Ebur v. Alloy Metal Wire Co.

• Decision Date: 25 May 1931
• Docket Number: 8
• Citation: 155 A. 280,304 Pa. 177
• Parties: Ebur et al. v. Alloy Metal Wire Co., Appellant
• Court: Pennsylvania Supreme Court

155 A. 280

304 Pa. 177

Ebur et al. v. Alloy Metal Wire Co., Appellant

No. 8

Supreme Court of Pennsylvania

May 25, 1931

Argued April 14, 1931

Appeal, No. 8, Jan. T., 1932, by defendant, from decree of C.P. Delaware Co., June T., 1929, No. 1048, for plaintiff, in case of C.W. Ebur et al. v. Alloy Metal Wire Company. Decree modified and affirmed.

Bill for injunction to restrain operation of metal plant. Before MacDADE, J.

The opinion of the Supreme Court states the facts.

Decree for injunction awarded to plaintiff. Defendant appealed.

Error assigned, inter alia, was decree, quoting record.

Costs to be paid by appellant.

John E McDonough, with him R. Paul Lessy and Michael S. S. Reps, for appellant. -- Even if the prayers of the bill were of sufficient scope to warrant the findings; even if the allegations in the bill accorded to the complainants the right of the court to predicate findings and prayer thereon all that was established by the testimony in this case was that the personal comfort, tastes and pleasures or preference of the complainants were involved; this, as we see at least from the enunciations of Pa. Co. v. Sun Co., 290 Pa. 404, is not only not within the reach of a court of equity but is so vague and illdefined as to be beyond the reach of a common law action in trespass. See Ribblett v. Cambria Steel Co., 251 Pa. 253.

The terms of the decree exceeded the prayer of the bill and it is impracticable to conform to them: Lawrence v. King, 299 Pa. 568; Luther v. Luther, 216 Pa. 1; Spangler Brewing Co. v. McHenry, 242 Pa. 522; King v. Trust Co., 278 Pa. 141; Eddy v. Boro., 281 Pa. 4; Reilly v. Magee, 272 Pa. 406.

The decree is incapable of execution: Collins v. Wayne Iron Works, 227 Pa. 326; Penna. Co. v. Sun Co., 290 Pa. 409; Ribblett v. Steel Co., 251 Pa. 253; Huckenstine's App., 70 Pa. 102; Richard's App., 57 Pa. 105; Daugherty Typewriter Co. v. Mfg. Co., 178 Pa. 215.

A. B. Geary, of Geary & Rankin, for appellees. -- The right to relief is fully sustained by the cases cited by the chancellor and the following: Burke v. Hollinger, 296 Pa. 510; Nesbit v. Riesenman, 298 Pa. 475; Collins v. Iron Works, 227 Pa. 326; Krocker v. Mill Co., 274 Pa. 143; Sullivan v. Steel Co., 208 Pa. 540; Quinn v. Am. S. & M. Co., 293 Pa. 152.

The decree does not exceed the prayer of the bill: Collins v. Iron Works, 227 Pa. 326; Burke v. Hollinger, 296 Pa. 510.

Before FRAZER, C.J., WALLING, SIMPSON, KEPHART, SCHAFFER and MAXEY, JJ.

OPINION

MR. JUSTICE MAXEY:

This is a bill in equity for an injunction. The plaintiffs are residents of Prospect Park, Delaware County. The defendant is a corporation engaged in the business of manufacturing wire and metal products in a factory opposite the residences of the plaintiffs on Thirteenth Street. In this factory the defendant maintains furnaces in which oil and other fuels are burned. There are also hammers, cranes and other machinery and appliances. The plaintiffs allege that the defendant so operates these furnaces that there is discharged in the air, outside of said factory, smoke, offensive odors and a smudge which the plaintiffs and others are compelled to inhale, and this smudge enters the dwellings of the plaintiffs and soils and otherwise injures the furniture and household goods, and the paint on houses, and destroys plants, shrubbery and other vegetation. The plaintiffs also claim that the cranes, machinery and appliances are so carelessly operated that there are loud noises and vibrations produced consisting of pots and other appliances knocking against each other. Plaintiffs aver that on account of these noises they are unable to enjoy the usual comforts of their dwellings, are unable to sleep, and are in various ways annoyed and injured.

This plant operates during the night and sometimes on the Sabbath. It is charged that defendant maintains in a yard within the clear vision of the plaintiffs and others piles of junk, cinders and other debris which interferes with the comfort of the plaintiffs and other residents of the community. Plaintiffs claim that the Borough of Prospect Park is a residential section and was so recognized as such before the defendant's factory was erected. It was shown at the trial that the four-track line of the Pennsylvania Railroad is within 150 yards of the plaintiffs' homes and about 122 heavy freight and passenger trains pass through that section daily. Some of these trains are electrically operated and some are propelled by steam. These latter trains emit smoke and cause noise and vibration as they pass. There are also some other industrial plants, such as a coal and lumber yard and a mixing house of a paving company, in the vicinity of plaintiffs' homes.

The prayers are for an injunction to restrain "the said defendant from so conducting its business in said factory that the smoke, odors, smudge, noises and the vibration will issue therefrom and from maintaining the piles of junk, cinders and other debris in its yards."

The defendant in its answer denies the main allegations of the plaintiffs. It denies that the Borough of Prospect Park is a residential section. It answers that the district in which the plant of the defendant was built by the DuPont Motors Company about ten years ago was then and is now a part of the industrial district adjacent to and between the Cities of Philadelphia and Chester and that the whole of said district except mere portions thereof has been committed to industrial activity. The defendant avers that it has installed at great expense the most advanced and scientific appliances known to the business for the purpose of minimizing and eliminating entirely the emission of smoke, smudge and the creation of noises and other sounds resulting from the operation of its business.

The substance of the testimony offered by or on behalf of the plaintiffs is that smoke, flame and invisible gases are emitted from the defendant's plant; that the noise from the furnace is a type of reverberation, a drumming noise; that the vibration is sometimes sufficient to make the windows rattle; that when the furnaces are being started up there is a heavy oil smoke coming from the top of the furnaces; that there is the obnoxious odor of burning gases; that there is a smeary black deposit on the porches in the neighborhood; that the gases from the plant irritate the throat and have an unpleasant, stifling odor; that a smudge coming from this plant makes the carpets and furnishings difficult to keep clean; and that the reverberatory noises, the thundering noise from the furnaces, have grown worse, while the noise from the compressor has been improved. There is also an objectionable noise made by the workmen hammering on anvils.

Defendant offered testimony tending to contradict the testimony of plaintiffs' witnesses as to the amount of noise and smoke issuing from the plant.

The court found from the testimony the following facts, inter alia: Defendant maintains in its factory furnaces in which oil is burned, and also maintains cranes and other machinery and appliances; that it so operated said furnaces that there was discharged for a long time prior to the filing of the bill and thereafter smoke and offensive odors, gases and smudge which the plaintiffs and others were compelled to inhale and a smudge which entered the dwellings of the plaintiffs and soiled the outside of the buildings and also the interior of the buildings and the furniture and household goods therein; that the cranes, machinery and appliances were so operated that there were loud noises consisting of clanging, grinding of gears against each other, metal grinding and knocking against other pieces of metal, noise emanating from a circular saw and other noises which carried to the dwellings of the plaintiffs and others in the neighborhood so that they were unable to enjoy the usual comforts of their homes, their sleep was disturbed, vibration was caused in their homes, and they were in other ways annoyed and injured; that the defendant operated its plant during nights and at times on the Sabbath; that during week days, also during nights, and also on the Sabbath, the smoke, odors, gases, smudge and noises and vibration continued; that the Borough of Prospect Park and the vicinity of the factory was a residential section before the time when the defendant took possession of the factory and started operations; and that by the operation of the factory the properties occupied by the plaintiffs have been seriously injured as residences and the comfort of the plaintiffs has been interfered with. The chancellor concluded as a matter of law that the business as conducted by the defendant was a nuisance and entered a restraining decree hereinafter discussed.

The courts have found it difficult to lay down any precise and inflexible rule by the application of which it can be determined that a plaintiff in a given case is entitled to relief by injunction against smoke, fumes and noises emitted in the vicinity of his residence. It has been said that a "fair test as to whether a business lawful in itself, or a particular use of property, constitutes a nuisance, is the reasonableness or unreasonableness of conducting the business or making the use of the property complained of in the particular locality and in the manner and under the circumstances of the case": 46 C.J. 655. It has also been said: "Whether the use is reasonable generally depends upon many and varied facts. No hard and fast rule controls the subject. A use that would be reasonable under one set of facts might be unreasonable under another. What is reasonable is sometimes a question of law, and at other times, a question of fact. No one particular fact is conclusive, but the inference is to be drawn from all...