61 Iowa 549 | Iowa | 1883
— The defendant has not appealed, and does not complain of the decree. Therefore we are relieved of the necessity of determining whether the court should have required the defendant to use a smoke consumer. The plaintiffs insist that they are entitled to an absolute and unconditional decree enjoining the defendant from using its smokestack, and thereby causing the nuisance of which complaint is made.
It will be observed that it is not alleged in the petition that the health of the plaintiffs or their families is affected by the alleged nuisance, or that their property has been, or probably will be, destroyed, but only that they have suffered great “damage, detriment, inconvenience and annoyance.”
When the wind is in a southerly direction, smoke and. soot from the smoke-stack are blown and deposited on plaintiffs’ premises. At times the smoke is dense, and soot and smoke penetrates'paintiffs’ houses to such an extent as to require the windows on the southerly side to be closed. Soot falls on clothes hung out to dry, and on the grass, flowers, carpets, beds, and on the persons of plaintiffs and their families.
The defendant’s works are situate at the base of a bluff, on top of which are the premises of plaintiffs. The top of the
It is insisted by the appellee that under this statute the appellants have a full, complete and adequate remedy at law. and that equity has no jurisdiction to enjoin a nuisance which only has the effect to deprive a person of the comfortable enjoyment of property. It is said that it has been so held in Wisconsin, under a similar statute. Remington et al. v. Foster, 42 Wis., 608. We do not feel called on to determine this question.
The defendant was authorized by an ordinance of the city to construct the water works. The ordinance was passed in pursuance of Code, section 472, which expressly confers on the city the requisite power. The ordinance requires a number of hydrants to be constructed, and the defendant is compelled to constantly supply a large quantity of water for extinguishing fires, and at the expiration of ten years the city has the option of purchasing the works at an appraised valuation. The defendant has expanded about one hundred thousrnd dollars in the construction of the works.
But the only complaint made is in regard to the smokestack, and -its possible faulty construction. What it cost does not appear, but undoubtedly it was only in a small sum, compared with the whole cost of the works.
The appellants claim that the smoke-stack can be built one hundred feet higher at a comparatively small expense, ancf that, when this is done, the smoke and soot will pass over and beyond their premises. But this is mere conjecture. The smoke-stack cannot be built higher than it is with safety, un
"We are not satisfied that, if the smoke-stack should be constructed one hundred feet higher, no soot would be deposited on plaintiffs premises, but conceding such would be the case, we are not satisfied there, are not others that would suffer therefrom in as great a degree as the plaintiffs do. While the plaintiffs, possibly, might be relieved of smoke and soot, if the height of the smoke-stack were increased, it by no means follows that the defendant would be relieved of the charge of • creating a nuisance.
The cases, both in this country and England, are numerous, where courts of equity have restrained nuisances by injunction, and have refused to do so. No practical benefit would result from a citation of cases. It is deemed sufficient to say that this remedy is more freely administered now than formerly. The rule is well known and understood. The real difficulty consists in the application of the rule to a given state of facts. Each case must be determined by its own special circumstances. Some courts more than others have hesitated or refused to grant an injunction until the existence of the nuisance has been established at law. If the matter or thing complained of is in and of itself a nuisance, equity will more readily interfere; or, if the injury is irreparable and cannot be compensated in damages, as when the nuisance is injurious to health, or has the effect to, destroy property, the remedy by injunction is more fully administered. See Pensylvania Lead Company's Appeal, 96 Pa. St., 116, where poisonous matter was deposited on the plaintiff’s premises, whereby vegetation was destroyed. So in Campbell v. Seaman, 63 N. Y., 568, where, in the manufacture of brick, a Wrge quantity of “sulphurous acid gas” was produced, which destroyed the plaintiff’s trees and vines. This, however, as we understand, was an action at law, and the existence of the nuisance had been established therein before the injunction was issued.^
In the foregoing cases, the nuisance was created by manufacturing -companies, organized wholly for pecuniary profit, and the public benefit was purely incidental, and such as arises from the establishment of all enterprises of that character. While there is no doubt the defendant was organized with a view of proving a pecuniary benefit to the stockholders, yet this was not the only purpose of its organization. The benefit to the public, that is, to the citizens of Keokuk, is immediate and direct.
If the defendant were enjoined even for a time, the result might be disastrous; for the water supplied by it is the only efficient means ofextinguishing conflagrations at the command of the city or its citizens. Besides this, a daily and hourly supply of water used for many purposes would be cut off.
We think it may be safely assumed that the rule in equity is, that where the damages sustained can be admeasured and compensated, equity will not interfere where the public benefit greatly outweighs private and individual inconvenience.A Coe v. Winnepissiogee Manufacturing Co., 37 N. H., 254; Porter v. Witham, 17 Me., 292.
Complaint is made of that portion of the decree taxing one-half of the costs to the plaintiffs. The decree in this respect, and all others, is fully as favorable to the plaintiffs as they are entitled to.
Affirmed.
