Opinion by
Plаintiffs brought this proceeding in equity against defendant township, seeking to have an open dump on *334 land belonging to defendant, on which it burned refuse, rubbish and trash, declared a nuisance in fact, and for an injunction restraining the further burning of such materials on the lot, and forbidding the construction on the adjoining lot, also belonging to defendant, of an incinerator plant for the burning of such mаterials and garbage. After full hearing, the chancellor entered a decree nisi dismissing the bill, which action was affirmed by the court in banc and a final decree entered, from which plaintiffs appeal.
We think it not necessary to review the testimony in view of the chancellor’s findings, which we will later summarize, particularly is this so in the light of our decision in
F. J. Kress Box Co. v. Pittsburgh,
Counsel for appellants state only two questions for our consideration: (1) Does a municipal trash and garbage incinerаting plant amount to a nuisance per se when located in a predominantly residential neighborhood? (2) Is the Penn Vallеy-Ashland Heights section of Lower Merion Township, Montgomery County, a predominantly residential neighborhood? The fact upon which these questions rest was found against appellants by the court below.
Summarized, the court’s findings are as follows: Defendant, as a township of the first class, is authorized to provide for the collection and disposal, through incinerating works, of garbage, rubbish and trash. Defendant, as the owner of the premises since 1921, has until the present time used them as an open, dump fоr.the refuse and trash collected throughout the township. The *335 combustible refuse and trash are openly burned on the dump by сaretakers employed by the township. No garbage is hauled to or deposited upon the dump. The township emplоyed an engineering firm to prepare plans and specifications for the construction of a modern, high tempеrature, refuse incinerator plant, to be located on the land. The site of the dump is a deep ravine closеd in by hills on three sides. The open burning of trash and rubbish on the dump creates smoke and objectionable odors and sends out small particles of the burned material. These odors, smoke and burned particles are at times carried by the wind to the homes of the plaintiffs and have caused them annoyance and inconvenience. The annoyance is not cоnstant but. is intermittent. The dump has depreciated to some extent the value of the property in the immediate vicinity. The рlaintiffs and others have made complaint to the township commissioners about the dump. The commissioners have improved conditions materially and now the dump is conducted as well as any open one can be. The proposеd incinerator is designed to consume both trash and garbage to the extent of 75 tons a day, with the possibility of increase to 150 tons, but in the immediate future no garbage will be incinerated. The incinerator will not depreciate the value of prоperty in the immediate vicinity now affected by the dump. The proposed plant is of the latest design and must be guaranteеd by the manufacturer to operate without objectionable odors, fly ash, sparks or dust, if proper mixtures are maintained in the materials burned. If erected according to the plans and specifications, it will eliminate most of-the objеctionable odors, fly ash, sparks and dust now emanating from the open fires of the dump. There may be at times some smokе and dirt emanating from the burning of rubbish in the incinerator, but it will not constitute a nuisance under normal operation in the propоsed location. The inhabitants of the village of Ashland Heights, where some of the plaintiffs live, will not be affected by odors *336 and smoke from the incinerator. In the immediate neighborhood of the dump and proposed incinerator are fields, wоoded hills and property containing considerable acreage. The land is undeveloped and is rural rather than residential in character. The dump as now operr ated does not constitute a nuisance in the locality in which it is situated, and the incinerator plant, if erected in accordance with the plans and specifications, under normal оperation, will not constitute a nuisance.
The chancellor summed up his discussion by the statement : “The chancellor is firmly оf the opinion, that the incinerator, if built, will eliminate most, if not all, of the nuisance features now. associated with and chаrged to the dump.” Speaking generally, the court in banc said: “The incineration of garbage and rubbish is the most modem, effective and approved method of disposing of these unavoidable and undesirable concomitants of modem life. Thе number of plants is constantly increasing, and the plants themselves have been developed to the point where аlmost all of the nuisance elements of an open fire dump, have been eliminated. We are convinced by the wеight of the evidence, that practically all of the discomforts and annoyances of which the plaintiffs now complain, will be eliminated by the proposed incinerator. The accomplishment of this purpose is one, if not the principal reason for spending the public money, in erecting the proposed plant. . . . The new project should incrеase and not depreciate the value of the surrounding property.”
On these findings, which there is ample evidence in thе record to support, the decree must be affirmed under our opinion in the Kress Box case. If the operation of the plant does become a nuisance in fact, appellants will have their remedy, which our present ruling does not foreclose.
Decree affirmed at appellants’ cost.