (Tr. p.128­131, and p.224­226).

77. The plaintiffs also have been forced to buy and install and air cleaner at their front door area, and even with this, more recently have been forced to seal with Scotch tape their front door shut (Tr. p.132­133).

78. Plaintiffs' testimony regarding the nature, extent and character of the smoke coming onto their property from the defendants' property has been corroborated by the testimony of two witnesses, Theresa Conway and Fran Walsh.

79. Theresa Conway, for example, who is plaintiff Joyce McGrath's sister, has testified that during the fall of 1993 she was visiting the plaintiffs' property, and immediately upon getting out of her car in plaintiffs' driveway found that it was so smokey that she "couldn't stand it" (Tr. p.210).

80. During that same instance, when Mrs. Conway got to the plaintiffs' front door and was greeted by plaintiff Joyce McGrath, Mrs. Conway asked: "How can you stand living with this smoke?" (Tr. p.211).

81. Mrs. Conway further testified that during that instance she could smell smoke inside the plaintiffs' front door (Tr. p.211).

82. Because of this experience, and because Mrs. Conway has a young child with asthma, she further has testified that she does not come to visit the plaintiffs at their property because it would be irresponsible of her as a parent to expose her child to the defendants wood smoke (Tr. p.211 and 213).

83. However, on October 30, 1997 (the day she was testifying in Court in this case), Mrs. Conway again visited plaintiff Joyce McGrath so that she could find her way to the Courthouse without getting lost. On that instance, Mrs. Conway again testified that she smelled smoke as soon as she got out of her car in the plaintiffs' driveway, and could likewise smell it inside the plaintiffs' house as well (Tr. p.212).

84. Mrs. Frances Walsh, who lives at 3103 Middle School Road, similarly has testified that she has noticed a smoke odor on the plaintiffs' property when approaching their front door, and can still smell it once inside the front door of plaintiffs' home (Tr. p.192, and 195­196).

85. Mrs. Walsh has noticed this smoke odor frequently when on the plaintiffs' property, probably more than 15 times over the past several years (Tr. p.196).

86. There is no question in her mind but that the smoke is coming from the defendants' property (Tr. p.197).

87. From her own observations, Mrs. Walsh, who is a member of the particular locality where the plaintiffs and defendants reside, has expressly testified that she finds the smoke from the defendants' property to be offensive (Tr. p.199).

88. The defendants themselves have not been on plaintiffs' property or inside the plaintiffs' home since approximately 1989, and therefore are not able to contradict, from their own observations, any of the testimony presented on behalf of the plaintiffs in this case regarding the nature, scope and extent of the wood smoke and odor that has come from the defendants' wood­burning stove and gone onto the plaintiffs' property and into their home (Tr. Vol.II p.70­72).

89. Instead, the defendants have called a former owner of the plaintiffs' property, Linda Cullen, to testify at trial. Among other things Mrs. Cullen testified that during the period November 1978 through the summer of 1980 during which she lived at xxxx, she was never bothered by the defendants' wood smoke (Tr. Vol.II p.27­32).

90. Mrs. Cullen, however, was unable to say how often the defendants used their wood­burning stove during the period of time that she lived at xxxx (Tr. Vol.II p. 28).

91. Particularly since neither Mr. Durham nor Mrs. Durham testified that the nature, scope and extent of their use of the woodburning stove was the same or similar during the years 1978 through 1980, as was their use from 1989 through the present, the testimony of Mrs. Cullen is of no probative value, particularly given that her own testimony is that she had not been physically present on the plaintiffs' property, nor inside their home, for over 17 years (Tr. Vol.II p. 36­37).

92. The defendants also called a neighbor, Pat Mozzillo, who has resided at xxxx for 20 years (Tr. Vol.II p.37).

93. Because Mrs. Mozzillo candidly testified that she has never been on the plaintiffs' property since the plaintiffs moved into the property in September 1983, however, her testimony lacks any probative value regarding the nature, extent and amount of smoke and smoke odor actually entering the plaintiffs' property from the defendants' property (Tr. Vol.II p.19, 23­24).

94. Mrs. Mozzillo also candidly admitted that she frequently socializes with the defendants, and is at their home every couple of weeks, and further has exhibited a bias in favor of the defendants by testifying that she never noticed any wood smoke while on the defendants' property (Tr. Vol.II p.20­21).

95. The defendants also introduced the expert testimony of Allen S. Todd, an industrial hygienist, who purported to testify as to the levels of various contaminants coming from the defendants' wood­burning smoke (Tr. p.292, 305).

96. As pointed out by the plaintiffs' expert meteorologist, Nathan Reiss, Ph.D., however, Mr. Todd's testimony is unreliable due to various flaws in his methodology (Tr. p.248­256).

97. The Court also finds that the nature of the measurements taken by Mr. Todd, i.e. measuring from the defendants' stack­to the defendants' home as opposed to the common property line, are inaccurate and serve to minimize the impact of the emissions falling from the defendants' wood­burning stove, and had Mr. Todd used the correct measurement, the concentrations would have been higher (Tr. p.251­252).

98. In any event, the Court finds that Mr. Todd's testimony largely was irrelevant since proof of exact levels of various contaminants is not required to make out a cause of action for private nuisance or for continuing trespass.

99. The Court does, however, note that Mr. Todd testified that water vapor does not have an odor, and therefore any smoke odor smelled on the plaintiffs' property could not have come from water vapor but rather from other contaminants contained in the defendants' wood smoke (Tr. P.378).

100. Based upon the foregoing, the Court finds as a fact that the defendants have been the legal cause of an invasion of the plaintiffs' private use and enjoyment of their property, which invasion has caused plaintiffs to suffer significant harm, viewed objectively.

101. The Court, moreover, as a factual matter finds that the defendants' conduct has been intentional.

102. In this regard, the Court relies on the testimony from the defendant, Mr. Durham, himself, who has testified that since 1989 he has been receiving complaints from the plaintiffs regarding smoke from his property going onto the plaintiffs' property (Tr. p.52).

103. Specifically, Mr. Durham has admitted that since 1989, he has been told by the plaintiffs that smoke from his wood­burning stove permeates their house, and frequently goes into their front yard (Tr. p.53, 56).

104. Since 1989, he has been told by the plaintiffs that his wood smoke has 'kept the plaintiffs from having their children' play in the front yard, and likewise has been told that the plaintiffs have been unable to use their rear deck when it is smokey (Tr. p.56­57).

105. Likewise, Mr. Durham has admitted that the plaintiffs have told him that they have been unable to sleep at night on occasion due to his wood smoke (Tr. p.57).

106. Since 1989, Mr. Durham further has testified that plaintiffs have told him that his wood smoke has caused them to suffer burning eyes, noses, together with a general irritation of their respiratory tracts (Tr. p.57).

107. Mr. Durham likewise has acknowledged that the plaintiffs have asked him to stop using his wood­burning stove, and that since at least 1989, he has known that the plaintiffs have objected to the smoke from his wood­burning stove coming over onto their property (Tr. p.53).

108. Put somewhat differently, Mr. Durham has also admitted that since 1989, he has known that he did not have the plaintiffs' permission to have smoke from his wood­burning stove cross over the property line and onto the plaintiffs' property (Tr. p.53).

109. Despite this knowledge, Mr. Durham never asked to come over to the plaintiffs' property to see what the smoke and/or smoke odor was like, and he has not refrained from using his wood­burning stove (Tr. Vol.II p.70).

110. The Court further finds as a fact that the defendants' conduct in this case has been unreasonable.

111. In particular, the Court finds that the plaintiffs have suffered significant harm and that it would be practical without undue hardship for the defendants to avoid the continuation of that harm. In this regard, the Court observes that the defendants have admitted that they have a perfectly operating gas central hot­air heating system that is sufficient to heat their home during the winter months (See above); that the defendants also have electric baseboard heat in their basement which works fine (Tr. p.25­26); that the defendants have admitted that any increased cost in again relying solely on gas heat to heat their home during the winter months would not present any financial burden to them (Tr. p.33­36).

112. The Court also observes that the character of the locale does not support the nature and extent of the defendants' use of their wood­ burning stove. In this regard, the Court relies on the undisputed testimony that no one else on xxxx, besides the defendants, has a wood­burning stove (Tr. p.l73; Tr. Vol.II p.69); all of the homes on xxxx have gas central hot­air heat, and all of the other homes on xxx, apart from the defendants' use gas hot­air heat as the sole means of heating their homes (Tr. Vol.II p.24­25).

113. The Court also notes that most people on Middle School Drive do not have wood­burning stoves (Tr. p.l73­174).

114. According to Mr. Durham, the closest neighbor who has a woodburning stove is located at 3103 Middle School Drive (Tr. Vol.II p.53)

115. The Court notes that Mrs. Frances Walsh has testified that she lives at that address, and that while she does have a wood­burning stove, she only uses her stove approximately 12 times a year, and only during the most extremely cold days (Tr. p.198­199).

116. Apart from the property located at 3103 Middle School Drive, the Court notes that neither Mr. Durham nor Mrs. Durham have testified as to any other specific homes, apart from theirs, that have woodburning stoves in the locality.

117. The Court further observes that the defendants have not been able to articulate any particularly convincing reason why they need to continue to use their wood­burning stove; by contrast, the Court observes that the plaintiffs will be forced to move in the event that the Court allows the defendants to continue to use their wood­burning stove as they have in the past (Tr. 134 and 227­228).

118. The Court further observes that the plaintiffs made various efforts since 1989 to resolve the issues between the parties ­before bringing this lawsuit ­ all of which were rejected by the defendants, including an offer by the plaintiffs to pay the defendants' gas heating bills (Tr. 215­216).

119. Based on the foregoing facts, the Court finds that permanent injunctive relief is necessary and appropriate. In this regard, the Court also notes, as a fact, that the defendants "are not willing to accept a partial injunction" (Tr. 10/31/97 p. 62) and that the defendants believe that a partial injunction would present grave enforcement problems (Tr. 10/31/97 at 62­64).

120. For the reasons stated above, the Court further finds as a fact that the plaintiffs have suffered significant "personal annoyance" from the defendants' ongoing use of their woodburning stove.

II. Conclusions ofLaw

A. Liability for Private Nuisance

1. The elements necessary to establish liability for the tort of private nuisance are set forth in Section 822 of the Restatement (Second) of Torts which provides, in pertinent part, as follows:
 

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is ...(A) intentional and unreasonable...


2. Section 822 of the Restatement (Second! of Torts accurately reflects Pennsylvania law regarding the elements necessary to prove the tort of private nuisance. See Waschak v. Moffat, 379 Pa. 441, 109 A.2d 310 (1954) (adopting Secion 822 of the original

Restatement of Torts); Kembel v. Schlegel, 329 Pa.Super. 159, 478 A.2d 11 (1984) (adopting Section 822 of the Restatement (Second) of Torts "as the test to determine the existence of a private nuisance"). See also Karpiak v. Russo, 450 Pa.Super. 471, 676 A.2d 270 (1996) (recognizing that Section 822 of the Restatement (Second) of Torts contains the "authoritative definition of the tort of private nuisance").

3. Under Section 822 of the Restatement (Second) of Torts, the initial element of proof is that the Defendants' conduct is a legal cause of "an invasion of another's interest in the private use and enjoyment of land".

4. As explained in Comment B to Section 821D of the Restatement {Second) of Torts, the "interest in use and enjoyment" includes "the pleasure, comfort, and enjoyment that a person normally derives from the occupancy of land."

5. Indeed, this Court in Sylvestri v. Metallic Finishers, 74 Montg. Co. L.R. 356, 358 (1957) noted that one of the "fundamental rights of citizens" is to the "free enjoyment of pure air to breathe and the comfort and use of their property."

6. In this case, the evidence has established that the defendants' conduct has been a legal cause of an invasion of the plaintiffs' private interest in the use and enjoyment of their land. See Proposed Findings of Fact Nos. 25­88.

7. Apart from establishing that the Defendants, conduct is a legal cause of an invasion of the Plaintiffs' interest in the private use and enjoyment of their property, Plaintiffs also need to establish that the harm caused by the invasion is significant. See Section 821 of the Restatement (second) of Torts.

8. Comment C to Section 821F of the Restatement (Second) of Torts explains what is meant by the term "significant harm" as follows:
 

By significant harm is meant harm of importance, involving more than slight inconvenience or petty annoyance In the case of a private nuisance, there must be a real and appreciable interference with the plaintiffs' use or enjoyment of his land


9. As further explained in Comment D to Section 821F of the Restatement (second) of Torts:
 

the standard for the determination of significant character is the standard of normal persons in the particular locality. If normal persons living in the community would regard the invasion in question as definitely offensive, seriously annoying, or intolerable, then the invasion is significant. . . .


10. In this case, the evidence has established that the harm caused by the defendants' invasion of the plaintiffs' private interest in the use and enjoyment of their land has been significant.`

11. The Court, in particular, is convinced that, judged objectively, there has been a real and appreciable interference with the plaintiffs' use and enjoyment of their property, as opposed to just slight inconvenience or petty annoyance. See Proposed Findings of Fact Nos. 53­88.

12. Apart from establishing an invasion of the Plaintiffs' interest in the private use and enjoyment of their property, and significant harm flowing from that invasion, Plaintiffs also must prove that the Defendants' conduct was intentional and unreasonable.

13. Section 825 of the Restatement (Second) of Tort. explains what constitutes an intentional invasion as that term is used in Section 822. Section 825 provides as follows:
 

An invasion of another's interest in the use and enjoyment of land is intentional if the actors (a) acts for the purpose of causing it, or (b) knows that it is resulting or is substantially certain to result from his conduct.


14. As further explained in Comment C to Section 825 of the Restatement (second) of Torts, to be intentional,
 

an invasion of another's interest in the use and enjoyment of land need not be inspired by malice or ill will on the actor's part toward the other. [Rather] it is the knowledge that the actor has at the time he acts or fails to act that determines whether the invasion resulting from his conduct is intentional He must know that it [the invasion] is resulting or is substantially certain to result from his conduct.


15. From the evidence presented in this case, the Court concludes that the defendants' conduct was intentional. In particular, the evidence has shown that the defendants have known, since at least 1989, that the use of their wood­burning stove results in wood smoke entering on the plaintiffs' property with frequency and at times, even into plaintiffs' home. See Proposed Findings of Fact Nos. 103­110.

16. Section 826 of the Restatement (Second) of Torts further provides guidance as to when an intentional invasion is unreasonable. Section 826, in pertinent part, provides: "An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if (a) the gravity of the harm outweighs the utility of the actor's conduct "

17. Factors to be considered in determining the gravity of harm are stated and explained in Section 827 of the Restatement(Second) of Torts. Section 827 provides as follows:
 

In determining the gravity of the harm from an intentional invasion of another's interest in the useand enjoyment of land, the following factors are important:
 

(a) The extent of the harm involved;

(b) The character of the harm involved;

(c) The social value that the law attaches to the type of use or enjoyment invaded;

(d) The suitability of the particular use or enjoyment invaded to the character of the locality; and

(e) The burden on the person harmed of avoiding the harm.


18. Section 828 of the Restatement (second) of Torts further contains a list of factors that need to be considered in weighing the utility of the conduct. Section 828 provides as follows:
 

In determining the utility of conduct that causes an intentional invasion of another's interest in the use and enjoyment of land, the following factors are important:
 

(a) The social value that the law attaches to the primary purpose of the conduct;

(b) The suitability of the conduct to the character of the locality; and

(c) The impracticability of preventing or avoiding the invasion.


19. Also relevant on the question as to whether or not the Defendants' conduct in this case is unreasonable, is Section 830 of the Restatement {Second) of Torts which provides:
 

An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if the harm is significant and it would be practicable for the actor to avoid the harm in full or in part without undue hardship.


20. Section 830 has been applied and followed by Pennsylvania courts. See, e.g., Noerr v. Lewistown Smelting and Refining. Inc., 60 D. & C. Id. 406 (Mifflin Co. 1973); Evans v. Moffat, 192 Pa.Super. 204, 160 A.2d 465 (1960).

21. Judged under these standards, the defendants' conduct not only has been intentional, but unreasonable as well.

22. In particular, the Court concludes that the gravity of harm suffered by the plaintiffs outweighs the utility of the defendants' conduct.

23. The plaintiffs have suffered, and continue to suffer, serious and pervasive harm to their ability to use and enjoy their residential property and home; the law attaches great social value to this type of use and enjoyment, which is entirely suitable to the character of the residential locality; and the burden on the plaintiffs at this point to avoid the harm ­ moving from a property they love ­ is extreme.

24. By contrast, the utility of the defendants' conduct is minimal at best. Apart from the simple right to use their property as they wish, it is difficult to assign any particular social value to the defendants' use of their wood–burning stove. While this means of heating may save fossil fuels, the resulting pollution of the surrounding air – at least under the facts of this–case – more than offset that possible benefit. The defendants are the only residents on xxx, moreover, who possess a wood–burning stove, and therefore – again at least under the facts of this case – the suitability of the defendants' conduct to the character of the locality is not great. Finally, and perhaps most importantly, the defendants are able to avoid the invasion of plaintiffs use and enjoyment of their land without enduring hardship. They possess a functioning central gas heating system which is perfectly capable of heating their house during the winter months; indeed, the defendants in the past have relied upon this means of heat as their sole heating source. While use of this means of heat may be somewhat more expensive, the defendants have stipulated that the increased cost of again using gas heat as their sole heat source would not cause any burden or hardship.

25. While no cases have been found in Pennsylvania that squarely deal with the application of private nuisance law in the context of an action between residential landowners involving a wood burning stove, this Court has found one other case that is squarely on point. See Thomsen v. Greve, 550 N.W. 2d 49 (Neb. App. 1996).

26. As explained in the Thomsen decision, Nebraska, like Pennsylvania, had adopted Section 822 of the Restatement (Second, of Torts as the law governing private nuisance actions. 550 N.W. 2d at 748.

27. In affirming the trial court's decision finding that the smoke emitted from a neighbor's wood burning stove constituted a private nuisance, the Nebraska Court of Appeals, in weighing the factors set forth in Sections 827 and 828 of the Restatement (Second) of Torts, initially remarked that:
 

We have no trouble concluding that. at least in our society. to have the use and enjoyment of one' 8 home interfered with by smoke. odor. and similar attacks Upon one's senses is a serious harm. The social value of allowing people to enjoy their homes is areas. and persons subjected to odor or smoke cannot avoid such harm except by moving. One should not be required to close windows to avoid such harm.


Id. at 751 (Emphasis added).

28. Continuing its analysis, the Nebraska Court of Appeals explained as follows:
 

On the other hand, aside from the simple right to use their property as they wish, it is difficult to assign any particular social value to the Greves' [Defendants'] wood burning stove. This method of heating does save on fossil fuels, but assuming that the stove used by the Greves emits foulsmelling smoke, society is certainly blessed if only a few people avail themselves of the opportunity to save fuel by using such stoves. The Greves could avoid invading the Thomsen's property by using other means of heating.


Id. The Nebraska Court of Appeals, therefore, upheld the trial court's ruling that the defendants' invasion of the plaintiffs' land was unreasonable. Id.

29. Importantly, the Thomsen court also affirmed the trial court's ruling that the defendants' conduct in that case was intentional. Applying the same standard that is applicable in this case, the Nebraska Court of Appeals held: "Clearly the record in the instant case reveals that the Greves knew that the invasion, or smoke, resulted from their conduct. The Greves admitted that they were told by the Thomsens of the smoke problem in August 1992. . . . "Id. at 752.

30. Various appellate decisions in Pennsylvania, while not directly addressing a private nuisance case involving wood burning stoves, also support the establishment of liability for private nuisance on the facts involved in this case. See Harford Penn­Cann Service. Inc. v. Zymblosky, 378 Pa.Super. 578, 549 A.2d 208 (1988) Noerr v. Lewistown Smelting and Refining. Inc., 60 D. & C. 2d 406 (Mifflin County 1973); Evans v. Moffat, 192 Pa.Super. 204, 160 A.2d 465 (I960). See also Herring v. H.W. Walker Company, 409 Pa. 126, 185 A.2d 565 (1962).

B. Liability for Continuing Trespass

31. The elements necessary to prove liability for the tort of trespass are set forth in Section 158 of the Restatement (Second) of Torts. Section 158 provides, in pertinent part, as follows:
 

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interests of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing . . . to do so


See Buckley Motors Inc. v. AMP. Inc., 23 D. & C. 2d 324 (Cumberland Co. 1960) (applying Section 158).

32. As is explained in Comment I to Section 158, for a trespass to occur, the actor need not himself enter the land, but rather "may invade another's interest in its exclusive possession by . . . propelling . . . a thing . . . in the airspace above it."

33. In Buckley, supra, the Court, in applying Section 158, expressly found that where particles were expelled from a neighboring smokestack into the air and onto the property of the plaintiff, that constituted a trespass.

34. Of course, the trespass must be "intentional" as that term is defined. Again, as explained in Comment I to Section 158, "It is enough that an act is done with knowledge that it will to a is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter."

35. The Buckley decision is quite helpful with respect to a consideration of whether the Defendants in this case should be held liable for trespass. There, the Court refused to find that the defendant intentionally committed a trespass, because the plaintiff was unable to prove that the defendant knew at the time the trespass was being committed, that particles were be ejected onto the plaintiff's property. As the Buckley Court explained:
 

On the basis of the record as it stands, the trespass of defendant in the first instance and at the time damage to the trucks was caused was unintentional . . . A different situation exists. however. beginning with the spring of 1958 when defendant was informed that its furnace was emitting particles which were falling on plaintiff's land and causing damage to painted vehicles parked there. The further use of defendant's furnace and oil burner became intentional at that time and thereafter became a continuing a trespass. and equity has the power to enjoin continued trespasses on land.


23 D. & C. 2d at 328­329 (Emphasis added.)

36. In this case, as more fully stated above, the defendants have known since at least 1989 that wood smoke ­ including its particulate matter ­ has been entering onto plaintiffs' property and into their home, from the defendants' property, causing serious harm and damage. As a result, the defendants' conduct constitutes a continuing trespass.

C. Defendants' Equitable Defense of Laches

37. The defendants, by way of preliminary objection to plaintiffs' Complaint, and then in their answer to plaintiffs' Complaint, raised the affirmative defense of [aches. 28

38. Defendants' preliminary objections based on [aches were overruled by Order dated July 7, 1994.

39. At trial, the defendants waived this defense by failing to assert it during the defense motion for compulsory non­suit See. e.g., Darlington, al., Pennsylvania Appellate practice, 2d. Ed., Section 302.59 ("Once an issue is raised in a proceeding, it must be preserved at each and every state in the proceeding...otherwise, it is waived.").

40. In any event, even if not waived, the defendants failed to carry their burden of proof at trial regarding the [aches defense. Among other things, the defendants failed to prove any prejudice resulting from any delay by the plalintiffs in asserting their rights See eg., Bonds v. Bonds, PA.Super 689 A.2d 275, 278 (1997) ("Laches arises when a party's rights have been so prejudiced by the delay of another in pursuing a claim that it would be an injustice to permit the assertion of the claim against the party so prejudiced.").

41. This Court has the power, sitting in equity, to enjoin a private nuisance. See, e:, Helms v. D'Eletto, 38 D. & C.3d 473 (Green Co. 1983).

42. This Court also has the power to enjoin a continuing trespass. See, e.g., Buckley Motors v. AMP, supra, 23 D. & C. 2d at 329.

43. The relative hardship to the defendants if an injunction is granted is slight in comparison to the hardship that would be suffered by the plaintiffs if an injunction is denied. By the defendants' own admissions made during closing arguments, it would be impractical to frame and enforce an injunctive order less restrictive than enjoining the continued use of the defendants' wood­burning stove.

44. This Court concludes that the defendants should be permanently enjoined from using their wood­burning stove.

ORDER AND DECREE NISI

AND NOW, this 6 th day of February 1998, it is hereby ORDERED AND DECREED that the defendants are permanently enjoined from using their wood­burning stove. Plaintiffs' claims for damages, counsel fees and costs are hereby DENIED.

The Decree Nisi will be made final unless exceptions are filed within ten (10) days of the date of this Order.
 

BY THE COURT:

Bernard A. Moore

J.

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