
    Goodall v. Crofton.
    1. 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 case of nuisance and irreparable injury be made out.
    2. 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.
    Error, to the Superior Court of Cincinnati.
    This was a proceeding to enjoin an alleged nuisance.
    The pleadings and testimony disclose that, in 1862, plaintiff below, Crofton, owned 'and possessed, by leasehold, lots Nos. 19 and 20, fronting forty-four feet on Genesee street, in the city of Cincinnati, upon which he caused to be erected, in that year, three brick dwelling-houses, to rent, and was still the owner in 1874 when this action was commenced. At and prior to 1862, the defendant below owned a lot adjoining the lots of Crofton, on the east side thereof, which he had occupied for a number of years as a stone and marble yard. ' In 1863, Goodall erected on this lot a two story frame house for the purpose of carrying on his business, in which, the petition charges, he saws and dresses marble and freestone for sale, using steam power for the purpose of dressing them and to malee them salable. It is averred that to the engine is attached various machinery, moved by belting and gearing, in such manner as to cause a jarring or vibration of the adjoining premises of plaintiff, causing the walls of plaintiff’s houses to crack; also causing a great noise, so offensive that, with the vibration and shaking of plaintiff’s buildings, the rents for the same are greatly diminished, causing tenants to quit the eastern building belonging to plaintiff. The petition avers that defendant’s engine and machinery, used as it is with-steam power, is an injury and a nuisance, and prays for a. judgment abating the alleged nuisance.
    Defendant answers, and admits that he is the owner of the lot adjoining on the east side of the plaintiff’s lot, and he admits that he occupies the same as a stone yard, and. also in part as a building, in which he saws and dresses-stone for sale; and he admits that he has erected a steam-engine on his lot, which he is using and propelling with steam power for the sawing of stone and marble and for-dressing the same in various ways, to make them salable, and that to said engine is attached various machinery which, is moved by belting and gearing; but defendent denies, all and singular, the other allegations in said petition contained.
    On the hearing the following decree was made:
    The court therefore adjudges and decrees, that defendant, be perpetually enjoined from conducting said business, and. he is hereby prohibited from permitting said business to-be conducted so as to cause or occasion any perceptible-trembling, oscillation, or vibration of the plaintiff’s said buildings, or so as to disturb the enjoyment of the occupants-of said buildings.
    And the court further order, that the defendant be allowed the period of sixty days for the purpose of complying with this decree.
    On the trial, Ellen O’Dowd was a witness in behalf of plaintiff. And thereupon, the plaintiff, by his counsel,, asked the witness the following' question : State whether your boarders have made any complaints of the shaking of the building by the machinery of the defendant, and if sor what objection did they make ? To which question the defendant objected, and the objection was by the court overruled ; to which overruling of said objection, and the admission of the answer thereto, the said defendant then and there excepted.
    On the overruling of the motion for a new trial a bill of exceptions, bringing all the testimony on the record, was filed in the ease. A petition in error was prosecuted to the general term, when the judgment at special term was, in all things, affirmed. The proceedings here are to obtain a reversal of these judgments.
    Plaintiff in error assigns for error three grounds:
    1. That the court erred in admitting incompetent and irrelevant testimony.
    2. That the findings of the court were contrary to the-evidence.
    3. That the judgment and decree were contrary to the law of the land.
    
      Forrest, Gramer, and Mayer, for plaintiff in error:
    I. As to what is a nuisance, see Columbus Gas Light Coke Co. v. Freeland, 12 Ohio St. 397-9.
    II. A court of equity will not enjoin a nuisance until the complainant has established his right at law. Story’s Eq- § 5925b.; 5 Law Times, N. S. 338 ; Dunning v. Aurora, 40 Ills. 480 ; Eastman v. Amosheag, etc., Co, 47 N. H. 71; Heiskell v. Gross, 3 Brews. 430.
    The defendant is not personally injured or annoyed, and, therefore, an injunction should not be granted. McCord v. Iker, 12 Ohio, 388; 24 Mich. 508 ; 34 Iowa, 268.
    Even though a useful employment may produce discomfort or injury to those near to it, it does not follow that it should be restrained, because an injunction is a matter of grace, not of right.
    
      Gilbert v. Showerman, 23 Mich. 448; Campbell v. Seaman, 22 N. Y. 235 ; 70 Penn. St. 102 ; 116 E. C. L. 608 ; 7 P. F. Smith, 287.
    If a greater injury would be done by enjoining than by leaving the parties to their remedy at law, then an injunction should be refused. Richard’s Appeal, 57 Penn. St. 105; Hiltio v. Granville, 1 Craig’s Ph. Ch. 292; Grey v. The Ohio & Penn. R. R. Co., 1 Grant, 412; Duncan v. Hayes, 22 N. J. Eq. 25.
    The defendant in error only complains of loss of rents and damages to Ms buildings, not of any personal discomfort and annoyance; therefore, he does not suffer any injuries which can not be compensated in money as damages, and that the plaintiff is amply able to respond is not denied. It is a well settled rule that a nuisance will only be restrained in ease of absolute necessity. Harrison v. Brooks, 20 Ga. 537 ; Attorney-General v. Nichol, 16 Ves. 338; Duncan v. Hayes, 22 N. J. Eq. 25 ; Hough v. Doyleston, 4 Brews. (Penn.) 333.
    
    
      Fox Bird, for defendant in error:
    We claim it is well settled, that where any business is carried on by power of steam, and in carrying on the busi-' ness the owners of adjoining property are injured in their buildings, whether by cracking the walls, by rendering the buildings untenable or less convenient, by reducing their renting value or otherwise, the carrying on such business is a nuisance. McKeon v. See, 4 Robertson, 449; affirmed in 51 New York, 300.
    If the injury is a continual one the remedy is by injunction. 51 New York, 307. The same principle is recognized and established in 3 Sandford, Superior Court, 126-281; 4 Denio. 311; Catlin v. Valentine, 9 Paige, 575; 4 E. S. C. L. and Equity, 15; Duncan v. Hayes, 22 N. J. 25; 7 C. E. Greene; 5 C. E. Greene, 201; Campbell v. Seaman, 2 Thompson & Cook, 233; 113 E. C. Law, 65 and 80, over ruling 93 E. C. Law of Hale v. Barlow.
    
    The jurisdiction of the court of equity over cases of private nuisance is now well established, and in a p>roper case for equitable interference it will assume and take jurisdiction, and give the party all the relief to which he is entitled, even to the settlement of damages. Wood on Nuisance, §§ 778, 794. Equity jurisdiction is concurrent with a coui’t of law, § 785, 2 Black, U. S. 551.
   Ashburn, J.

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 al’leged nuisance, public and 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 nuisance, 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, unless the pai’ty seeking such aid brings himself within the clearest principles of equitable relief.” McCord v. Iker, 12 Ohio, 388. To the end that right may be done and injury prevented, coui’ts 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.

We think the plaintiff below, upon the showing madq in his petition, and by his proofs, has an adequate remedy at law. There is no complaint that the alleged nuisance, in any degree, interferes with his health or that of his •family; that it works a personal inconvenience or discomfort. He complains, in his petition, that by reason of the ■offensive noise, together'with the vibration and shaking of his buildings by the alleged nuisance, his rents were reduced ; that the steam power, with the gearing and machinery attached, by jarring and shaking his buildings, has; caused the walls thereof to crack; that the vibration and jarring of the eastern building alarmed the tenants and' caused them to leave, so that that building can not be-rented for the same sum of money as the adjoining buildings, though of the same size and finish.

Plaintiff’s right to invoke the interference of equity is; not clear on the face of his petition. Injury to his building, of the nature alleged, and loss of rents, could be compensated in damages by a jury. He alleges no injury arising from the offensive noises made by the defendant’s-machinery save as it .affects the rental value of his property. Where an assessment of damages will compensate for the loss suffered from a nuisance, equity will not interfere; and, as a general rule, that mischief or damage-which is susceptible of compensation in damages is not irreparable.

We have carefully considered the evidence in the case, and when applied to the pleadings and issues we have no doubt' but that the injury sustained by the plaintiffs, by reason-of-the alleged nuisance, could be compensated in an action for damages. Where a party has a plain and adequate remedy at law, and his right, as in this case, does not appear perfectly clear for equitable jurisdiction, the party will be required to first establish his right at law. Richard’s Appeal, 57 Penn. St. 105.

There is another ground upon which, the party should be required to establish his right at law before resorting to-equity. Plaintiff admits the business carried on by defendant, of which he complains is not a nuisance per se. Plaintiff stood by and saw defendant erect his business-house, place his steam power and other machinery therein,, knowing the use to which it was to be applied, and for seven or more years, without objection, saw the business carried on during the same hours and to the same degree. This delay and apparent acquiescence will not, perhaps,, jeopardize his legal rights, but are circumstances justifying the chancellor in sending plaintiff to a court of law, to-establish his right and seek compensation, before equity will interfere by injunction. Weller v. Smeaton, Cox’s Cases in Eq. 102 ; Reed et al. v. Gifford, 6 Johns. Ch. 19.

A court of chancery may interfere by injunction when the injury is conceded or is clearly established, yet the ■power should always be exercised cautiously and be sparingly used. Where the business complained of is lawful, and conducted in the most approved and orderly manner, in a place where there are in operation numerous establishments of kindred description, contributing to the needs of the community, and where the destruction of a business would occasion more injury to the defendant than advantage to the plaintiff, the chancellor will exercise the high prerogative of injunction with great care and caution.

In this case the decree of the court is distinctively se■vere on defendant. In the light of the testimony it amounts to prohibition. It orders that defendant “ is hereby prohibited from permitting said business to be conducted so as to cause or occasion any perceptible trembling, oscillation, or vibration of the plaintiff’s said buildings.” This is to b,e done in sixty days. If the testimony can be credited, this decree would operate to the total destruction of defendant’s business, working apparently a far greater injury to him than advantage to plaintiff. This, too, when plaintiff for the alleged injury has an ample remedy at law. The principle, if such exists, that will support this decree to the full extent would cause every heavy laden wagon passing ■over Genesee street to do so at the peril of an injunction. The case of Gilbert v. Showerman, 23 Mich. 448, is in principle similar to this. Applying substantially a remark of Cooley, J., in that case to this, we can not shut our eyes to the obvious truth that if the running of defendant’s engine and machinery, in the manner it appears to have been carried on, can be enjoined, almost any manufactory in any of our towns and cities may be enjoined upon similar reasons.

We think the testimony admitted over the objection of ■defendant below was incompetent. As a question of law, its importance does not require further consideration.

Judgment reversed.  