Richards's Appeal , 1868 Pa. LEXIS 70 ( 1868 )

The opinion of the court was delivered, by

Thompson, C. J.

The complainant in this case is the owner of a dwelling-house and cotton factory in the village of Phoenix-ville, Chester county; and the respondents are owners of very extensive iron works in the same village. The former complains that by reason of the kind of fuel used by the latter in their works, his residence is rendered uncomfortable and unwholesome, and his factory materially injured in the discoloration of his fabrics and deterioration of his machinery. Claiming that he had established this, he asked the court below for a perpetual injunction to restrain the respondents from using the fuel, bituminous and semi-bituminous coal complained of as the cause of the injury to his property in these furnaces. The case was heard on bill and answer, and the court decided against him. He was then permitted to file a replication and take testimony, on which there is a report of a master also against him. The court having sustained the report, again refused to enjoin the defendants, and the cáse is before us on an appeal, and we are asked to do what the court below refused, namely, perpetually to restrain the defendants from using bituminous or semi-bituminous coal in their furnaces.

The defendants’ works are very extensive, amongst the most so, it is said, of any of the kind in the Commonwealth, consisting of several blast furnaces, some seventy puddling furnaces, and rolling-mills and other machinery. They began on a small scale some forty-nine or fifty years ago, and up to 1840 used bituminous coal exclusively. The original works were not precisely on the spot of those complained of, but so near it as to entitle the latter to be regarded as an extension of the former. The extensions made in the works in 1837, 1846 and 1853, constitute the present works, the cost of which alone is represented as exceeding half a million of dollars, and which at the time of taking the testimony, and previously, employed, as the master reports, from eight hundred to one thousand hands.

The plaintiff’s dwelling, it appears, is situated on a bluff or hill northwardly from the defendants’ works, about seventy feet above the nearest furnace floor, which brings its first story about on a level with the top of the puddling-stacks, and when the wind is towards t'he plaintiff’s house and from the furnace, the consequence is, that it is at times enveloped in a coal-smoke thrown out of the chimneys of the puddling furnaces. It cannot be doubted, I think, that this materially operates to injure the dwelling-house as a dwelling, and consequently to deteriorate its value. The alleged injury to the factory is mainly that the smoke and soot of the furnace blackens the stock and renders the fabrics less saleable. This I can readily understand and believe. The house was erected in 1829, and the factory in 18-34, and both have been generally occupied ever since; the factory not doing full work for some time past, as the master reports.

A careful consideration of the testimony satisfies us that the use of semi-bituminous coal, the fuel complained of, is necessary to the successful manufacture of iron fit for axles, cannon and the like, in the manufacture of which the defendants are largely engaged; that the process of manufacture, and fuel used, are generally employed in similar establishments, and that there was neither a negligent nor wilful infliction of injury upon the plaintiff or his property in the defendants’ mode of operating their works. Whatever of injury may have, or shall result to, his property from the defendants’ works, by reason of the nuisance complained of, is such only as is incident to a lawful business*conducted in the ordinary way, and by no unusual means. • Still there may be injury to the plaintiff; but this of itself may not entitle him to the remedy he seeks. It may not, if ever so clearly established, be a case in which equity ought to enjoin the defendants in the use of a material necessary to the successful production of an article of such prime necessity as good iron; especially if it be very certain that a greater injury would ensue by enjoining than would result from a refusal to enjoin. If we were able with certainty to say that the use of semi-bituminous coal, in the process of making good iron by the puddling process, was unnecessary, and other fuel was equally good and available, or that by a reasonable expenditure of money on the works, all injury might be avoided, a different case might appear to our minds as chancellors, and we might then say that the cause of injury should cease, and that a decree in terms to meet such a contingency should be made so as to prevent the injury. But we have not such case before us. Bituminous, or at least semi-bituminous coal, we think, from the testimony, is necessary in the manufacture of iron, such as the business of the defendants require, and whose fabrics the public require. Nor are we shown by testimony or reliable tests of any kind, that the smoke produced in the puddling process can be consumed, as it undoubtedly may be in ordinary chimneys, or when produced in furnaces used to propel machinery. I am personally cognisant that this may be done, from observation both in this country and in England; and I have therefore read with satisfaction and entire conviction of the truth, the article from the London Quarterly of 1866, so largely quoted by the learned counsel for the appellants; but I would be very unwilling to act on that conviction or that theory any further than to the extent to which experiment has gone. I would require very clear proof of the practicability of the application of the principle to uses dissimilar, or partially so, as puddling chimneys from common furnace smoke-stacks. The defendants seem willing to test the applicability of smoke consumers to puddling furnaces, and at the same time express their doubts in a practical shape by offering $50,000 for an invention which will consume the smoke of their puddling stacks without impairing the efficiency of the process of manufacturing iron. However this may be, certain it is, we are not able to say from anything shown, that the evil complained of can be remedied by the application of smoke consumers. We do not know what effect their application might have on the process; nor do we think we should visit the defendants, because they might be unwilling to add to the height of their chimneys without knowing what effect it would have, or because they might not be willing to tear down their establishment and re-erect it on Seiman’s plan or patent. What effect these remedies, or either of them, ought to have on the mind of a chancellor, if feasible, and the injury complained of were absolutely irreparable, we are not called upon to say, for such is evidently not the case here if there be any damage at all, as we shall presently show.

The rule on this subject is well stated in Grey v. The Ohio and Pennsylvania Railroad Co., 1 Grant 412, thus: “ Where damages will compensate either the benefits derived or the loss suffered from a nuisance, equity will not interfere.” See also Hilliard on Injunc. 271; Adams’ Eq. 485; Fonblanque’s Eq. 51; 2 Story’s Eq. § 925, et seq.; Eden on Injunc. 269. In Coe v. Lake, 37 N. H. 254, it was said, where the bill prayed an injunction to suppress a nuisance to the plaintiff’s land, it might be dismissed on general demurrer for want of equity, unless it appeared from the subject-matter affected by the alleged nuisance that there was danger of irreparable mischief, or' of an injury such as could not be adequately compensated in a suit at law. These, and many other authorities to the same effect, some of which are on the paper-book of the appellees, prove conclusively that, as a general rule, mischief or damage is not irreparable which is susceptible of being compensated in damages. We have no doubt that an action at law will lie for an injury to property for causes similar to those mentioned in this bill, and if so, why will not the remedy be adequate in such case, and thus the injury be repaired in damages ? We are not to presume that it will not be. This would be to impugn the justice of our common-law forms without a reason. We think, under the circumstances of the case, that the injunction ought to be refused, and the plaintiff left to his action at law for the recovery of such damages as he may have sustained or may sustain.

An error seems somewhat prevalent in portions, at least, of this Commonwealth, in regard to proceedings in equity to restrain the commission of nuisances. It seems to be supposed that, as at law, whenever a case is made out of wrongful acts on the one side and consequent injury on the other, a decree to restrain the act complained of, must as certainly follow, as a judgment would follow a verdict in a common-law court. This is a mistake. It is elementary law, that in equity a decree is never of right, as a judgment at law is, but of grace. Hence the chancellor will consider whether he would not do a greater injury by enjoining than would result from refusing, and leaving the party to his redress at the hands of a court and jury. If in conscience the former should appear he will refuse to enjoin: Hiltio v. The Earl of Granville, 1 Craig & Ph. Ch. R. 292; Grey v. The Ohio and Penna. Railroad Co., supra. We think this is a safe rule, and that the case we are considering is within it. With these views, and on full consideration of all the testimony in the case, we are of opinion the injunction was properly refused in the court below, and that the decree dismissing the plaintiff’s bill with costs must be affirmed.

Ajjpeal dismissed at the cost of the appellant.