118 P. 928 | Cal. | 1911
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *241 Petitioner has made an original application to this court to suspend the operation of a certain injunction until the decision of the appeals in two cases, in each of which the California Portland Cement Company, a corporation, is the defendant, on the ground that the property of the corporation would be so greatly damaged by the operation of the injunction pending the appeals, that a judgment in defendant's favor would be almost fruitless, while, it is contended, the damage to plaintiffs is easily susceptible of satisfaction by a payment of money. Petitioner offers to furnish any bond this court may require if the order which is prayed for shall be granted. As this was the first case in America, so far as this court knew, in which the operation of a cement plant had been enjoined because of the dust produced in the processes of manufacture, and as the showing which was made indicated that petitioner's loss would be very great if the injunction were enforced at once, an order was entered temporarily staying its operation until both sides to the controversy could be heard. The court was moved somewhat to such action also because the trial court had made an order staying the operation of the injunction for sixty days, so that this court might have the opportunity of passing upon this application. Two principal questions are presented: 1. Has the supreme court the authority in aid of its appellate jurisdiction under section 4 of article VI of the constitution to suspend the operation of an injunction pending appeal? 2. If it has such power is this a proper case for the exercise thereof? Owing to the conclusion which we have reached it is unnecessary to answer the first question authoritatively because assuming a reply to it in the affirmative, we cannot say that the facts of this case *242 warrant any other response to the second inquiry than a negative one.
The salient facts shown by the petitioner are that the California Portland Cement Company is engaged in the manufacture of cement on property situated nearly two miles from the center of the city of Colton in the county of San Bernardino, but not within the limits of said city; that said manufactory is located at Slover Mountain, where the substances necessary to the production of Portland cement are quarried; that long before the surrounding country had been generally devoted to the production of citrus fruits, Slover Mountain had been known as a place where limestone was produced; that quarries of marble and limestone had been established there; that lime kilns had been operated upon said mountain for many years; that in 1891 the petitioner obtained title to said premises and commenced thereon the manufacture of Portland cement; that the said corporation has expended upon said property more than eight hundred thousand dollars; that at the time when petitioner began the erection of the cement plant the land surrounding the plant was vacant and unimproved, except some land lying to the north, which had been planted to young citrus trees; that these trees were first planted about a year before the erection of the cement plant was commenced (but long after the lime kilns and the marble quarries had been operated); that subsequently, other orange groves had been planted in the neighborhood; that petitioner's plant on Slover Mountain has a capacity of three thousand barrels of cement per day; but that by the judgment of the superior court in two certain actions against petitioner entitled Lillie A. Hulbert, Administratrix etc. v. California Portland Cement Company, a Corporation, and Spencer E. Gilbert, plaintiff, v. the same defendant, the corporation aforesaid was enjoined from operating its plant in such manner as to produce an excess of 88,706 barrels of finished cement per annum; that the regular pay-roll of the company includes the names of about five hundred men who are paid about thirty-five thousand dollars a month; that the fixed, constant monthly expenses for supplies and materials amount to thirty-five thousand dollars; that the California Portland Cement Company employs the best, most modern methods in its processes of manufacture, but that nevertheless there is an unavoidable *243 escape into the air of certain dust and smoke; that petitioner has no other location for the conduct of its business at a profit; that the land of the Hulbert estate is located from fifteen hundred to twenty-five hundred feet from petitioner's cement works and that Spencer E. Gilbert's land is all within one thousand feet therefrom; that petitioner has diligently sought some means of preventing the escape of dust from its factories; that it has consulted the best experts and sought the best information obtainable, and that it is now and has been for a long time conducting experiments along the lines suggested by the most eminent engineering authorities upon this subject, and that as soon as any process can be evolved for preventing the escape of the dust, the petitioner will adopt such process in its works, and it is believed that a process now constructing with all diligence by petitioner will effectually prevent the escape of dust. Petitioner also alleges that it is easily possible to estimate the damages of the plaintiffs in money while it is utterly impracticable to estimate the damage in money which will be caused to the petitioner by the closing of the plant, and that stopping the plant pending the appeals will cause financial ruin to the chief stockholders of the petitioner, and that the elements of loss averred are irreparable on account of the disorganization of petitioner's working force, loss of market, and deterioration of machinery.
The learned judge of the superior court in deciding the cases in which petitioner here was defendant, described the method of manufacturing cement and the injury to the trees. He said, in part: "The output from these two mills at the present time is about 2500 barrels of cement every twenty-four hours, and to produce this there is fed into the various kilns of the defendant, during the time mentioned, about one and one-half million pounds of raw mix, composed of limestone and clay, ground as fine as flour and thoroughly mixed. This raw mix is fed into the tops of kilns, wherein the temperature varies from 1800 to 3000 degrees Fahrenheit, and through which kilns the heated air and combustion gases pass at the rate of many thousands of feet per minute. The result of this almost inconceivable draft is to carry out, in addition to the usual products of combustion, particles of the raw mix, to the extent of probably twenty tons per day or more, the greater part of which, without question, is carried up into the *244 air by the rising gases, and thereafter, through the action of the winds and force of gravity, distributed over the surrounding territory." Speaking of the premises of the plaintiffs he said that because of prevailing westerly winds and on account of the proximity of the mills said lands were almost continually subject to the deposit of dust. In this regard he said: "It is the fact, incontrovertibly established by both the testimony of witnesses and personal inspections made by the court that a well-nigh continuous shower of cement dust, emanating from defendant's cement mills and caused by their operation, is, and for some years past has been, falling upon the properties of the plaintiffs covering and coating the ground, filtering through their homes, into all parts thereof, forming an opaque semi-cemented encrustation upon the upper sides of all exposed flowers and foliage, particularly leaves of citrus trees, and leaving ineradicable, yet withal plainly discernible marks and evidence of dust, dusty deposits, and grayish colorings resulting therefrom, upon the citrus fruits. The encrustations above mentioned, unlike the deposits occasionally occurring on leaves because of the presence of undue amounts of road dust or field dust, are not dissipated by the strongest winds, nor washed off through the action of the most protracted rains. Their presence, from repeated observations, seems to be as continuous as their hold upon the leaves seems tenacious." The court further found that the deposit of dust on the fruit decreased its value; that the constant presence of dust on the limbs and leaves of the trees rendered the cultivation of the ground and the harvesting of the crop more costly than it would have been under ordinary conditions; and that said dust added to the usual and ordinary discomforts of life by its presence in the homes of the plaintiffs. The court also found that the operation of the old mill of the defendant corporation had occurred with the acquiescence of the plaintiffs and that the defendant had acquired a prescriptive right to manufacture the maximum quantity of cement produced annually by that factory.
In view of such facts solemnly found by the court after trial, we cannot say that there is reason for a suspension by this court of the injunction, even conceding that we have power under proper circumstances thus to prevent a disturbance of existing conditions, pending an appeal. We are not *245
insensible to the fact that petitioner's business is a very important enterprise; that its location is peculiarly adapted for the manufacture of cement; and that great loss may result to the corporation by the enforcement of the injunction. Even if the officers of the corporation are willing to furnish a bond in a sum equal to the value of the properties of Gilbert and of the Hulbert estate here involved, we cannot, under plain principles of equity, compel these plaintiffs to have recourse to their action at law only and take from them the benefit of the injunctive relief accorded them by the chancellor below. To permit the cement company to continue its operations even to the extent of destroying the property of the two plaintiffs and requiring payment of the full value thereof would be, in effect, allowing the seizure of private property for a use other than a public one — something unheard of and totally unauthorized in the law. (Hennessy v. Carmony,
Petitioner contends for the rule that the resulting injuries must be balanced by the court and that where the hardship inflicted upon one party by the granting of an injunction would be very much greater than that which would be suffered by the other party if the nuisance were permitted to continue, injunctive relief should be denied. This doctrine of "the balance of hardship" and the associated rule that "an injunction is not of right but of grace" are the bases of petitioner's argument, and many authorities in support of them have been called to our attention. In petitioner's behalf are cited such cases asRichards's Appeal, 57 Pa. St. 105, [98 Am. Dec. 202], where an injunction which had been sought to restrain defendant from using large quantities of bituminous coal to plaintiff's damage was refused, and the plaintiff was remitted to his action at law, the court saying, among other things: "Whatever of injury may have or shall result to his, the plaintiff's property, from the defendant's works, by reason of a nuisance complained of, is only such as is incident to a lawful business conducted in the ordinary way and by no unusual means. Still there may be injury to the plaintiff, but this of itself may not entitle him to the remedy he seeks. It may not, if ever so clearly established, be a cause in which *247 equity ought to enjoin the defendant in the use of a material necessary to the successful production of an article of such prime necessity as good iron; especially if it be very certain that a greater injury would ensue by enjoining than would result by refusal to enjoin." The same rule was announced in Dillworth'sAppeal, 91 Pa. St. 248, a case involving the building of a powder house near plaintiff, and in Huckenstine's Appeal, 70 Pa. St. 102, [10 Am. Rep. 669]. Petitioner admits that in the later case of Sullivan v. Jones Laughlin Steel Co., [208 Pa. St. 540, 57 A. 1065, 66 L.R.A. 712], the supreme court of Pennsylvania reached a different conclusion, but contends that the opinion in that case merely defines the word "grace" as used in Huckenstine's Appeal, the real meaning of the expression "an injunction is a matter of grace" being that a high degree of discretion is exercised by a chancellor in awarding or denying an injunction. An examination of the case, however, shows that the court went very much further than a mere definition of the phrase "of grace." In that case the defendant had erected a large factory for the manufacture of steel on land purchased from one of the plaintiffs, but after many years defendant had commenced the use of "Mesaba" ore, which caused the emission of great quantities of fine dust upon the property of plaintiffs. The supreme court of Pennsylvania in reversing the decree of the lower court dismissing the bill went into the matter of "balancing injuries," and "injunctions of grace" very thoroughly and we may with propriety, I think, quote and adopt some of its language upon these subjects as follows: "It is urged that as an injunction is a matter of grace, and not of right, and more injury would result in awarding than refusing it, it ought not to go out in this case. A chancellor does act as of grace, but that grace sometimes becomes a matter of right to the suitor in its court, and, when it is clear that the law cannot give protection and relief — to which the complainant in equity is admittedly entitled — the chancellor can no more withhold his grace than the law can deny protection and relief, if able to give them. This is too often overlooked when it is said that in equity a decree is of grace, and not of right, as a judgment at law. InWalters v. McElroy et al. [151 Pa. St. 549] (25 A. 125,), the defendants gave as one of the reasons why the plaintiff's bill should be dismissed, that his land was worth but little, while *248 they were engaged in a great mining industry which would be paralyzed if they should be enjoined from a continuance of the acts complained of; and the principle was invoked that, as a decree in equity is of grace, a chancellor will never enjoin an act where, by so doing, greater injury will result than from a refusal to enjoin. To this we said: The phrase `of grace,' predicated of a decree in equity, had its origin in an age when kings dispensed their royal favors by the hands of their chancellors; but although it continues to be repeated occasionally, it has no rightful place in the jurisprudence of a free commonwealth, and ought to be relegated to the age in which it was appropriate. It has been somewhere said that equity has its laws, as law has its equity. This is but another form of saying that equitable remedies are administered in accordance with rules as certain as human wisdom can devise, leaving their application only in doubtful cases to the discretion, not the unmerited favor or grace, of the chancellor. Certainly no chancellor in any English speaking country will at this day admit that he dispenses favors or refuses rightful demands, or deny that, when a suitor has brought his cause clearly within the rules of equity jurisprudence, the relief he asks is demandableex debito justitiæ, and needs not to be implored ex gratia. And as to the principle invoked, that a chancellor will refuse to enjoin when greater injury will result from granting than from refusing an injunction, it is enough to observe that it has no application where the act complained of is in itself, as well as in its incidents tortious. In such case it cannot be said that injury would result from an injunction, for no man can complain that he is injured by being prevented from doing to the hurt of another that which he has no right to do. Nor can it make the slightest difference that the plaintiff's property is of insignificant value to him as compared with the advantages that would accrue to the defendants from its occupation. There can be no balancing of conveniences when such balancing involves the preservation of an established right, though possessed by a peasant only to a cottage as his home, and which will be extinguished if relief is not granted against one who would destroy it in artificially using his own land. Though it is said a chancellor will consider whether he would not do a greater injury by enjoining than would result from refusal and leaving the party to his redress at the *249 hands of a court and jury, and if, in conscience, the former should appear, he will refuse to enjoin. (Richards's Appeal, 57 Pa. St. 105, [98 Am. Dec. 202]); that `it often becomes a grave question whether so great an injury would not be done to the community by enjoining the business, that the complaining party should be left to his remedy at law.' (Dillworth's Appeal, 91 Pa. St. 248); and similar expressions are to be found in other cases; `none of them, nor all of them, can be authority for the proposition that equity, a case for its cognizance being otherwise made out, will refuse to protect a man in the possession and enjoyment of his property because that right is less valuable to him than the power to destroy it may be to his neighbor or to the public.' (Evans v. Reading Chem. Fer. Co., 160 Pa. St. 209, [28 A. 702].) The right of a man to use and enjoy his property is as supreme as his neighbor's, and no artificial use of it by either can be permitted to destroy that of the other."
Petitioner lays great stress upon North Fork Water Co. v.Medland, 187 Fed. 169, in which in the opinion by Judge Ross, formerly a member of this court, the following appears: "Now, in the first place, it is to be remembered that no one is entitled to an injunction as a matter of absolute right. When a contract is broken and any party thereto sustains an injury by reason of such breach, the injured party has an absolute right to maintain an action at law for the recovery of such damages as can be shown to have been sustained by him. But a suit in equity either to enjoin the continuance of such a breach or to enforce the specific performance of the contract appeals to the sound discretion of the chancellor — to his conscience — and the relief so sought will be granted or withheld according to the real equity of the case, in view of all its facts and circumstances." Petitioner also cites Mountain Copper Co. v.United States, 142 Fed. 625, [73 C.C.A. 621], in which the opinion was also by Judge Ross. In that case the court refused to enjoin the operation of defendant's smelter relying largely upon the early cases from Pennsylvania which declare the "balance of hardship" doctrine and that an injunction is ex gratia and not exdebito justitiæ, and citing other cases including the well knownMadison v. Ducktown Sulphur, Copper Iron Co.,
The Mountain Copper Company case has also been criticised by the supreme court of Arizona, as well as the later case ofMcCARTHY v. Bunker Hill Sullivan Mining Con. Co., 164 Fed. 927, [92 C.C.A. 259]. In Arizona Copper Co. v. Gillespie,
Petitioner cites, among others, the following cases, which, although tending for the most part to support the rule for which he contends, are not we think in accord with the best modern ideas upon this subject and with the current of *252
Californian authorities: McBryde v. Sayre,
In Georgia v. Tenn. Copper Co.,
Our attention has been directed to certain Californian cases which, according to petitioner's belief, support the rule with reference to the "balancing of injury." These are Peterson v.City of Santa Rosa,
Let the temporary order staying the operation of the injunction be dismissed and the petition be denied.
Lorigan, J., concurred. *255
Mr. Justice Henshaw deems himself disqualified to participate herein, and therefore declines to act.
Concurrence Opinion
I concur in the order. It seems to me, however, that the discussion concerning the right of a court of equity to refuse an injunction where the injury resulting to the plaintiff from a denial of the relief would be far less than that sustained by the defendant if the injunction were granted, is applicable to a consideration of appeals on their merits, rather than to the question here involved. If the court may balance the extent of the losses to be suffered by the respective parties, it exercises its discretion in this behalf when it grants or refuses the injunction. In this case the lower court has determined that it was essential, or at least proper, for the protection of the plaintiffs' rights that the defendant should be restrained. We are not now reviewing the correctness of that determination. The petitioner cannot, of course, ask us in this proceeding to stay the force of the injunction on the ground that the trial court abused its discretion or that it erred otherwise in granting the injunction. What is claimed is that a suspension of the judgment "is necessary or proper to the complete exercise" of our appellate jurisdiction (Const., art. VI., sec. 4); it is claimed that a refusal to stay the injunction will so affect the subject of the controversy that, if the judgment should ultimately be reversed, the appellant will in large measure be deprived of the fruits of its successful appeal.
But we must consider the rights of the respondents, as well as those of the appellants. If the judgment of the court below is right, the plaintiffs are absolutely entitled to have the wrongful acts stopped, not only after the determination of the appeal, but pending the appeal. Under the findings the acts complained of are inflicting a continuing injury upon the plaintiffs and their lands, an injury of a kind which has always been regarded by courts of chancery as irremediable and not capable of adequate redress by damages. If the appellant may ask that it shall not lose the fruits of an appeal which may turn out to be meritorious, the respondents are in at least as good a position to demand that the appellate court shall not irrevocably take away from them the benefit which they have already won and which will be confirmed to them if the judgment *256
should be sustained. The exercise of the appellate jurisdiction must contemplate the possibility of affirmances as well as reversals. I do not think a stay of execution can be said to be necessary or proper to the complete exercise of appellate jurisdiction when such stay can be granted only at the risk of destroying rights which will unquestionably belong to the respondent if the judgment of the lower court shall be affirmed. This will always be the situation in the case of an appeal from a judgment enjoining acts which are found to be destructive of the plaintiff's real property. I think, therefore, that in such cases, at any rate, this court should not undertake to suspend the force of a prohibitory injunction pending appeal. (Swift v.Shepard,
It may be suggested, further, that the effect of an order by this court suspending the operation of a prohibitory injunction is to reverse, pro tanto, the judgment granting the injunction, and that in advance of a hearing on the merits. That this is so will appear more clearly if we suppose the case of an appeal from an order of the superior court granting an injunction pendentelite. In such case, an application for a suspension of the injunction pending the appeal could be urged upon precisely the same grounds as those here presented by petitioner. The thing decided by the trial court, in the case supposed, was that defendant should be restrained until a trial on the merits, or until that court should order otherwise. That conclusion is reviewable on appeal, but to suspend the order before a hearing of the appeal would clearly be to set aside the very thing decided below, viz., that the defendant should be enjoined until a trial or a further order. The situation does not differ where the injunction is embraced in a final judgment. There, too, it is a part of the adjudication that the defendant should be enjoined at once, and this adjudication should not be set aside on appeal before a hearing on the merits of the appeal.
Angellotti, J., and Shaw, J., concurred. *257