
    (First Circuit — Hamlton Co., O., Circuit Court--
    Jan. Term, 1895.)
    Before Smith, Swing and Cox, JJ.
    ANNA C. H. McCLUNG v. NORTH BEND COAL and COKE COMPANY.
    
      Nuisance — Operation of Oohe Ovens--Injunction—
    Where by the operation of coke ovens the residence property of plaintiff, which was used as his homestead long before the ovens were put in operation, has been greatly depreciated in value, the health of plaintiff seriously affected and the comforts of himself and family greatly lessoned by the smoke and noxious gases constantly arising from the operation of the coke ovens, an injunction will be granted plaintiff against defendants enjoining them from the further use of such coke ovens unless defendant should alter the construction and operation of the coke ovens by a certain date so as to cease to cause the nuisance complained of.
    B'Appeal from the Court of Common Pleas of Hamilton county.
   COX, J.

t This case comes into this court on appeal by defendants from a decree of the court of common pleas, enjoining defendants from operating their coke ovens to the injury of plaintiff and her property.

The plaintiff is the owner of some thirty acres of ground on the high lands of Miami township, Hamilton county, overlooking the Ohio river, on which some twenty years ago she erected a dwelling for herself and family and has continued to reside in it ever since. There are also suitable houses for tenants. The grounds are planted with fruit and ornamental trees, and it is claimed the property is only suitable for a homestead or for subdivision into lots for dwellings. The defendants are the owners and operators of numerous coke ovens partly erected and partly repaired, many years after Mrs. McClung built her dwelling. These ovens are situated on the second bank of the Ohio river, directly south of plaintiff’s property and by the side of two railroads, the Ohio and Mississippi and the Big Four road, which run between the ovens and the river. The premises of the plaintiff are situated northeast of the ovens and on the side of the hill, the top of which is about seventy-five feet above the ovens, and it is claimed by plaintiff that the smoke, soot, cinders and gas which emanate from the ovens in the course of manufacturing coke, have caused sickness to the plaintiff and her family, have injured the shrubbery of her homestead, filled her house and furniture with soot, cinders and offensive gases, and have made her home almost untenantable and greatly injured the value of the same, and she asks to have an injunction against it to prevent them from further operating the ovens to her injury.

A great deal of testimony was taken, including learned opinions of distinguished chemists, physicians and experts as to the effect •of the gases, smoke and soot evolved from the burning coue ovens •on the health of plaintiff and her family, and as to the injury to , her property, and able and learned arguments from counsel on both sides were heard.

On the facts as discovered by the evidence, a majority of the •court hearing the case is of the opinion that Judge Buchwalter, who decided the case in the court of common pleas, and whose decision is reported in 31 Weekly Law Bulletin 9,correctly found the facts and the law as applicable to them. In view of the large interests of the defendant company involved in this litigation, we have had much hesitation in arriving at a conclusion the result of which would be, if plaintiff’s claim be true, the practical destruction of its large and valuable plant. And yet with our views of the law and of the rights of the parties, we must hold that the plaintiff is entitled to the relief she seeks, Her residence, which was the family homestead long before the coke ovens were repaired and operated by defendant, has as a result of their use been greatly depreciated in value, the health of the plaintiff herself has been seriously and injuriously affected, and the comfort and enjoyment of herself and the members of her family and household have been greatly lessened and interfered with by the smoke and noxious gases which almost continuously arise from these ovens when in operation, filling the house and hovering on the grounds.

John S. Conner, for Mrs. McClung.

J. H. Cabell, for the Coal and Coke Company.

The law in such a case must afford relief of some kind. Whether the plans shown by the evidence to be in use in the coke oven regions of Pennsylvania in the neighborhood of residences would be effective in this case, or whether the cost of making such a change or improvement would be so great that the defendant would not be justified in attempting it, we do not know and are not called upon to decide.

We incline to the opinion that it probably would in a great degree be practical and effectual. But whether it would or not, something must be done for the relief of the plaintifE.

We have therefore come to the conclusion that an injunction will be allowed against the defendant company, restraining it from the use of these coke ovens as now operated, from and after the first day of April, 1S95. We name this date that the defendant company may in the meantime, if it desire to do so, alter the construction or appliances thereof, that they will not further operate as a nuisance to the plaintiff and her property. If, however, the defendant does not propose and intend in good faith to make such effort, an earlier date will be fixed by the court at which the injunction will go into effect.

Judge Clark dissents.  