Powell v. Superior Portland Cement, Inc. , 15 Wash. 2d 14 ( 1942 )

I do not think plaintiff has proved any substantial damage. Certainly, he has shown no damage different in character or degree from that which is sustained by all the other householders in the town.

"The true measure of damages for a nuisance is compensation for the loss or injury sustained, which is usually held to be the depreciation in the market or usable or rental value of the property, together with such special damages as may be proved." 39 Am. Jur. 395, § 134.

In Stevens v. Rockport Granite Co., 216 Mass. 486, 488,104 N.E. 371, Ann. Cas. 1915B, 1054, Chief Justice Rugg said:

"The law of nuisance affords no rigid rule to be applied in all instances. It is elastic. It undertakes to require only that which is fair and reasonable under all the circumstances. In a commonwealth like this, which depends for its material prosperity so largely on the continued growth and enlargement of manufacturing of diverse varieties `extreme rights' cannot be enforced. One who settles in a district, which posseses natural resources of a special kind, cannot prohibit the development of those resources merely because it may interfere in some degree with personal satisfaction or aesthetic enjoyment."

It seems to me that, unless the diminution in "personal satisfaction or aesthetic enjoyment" can be measured in terms of depreciation in the market value or, at the very least, in the rental value of the property, general damages should not be allowed. Otherwise, of necessity, such damages must rest upon pure conjecture. Having failed to prove either, and having failed to establish his claims of special damage, plaintiff is, at most, entitled only to nominal damages. Watson v. New Milford,72 Conn. 561, 45 A. 167, 77 Am. St. 345; Perry v. Howe Co-op.Creamery Co., 125 Iowa 415, 101 N.W. 150.

DRIVER concurs with BLAKE, J.