
    SMOKE AND GASES FROM BRICK KILNS.
    [Circuit Court of Carroll County.]
    Angeline Downs v. The Greer Beatty Clay Company.
    Decided, October Term, 1906.
    
      Nuisance — From, Burning Bride and Hollow Ware Kilns — Injunction against, on Petition of Surrounding Property Owners — Will be Refused, When — Relative Effect upon the Parties — Equitable Jurisdiction — Remedy at Law.
    
    1. The business of burning brick is a lawful one and whether or not it is a private nuisance depends upon the circumstances of each particular case.
    2. A court of equity will not ordinarily grant an injunction to restrain the prosecution of a lawful business on the ground that it is a private nuisance until the plaintiff has established his right, by an action at law.
    3. Where a business complained of as a nuisance is a permanent one, and the damages to adjoining property can be ascertained with reasonable certainty and assessed in solido to the complaining party, such business will not be enjoined where an injunction would be ruinous to the business of the defendant and of small benefit to the plaintiff.
    
      Cook, J.; Burrows, J., and Laubib, J., concur.
    • Appeal from Carroll Common Pleas Court.
    This action is before us on appeal. The defendant, the Greer Beatty Clay Company, is engaged in the manufacture of holloAV ware and glazed brick in the Sandy valley in this county. The Sandy valley was one of the richest and most beautiful valleys for agricultural purposes in Ohio, but unfortunately, possibly, under the hills which enclose it on both sides, is an inexhaustible bed of the finest fire clay overlaid with a vein of the best bituminous coal. A score of years ago this clay and coal began to be developed, and numerous brick, hollow ware and sewer pipe works were erected; among the rest the works of the defendant, of ten kilns, costing many thousands of dollars, were built in 1902-3.
    ‘ In the twenty miles of this valley situated in this county there are many large factories engaged in this business.
    In the manufacture of this ware it is necessary to use coal containing some sulphur in the burning, and salt in the glazing-process, the consequence of which is that sulphuric acid gas and hydroeloric acid gas mingle with the smoke from the smoke stacks and spread over the contiguous territory.
    The plaintiff has a life interest in fifty acres of land and a large dwelling-house, old but in fair condition, as a country home, with flower and vegetable gardens connected with it. This homstead and grounds were set off to her as her dower interest in her husband's estate at her special request soon after the factory of defendant was built. The works of defendant are situated about six hundred feet from the house and garden, and the evidence shows that at times the smoke from the stacks reaches the premises of the plaintiff, to the.injury of the shrubbery and crops, and to some extent interferes with the comfort of the inmates of the house; but the evidence does not show that the health of the occupants is affected, or that the smoke is a serious annoyance.
    This action is to enjoin defendant from operating its' works in such manner as to permit thq smoke and gases to enter upon the premises of plaintiff as herein set forth.
    
      It is conceded by plaintiff that the factory of defendant is of the most improved character; that the appliances used are fully up to the latest standard; that the manufacture of glazed brick and hollow ware is a large industry and conducted in all parts of the country; that the use of bituminous coal and salt are absolutely necessary and that there are no known means by which smoke from the stacks to some extent charged with these gases can be kept from spreading at times, over a large extent of territory doing some injury to herbage and causing some discomfort.
    Under these circumstances is plaintiff entitled to an injunction as prayed for ?
    The manufacture of glazed brick, hollow ware and sewer pipe has for many years been one of the most extensive industries, and is a lawful business, never having been classed among those trades that are held to lie a nuisance per se.
    
    That the industry may be a nuisance depending upon its location, the manner of conducting it, and other circumstances there can be no question; and each case must depend, therefore, upon its own circumstances. Wood on Nuisances, Section 515, etc.; Am. & Ency. of Law, Yol. 31, page 692 (2d Ed.).
    There are many localities where such manufactories would not be a nuisance while there are others where it would be a nuisance per se. A person or corporation would not be permitted to carry on such a business with its attendant vapors and smoke in a residence portion of a city while in other parts of the same city it would be perfectly legal to do so. Another matter of importance is the-conduct of the party complaining. Was the brick yard built close to the residence of the complaining party or did he place his residence contiguous to the brick yard? Who occupied the territory first? This may not be of much importance in an action for damages but is of importance when an injunction is sought.
    This factory was not situated in or adjoining a city, but was in a country district where other manufactories of a similar character were situated previous to its location. While the dwelling was there previous to its location, yet plaintiff saw fit to select it as her dower interest with full knowledge of the location, character and effect of ■ the business. She mot only asks damages for injury to her premises but also seeks an injunction to restrain the prosecution of this business. Under such circumstances should a court of equity hold that a business lawful in itself is a nuisance against this plaintiff?
    The granting of an injunction in cases of alleged nuisance is governed by fixed principles. The right must be clearly made out; the nuisance must be clearly established, and the legal right of the complaining party in his person or property is affected to a substantial degree.
    Furthermore the mischief to the plaintiff or right in his property must be irreparable in the sense that he has no adequate remedy at law.
    In the case of McCords. liter, 12 Ohio, 388, it is said:
    "Although the restraining of an established nuisance is an admitted ground of equity jurisprudence, that branch of the law will carefully abstain from interference where the injury will support an action at law unless the party seeking such aid brings himself within the clearest principles of equitable relief.” .
    In the ease of Goodall v. Grofton, 33 O. S., 271, it is held:
    "On the petition of a landowner, complaining that certain steam power and machinery operated by another on adjoining land is a nuisance, an injunction should not be granted unless a clear ease of nuisance and irreparable injury be made out.
    "When a party who complains that a business, lawful per se, is a nuisance, and affects his property injuriously by reason of the manner in which it is conducted, has an adequate remedy in an action for damages he must establish his right to relief at law before equity will interfere by injunction.”
    In the opinion it is said:
    "It would be almost impossible to enumerate the cases in which courts of equity, in this and other countries, have interfered or refused to interfere in cases of alleged nuisance, public or private. It will suffice to say, the result of all these cases seems to be, that when the right is clearly made out, and the nuisance established, a court of equity, in case of private nuisanee, will interfere to prevent that which violates the rights of another in his property in an essential degree.
    “In this state, however, we understand the rule to be that a court of equity will only interfere to restrain an alleged nuisance, when the mischief to the plaintiff’s property, or rights in his property, are irreparable, and there is no adequate remedy' at law to make reparation. Although the restraint of an established nuisance ‘is an admitted ground of equity jurisdiction,’ that branch of the law ‘will carefully abstain from interference where the injury will support an action at law, imless the party seeking such aid brings himself within the clearest principles of equitable relief’ (McCorcl v. Iker, 12 Ohio, 388). To the end that right may be done and injury prevented, courts having jurisdiction in equity will determine each case, as it arises, upon its own facts and circumstances. When, from the nature of the case, and the right claimed to be infringed, no adequate remedy can be had in the courts of law, equity will entertain the action. Where the thing sought to be prohibited is not a nuisance per se, but may, under, some circumstances, prove so, the court will not interfere without a previous trial at law. 1 Grant’s Cases, 412; 19 Eng. L. & E., 639.”
    Considering the character of this industry, its location, the fact that it was there before the plaintiff selected the homestead as her dower interest, the nature of the injury and the other circumstances, can it be said a clear case of’ nuisance is made out? Columbios Gas Light <j& Coke Company v. Freeland, 12 O. S., 392; Gilbert v. Showerman, 23 Mich., 448.
    Again, is the injury irreparable? If the plaintiff has -an adequate remedy at law then her injury is not irreparable. What difficulty would there be in assessing plaintiff adequate and reasonably certain damages in an action at law? The injury to her premises are easily ascertainable. Diminution-of annual rental is always a proper subject of inquiry, and we think in a case of this character when the business is permanent the plaintiff might recover for the depreciation of her interest in the premises.
    But it is said the injury being a continuous one, the remedy by'injunction is necessary to prevent a multiplicity of suits.
    As we have seen, the injury, if any exists, is a permanent one and damages could be assessed in solido. Story’s Fq„ Section 55296; Goodal v. Croflon, supra. " ' '
    
      There is another circumstance that always appeals to a court of equity in cases of this character, and that is, what would be the relative effect upon the parties. Would the granting of the injunction entail much more injury upon the defendant than benefit to the plaintiff? If so, then the injunction should be refused and the parties left-to their action at law.
    The injunction in this case is refused, and as the plaintiff has a claim in her petition for damages, the cause will be remanded to the court of common pleas to determine whether or not her petition states a good cause of action at law, and for further proceedings.
    
      Hart & Kohler, for plaintiff.
    
      Clark & Clark and William Lynch, for defendant.
     