producing that effect being such as must make it a public nuisance. The case is in some respects most embarrassing." The plaintiffs had as yet suffered no injury, so could not be obliged to sue at law, as in Robinson v. Byron, where the injunction was not made perpetual until the right was established at law. "Upon the whole the proper course is that the plaintiffs shall indict this building as a nuisance; and the defendants shall plead without traversing: so that it may be tried at the next assizes; and put the concern in such circumstances that it may be carried on without imminent danger. If they will undertake to carry it on so that no more powder shall be kept there than is necessary for the purpose of carrying on the trade, with liberty to apply upon the result of the trial, that appears to be the best way to dispose of this case." CAMPBELL v. SEAMAN. D-hod a brick kiln-that gave off gases that injured Roland & tres. were there whose muccione and it should be restrained. The damage is poble and to prevent to multiciplicity of suits should be given his injunction. Adequate COURT OF APPEALS, NEW YORK, 1876. [63 New York Reports, 568.] dimages alt low arealer APPEAL from a judgment in favor of the plaintiff entered upon the report of a referee. The action was brought to recover dam-posible to com. pete for Portrus ages resulting from an alleged nuisance, and to restrain the con-re ornamentat. tinuance thereof. Abeing chewhefor EARL, J. The plaintiffs owned about forty acres of land, situ-lo not aid.D. ate in the village of Castleton, on the east bank of the Hudson river, and had owned it since about 1849. During the years 1857, 1858 and 1859 they built upon it an expensive dwelling-house, and during those years, and before and since, they improved the land by grading and terracing, building roads and walks through the same, and planting trees and shrubs, both ornamental and useful. The defendant had for some years owned adjoining lands, which he had used as a brick-yard. The brick-yard is southerly of plaintiff's dwelling-house about 1,320 feet, and southerly of their woods about 567 feet. In burning bricks defendant had made use of anthracite coal. During the burning of a kiln sulphuric acid gas. is generated, which is destructive to some kinds of trees and vines. The evidence shows, and the referee found, that gas coming from. defendant's kilns had, during the years 1869 and 1870, killed the foliage of plaintiff's white and yellow pines and Norway spruce, and had, after repeated attacks, killed and destroyed from 100 to 150 valuable pine and spruce trees, and had injured their grape vines and plum trees, and he estimated plaintiff's damages from the gas during those years at $500. This gas did not continually escape during the burning of a kiln, 1 The citation of authorities, and the discussions of acquiescence, prescription, and the danger of destroying the defendant's business, have been omitted. but only during the last two days, and was carried into and over plaintiff's land only when the wind was from the south. It is a general rule that every person may exercise exclusive dominion over his own property, and subject it to such uses as will best subserve his private interests. Generally, no other person can say how he shall use or what he shall do with his property. But this general right of property has its exceptions and qualifications. Sic utere tuo ut alienum non laedas is an old maxim which has a broad application. It does not mean that one must never use his own so as to do any injury to his neighbor or his property. Such a rule could not be enforced in civilized society. Persons living in organized communities must suffer some damage, annoyance and inconvenience from each other. For these they are compensated by all the advantages of civilized society. If one lives in the city. he must expect to suffer the dirt, smoke, noisome odors, noise and confusion incident to city life. As Lord Justice JAMES beautifully said, in Salvin v. Northbrancepeth Coal Co. (9 Law R., Ch. Appeals, 705): "If some picturesque haven opens its arms to invite the commerce of the world, it is not for this court to forbid the embrace, although the fruit of it should be the sights and sounds and smells of a common seaport and ship-building town which would drive the Dryads and their masters from their ancient solitudes." But every person is bound to make a reasonable use of his property so as to occasion no unnecessary damage or annoyance to his neighbor. If he make an unreasonable, unwarrantable or unlawful use of it, so as to produce material annoyance, inconvenience, discomfort or hurt to his neighbor, he will be guilty of a nuisance to his neighbor. And the law will hold him responsible for the consequent damage. As to what is a reasonable use of one's own property cannot be defined by any certain general rules, but must depend upon the circumstances of each case. A use of property in one locality and under some circumstances may be lawful and reasonable, which, under other circumstances, would be unlawful, unreasonable and a nuisance. To constitute a nuisance, the use must be such as to produce a tangible and appreciable injury to neighboring property, or such as to render its enjoyment specially uncomfortable or inconvenient.1 Within the rules thus referred to, that defendant's brick burning was a nuisance to plaintiffs cannot be doubted. But the claim is made that although the brick burning in this case is a nuisance, a court of equity will not and ought not to 1 For further reasoning on this problem, see Knight Bruce, V.C., Walter v. Selfe, 15 Jur. 416 (1851); Jessel, M. R., Broder v. Saillard, 2 Ch. D. 692 (1876); Cooley, J., Gilbert v. Showerman, 23 Mich. 448 (1871); Graves, J., Robinson . Baugh, 31 Mich. 290 (1875); Sharswood, J., Wier's Appeal, 74 Pa. St. 230 (1873); 2 Wigmore, Cases on Torts, 888. See also the amusing arguments of counsel in King v. Vicksburg, 88 Miss. 456, 457, 476 (1907). restrain it, and the plaintiffs should be left to their remedy at law to recover damages, and this claim must now be examined. Prior to Lord ELDON's time, injunctions were rarely issued by courts of equity. During the many years he sat upon the woolsack this remedy was resorted to with increasing frequency, and with the development of equity jurisprudence, which has taken place since his time, it is well said that the writ of injunction has become the right arm of the court. It was formerly rarely issued in the case of a nuisance until plaintiff's right had been established at law, and the doctrine which seems now to prevail in Pennsylvania, that this writ is not matter of right, but of grace, to a large extent prevailed. But now a suit at law is no longer a necessary preliminary, and the right to an injunction, in a proper case, in England and most of the States, is just as fixed and certain as Ithe right to any other provisional remedy. The writ can rightfully be demanded to prevent irreparable injury, interminable litigation and a multiplicity of suits, and its refusal in a proper case would be error to be corrected by an appellate tribunal. It is matter of grace in no sense except that it rests in the sound discretion of the court, and that discretion is not an arbitrary one. If improperly exercised in any case either in granting or refusing it, the error is one to be corrected upon appeal. Here the remedy at law was not adequate. The mischief was substantial and, within the principle laid down in the cases above cited and others to which our attention has been called, irreparable. The plaintiffs had built a costly mansion and had laid out their grounds and planted them with ornamental and useful trees and vines, for their comfort and enjoyment. How can one be compensated in damages for the destruction of his ornamental trees, and the flowers and vines which surrounded his home? How can a jury estimate their value in dollars and cents? The fact that trees and vines are for ornament or luxury entitles them no less to the protection of the law. Every one has the right to surround himself with articles of luxury, and he will be no less protected than one who provides himself only with articles of necessity. The law will protect a flower or a vine as well as an oak. These damages are irreparable too, because the trees and vines cannot be replaced, and the law will not compel a person to take money rather than the objects of beauty and utility which he places around his dwelling to gratify his taste or to promote his comfort and his health. Here the injunction also prevents a multiplicity of suits. The injury is a recurring one, and every time the poisonous breath from defendant's brick-kiln sweeps over plaintiffs' land they have a cause of action. Unless the nuisance be restrained the litigation would be interminable. The policy of the law favors, and the peace and good order of society are best promoted by the termination of such litigations by a single suit. The fact that this nuisance is not continual, and that the injury is only occasional, furnishes no answer to the claim for an injunction. The nuisance has occurred often enough within two years to do the plaintiffs large damage. Every time a kiln is burned some injury may be expected, unless the wind should blow the poisonous gas away from plaintiffs' lands. Nuisances causing damage less frequently have been restrained. It matters not that the brick-yard was used before plaintiffs bought their lands or built their houses. One cannot erect a nuisance upon his land adjoining vacant lands owned by another and thus measurably control the uses to which his neighbor's land may in the future be subjected. He may make a reasonable and lawful use of his land and thus cause his neighbor some inconvenience, and probably some damage which the law would regard as damnum absque injuria. But he cannot place upon his land any thing which the law would pronounce a nuisance, and thus compel his neighbor to leave his land vacant, or to use it in such way only as the neighboring nuisance will allow.1 It follows from these views that the judgment should be affirmed. All concur. Judgment affirmed. Dwas pollecting rantumin a stream MANN v. WILLEY. bike coater cons had but Risishes DIVISION, SUPREME Court, New York, 1900. made City 2 PER CURIAM. The plaintiff is a riparian owner upon the banks if domy of a creek known as Gulf Brook. She complains that the defendant, Incely frominal, who keeps a summer hotel located some fifty-four rods further up the stream, has polluted the water of such stream by discharging all the sewage from his hotel into it. She brings this action for a perpetual injunction against the defendant so discharging into the stream, and for damages for the injury already caused her. The trial judge found, as a fact, that the discharge of such sewage into the stream rendered it impure and unwholesome, and that plaintiff's damage thereby is substantial, and ordered judgment for a perpetual injunction against the same. From the judgment entered thereon this appeal is taken. 1 Accord, Laflin v. Tearney, 131 Ill. 322, 328 (1890); Bispham Equity (9th ed.) § 442. Contra, 2 Blackst. Comm. 402: "If my neighbor makes a tanyard, so as to annoy and render less salubrious the air of my house or gardens, the law will furnish me with a remedy; but if he is first in possession of the air, and I fix my habitation near him, the nuisance is of my own seeking, and must continue. If a stream be unoccupied, I may erect a mill thereon, and detain the water. Yet not so as to injure my neighbor's prior mill, or his meadow, for he hath by the first occupancy acquired a property in the current." See Austin v. Converse, 219 Pa. St. 3 (1907). 2 Only a portion of the opinion of the court is given. The plaintiff has never, as yet, used the water from this stream for drinking, cooking, or other domestic purposes. The only use to which she seems to have ever put it is for bathing and driving a turbine wheel. And the defendant contends that for such purposes the water is in no way injured by the discharge of his sewage into the creek. Although there is some conflict of evidence on that question, we are inclined to think the weight of evidence is to the effect that, when the water reaches the plaintiff's premises, it does not appear either to the smell or the sight to be at all affected by the sewage, and if the right to the injunction depended entirely upon that question, we would hardly be inclined to sustain it. But that the discharge of such sewage into the stream does pollute and render it unfit for domestic purposes cannot be doubted, and is, we think, established by the evidence, and even though the plaintiff has not as yet put the water to such a use, she had the right to the stream in its natural purity. Townsend v. Bell, 62 Hun, 306; s.c., 42 App. Div. 409; Chapman v. City of Rochester, 110 N. Y. 273. And that right was not conditioned upon the beneficial user of it. N. Y. Rubber Co. v. Rothery, 132 N. Y. 293, 296. And she was entitled to equitable relief against the defendant for interfering with it, though the damages were merely nominal. Amsterdam Knitting Co. v. Dean, 13 App. Div. 42. All concurred, except KELLOGG, J., not sitting. Judgment affirmed with costs.1 1 This decision was affirmed without opinion by the Court of Appeals, 168 N. Y. 664. Cf. Liverpool v. Coghill, [1918] 1 Ch. 307. The cases on waters are collected in in Ames, 572, 574, 611, notes; 5 Pom. § 1940 n. 95 and chapter xxvi. For the law in appropriation states, see S. C. Wiel, "Injunction without Damage as Illustrated by a Point in the Law of Waters," 5 Cal. L. Rev. 199. Story, J., Webb v. Portland Co., 3 Sumn. 189, 197 (1838): "If, then, the diversion of water complained of in the present case is a violation of the right of the plaintiffs, and may permanently injure that right, and become by lapse of time the foundation of an adverse right in the defendant, I know of no more fit case for the interposition of a court of equity, by way of injunction, to restrain the defendants from such an injurious act. If there be a remedy for the plaintiffs at law for damages, still that remedy is inadequate to prevent and redress the mischief. If there be no such remedy at law, then, a fortiori, a court of equity ought to give its aid to vindicate and perpetuate the right of the plaintiffs." O'Brien, J., Amsterdam Knitting Co. v. Dean, 162 N. Y. 278 (1900): “The contention of the learned counsel for the defendants is, . . that since the referee found that there was no substantial damage to the plaintiff, there was no power in the court to direct the removal of the obstruction or the restoration of the stream to its former condition. This contention cannot be sustained. It seems to be well settled that in such cases, where the act complained of is such that by its repetition or continuance it may become the foundation or evidence of an adverse right, a court of equity will interpose by injunction, though no actual damage is shown or found." |