The Windfall Manufacturing Company v. Patterson et al.

and, as soon as freed in the air, produces a stench, tarnishes paint, furniture and silverware, and renders the atmosphere unfit to breathe for many feet around the place of such escape; that the pipe line, if constructed to carry gas at rock pressure, as intended, would endanger the lives and property of appellees and their families; that gas wells attract the electric fluid and are exceedingly liable to be struck by lightning; that in the digging of said well there is danger of bringing from the earth other substances, such as water and oil; and that, if the well should overflow with either oil or water, great damage would result, rendering appellees' property unfit for the purposes for which they hold the same.

The dangers thus apprehended by appellees were such as might arise in case the well should be sunk, and gas, oil or water be found. It is not said that any evil result could come merely from the drilling of the well. But the well might be sunk into the trenton rock, and yet no gas, oil or water be brought to the surface. It is not clear, therefore, that the danger apprehended is so imminent as to warrant the issue of a restraining order. In addition, it may be questioned whether an injunction should in any event issue, unless it be true that a gas, oil, or water well is a nuisance per se, or unless it should be made to appear that the well and pipes of appellant were to be improperly put down and afterwards carelessly attended to.

In Dalton v. Cleveland, etc., R. W. Co., 144 Ind. 121, the appellant sought to enjoin the erection on appellee's right of way of a coal chute, to be used for supplying its engines with coal, and to be situated very near to a building owned and used by appellant as a dwelling and business house. It was alleged that from the height and character of the structure it would VOL. 148-27

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greatly interfere with appellant's access, view, light and air, would cause unusual, loud and offensive noises, disturb sleep, cause coal dust, fumes of sulphur and other noisome gases to be blown into appellant's building, injuring furniture, stock in trade, and in other ways greatly impairing the value of appellant's property and causing annoyance, discomfort and danger to appellant and to the occupants of his building. The court, in that case, while not denying that unlawful uses of the structure might be restrained, yet held that, as the erection of the building would of itself not constitute a nuisance, a writ could not issue, for the reason that the threatened evils might never result. The case of Keiser v. Lovett, 85 Ind. 240, and other authorities were there cited, and the court concluded that: "Each of these cases recognizes the rule that equity will not restrain that which is not a nuisance upon the claim that it may be so used as to constitute a nuisance."

A business which is a nuisance per se, as also one that is so conducted as to have become an actual nuisance, will be enjoined. But a business which merely threatens to become a nuisance will be enjoined only where the court is satisfied that the threatened nuisance is inevitable; and, since the remedy is so severe, resulting often in wholly depriving an owner of the use of his property, the court will proceed with the utmost caution in restraining such threatened and possible injuries.

It was said in Duncan v. Hayes, 22 N. J. Eq. 25, that "A court of equity will not restrain, by injunction, any lawful business, or the erection of any building or works for such business, because it is supposed or alleged that such business will be a nuisance to a dwelling house near it; it must be clear that the business will be a nuisance, and that it cannot be carried on so as not to be such."

The Windfall Manufacturing Company v. Patterson et al.

And, in McCutchen v. Blanton, 59 Miss. 116, the court said: "Every doubt should be solved against the restraint of a proprietor in the use of his own property for a purpose seemingly lawful, and conducive both to individual gain and the general welfare. Relief by injunction is so severe in its consequences that it is not to be granted in such a case, except when the right to it is clearly and conclusively made out. To interfere with one's right to use his own land for the production of what he pleases, in a case of doubt, would be a flagrant abuse of power. It is not enough to show a probable and contingent injury, but it must be shown to be inevitable and undoubted." See, also, Cleveland v. Citizens Gas Light Co., 20 N. J. Eq. 201; Ryan v. Copes (S. C. 11 Rich. Law, 217), 73 Am. Dec. 106 and note; Doellner v. Tynan, 38 How. Prac. (N. Y.), 176; Rhodes v. Dunbar, 57 Pa. St. 274, 98 Am. Dec. 221; Huckenstine's Appeal, 70 Pa. St. 102, 10 Am. Rep. 669; Gilbert v. Showerman, 23 Mich. 448; Owen v. Phillips, 73 Ind. 284; Barnard v. Sherley, 135 Ind. 547, 41 Am. St. 454, 24 L. R. A. 568.

In Doellner v. Tynan, supra, it was held that where a street in a city ceases to be used as a place of residence, and is changed to a place of business, no one or two persons, who may, for any reason, desire to continue their residence therein, should be allowed to prevent the carrying on of a lawful and useful trade, merely because they are or may be subjected to annoyance, or even loss thereby. And, in Gilbert v. Showerman, supra, the court refused to restrain the carrying on, in a proper manner, of a steam flouring mill in the business part of a city, notwithstanding the use of such building for that purpose caused annoyance to the complainant and his family, and rendered the occupation of his building, as a residence, less desirable than it otherwise would be. In that case, Judge

The Windfall Manufacturing Company v. Patterson et al.

Cooley said: "The most offensive trades are lawful, as well as the most wholesome and agreeable; and all that can be required of the men who shall engage in them is, that due regard shall be had to fitness of locality. They shall not carry them on in a part of the town occupied mainly for dwellings, nor, on the other hand, shall the occupant of a dwelling in a part of the town already appropriated to such trades, have a right to enjoin another coming in because of its of fensive nature. Reason, and a just regard to the rights and interests of the public, require that in such case the enjoyments of pure air and agreeable surroundings for a home shall be sought in some other quarter; and a party cannot justly call upon the law to make that place suitable for his residence which was not so when he selected it."

In the case at bar, the appellant, in locating its brick and tile works, for which natural gas was to be used as fuel, selected a place retired from all residences, and there erected its plant and machinery at great expense. The business so commenced was continued for three years before the appellees came and erected their dwelling upon land across the highway from appellant's land and within 200 feet of its brick and tile works. Certainly, therefore, unless the works should constitute a nuisance per se, or unless they were so conducted as to become a nuisance in fact, the appellees are not in a position to demand that equity restrain the appellant in the use of its property.

A nuisance per se, as the term implies, is that which is a nuisance in itself, and which, therefore, cannot be so conducted or maintained as to be lawfully carried on or permitted to exist. Such a nuisance is a disorderly house, or an obstruction to a highway or to a navigable stream. But a business lawful in itself can not be a nuisance per se, although, because of sur

The Windfall Manufacturing Company v. Patterson et al.

rounding places or circumstances, or because of the manner in which it is conducted, it may become a nuisance. Certain kinds of business or structures, as powder houses or nitroglycerine works, are so dangerous to human life that they may be maintained only in the most remote and secluded localities. Others, as slaughter houses and certain foul-smelling factories, are so offensive to the senses that they must be removed from the limits of cities and towns, and even from the near neighborhood of family residences. Yet there must be some proper place where every lawful business may be carried on, without danger of interference on the part of those who, in some slight degree, may be annoyed or endangered by the nearness of the objectionable occupation.

Of course all persons have the right to insist that a business in any degree offensive or dangerous to them shall be carried on with such improved means and appliances as experience and science may suggest or supply, and with such reasonable care as may prevent unnecessary inconvenience to them. By such care and improved methods and appliances, many occupations formerly regarded as nuisances may now be carried on, even in populous neighborhoods, without annoyance to any one. So, an establishment in some degree offensive, as a livery stable, may be kept so cleanly, so free from anything to offend the sense of sight or of smell, that the proprietor may invite his most fastidious visitors to any part of it; although the same establishment might also be so kept as to be an abomination even to the passer-by upon the highway.

It cannot be said that a plant for the manufacture of brick and drain tile, or even a gas well sunk to supply fuel for such a plant, is a nuisance per se. The business is lawful, and, if located in a proper place, and conducted and maintained in a proper manner,