Appeal of Pennsylvania Lead Co.
| Decision Date | 03 January 1881 |
| Citation | 96 Pa. 116 |
| Parties | Appeal of the Pennsylvania Lead Company. |
| Court | Pennsylvania Supreme Court |
November 5, 1880
1. Where a business complained of is a dangerous nuisance and the injury is continuous and cumulative and the mischief irreparable, a court of equity will enjoin the prosecution of such business.
2. Where it appears that works for smelting lead are of such a character and the injury inflicted of such nature a court of equity will restrain their use.
Before SHARSWOOD, C. J., MERCUR, GORDON, TRUNKEY, STERRETT and GREEN, JJ.
Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1880, No. 50. In Equity.
Bill in equity filed by Joseph P. McIntyre against the Pennsylvania Lead Company.
The bill in substance alleged: 1. That complainant has owned since April 12th 1871, a certain farm, situate in Robinson township, in Allegheny county, containing about forty-six acres. 2. That prior to the unlawful acts of the defendant complained of, the said farm was a fertile tract, and used for farming purposes. 3. That some time in the year 1873, the defendant corporation acquired a piece of land adjoining said farm on the westerly side thereof, and erected thereon smelting works, for the smelting of lead and other minerals said works being located within about seventy-five feet of the said farm. 4. That shortly after the completion of said works, the defendant company commenced operating the same for the smelting of lead and other minerals, and has since continued so to do, and intends so to do in the future. 5. That the said works are so constructed and operated as to emit from the stacks and chimneys thereof offensive, noxious and poisonous gases, fumes and vapors; and are so located that said gases, fumes and vapors descend and rest upon said farm. 6. That the said gases, fumes and vapors have injuriously affected and are injuriously affecting said farm that they have poisoned and are poisoning the soil and the vegetation and products of said farm, rendering the latter unfit for consumption; that portions of said farm have already been blasted and rendered barren, and the vegetation thereon destroyed; and this mischief is continuous, and will continue so long as the defendant's said works are operated as aforesaid. 7. That the said gases, fumes and vapors are injurious to cattle grazing upon said land or eating the products thereof; and plaintiff is informed and believes that horses and cattle have died from grazing and eating the fodder from said farm, poisoned by the gases fumes and vapors aforesaid. 8. That the gases, fumes and vapors aforesaid are noxious to persons living upon said land or inhaling the same. 9. That said works emit smells which are offensive and intolerable to persons residing on said farm. 10. That the said works are a continuing nuisance to said farm, and are producing, and will continue to produce, irreparable injury. 11. That at the time said works were being erected, plaintiff was not fully informed as to the uses to which they were to be put, nor had he any knowledge as to how they were to be operated, and he then had no personal experience as to the effect produced by such works; and it was not until the defendant's works had been in operation for some considerable time that he discovered the full effect from the gases, fumes and vapors aforesaid; and it is only within a period of a few weeks that he has learned, from chemical analyses of the soil and vegetation of his farm, the extent to which they are being poisoned.
Equitable relief was prayed for: 1. That it be decreed that the defendant abate the nuisance complained of. 2. That the defendant company be restrained by the order and injunction of this honorable court from operating its smelting works in such manner as harmfully or injuriously to affect the plaintiff's farm or the vegetation thereof, and from allowing or permitting the gases, fumes or vapors from said works to descend or fall upon said farm. 3. General relief.
The defendant's answer in brief was: 1. That the allegations contained in the first paragraph of said bill are true. 2. That the allegations contained in the second paragraph of said bill are substantially true; though only a portion of said farm is a fertile tract and used for farming purposes, the remaining portion being unfit therefor. 3. That the allegations contained in the third paragraph of said bill are true, except in this: that the defendant company's works are distant some five or six hundred feet from the plaintiff's dwelling. 4. That the allegations contained in the fourth paragraph of said bill are true. 5. The averments of the fifth paragraph of said bill the defendant company denies, and in this connection avers that its works are constructed after the most approved method, and with special reference to a prevention of any injury or damage to surrounding and neighboring property; and denies that from the operation of said works any injuries have resulted, do, or will result to the plaintiff. 6. That the averments contained in the sixth paragraph of said bill are not true. 7. That it is not true that there are any gases, fumes and vapors produced by the operation of defendant's works, which are injurious to cattle grazing upon the plaintiff's land and eating the products thereof; nor is it true that horses and cattle have died from grazing and eating fodder from said farm, because of any effect had thereon by the proximity of defendant's works thereto, or their operation. 8. And defendant company denies the allegations contained in the eighth paragraph of said bill. 9. It further denies the allegations contained in the ninth paragraph of said bill. 10. It further denies the allegations contained in the tenth paragraph of said bill. 11. That it is not true, as averred in the eleventh paragraph of said bill, that at the time said works were being erected, the plaintiff was not fully informed as to the uses to which they were to be put; but on the contrary, as defendant avers, the said plaintiff had full knowledge of the contemplated erection of said works, and was for a time in negotiation with the defendant company with a view to selling to it the whole or a portion of his said property for the purposes of said works. That during the time the said works were in process of erection, said plaintiff had daily knowledge of what was going on, saw the result of the expenditure of large sums of money made by defendant, in the putting up of said works, and has from that time until the present, had a continuous experience as to the operations carried on by the defendant. It is not true that the soil and vegetation of the plaintiff's farm is or has been in any wise affected by any gases, fumes and vapors from defendant's works. 12. That the said works have been erected at an expense of about $140,000; that this expense was incurred with the knowledge of the plaintiff, and without objection or protest upon his part; that the said works are perhaps the best constructed works of the character in the United States; that the defendant company employs in said works an average of from sixty to seventy-five men daily, who reside in the vicinity thereof, and manufactures large quantities of lead, which it supplies to the trade in the city of Pittsburgh, and ships to other places; that the interference with the operation of said works would result in great loss and damage to the defendant company, and to the trade of the city of Pittsburgh, and that so far from the existence and operation of said works producing any damage to the plaintiff, it is a fact that his said property is now by him rented, and has been for some time past, for a much larger sum than it was at the time said works were originally erected. 13. And the defendant company denies that the said plaintiff has sustained any damage, or is likely to sustain any damage, by reason of the erection and operation of defendant's works, in any way, and that he has sustained, does, or will sustain any damages for which he has not a complete and adequate remedy at law.
The master, to whom the case was referred, Jacob H. Miller, Esq., found the facts as follows:
1st. That the plaintiff is the owner in fee simple of a farm of 46 acres and 8 perches of land, situate near Mansfield, in Robinson township, Allegheny county, with farm house and buildings thereon, on the line of the Pittsburgh, Cincinnati and St. Louis Railway, at a distance of seven miles from the Union depot, in the city of Pittsburgh. This farm was purchased by him on April 12th 1871, for $21,000. The plaintiff has not resided on his farm, but has leased it to farmers and croppers. 2d. That the defendant's real estate consists of nearly nine acres of land adjoining the farm of the plaintiff. The line bounding defendant's land upon the south is coincident with the plaintiff's northerly line, and is the centre of the roadway of the railway, which separates the two tracts as used and occupied. Both tracts are bounded on the east by Chartiers creek, and a large portion of each is creek bottom, but the western portion of both, where the buildings are located, is elevated about fifty feet above the bottom land, and falls off gradually toward it. 3d. That in the spring of 1873, the defendant company commenced the erection of lead smelting works upon their land, near the railroad, within seventy-five feet of the plaintiff's land, and five hundred or six hundred feet from his farm house. The erection of the works occupied about seven months, but new erections and changes have been since made. The buildings and ground have cost $140,000. 4th. That the works were originally constructed for the smelting of ores and the production of soft lead, silver and...
To continue reading
Request your trial