Lead Opinion
Opinion by
The material facts in this case, of more than ordinary interest and importance, are not in dispute. They are readily gathered from the court’s findings and from testimony which is uncontradicted. In 1859 the appellee’s predecessors in title purchased land from Jennie P. A. Sullivan, one of the appellants, and erected furnaces on it. The location of the land at that time was in Pitt township, which has since been annexed to the city of Pittsburg. It lies between the Monongahela river and Second avenue. This avenue runs along the foot of a bluff, on the top of which the properties of appellants are situated, at an average distance of about 1,000 feet in a northerly direction from the furnaces of the appellee. The tops of these furnaces are a little lower and the stacks a little higher than the bluff. The district in which the furnaces are located is, and for many years has been, distinctively and exclusively a manufacturing one, and the district on top of the bluff, where appellants’ properties are situated, is, and has been for some time, a residencе locality, which has been subject to the smoke and dust from the furnaces and mills along the Monongahela river at the foot of the bluff, but was never sub
Between March, 1898, and May, 1901, according .to the court’s ninth finding, “The three furnaces at that time eon-^ stituting the Eliza furnaces were rebuilt, improved and enlarged upon the site then and now occupied by them, and a fourth furnace added upon that site. The first of the rebuilt furnaces was ‘ blown in ’ September 1,1899; the second May 13, 1900; the third, January 21, 1901, and the fourth on May 8, 1901. These furnaces as re-built, improved and enlarged, are constructed in accordance with modern and approved plans, and in their construction are in every respect equipped with modern appliances and improvements, and are equal, in many respects superior, to other furnaces in this locality in which pig iron is manufactured, and are among the largest known in the iron business, having a capacity each of about 500 tons daily production and consuming together about 4,000 tons of ore daily.” The capacity of these new furnaces is twice or three times that pf- the old ones replaced by them. After the fourth and last furnace was blown in the annoyance and injury began, against the continuance of which relief is sought by this bill.
The escape of dust from blast furnaces in large quantities is due to what is known as a “slip,” a definition of which is found in the court’s eleventh finding: “ The escape of dust from blast furnaces into the atmosphere is, and always has been, incident to their operation. It escapes at all times, but in larger quantities when what is known as a ‘ slip’ occurs in thе furnace. In the operation of all blast furnaces' ‘slips’ occur from time to time. These are occasioned by the caking
The seventeenth finding is: “ Ore dust was first noticed settling upon properties in the neighborhood of defendant’s furnaces as early as 1899, but the deposit did not become serious until about July, 1901. Since that time, dust, in greаter or less quantities, has been carried from the defendant’s furnaces and deposited upon and about plaintiffs’ premises. The effect of the dust is not only annoying, but injurious to property; it chokes rain conductors upon the houses, discolors fabrics and paints, and injures carpets and curtains; it is of a greasy nature and difficult to remove from both garments and paints ; it has also been destructive to fruit and shade trees and vegetation generally, and has depreciated the value of plaintiffs’ properties from twenty-five per cent to fifty per cent.” The furnaces were operated in a careful and skillful manner, and no effort or money was spared to keep them in constant good order and repair. As to the escape of this ore dust, a further finding is the sixteenth: “ The escape of ore dust due to ‘ slips’ in the furnace is a financial loss to the operator, both in the matter of production and in the loss of ore; the defendant has been diligent in its efforts to find means, or to adopt appliances or inventions which will prevent the escape of dust from its furnaсes; up to the present time no appliance has been found which will effectually prevent, or reasonably diminish, the escape of the ore dust from blast furnaces, when ‘ slips’ occur. The use of Old Range ores exclusively would not materially lessen the number of ‘ slips’ occurring in furnaces, but would to a considerable extent de
Answering requests for findings of fact by the appellants, the court said that, in its own findings, it had substantially found the following : “ The residence district in which plaintiffs’ property is situated, and which is a part of the Fourteenth ward of the city of Pittsburg, was, prior to the year 1899, a pleasant and habitable part of the city. While subject, as most parts of the city are, to smoke, it occasioned no special inconvenience to the inhabitants and the testimony shows that flowers, trees, and shrubs were kept and cared for, and were not injured by any smoke or dust which might prevail throughout the' district. Some of the witnesses for the plaintiffs testify that they first noticed the ore dust as early as 1899, but it did not become seriоus until the year 1901. In the latter year, when all four furnaces were completed and in operation, the ore dust was thrown out in large quantities and at more frequent intervals and has increased from that time down until the filing of the bill. The plaintiffs’ property by-reason of its location near the defendant’s furnaces, receives the full effect of the discharge of ore dust therefrom. Almost all the trees in the orchard which formerly produced some eighty bushels of pears in a season, the shade trees, of which there were something over twenty in number, and the shrubbery about the house have been for the most part destroyed. The whole property has been blackened and disfigured. A number of tenants have been forced to leave the dwelling houses by reason of the penetrating and damaging deposits of ore dust. From the conductors leading from the porch roofs in front of these houses the plaintiffs had removed on one occasion three barrels full of ore dust, the weight of the amount thus removed being some 1,200 pounds.” The facts set forth in appellants’ fifteenth request, which was not refused, but affirmed; to the extent that the facts had been found in the court’s own seventeenth finding, were supported by testimony that was not contradicted. These facts, as set forth in that request, were-: “The effect of the ore dust upon properties upon which it is deposited is very damaging. It corrodes tin and metal work which are exposed to it, it chokes and fills conductors, it discolors and removés paint, it affects injuriously
The appellants are not complaining because appellee is operating its furnaces. They would not be heard if that were their only complaint. The city of Pittsburg is a busy manufacturing center, and by day and by night clouds of smoke ascend from the stacks of its numberless mills, factories and furnaces, ofttimes hanging over it like a pall. In a manufacturing district of this city the appellee has established its furnaces and is engaged in an important and lawful business. The appellants, in a residential portion of the same city, close by this manufacturing district, own houses in which their tenants live. So situated, they must expect a measure of annoyance and discomfort, arising from the dust and smoke, which cannot be avoided in their manufacturing metrópolis, and are borne to the homes of the city and fill the air that is breathed. To this general annoyance and discomfort appellants submitted for years without complaint, and they were bound to do so, for they chosе to erect their houses not ouly in sight of great manufacturing plants, but within certain reach of the smoke and dust, without which the fires of the furnaces and factories could not burn. Of all this there is now no complaint by them. What, in common with all other citizens, they had endured for years, up to the summer of 1901, they were willing to continue to- endure ; and they are not now complaining of appellee’s manufacture of iron, even with “ Mesaba ” ore.. Their complaint'is that the appellee, in tearing • down the three furnaces and replacing them with the four new ones, of immense size and sev
As already stated, the facts here are not in dispute. Not a single finding of fact by the learned judge below is assigned as error by the appellants, whose bill he dismissed. Equitable relief cannot, therefore, be withheld because more light as to any alleged fact could be obtained from a jury on the common-law side of the court. It must be granted or refused under practically admitted conditions. If, under these conditions, the appellants are unlawfully injured by appellee, as the damage done is of’ a serious character not to be measured by ordinary standards, and is immediate and continuing, an attempt to remedy the wrong by a multiplicity of suits would soon make the remedy worse than the wrong itself. (If an injury be continuous and remediable at law only by a multiplicity of suits, it can well be regarded as an irreparable one, calling for the interference of equity by the exercise of its restraining powers Scheetz’s Appеal,
While the right of the appellee to locate and operate its furnaces in a manufacturing district of the city of Pittsburg must be conceded, there is a right in the appellants entitled to no less recognition and protection by the law, and that is the one they have exercised, of erecting houses on their lands in a residential portion of the same city. Their right is not only to erect these houses, but to enjoy the use of them and the land surrounding them, subject, of course, to the smoky and dusty conditions that ordinarily and constantly come from the mills and furnaces skirting both sides of the Monongahela river. Of this they neither do nor can complain to a chancellor. “ The people who live in such a city or within its sphere of usefulness do so of choice, and they voluntarily subject themselves to its peculiarities and its discomforts, for the greater benefit they think they derive from their residence or their business there.” Huckenstine’s Appeal,
If this bill were for relief from personal inconvenience and interference with the appellants’ full and free enjoyment of their property, due merely to the conditions of smoke and dust that have existed for years and will exist as long as the city itself continues to be the great steel and iron manufacturing
ÍThe changed conditions brought about by the appellee have not resulted from the development and natural use and enjoyment of its own property] as was the situation in Pennsylvania Coal Co. v. Sanderson,
The court below found that “ the use of Mesaba ores in the manufacture of pig iron seems at present to be a necessity.” At the same time it refused to find, as requested by the defendant, that “ it is to-day a practical and commercial impossibility for manufacturers of iron and steel to obtain a supply of ores for their blast furnaces other than by the use of Mesaba ores.” There was a finding, “ That appliances have been sug
In dismissing the plaintiff’s bill the learned judge stated that he knew of no case in which the identical question here involved had been passed upon by the courts!] He relied, however, as bearing upon it, on Richards’s Appeal,
It is urged that as an injunction is a matter of grace, and not of right, and more injury will result in awarding than refusing it, it ought not to go out in this case. CA chancellor does act as of grace, but that grace sometimes becomes a matter of right to the suitor in his 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.j3 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. In Walters v. McElroy et ah, supra, the defendants gave as one of the reasons why the plaintiff’s bill should be dismissed, that his land was worth but little, while they were' engaged in a great mining industry which would be paralyzed if they should be enjoined from a сontinuance 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 de
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 refusing and leaving the party to his redress at the hands of a court and jury, and if, in conscience, the former should appear he will refuse to enjoin : Richards’s Appeal, supra ; 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: ” Dilworth’s Appeal, supra; 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 Chemical Fertilizing Co.,
The decree of the court below is reversed, the bill is rein
Dissenting Opinion
dissenting:
The principle which impels a chancellor to act in that mass of cases where his action will avoid a multiplicity of recoveries at law or will stop injuries so repeated in character as likely to become excessively burdensome seems a logical result of the necessity of an equitable jurisdiction to avoid oppres
In Keeling v. Pittsburg, etc., Railroad Company,
In Robb v. Carnegie,
In Huckenstine’s Appeal,
In Richards’s Appeal,
As a decree in equity is a matter of grace a chancellor will not make it where it will produce a greater injury than it will prevent, and because it is a matter of grace .will balance the inconveniences that may be caused either by granting or refusing it. This principle is well illustrated in Richards’s Appeal, supra. In that case the plaintiff, a manufacturer, sought to restrain the defendant company from operating a furnace for smelting iron because in their furnaces they used semi-bituminous coal and that dense masses of smoke and soot were emitted from them filling his house and factory with sulphurous, un
“ A careful consideration of the testimony satisfies us that the use of semi-bituminous coal, the fuel complained of, is necessary to the successful manufacture of iron fit for axles, cannon and the like, in the manufacture of which the defendants are largely engaged; that the process of manufacture and fuel used, are generally employed in similar establishments, and that there was neither a negligent nor wilful infliction of injury upon the plaintiff or his property in the defendants’ mode of operating their works. Whatever of injury may have, or shall result to his property from the defendants’ works by reason of the nuisance complained of, is such only 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 case in which equity ought to enjoin the defendants 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 from a refusal to enjoin.”
In Huckenstine’s Appeal, supra, a bill was filed to restrain the conduct of a brickmaking business in which there was evolved,smoke, vapor and gases destructive of plaintiff’s vineyard, orchard and trees, and Mr. Justice Agnew in dismissing the bill and remitting plaintiff to his action at law says: “ It (brick burning) as many other, useful employments do, may produce some discomfort, and even some injury to those nearby. But it does not-follow that a chancellor would enjoin therefor.
Again, he says: “In the present case the kiln of defendant is situated on an outskirt of the city of Allegheny. The properties of the plaintiff and defendant lie adjoining each other, on the hillside overlooking the city, whose everyday cloud of smoke from thousands of chimneys and stacks hangs like a pall over it obscuring it from sight. This single word describes the characteristics of this city, its kind of fuel, its business, the habits of its people and the industries which give it prosperity and wealth. The people who live in such a city or within its sphere of influence do so of choice, and they voluntarily subject themselves to its peculiarities and its discomforts, for the greater benefit they think they derive from their residence or their business there.”]•"
These cases clearly confirm the principle that a chancellor will consider whether he would not do a greater injury by enjoining than would result in refusing to enjoin and leaving the party to his redress at the hands of a court and jury.
While Robb v. Carnegie,
“We think it is true as held by the judge of the court below, that the evidence in this case would not justify an injunction. It shows a selection of a site as well adapted to the business, and as remote from dwellings as any in that region. To enjoin the manufacture of coke, at such a site, would amount to a prohibition of its manufacture, and the destruction of vast allied and dependent industries of immense value to the public as well as to those directly engaged in them.”
Again he says: “ It is a fundamental principle of our system of government that the interest of the public is higher than that of the individual; so that when those interests are in conflict the latter must give way. If the individual is thereby.
In Wier’s Appeal,
It doubtless may be contended that the principle of balancing inconveniences cannot be made the means of a successful assault upon the strong wall built around the right of property which secures it from invasion and not infrequently eloquent phrase finds utterance in vindication of an established right of property from the invasion which may spring from numerous actions or the repetition of injuries. The fact of a possible series of actions or of repeated injuries does not necessarily negative an adequate remedy at law. There is a class of cases where the injury is of a continuing and permanent character and the damages are entire and susceptible of immediate recovery^ Central Branch Union Pacific Railroad Co. v. Andrews, 26 Kansas, 702; Fowle v. New Haven & Northampton Co.,
That the blast furnaces of the appellee company represent a cash investment of 15,000,000 and in them and incidental thereto are imployed 10,800 persons, who are paid in wages monthly, 1500,000. That between March, 1898, and May, 1901, the three Eliza furnaces were improved, enlarged and rebuilt in accordance with modern and improved plans and equipped with modern and improved appliances and improvements; that they are the largest known in the iron business with a producing capacity of 500 tons daily, and a daily consumption of 4,000 tons of ore. That consequent upon “ slips ” occasioned by encrusting ore in the stack of the furnace, dust always escapes from blast furnaces. That on the top of each of the furnaces are explosion or expansion doors for the purpose of permitting the generated gas to pass into the open air; that the dust complained of is carried by the wind upon the properties of the appellants, the amount depending upon the force of the wind and the ex
Thus upon the one side is a business started many years ago which has been steadily developing until it has reached a very great magnitude. With its increase its appliances have been improved and its blast furnaces enlarged and these have been the natural growth of its business. It has managed its business with a due regard as far as practicable for those who lived near the district within which its blast furnaces were located. It has been diligent in the effort to obtain appliances and inyentions designed to avpid as much as possible any annoyance
The facts show that the inability of the appellee to use such ores would practically operate as a prohibition of its business and thus upon the one side a decree restraining appellee from such use would so impair its capacity to do business that it would produce disaster affecting a large manufacturing interest involving the welfare of an army of employees and be productive of irreparable damage. Upon the other side the damage that Avould arise from the continuance of that business by a refusal to make a decree would be that the rain conductors upon appellants’ houses might still be choked somewhat and their fabrics and paints discolored and their carpets and curtains injured. That they still might have some difficulty in removing the grease stains from their garments and paints and their shade trees and fruit trees, if such be of value amid the smoke of Pittsburg might be destroyed and their property might be depreciated from twenty-five to fifty per cent of its value. Such latter damage, however, being directly to the property itself is clearly ascertainable and cannot well be classed as irreparable.
The facts thus marshalled present an accumulation of injurious irreparable results likely to occur from a decree against appellee that should in view of those capable of reparation that might occur to appellants, constrain a chancellor to refuse to make it. While a judge has no right to be influenced in the determination of a case merely because of the effect of a decision, yet Avhen it is a matter of grace, guided by sound
“ While the extent of the injury resulting to plaintiffs from the dust can bе ascertained, the injury resulting to defendants by a decree cannot be estimated. Such a decree would practically mean the shutting down of not only its furnaces, but also its iron and steel works, representing together a capital of at least $60,000,000, and the employment of nearly 11,000 persons. The effect of a restraining order will not be confined to the defendant company, because, if it is unlawful for defendant company to use Mesaba ores it is also unlawful for every other furnace in this county to use those ores; an injunction therefore in this case would affect injuriously every one of the thirty-seven blast furnaces in Allegheny county, and their allied industries, with capital as shown by the industrial statistics of the commonwealth, aggregating $400,000,000 and employing 60,000 persons. As there are not sufficient “ Old Range ” ores mined to supply the demand if the exclusive use of these ores be required, a decree which makes the use of Mesaba ores impossible means the shutting down of every blast furnace in the county within a year, as the supply of u Old Range ” ores will be exhausted within that time. What that would mean to the people of this city and county needs no discussion. The damage would be inestimable.”
A decree operative of destructive results so far-reaching and extensive as thus indicated, certainly might well warrant the deduction that in it there was not a suspicion of that “ matter of grace ” held to be an element in the determination of a chancellor in cases of this character. Pittsburg is a monument to the progress and activity of the manufacturing interests and her achievements in that direction have made her one of our most conspicuous cities. Judicial restriction that would limit these activities might well be regarded as inimical to her best interests in the direction of progress, and where judicial action is based upon “ matter of grace ” guided by wise discretion, it should not be unnecessarily narrowed, but should be, to an extent as far as may be practicable and legal, broadened in
I am of opinion that the decree of the court below dismissing the bill should be affirmed.
Concurrence Opinion
I concur in the views expressed by the Chief Justice.
Dissenting Opinion
dissenting:
It is conceded thаt when the respondents located their works they were in an appropriate place. Certainly the complainants cannot deny this for they sold the land for this express purpose. The establishment of the works carried with it the right to future change and expansion not only as to extent but as to methods in the progress of the business. It was accompanied at all times by some inconvenience to residents of the neighborhood, and I am unable to concur in the views of the majority that the change by the introduction of the use of Mesaba ore was a change in the kind of injury. On the contrary I am of opinion that it was one of degree only, but whether that be the correct view or not the question is one of fact which is by no means clear and therefore should go in the first instance to a court of law to be settled by a jury. Where a clear legal right is being infringed I agree that the remedy in equity is as mandatory as in law, but where as here the question is between two conflicting rights, their respective claims should be ascertained at law before equity is called upon to aid either. I would therefore affirm the decree.