
    ENJOINING NUISANCE.
    [Carroll (7th) Circuit Court,
    October Term, 1905.]
    Cook, Burrows, and Laubie, JJ.
    Angeline Downs v. Greer Beatty Clay Co.
    
      X. What is Nuisance Depends on Particular Pacts.
    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.
    [Por other cases in point, see- 6 Cyc. Dig., .“Nuisance,” §§ 32-40. — -Ed.]
    2. When Lawful Business will be Enjoined as a Nuisance.
    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.
    [Por other cases in point, see 6 Cyc. Dig., “Nuisance,” §§ 104-109. — Ed.]
    3. Effect of Adequate Remedy at Law.
    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.
    [For other cases in point, see 5 Cyc. Dig., “Injunction,” §§ 36-45; 6 Cyc. Dig., “Nuisance,” §§ 97-103. — Ed.]
    [Syllabus by the court.]
    Appeal from Carroll common pleas court.
    Hart & Koehler, for plaintiff:
    The conversations between the officers of the defendant company and John Downs now deceased, husband of the plaintiff, not in the presence of the plaintiff, and the lease made by him, waiving damages, while he was owner of the property in question, and before his death, not signed by plaintiff as his wife, are not admissible to bind the plaintiff who now holds the property by assignment of dower. 14 Cyc. 292; Gove v. Gather, 23 Ill. 634 [76 Am. Dec. 711]; Hart v. Mc-Collum, 28 Ga. 478; McArthur v. Franklin, 16 Ohio St. 193; Derush v. Brown, 8 Ohio 412; Tibbetts v. Manufacturing Go. 12 S. C. 465.
    The plaintiff is not estopped to maintain this action to restrain a nuisance interfering with the occupation of premises set off to her as her dower right, after the death of her husband, in property upon which he had individually given a mining lease, waiving damages, by reason of the fact that she received rents and royalties accruing under said lease, between the death of her husband and the assignment of her dower in lieu of her dower right for such period. Viele v. Judson, 82 N. Y. 32; Williamson v. Jones, 43 W. Va. 562 [27 S. E. Rep. 411; 38 L. R. A. 694;. 64 Am. St. Rep. 891] ; Hunt v. Reilly, 24 R. I. 68 [52 Atl. Rep. 681; 59 L. R. A. 206; 96 Am. St. Rep. 707] ; 14 Cyc. 931.
    
      The easting of smoke and gas upon the property of another to the annoyance and damage of the owner is a nuisance. Susquehanna Fertilizer Co. v. Malone, 73 Md. 268 [20 Atl. Rep. 900; 9 L. R. A. 737; 25 Am. St. Rep. 595]; Kinkead, Torts Sees. 436, 653; Boss v. Butler, 19 N. J. Eq. 294 [97 Am. Dec. 654] ; Cooper v. Hall, 5 Ohio 320; Columbus Gas L. & C. Co. v. Freeland, 12 Ohio St. 392; Norcross v. Thoms, 51 Me. 503 [81 Am. Dec. 588]; Pennsylvania Lead Co.’s Appeal, 96 Pa. St. 116 [42 Am. Rep. 534]; Pennoyer v. Allen, 56 Wis. 502 [14 N. W. Rep. 609; 43 Am. Rep. 728] ; Bohan v.- Gas-Light Co. 122 N. Y. 18 [25 N. E. Rep. 246; 9 L. R. A. 711]; Munk v. Sanitary Wks. Co. 5 Dec. 548 (7 N. P. 542); Metzger v. Hochrein, 107 Wis. 267 [83 N. W. Rep. 308; 50 L. R. A. 305; 81 Am. St. Rep. 841] ; Boss v. Butler, 19 N. J. Eq. 294 [97 Am. Dec. 654] ; McClung'v. Coal & Coke Co. 1 Dec. 247 (31 Bull. 9).
    Care and skill in conducting the business is no defense. Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562 [39 Atl. Rep. 270; 63 Am. St. Rep. 533]; Frost v. Phosphate Co. 42 S. C. 402 [20 S. E. Rep. 280; 26 L. R. A. 693; 46 Am. St. Rep. 736]; Laflin & Band Powder Co\ v. Tearney, 131 Ill. 322 [23 N. E. Rep. 389; 7 L. R. A. 262; 19 Am. St. Rep. 34]; Hurlbut v. McKone, 55 Conn. 31 [10 Atl. Rep. 164; 3 Am. St. Rep. 17] ; Bodenhausen v. Craven, 141 Pa. St. 546 [21 Atl. Rep. 774; 23 Am. St. Rep. 306] ; Columbus & H. Coal & Iron Co. v. Tucker, 48 Ohio St. 41 [26 N. E. Rep. 630; 12 L. R. A. 577; 29 Am. St. Rep. 528]; Fitzpatrick v. Montgomery, 20 Mont. 181 [50 Pac. Rep. 416; 63 Am. St. Rep. 622],
    Injury from other causes also will not defeat the action of the injured party. Frost v. Phosphate Co. 42 S. C. 402 [20 S. E. Rep. 280; 26 L. R. A. 693; 46 Am. St. Rep. 736],
    The fact that the business is a lawful and proper one is no defense. Hauck v. Pipe Line Co. 153 Pa. St. 366 [26 Atl. Rep. 644; 20 L. R. A. 642; 34 Am. St. Rep. 710]; Norcross v. Thoms, 51 Maine 503 [81 Am. Dec. 588],
    The fact that the offensive premises and works are of great value will not defeat the injured party from restraining its operation. Mc-Clung v. Coal & Coke Co. 6 Cire. Dec. 243 (9 R. 259).
    Injunction will lie .especially where the nuisance affects the residence or home of the complainant. Boss v. Butler, 19 N. J. Eq. 294 [97 Am. Dec. 654]; Collins v. Cleveland, 2 Dee. 380.
    Locality of property will not deprive the injured party of remedy. Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562 [39 Atl. Rep. 270; 63 Am. St. Rep. 533].
    
      Clark & Clark and William Lynch, for defendant.
   COOK, J.

This action is before ns on appeal. The défendant, the Greer Beatty Clay Company, is engaged in the manufacture of hollow ware and glazed brick in the Sandy valley in this country. 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 hydrochloric 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 homestead 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 away 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 the 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; and 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 be 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 ease must depend, therefore, upon its own circumstances. Wood, Nuisances Sec. 515, etc.; 21 Am. & Eng. Ency. of Law (2 ed.) 692. There are many localities where such manufactories would not be considered a nuisance while there are others where it would be a nuisance. 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 the city while in other parts of the same city it would be perfectly legal to do so. Another matterAf 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 not 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 eases of alleged nuisance, is governed by fixed principles. The right must be clearly made out; the nuisance must be clearly established, and that 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 McCord v. Iker, 12 Ohio 388, it is said, although the restraining of an established nuisance “is an admitted ground of equity jurisprudence, courts of chancery 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.1 ’

In the case of Goodall v. Crofton, 33 Ohio St. 271 [31 Am. Rep. 535], 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, and injunction should not be granted unless a clear case 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.’1

In the opinion, page 274, it is said:

“It would b'e 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 ease 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 party 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, courts having jurisdiction in equity will ■ determine each case, as it arises, upon its own facts and circumstances. When, from the nature of the ease, 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? Columbus Gas Light & Coke Co. v. Freeland, 12 Ohio St. 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 ease 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, Equity Sec. 5529b; Goodall v. Crofton, supra.

There is another circumstance that always appeals to a court of equity in eases 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.

Burrows and Laubie, JJ„ concur.  