Huckenstine's Appeal , 1872 Pa. LEXIS 10 ( 1872 )

The opinion of the court was delivered, January 9th 1872, by

Agnew, J.

Brickmaking is a useful and necessary employment, and must be pursued near to towns and cities where bricks are chiefly used. Brickburning, an essential part of the business, is not a nuisance per se: Attorney-General v. Cleaver, 18 Vesey, Jr. 219, 220. It, as many other useful employments do, may produce some discomfort, and even some injury to those near by. But it does not follow that a chancellor would enjoin therefor. The heat, smoke and vapor of a brick-kiln cannot compare 'witlx those of many manufactories carried on in the very heart of such busy cities as Pittsburg and Allegheny. A court exercising the power of a chancellor, whose arm may fall with crushing force upon the every-day business of men, destroying lawful means of support, and diverting property from legitimate uses, cannot approach such cases as this with too much caution. Its- aid is not of right but of grace, and it must be sure that the exercise of this kingly power is just, wise and proper, before it takes from a citizen his means of livelihood, and destroys the value of his property for legitimate uses. And more than this, it must look at the customs of the people, the characteristics of their business, the common uses of property and the peculiar circumstances of the place4-wherein it is called upon to exercise the power. In no other way can its justice, wisdom and propriety be exhibited in adjudicating upon the rights, interests and employment of the people subjected to its power. It requires no great or extraordinary skill to inform ms of the nature and effect of a brick-kiln, within whose walls dried clay is baked into bricks by means of wood and coal combined together as a fuel. It is a subject of common observation, and its effects are not so mysterious as to require the skill of the chemist to unfold their occult properties. In the present case the kiln of the defendant is situated on an outskirt of the city of Allegheny. The properties of the plaintiff and defendant lie adjoining each other, on the hillside overlooking the city, whose every-day cloud of smoke'from thousands of chimneys and stacks hangs like a pall over it, obscuring it from sight. This single word describes the characteristics of this city, its kind of fuel, its business, the habits of its people and the industries which give it prosperity and wealth. The people who live in such a city or within its sphere of influence do so of choice, and they voluntarily subject themselves to its peculiarities and its discomforts, for the greater benefit they think they derive from their residence or their business there. A chancellor cannot disregard all this. “You must look at it,” said Lord Cranworth, “not with a .view to the question whether abstractly that quantity of smoke was a nuisance, but whether it was a nuisance to the persons living, in the town.” And, as remarked by Lord Chancellor Westbury in the same case: “If a man lives in town of necessity he must 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.” Cited from Tipping v. St. Helena Smelting Co., 116 E. C. L. R. 608, by Thompson, C. J., in Rhodes v. Dunbar, 7 P. F. Smith 287-8. With these views in mind, an examination of the evidence in this case discloses no ground to move a chancellor to enjoin against the use of the defendant’s kiln, and thus to destroy his business and divert his property from a legitimate use. The gravamen of the plaintiff’s bill is that the smoke and gases from the defendant’s kiln injured and partially destroyed his grape-vines and fruit-trees, and make his dwelling uncomfortable. In regard to the injury to the vines and trees which is the chief ground of complaint, the plaintiff’s case is doubtful on two grounds. In the first place, his testimony as to the injury from the causes stated is counterpoised if not outweighed by the testimony of the defendant both in the number and skilfulness of the witnesses. And in the second place it is rendered more than doubtful by the testimony of the defence that the true cause of the blight in the vines is the nature, and cold and wet condition of the soil. The force of the rebutting evidence that the hillside is dry, and for the reason that water will not lie on a slope; is broken by the consideration known to every common observer that water following the lines of stratification will exude from hillsides, oftentimes in large quantities and the whole year round. To entitle a plaintiff to an injunction he must make out a plain case of injury and damage. “ If the injury be dqubtful, eventual or contingent, equity will not interfere by injunction Rhodes v. Dunbar, 7 P. F. Smith 287; and a “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 Richard’s Appeal, 7 P. F. Smith 113, 114. In regard to the alleged annoyance to the dwelling-house by the smoke from the kiln, nothing needs to be said except that this case is clearly within the principles ruled in Richard’s Appeal, supra.

After a full and careful consideration of the case, we are compelled to reverse the decree of the Court of Common Pleas and dismiss the bill of the plaintiffs at their costs and without prejudice to any right they may have to recover in an action at law.

Decree accordingly.