People v. Detroit White Lead Works

• Decision Date: 10 October 1890
• Citation: 82 Mich. 471,46 N.W. 735
• Court: Michigan Supreme Court
• Parties: PEOPLE v. DETROIT WHITE LEAD WORKS et al.

46 N.W. 735

82 Mich. 471

PEOPLE v. DETROIT WHITE LEAD WORKS et al.

Supreme Court of Michigan

October 10, 1890

Certiorari to recorder's court of Detroit.

Edwin F. Conely, for appellant.

Chas. W. Casgrain and Henry M. Cheever, ( John W. McGrath, of counsel,) for the People.

GRANT J.

This case is brought to this court by writ of certiorari from the recorder's court of the city of Detroit. The defendants were convicted for unlawfully and willfully creating and maintaining a nuisance, consisting of the creation and emission of unwholesome, offensive, and nauseating odors, smells, vapors, and smoke, to the great damage and common nuisance of all people living in the neighborhood thereof, and of all people passing and repassing on the streets and alleys adjacent thereto, contrary to an ordinance of the city in such case made and provided, being section 5, c. 55, Rev. Ord. 1884. The ordinance in question is set forth in the return of the judge to the writ. The defendant the Detroit White Lead Works is a corporation organized under the laws of the state. Defendant Hinchman is president, defendant Dean is vice-president, and defendant Rogers is treasurer and manager. The defendants Hinchman, Dean, and Rogers were fined $1 each, and the defendant the Detroit White Lead Works $10 and costs. No other penalty was imposed. The following is the return of the court to the writ. We give it nearly in full on account of the importance of the case: "The testimony tended to show the following: Eighteen to twenty years prior to the filing of the complaint, a paint manufactory was started by private parties on both sides of Jones street directly opposite and about fifty feet from the place described in the complaint. The business was that of mixing white lead, oils, and colors for use as paint. The manufacture of white lead, or carbonate of lead, as by corrosion, was never carried on here. Lead, oils, and colors were merely mixed. This business was continued at this point about ten years, when it was moved across the street to the place named in the complaint. Here it was pursued by private parties until December, 1880, when the defendant the Detroit White Lead Works, a manufacturing corporation organized under laws of this state, succeeded to the business and property. The Detroit White Lead Works continued the same business uninterruptedly from the time last mentioned, to and including the time of trial. The method of mixing lead, oils, and colors remained the same, though carried on with improved machinery, somewhat larger, better, and more cleanly buildings, and increased trade. No corrosive process was used, the dry heavy carbonate of lead (600 lbs. to the barrel) being mixed at once with oil, and thereafter remaining in a moist or semi-fluid condition. Whiting was also used (weight 250 lbs. to the barrel) in the manufacture of putty. Also various well-known earths and clays were used in making paints. In 1882, the manufacture of varnish and also liquid driers for use in the manufacture of paints was added, and was continued without interruption to and including the time of trial. In the manufacture of varnish and driers, various resinous gums, asphaltum, boiled linseed oil, and napththa were used. The gums were melted, and the oil boiled over a fire-place, and directly under a chimney carrying away the fumes or vapors into the air. When cooling, the large kettles were put under a ventilating shaft, thus carrying away any fumes or vapors. Machinery was used only in the mixing rooms, and was propelled by means of a boiler and engine which was also used in supplying heat to the buildings. The coal used was, in the main, hard, though soft coal was also used. The furnace was supplied with a smoke consumer. The buildings are brick, cover about four lots, are three stories high, and, in addition to the above, are used for storage, office, printing, labeling, loading, and the ordinary incidents of a large manufactory and business. When the business was originally started, but few persons lived near, the property all round being vacant for the most part. Subsequently, population thickened, and at the time of the complaint the manufactory was surrounded with considerable resident population, though but a short distance from Michigan avenue,-a street devoted wholly to business. The resident population were largely tenants, most of whom rented from month to month or for short periods. Nearly all of the surrounding buildings had been built since the manufactory originally started. During the time covered by the complaint, the business, in all respects, had been carried on in a careful manner, and nothing had been done by those managing it that was not a reasonable and necessary incident to the business. No complaint had been made against the business, or any one running it in any court before. The defendant Hinchman was president of the corporation. The evidence did not otherwise connect him with the business or its operation. Rogers and Dean were actively engaged in managing and operating it. Shotwell was secretary, and kept and had charge of the books." The city attorney, in behalf of the city of Detroit, introduced testimony tending to show that odors of a disagreeable and unpleasant character had been experienced by residents in the vicinity of the works. These odors were described by witnesses as "the smell of paint," "paint smell," "heavy," "the smell of varnish," "resinous smell," and "piny." Residents in the vicinity of the works testified that, during the time mentioned in the complaint, they had been constantly annoyed by odors, smoke, and soot which came from the works and entered their houses, producing, as they testified, headache, nausea, vomiting, and other pains and aches injurious to health; that in warm weather, to keep out the soot and smoke, they were compelled, to their great discomfort, to close their doors and windows; that smoke settled on their furniture, and on their clothes which had been washed and hung out to dry, and which they were obliged to wash again; and in some instances tainted their food. Many of the witnesses claim that the odors were nauseating, others say disagreeable, while some did not mind it. On behalf of the defendants, testimony was introduced tending to show that nothing of an unhealthful or injurious character emanated from the manufactory, and that the only "paint smell" there could be was simply the smell caused by boiling linseed oil, about once a week, in the manufacture of varnish; that no smells emanated from the other parts of the factory at all, and could not; that the men, women, and girls in the factory were in excellent health, and had never been ill from being there; that one witness, Mr. H. A. Champion, member of the committee to investigate the business in question, had visited the place 31 times before he could detect an unpleasant odor, and that in warm weather; and that there was nothing unwholesome or injurious to health about the business.

The ordinance under which the complaint was made and the trial was had read as follows: "Sec. 5. No owner or occupant of any grocery, cellar, tallow-chandler shop, soap, candle starch or glue factory, tannery, butcher-shop, slaughterhouse, stable, barn, privy, sewer, or other building or place, shall allow any...