Rhodes v. Dunbar

Decision Date31 March 1868
Citation57 Pa. 274
CourtPennsylvania Supreme Court
PartiesRhodes <I>et al. versus</I> Dunbar <I>et al.</I>

Before THOMPSON, C. J., STRONG, AGNEW and SHARSWOOD, JJ. READ, J., at Nisi Prius

Certificate from Nisi Prius: In Equity: No. 14, to July Term 1866.

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G. L. Crawford and W. A. Porter, for appellants, cited Carpenter v. Cummings, 2 Phil. Rep. 74; Com. Dig., Action on Case for a Nuisance (C); Hole v. Barlow, 4 C. B. N. S. 334 (E. C. L. R. vol. 93); Bamford v. Turnley, 3 B. & S. 62 (E. C. L. R. R. vol. 113); Cavey v. Ledbitter, 13 C. B. N. S. 470 (E. C. L. R. vol. 106; Tipping v. St. Helen's Smelting Co., 4 B. & S. 608 (E. C. L. R. vol. 116), 11 Jurist N. S. 785; Crump v. Lambert, Law Rep. 3 Eq. 409 (1867); Kirkham v. Handy, 11 Humph. 406; Bell v. Ohio and Penna. Railroad Co., 1 Casey 161-175, 176, 177, 182; Hilliard on Injunction, p. 27, § 2; Earl of Ripon v. Hobart, 3 M. & K. 169; Elmhirst v. Spencer, 2 Mac. & G. 50; Coe v. Lake Co., 37 N. H. 254; Kirkham v. Handy, 11 Hump. 406; Rogers v. Danforth, 1 Stock. 289; Butler v. Rogers, Id. 487; Grey v. Ohio and Penna. Railroad Co., 1 Grant 412; Rhea v. Forsyth, 1 Wright 503; Sparhawk v. Union Pass. Railroad Co., 4 P. F. Smith 401; Walter v. Selfe, 4 E. L. & Eq. 15; Holsman v. Boiling Springs Co., 1 McCarter 335; Richards's Appeal (antea, p. 105).

R. C. McMurtrie and G. W. Biddle, for appellees, referred to the authorities in the opinion of Judge Read.

The opinion of the court was delivered, March 31st 1868, by THOMPSON, C. J.

The plaintiffs by their bill seek to enjoin the defendants from re-erecting or reconstructing a planing-mill, late the property of John D. Jones, situate on the west side of Twenty-first street, between Chestnut and Market streets, which was destroyed by fire in the month of May 1867. It is claimed, that if re-erected it will be a nuisance to the property and dwellings of the complainants, impairing their value, and rendering the enjoyment of them uncomfortable and unsafe; and this, it is alleged, will flow from three causes, incident to the structure, and its intended use if it be permitted to go into operation, viz.: 1st. smoke, soot and dust; 2d, noise; and 3d, danger from fire. The very general averment in the bill that the mode in which such a factory or mill is worked renders it unsuited to a neighborhood closely built up, and especially to one occupied by handsome buildings used as residences, and will be calculated to prevent the use of the neighboring ground "for such buildings as would in the ordinary course of affairs, and the extension of the city in that direction, be put up," presents for consideration a subject not within our sphere of judicial action. It presents a question of policy whether a part or portion of a city ought to be devoted exclusively to private residences or other special objects; and that is manifestly for the local authorities or the legislature to determine, and not us. That concerns alone the public, and not private parties. With peoples' rights we deal in cases like the present, and not with questions of mere policy, local or general.

No one will for a moment doubt that we are invested with ample powers to restrain the erection of any building or structure intended for a purpose which will be a nuisance per se; such as bone-boiling, horse-boiling establishments, swine-yards, or pig-styes, and other various like establishments. These not only interfere with the health, but, if they do not reach to that, they do to the usual and ordinary enjoyment of the residences of inhabitants coming within the circle of atmosphere tainted by them, and both property and persons may be prejudiced or injured thereby. The right to claim that such establishments shall be prevented, is the right that every citizen has to pure and wholesome air, at least as pure as it may be, consistent with the compact nature of the community in which he lives. The rule is the same in regard to noises which disturb rest and prevent sleep. There are innumerable cases of injunction for such causes.

But does the case in hand come within the classes to which reference has been made in either of the specifications mentioned?

1st. The smoke and soot complained of — I do not think have been shown to have been a nuisance in the old mill, for which damages at law might have been recovered; and I know of no other criterion where the complaint is for injury to property and its enjoyment. Irreparable injury is the foundation for intervention by injunction: not irreparable because so small that it may not be estimated, but because likely to be so great as to be incapable of compensation in damages: Hilliard on Inj. 270, 271, 272: 37 N. H. Rep. 254. There must be injury and damage both to justify the remedy by injunction: Campbell v. Scott, 11 Sim. 39. The complaint of the old mill in this particular was, on account mainly of the fuel; chips, shavings and sawdust used — that is the foundation of the complaint against the contemplated re-erection. If no other species of fuel would answer the purpose, or could be used, I grant there might be more in the point. But this is not pretended. If, therefore, when the mill shall be put into operation and by its use it becomes a nuisance from this cause, the remedy is easy, and well known. Equity will enjoin against the use of such fuel, and the mischief will be at once cured.

That a thing may possibly work injury to somebody is no ground for injunction. If the injury be doubtful, eventual or contingent, equity will not interfere by injunction: Butler v. Rogers, 1 Stockt. (N. J.) 487, Hilliard 271. This might be sufficient on this point, but it is quite possible that in the construction of chimneys all objection to this kind of fuel may be obviated. The answer of one of the defendants asserts this, and that it is intended and can be accomplished, and it is nowhere controverted. Indeed it seems evident that if the chimneys be built high enough with proper nettings at the top, that anything like annoyance amounting to a "sensible injury" to property, as was held to be essential to enjoining in Tipping v. St. Helens Smelting Co., 116 E. C. L. R. 608, may be entirely avoided. Indeed the learned master seemed in doubt whether the element of smoke, soot and cinders, judged of by the old mill, proved or would prove a material injury to property. Alluding to these agencies, he says they "perhaps cannot in a strict sense be said to have produced a material — that is, a palpable, direct, physical injury to the plaintiff's property." But then he gives reasons to show that it occasioned annoyance and discomfort, and therefore concluded that a re-erection of the mill ought to be prevented for this and other reasons. Annoyances without damage, I have already said, are no ground for injunction. Shall the owner of property be deprived of its free and profitable use, altogether, it may be, because the light and air may not be as pure as a neighbor might desire, or because a laundress may not be able to dry the contents of the washtub quite as satisfactorily, or a housemaid have to dust more frequently? These are annoyances referred to in the proof, but are incident to a city residence, and if people prefer living in a city, they can only do so because of others desiring to do the same thing in sufficient numbers to constitute a city, and then each tacitly undertakes to suffer such annoyances or inconveniences as are incident to that kind of community. This has been often expressed, but is strikingly enforced by Lord Chancellor Westbury, in Tipping v. St. Helens Smelting Co., supra. "If a man," said the Chancellor, "lives in a town, of necessity he should submit himself to the consequences of the obligations of trades which may be carried on in his immediate neighborhood, which are actually necessary for trade and commerce, also for the enjoyment of property, and for the benefit of the inhabitants of the town. If a man live in a street where there are numerous shops, and a shop is opened next door to him which is carried on in a fair and reasonable way, he has no ground for complaint because to himself individually there may arise much discomfort from the trade carried on in that shop." Lord Cranworth in the same case puts it thus: "You must look at it, not with a view to the question whether abstractedly that quantity of smoke was a nuisance, but whether it was a nuisance to the person living in the town." We endeavored to express something like this in Sparhawk v. Union Passenger Railway, 4 P. F. Smith 401. It must be apparent to all, we think, that the circumstances here do not establish a nuisance per se, and in regard to the intended structure, if it ever amounts to this, from the causes alleged in regard to the fuel, it is within the powers of the court to redress the injury by restraining the use of the...

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