Rhodes v. Dunbar

The opinion of the court was delivered, 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 n'ot 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. Kogers, 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 puré' 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 th§ injury by restraining the use of the objectionable fuel. It may be, that none such may be used, or if used, that there may be an adap-i tation of structure to prevent injurious consequences and annoy-J anees. Neither the facts nor precedents would, Ave think, justifyj us in restraining the re-erection of the building on this ground. 5 We are therefore constrained to differ from our brother Avho sus-' tained the master on this point as well as on another at Nisi Prius.

2. Noise — It is enough to say here, that the master was of opinion, and so found, that this “ was not sufficiently established to afford a ground of relief to the plaintiffs.” This conclusion was not much controverted in the argument before us, and we think the master was right in his conclusions on this point.

8. Danger, or apprehension of danger from fire, is the last point to be noticed, and this seems to have been really the main ground of decision in the mind of the master, as well as of our learned brother, in aAvarding an injunction.

What is apprehension ? It is anticipation of danger, not a certainty that it will occur. It may be felt as well Avhen danger is infinitely remote as when it is near, as well when it may never occur as when it may. It is in regard to fire, “ speculative, eventual and contingent,” and the books say this is never a ground for interference by injunction: Earl of Ripon v. Plobart, 3 Mylne & Keene 169. The apprehension of danger must, on the theory of this case at least, be very remote, viz.: that the mill Avhen erected may take fire by negligence, accident or by the work of an incendiary; that the fire may not be extinguished— and that it may be communicated to, and burn the property of the plaintiffs and endanger their lives. Every element in all this is “speculative, contingent and eventual.” The mill might take fire, but the flames may be extinguished; and it might be burned doAvn Avithout destroying the property of anybody else. It would be a Avaste of time I think to labor to prove what every one must assent to, that this as a ground to exercise the power to prevent the occupation and enjoyment of property, would he extremely intangible, and once established as to this kind of mill, might be applied to every other building or business in community, described in fire risks, or known as extra-hazardous, and not only planing" mills, but chemical laboratories, carpenter shops, cotton-mills, barns, stables, in short everything that there might be grpund to apprehend danger of fire from, would gradually fall into the vortex of chancery power, and might be banished the city altogether, to the great inconvenience of the people. There is danger in all such establishments, it is true, and the same argument would apply to many others. The degree of danger would be the only difference.

In Anonymous, 3 Atk. 750, Lord Hardwicke said: “ Bills to restrain nuisances, must extend .only to such as are nuisances at law, and the fears of mankind, though they be reasonable, will not create a nuisance.” That rule was held and acquiesced in, in the case of Carpenter v. Cummings, 3 Philada. Rep. 74. That was a bill to restrain the defendant from maintaining a boiler to propel steam machinery under the pavement of a public street and thoroughfare. The nuisance charged was the fear of danger to the complainant and others, that it might explode and destroy their property and lives. The injunction was refused on the authority of the case mentioned above, citing also 18 Paige 219, and was, it would appear, acquiesced in by the parties and counsel. Butler v. Rogers, 1 Stockt. 487, was an attempt to restrain a blacksmith shop. Williamson, Ch., said, “ As a general rule the court ought not to interfere in cases of nuisances, where the injury apprehended is of a character to justify conflicting opinions, whether the danger will in fact be ever realized.”

If 'it be true that the act complained of must be a nuisance at law, as held in 3 Atk. 750, supra, and sanctioned in Sparhawk v. The Union Passenger Railway Co., supra, this test would settle the controversy in this case at once. No action can be found, I think, in which mere apprehension from the use of property by one has been held a ground to recover damages by another, on the' possibility of fire being communicated by the former to the property of the latter.

But it is said that the rate of insurance upon the plaintiffs’ property will be increased as a consequence of the re-erection of this mill. If this fact had been found by the master, it would not have established the point of nuisance. It is well known that the existence of extra-hazardous property in a neighborhood, while it draws upon itself a heavier burthen or rate of insurance, does not usually constitute special rates in regard to proximate property belonging to a class with fixed rates. But it is stated very distinctly in Story’s Equity Jurisprudence, § 925, that mere diminution in the value of property, without irreparable mischief, will not furnish any foundation for equitable relief.

In Attorney-General v. Nichols, 16 Ves. 387, which was an application for an injunction against darkening ancient lights, Lord Eldon said, “ The foundation of this jurisdiction, interfering by injunction, is, that head of mischief alluded to by Lord Hardwicke (in Fishmongers’ Co. v. East India Co., 1 Dick. 164), that sort of material injury to the comfort of the existence of those who dwell in the neighboring houses, requiring the application of a power to prevent as well as to remedy an evil for which damages, more or less, would be given in an action at law. I repeat the observation of Lord Hardwicke that the diminution of the value of the premises is not a ground.” That is to say, the mere diminution, irrespective of any direct damage, is not a ground for injunction. On this principle the diminution, by reason of increase of insurance, if it really exists, is no ground for the interference sought.

Grant that the species of property in question is extra-hazardous; is subject to fires; this, on the authority of all the cases, would not render it a nuisance. It does not necessarily affect health, comfort or the ordinary uses and ■ enjoyment of property in the neighborhood. If the business be lawful, and carried on reasonably, and does not interfere in either of these ways with the rights of others, it cannot be a nuisance in fact or in anticipation, and, in my opinion, we have no authority whatever to interfere with it.

These observations give no just grounds to draw the inference that a powder magazine, or depot of nitro-glycerine, or other like explosive materials, might not possibly be enjoined even if not prohibited, as they usually are, by ordinance or law. It is not on the ground alone of their liability to fire, primarily or even secondarily, that they may possibly be dealt with as nuisances, but on account of their liability to explosion by contact with the smallest spark of fire, and the utter impossibility to guard against the consequences, or set bounds to the injury which, being instantaneous, extends alike to property and person within its reach. The destructiveness of these agents results from the irrepressible gases once set in motion infinitely more than from fires which might ensue as a consequence. Persons and property in the neighborhood of a burning building, let it burn ever so fiercely, in most cases have a chance of escaping injury. Not so when explosive forces instantly prostrate everything near them, as in the instances of powder, nitro-glycerine, and other chemicals of an explosive or intensely inflammable nature.

It is a difficult matter at all times to strike the true medium between the conflicting interests and tastes of people in a densely populated city. It requires the merchant, mechanic, manufacturer, baker, butcher and laborer, as well as the wealthy and employed or unemployed citizen, to constitute a city. They all have rights, and the only requirement of the law is, that each shall so exercise and enjoy them as to do no injury in that enjoyment to others, or the rights of others, in the sense in which the law regards injury, namely, accompanied by damage. It might be a great injury to the defendants in this case to restrain them from the enjoyment of their property, without being of any benefit to the plaintiffs. The ground claimed in argument to sustain the decree in this case was' mainly the danger of fire. The proof is, that these are dangerous establishments, by comparison with others less dangerous — but there is proof that they do not always burn, and may never burn. In this state of the case, the language of Lord Brougham in The Earl of Ripon v. Hobart, is worthy a reference 'to here: “ It is also,” said Ms lordship, “ very material to observe, what is indeed strong authority of a negative kind, that no instance can be produced of the intervention by injunction, in the case of what we have been regarding as eventual or contingent nuisances.” We have said enough to indicate our opinion that the fear of fire is of this description, and that this injunction should not have been granted originally, and therefore that the decree must be reversed, and bill dismissed.

Decree reversed and bill dismissed, at the costs of the appellees.

Read and ¡Sharswood, JJ., dissented.