117 P. 418 | Utah | 1918
Lead Opinion
Plaintiffs, fifty-nine in number, by this action seek to enjoin the defendant from operating its gas plant at its location in the Western part of Salt Lake City.
The defendant in its answer admits the ownership and operation of the gas plant. There is a general denial of the other allegations of the complaint.
The court, among others, found the following facts:
=(a) '‘That the defendant now is, and ever since March 21, 1906, has been, a corporation organized under the laws of the state of Utah, and that since its organization it has built and constructed a large, plant for the manufacture, generation, sale, and distribution of gas in Salt Lake City, Utah, on First South street, and between Ninth and Tenth West streets, and that defendant’s said plant is near the properties and homes of the plaintiffs, and in a district of Salt Lake City that is both residential and manufacturing. ’ ’
(b) “That said defendant at said place manufactures and generates gas in large quantities, and' produces gas for fuel and illuminating purposes.”
(c) “That the plaintiffs herein own' residence property near the plant of the
(d) “The court finds that carbon monoxide, a very poisonous and nonodorous gas, is produced in large quantities by the defendant at its said works, but that from the evidence the court is not justified in finding that there is sufficient carbon monoxide in the atmosphere at any place, either on the defendant’s premises or on the public highways or on the premises of the plaintiffs, tó .produce any symptom of carbon monoxide poisoning, or any injury to health, and the evi
(e) “That by reason of said offensive and noxious gases and fumes reaching the premises of the -plaintiffs herein from the defendant’s said gas plant, and from the operation thereof, the rental and market value of the plaintiffs’ property are very materially injured and depreciated, and renders said property so uncomfortable and so unfit for habitation as to justify the plaintiffs in asking, and the court in granting, the permanent injunction prayed for by the plaintiffs herein. ’ ’
(f) “The court further finds that the noises emanating from the defendant’s gas plant, as the same is now being operated, it having been admitted on the trial by the plaintiffs that since certain improvements were installed by the 'defendant the noises complained of at the time of the filing of the complaint were greatly lessened, and not now so annoying or disturbing to the plaintiffs as to constitute in themselves a nuisance, or to give rise to any cause of action against the defendant.”
(g) “The court further finds that it is not shown by a preponderance of the evidence that the vegetation on the
(h) “That the interference, annoyances, injuries, and damages to the plaintiffs and to their premises by the defendant through its operation of said gas plant and manu-factory are continuously recurring; that prior to and since the commencement of this action, and during the trial of this cause, the defendant has made every possible effort to itself abate said nuisance, and to prevent the emanation of said offensive and noxious gases and fumes from its plant during the operation thereof, but that the defendant is unable by any device to abate said nuisance, and that the same cannot be abated except by discontinuing the operation of said gas plant and manufactory in its present locality, and that said nuisance, if the operation of said gas plant and manufactory is permitted to continue, is a permanent nuisance to the plaintiffs herein and to their property.”
From the foregoing, as conclusions of law, the court'found:
“That the operation of the gas plant and manufactory of the defendant upon the premises now • occupied by it constitutes a permanent nuisance to plaintiffs, and to the premises of the plaintiffs, against which the plaintiffs have no plain, speedy, nor adequate remedy at law, and that plaintiffs are entitled to the relief prayed for in their complaint. ’ ’.
A decree was accordingly entered enjoining the defendant, after a period of 90 days, from qperating its gas plant and manufacturing gas upon said premises, or in any locality from which the fumes and gases produced would reach the premises of the plaintiffs.
The defendant brings the case to this court on appeal. ■
It is vigorously contended that the findings of the court are not supported by the evidence, and this court is asked to review the testimony given and determine its weight. More than 300 witnesses were examined, and the trial of the case covered a period of something like eighty days. Much of the testimony is contradictory.- Engineers were heard by the court who detailed at great length the process of manufacture, the methods by which the smoke was conducted from the, furnaces and retorts, how the gas was conducted, and
The trial court, by agreement of all parties, during the pendency of the action visited the gas plant in company with counsel, and also alone at numerous times, and had opportunity to and did observe the locality, situation of plaintiffs’ residences, the method of operating the plant, and from such personal visits was able to better understand and weigh the testimony of the witnesses than one not having that opportunity, and to determine from such personal observation the presence of offensive and noxious odors emanating from the gas plant and finding their way to the premises of the plaintiffs.
The plaintiffs’ witnesses testified that, notwithstanding every, effort made on the part of the defendant company to prevent the offensive odors escaping from the gas plant, it had not been successful, and that there were, periodically and at times continuously, offensive and noxious odors coming from the gas plant and entering upon the premises of the plaintiffs and into their homes. The weight of the testimony respecting the effect upon the health of the plaintiffs or the members of their families is not as convincing, conclusive, or satisfactory as that given in support of the other findings. I do not, however, understand from the court’s findings that any serious sickness results, or is likely to result, from the odors coming-from the defendant’s plant, but merely that such offensive odors are deleterious, thereby causing nausea, etc., which, at most, is but temporary in its effect.
The defendant first constructed its gas plant in the years 1906-07, and enlarged the same about the year 1910. With
It would be a burdensome and useless task to attempt an extended' review of the testimony taken in this case, and the limits of this opinion will not permit of such a review. There can, however, be no contention that there is not substantial evidence in the record to support the court’s findings; and after a careful reading of the entire volume of testimony, a consideration of the means of knowledge of the various witnesses, the fact that many of the defendant’s witnesses had resided only a short time in ‘the vicinity of the gas plant, and that some of them had never resided there at all, and the fact that the court had personal opportunity of investigating as herein stated, we are clearly of the opinion that the court’s findings are supported by the weight of the evidence.
After the institution of this action and prior to the trial defendant made some extraordinary and extensive, improvements in an effort to prevent the escape of gases and other offensive odors from its plant. It is true plaintiffs testified the odors were not decreased by the efforts of the defendant. Without attempting to state in detail those improvements, suffice it to say that the object sought to be obtained was to prevent the escape of smoke and gas from the retort house, and to carry the smoke and gases from the retort house through flues or pipes, in which all’ solid substances were washed from the smoke and by means of fans constructed for that purpose, forced into a large smokestack 129 feet high, and at that height released into the air. It is also shown that the fumes and gas from the revivifying material, which had prior thereto been allowed to escape into the atmosphere, are now confined in a building known as the revivifying house, and conducted from that house by means of pipes or ducts to the furnaces, and there consumed by fire. These improvements did and must of necessity have reduced to some extent the gases or fumes which had theretofore escaped into the atmosphere, and the statements of witnesses that the odors had been
"They (the plaintiffs) contented themselves with a mere protest at some stage of the proceedings. Two courses were then open to them: (1) To file a bill in equity to enjoin the work on the ground that it would increase the nuisance already existing, and cause them irreparable damages; (2) to wait until the work was done, and bring an action at law for damages. They waited. Equity will not now lend its aid to a party to compel an expensive work to be undone which the party might, by planting a bill in equity in reasonable season, have prevented.” McKee v. City of Grand Rapids, 137 Mich. 212, 100 N. W. 585.
That language, and the principle therein announced, was quoted and approved by this court in Lewis v. Pingree Nat. Bank, 47 Utah, 48, 151 Pac. 558, L. R. A. 1916C, 1261.
“But it is unnecessary to multiply cases. They all proceed upon the theory that laches is not like limitation, a mere matter of time, but principally a question of the inequity of permitting the claim to be enforced' — an inequity founded upon some change in the condition or relations of the property or the parties.”
In Penn Mutual Life Ins. Co. v. Austin, 168 U. S. 696, 18 Sup. Ct. 227, 42 L. Ed. 626, the court said:
“In Speidel v. Henrici, 120 U. S. 377, 387 [7 Sup. Ct. 610, 612 (30 L. Ed. 718)], the court said, speaking through Mr. Justice Gray: ‘Independently of any statute of limitations, courts of equity uniformly decline to assist a person who has slept upon his rights'and shows no excuse for his laches in asserting them. “A court of equity,” said Lord Camden, “has always refused its aid to stale demands, where the party slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive and does nothing. Laches and neglect are always discountenanced; and, therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court.” ’ * * *
“In Hammond v. Hopkins, 143 U. S. 224, 250 [12 Sup. Ct. 418, 427 (36 L. Ed. 134)], through Mr. Chief Justice Fuller, the court said: ‘No rule of law is better settled than that a court of equity will not aid a party whose application is destitute of conscience, good faith, and reasonable diligence, but will discourage stale demands for the peace of society, by refusing to interfere where there have been gross laches*21 in prosecuting rights, or where long acquicscouee in the assertion of adverse rights have occurred.’ ”
“ 'Relief by injunction is not controlled by arbitrary or technical ■rules, but the application for its exercise is addressed to the conscience and sound discretion of the court. Where a party seeks the intervention of a court of equity to protect his rights by injunction, the application must be seasonably made, or the rights may be lost, at least so far as equitable intervention is concerned. It is a rule practically without exception that a court of equity will not grant relief by injunction where the party seeking it, being cognizant of his rights, does not take those steps to assert them which are open to him, but lies by and suffers his adversary to incur expenses and enter into burdensome engagements, which would render the granting of an injunction against the completion of his undertaking, or the use thereof when completed, a great injury to him. A suitor who by laches has made it impossible for a court to enjoin his adversary without inflicting great injury upon him will be left to pursue his ordinary legal remedy. This rule is especially applicable where the object of the injunction is to restrain the completion or use of public works, and where the granting of the injunction would operate injuriously to the public as well as to the party against whom the injunction is sought.’ 16 Am. & Eng. Ency. of Law (2d Ed.) p. 356.” Stewart Wire Co. v. Lehigh C. & N. Co., 203 Pa. 478, 53 Atl. 1127.
However clear the plaintiffs may have established their rights and the trespass upon those rights by the defendant, under the rule announced in the foregoing citations it was incumbent upon the plaintiffs to exercise diligence and assert such rights within a reasonable time.- It is shown by the testimony that the plaintiffs, with few exceptions,- were residing in the vicinity of the gas plant at the time of its erection and were aware and had knowledge of the nuisance created by the operation of^ the plant prior to 1910, and notwithstanding that fact neglected to institute any proceedings to protect their rights, and in effect said to the defendant: “You are operating your plant as a nuisance, and we are aware of the fact; but we will permit you to enlarge it, and after you have expended the money necessary for such enlargement we will restrain you from enjoying your property.” To issue the extraordinary remedy of injunction in such a case, and under the facts as disclosed by this record, would be an unwarranted hardship and an injustice to the defendant which a court of equity ought not to enforce.
"The rule has already been stated, as one of the foundations of the concurrent jurisdiction,’ that where a court of equity has obtained jurisdiction over some portion or feature of a controversy, it may, and will in general, proceed to decide the whole issues, and to award complete relief, although the rights of the parties are strictly legal, and the final remedy granted is of the kind which might be conferred by a court of law.” Pom. Eq. Jur. 3d Ed. p. 231.
See, also, Robinson v. Appleton, 124 Ill. 283, 15 N. E. 761; Browder v. Phinney, 30 Wash. 74, 70 Pac. 264.
And that is true notwithstanding the equitable relief sought by the complaint is denied in an action where the facts, as here, are such that plaintiffs might reasonably have expected the court to grant the equitable relief sought. Waite v. O’Neil (C. C.) 72 Fed. 348, affirmed in 76 Fed. 408, 22 C. C. A. 248, 34 L. R. A. 550; Combs v. Scott, 76 Wis. 664, 45 N. W. 532; Goddard v. American Queen, 27 Misc. Rep. 482, 59 N. Y. Supp. 46.
In addition, in this state there is but one form of civil action for the enforcement or protection of private rights and for the redress or prevention of private wrongs, and law and equity may be administered in the same action. Such are the provisions of both the Constitution and the Code. To dismiss this action^ and send the plaintiffs to their actions at law, would necessitate the filing of new complaints based
“Wherever the true spirit of the reformed procedure lias been accepted and followed, the courts not only permit legal and equitable causes of action to be joined, and legal and equitable remedies-to be prayed for and obtained, but will grant purely legal reliefs of possession, compensatory damages, pecuniary recoveries, and the like, in addition to or -in place of the specific equitable reliefs demanded in a great variety of eases which would not have come within the 'scope of the general principle as it was regarded and acted upon by original equity jurisdiction, and in which, therefore, a court of equity would have refrained .from exercising such a jurisdiction.” Pom. Eq. Jur. p. 354.
See, also, Morgan v. Child, Cole & Co., 41 Utah, 564, 128 Pac. 522; Mills v. Gray, 50 Utah, 224, 167 Pac. 358; O’Neill v. Mutual Life Ins. Co. of N. Y., 51 Utah, 592, 172 Pac. 306.
From the foregoing conclusions the order will be as follows : That the findings of fact made by the district court be, and the same are hereby, affirmed; that the conclusions of law and decree granting a permanent order restraining the
Neither party will recover costs on this appeal, but the order taxing costs in favor of plaintiffs made by the district court will be, and is hereby, affirmed.
Concurrence Opinion
(concurring).
I concur in the opinion of Mr. Justice GIDEON, reversing the decree granting an injunction, and also concur in his conclusion that under our statute the plaintiffs are entitled to recover damages to the extent that they and their property may have been, or may continue to be, affected or damaged by the operation of the gas plant of the defendant. I feel constrained, however, to state, as briefly as possible, the reasons that impel me to arrive at the foregoing conclusions.
While I concur in the finding of the district court that the operation of the gas plant, and the fumes and gases arising therefrom, to some extent at least, “so interfere with the comfortable enjoyment of life and of the property of the plaintiffs and of each of them as to render said property less fit for habitation for residence purposes,” and that for these
From the evidence it appears that the officers of both the city and the state boards of health have had the matter of the city’s health under'investigation, and none of the officers of those boards, including the county physician, have, been able to discover that the operation of the gas plant had any appreciable effect on the health of the plaintiffs or of their families. That conclusion is supported by the testimony of the physicians who were professionally called to attend some of the plaintiffs in cases of sickness. It is further supported by the testimony of other experts.' True, the testimony of several experts called by the plaintiffs is to the contrary. If, however, the testimony of the latter experts is carefully analyzed, it will be found that they, to a large extent at least,base their conclusions on hypothetical questions propounded to them in which questions certain facts were assumed which in my judgment, the great weight of the evidence shows were not established, at least not to the extent that they were assumed to exist in said questions. There are circumstances disclosed by the record which áre. not contradicted, and
To my mind it is quite clear, however, that while the operation of the defendant’s gas plant does not appreciably affect the health of the plaintiffs or their families, yet it does, at least at times, substantially affect their comfort, and thus also affects the value of their property for residential purposes. The gas plant, within the purview of our statute (Comp. Laws
The defendant pleaded laches as a defense, which, to my mind, was clearly established, in that the plaintiffs stood by for years and permitted the defendant to expend very large sums of money in enlarging and in improving the gas plant, so as to enable the defendant to meet the requirements of the inhabitants of Salt Lake City for gas for both fuel and lighting purposes. In this connection it must not be overlooked that the great weight of evidence is to the effect that in enlarging and in improving the plant the defendant did not increase, but very materially reduced, the smoke, fumes, and gases emanating from the plant. In view, therefore, that the health of plaintiffs and their families is not materially affected by the operation of the gas plant, and for the further reason that plaintiffs have stood by and permitted the defendant to • expend very large sums of money for the purposes stated, and for other reasons that I shall not now pause to' enlarge upon, I ■ am clearly of the opinion that plaintiffs are not as a matter of right entitled to injunctive relief. The fact that plaintiffs have stood by and have permitted the defendant to enlarge and improve its plant, and that it by that means has materially reduced the effects of the nuisance, does, however, not prevent plaintiffs from recovering such damages as they may have or shall < continue to suffer by reason of the operation of the gas plant. The only effect of plaintiffs’ laches is-to prevent them from unconditionally restraining the defendant from operating its gas plant. Plaintiffs may proceed upon the principle laid down by the Supreme Court of the United States in New York City v. Pine, 185 U. S. 93, 22 Sup. Ct. 592, 46 L. Ed. 820. The principle there announced is fully discussed and applied by the New York Court of Appeals in what are commonly called the New York Elevated Railroad Cases. See 1 Pomeroy, Eq. Jur. (3d Ed.) sections 470, 472, and 473. See, also, Lynch v. Metropolitan El. R. R. Co., 129 N. Y. 274, 29 N. E. 315, 15 L. R. A. 287, 26 Am.
"If a person appeals to a court of equity for an injunction to restrain the maintenance or to compel the removal of the structure, the court to which such appeal is made has the power to determine the amount of unpaid damages, and to withhold an injunction, and to direct that the structure be permitted to remain and be operated, provided the assessed damages are paid. Courts of equity, it seems, the more readily pursue such a course when important public interests are at stake, and a contrary course would be productive of much public inconvenience and annoyance. This rule applies with special force when the complainant, by making no objection, acquiesces in the work. It finds frequent application in the New York Elevated Railroad Cases.”
By referring to those cases it. will be seen that the elevated railroad was held to be a continuing nuisance, which caused discomfort and annoyance to the complainants, who were abutting property owners. While in those cases the relief was not granted upon the theory that the complainants had stood by, it was, however, granted upon the theory that it was a continuing nuisance, but not one which affected the health of the complainants. In those cases, like in the case at bar, actions were commenced in equity to enjoin the operation of the railroad and to abate the alleged nuisance. The New York. Court of Appeals, however, held that although the elevated railroad was a continuing nuisance, yet its operation
The court having full jurisdiction of the case, I can conceive of no possible reason why, in furtherance of justice and in order to avoid a multiplicity of actions, as well as to avoid unnecessary expense both to the public and to the parties, it mhy not assess the damages, and in doing so make separate findings respecting the amount each plaintiff is entitled to, and enter separate judgments upon the findings for the amounts found. Neither do I see any objection to permitting all other parties who may be similarly situated and affected, and who claim to be damaged, to join with plaintiffs in this action for the purpose of having their damages adjudicated. Nor does such procedure affect the right of appeal of any one or of all of the parties to the action. In actions where the rights of the parties are separate, but where they join in one action to avoid a multiplicity of suits, or for some other good reason, each one may prosecute an appeal independently. The doctrine has recently been stated by this court in Gunnison Irr. Co. v. Gunnison Highland Canal Co., 52 Utah, 347,
A majority of the court doubt both the propriety and the necessity of enforcing the alternative relief suggested in the quotations from Pomeroy; therefore both Justice GIDEON and myself defer to their judgment, and have yielded assent to the judgment as stated.