English v. Progress Electric Light & Motor Co.

CLOPTON, J. Appellants invoke tbe interference of tbe Chancery Court to abate by injunction, as a nuisance, tbe electric plant maintained and operated by appellee in tbe city of Mobile. Tbe remedy sought is preventive, and incidentally compensatory. An injunction for such purpose is not a matter of absolute right; but, if, as has been said, it rests in judicial discretion, tbe exercise of such discretion is not without' limitations, and is to be guided by tbe settled principles on which tbe interference by tbe court in such cases depends. In considering whether or not an injunction should be granted, regard must be bad, on tbe one band, to tbe right of every person to use bis own property as bis — 263 — taste, desires and interest may dictate; and on the other, to the right of Ids neighbors to the comfortable and unmolested rise and enjoyment of their property. No one should be restrained as to the use of his property, unless such use offends the legal rights of another. There are, certainly, instances of private nuisances, for which an action on the case can be maintained, yet insufficient to justify interference by injunction. This extraordinary and transcendent power should be exercised only when imperatively necessary to prevent multiplicity of suits, or irreparable injury, or continuous or constantly recurring grievances — when, from their irreparable nature, continuance, or frequent repetitions, the legal remedies are inadequate to afford full redress. While it is not essential that the injury should be strictly continuous, it must not be only occasional, or accidental. — Rouse v. Martin, 75 Ala. 570; 16 Amer. & Eng. Encyc. of Law, 959. The plant of defendant was first established in April, 1885, and was operated and used by Cawthorn and his associates, for the purpose of lighting the dwellings and stores in the city of Mobile, until April, 1887, when they sold it to defendant, who has continued its operation, lighting the streets as well as dwellings and stores. The house in which complainant' resided is a one-story frame house, having four rooms, with kitchen and servant’s rooms, and is situated on a m< umd about twelve feet above the level of the street and the adjacent property. Many years ago, the streets in that portion of the city were graded to the level of the wharves, • and the adjacent property, except complainants’, cut down to the level of the streets. Brick walls were built on the four sides of complainants’ lot, for the purpose of supporting the embankments. The bill avers that defendant has a contract with the city of Mobile, under which it lights the streets of the city with electricity every night when the moon is not shining, and for this purpose uses four large boilers and several large dynamos ; the ends of the boilers projecting to within a few feet of the wall of complainants. It further avers that, when the plant is in operation, a dense smoke is produced, the soot from which, in certain conditions of the atmosphere, is frequently blown up and into complainants’ houses, and fills them, unless the windows are closed. Further, that the machinery, when in operation, frequently and at intervals makes a loud palpitating noise like the puffing of a locomotive when pulling a heavy train up-grade, which noise is sufficiently loud to be heard two hundred yards away; also, frequently creates a severe vibratory motion — 264 — wbicb shakes the surrounding buildings, and especially tbe buildings owned by complainants. The bill further avers, that the noise, vibrations and smoke are all made in the night-time, and frequently continue from early in the evening until nearly morning; that the noise disturbs the sleep of the occupants of the buildings, and the vibrations are so severe as to make the table-ware upon the tea-table and the windows of the house rattle, the chairs and furniture in the house rock, and to shake the occupants when in bed; that such noise and vibrations not only interfere with the sleep of the occupants, but render them nervous, and make the houses undesirable as places of residence, even for those in health, and in case of sickness would so excite an invalid as to seriously affect speedy recovery, and in certain cases be seriously dangerous to life. The bill further avers, that on several occasions portions of the machinery have burst, or blown out, making a loud noise greatly frightening complainants, causing them to run out into tire street; that there is constantly thrown from said machinery steam in large quantities, and hot water which runs down the gutters in front of and around the residence of complainants, to their annoyance; that the proximity of of said boilers and machinery greatly increases the risk from fire, and rate of insurance, also adding great danger from the explosion of the boilers and breaking of machinery. The answer denies these allegations of the bill, and sets up the great utility of the business to the public; also, that if there were causes of complaint at the commencement of the business, they have been obviated by the application of scientific appliances, and that any inconvenience experienced by complainants could have been prevented with little effort; also, that the acquiescence and fault of complainants induced defendant to invest a large sum of money in improving the plant. It is difficult, if not impracticable, to formulate a rule accurately defining the acts or facts which will constitute a nuisance under any and all circumstances. We shall not make the attempt. As a general proposition, it may be said, that any establishment erected on the premises of the owner, though for the purposes of trade or business lawful in itself, which, from the situation, the inherent qualities of the business, or the manner in which it is conducted, directly causes substantial injury to the property of another, or produces material annoyance ana inconvenience to the occupants of adjacent dwellings, rendering them physically uncomfortable, is a nuisance. In apply — 265 — ing this principle, it lias been repeatedly lield, that smoke, offensive odors, noise or vibrations, when of such degree or extent as to materially interfere with the ordinary comfort of human existence, will constitute a nuisance. — House- v. Martin, supra. This principle has been applied to various kinds of factories and industries located in a city, including gas-works, and the production of light by the operation of a steam-engine and dynamos.— Cleveland v. Citizens Gas Co., 20 N. J. Eq. 201; Tocum v. Hotel St. George Co., 18 Abbott’s New Cases, 340. The averments of the bill clearly make a case of nuisance, calling for its abatement by the Chancery Court; but the denials of the answer, and the affirmative and substantial defenses set up therein, make the necessity of interference turn upon the sufficiency of the evidence, proper legal principles being applied, to show that the electric plant, as now operated and conducted, so materially interferes with complainants’ use and enjoyment of their adjacent dwellings as to entitle them to injunctive relief. From this consideration the evidence relating to the offensive odors may be eliminated, there being no allegation in the bill touching this matter; also, the evidence relating to risk from fire, danger of explosion, depreciated value of the property, and the increased rate of insurance; for such wrongs may be adequately redressed at law. This narrows the inquiry to the degree or extent of the noise, smoke, soot, and vibrations. There is a mass of evidence, many witnesses having been examined by both parties, and the testimony is voluminous. The evidence is conflicting in material respects. Appellants’ counsel contend, that the testimony of the contradicting witnesses on the part of defendant is entitled to but little weight, for the reason, that but few of them were ever in the house of complainants, and these only for a short time, and the others live at a great distance. Naturally, the noise and vibrations diminish in proportion to distance ; but the force of the argument is impaired by the fact, that one of the most material witnesses resides in the dwelling-house owned by complainants, and mentioned in the bill as subject to the same disturbances, and some of the others in dwellings in the same block, while some of complainants’ witnesses reside in dwellings in a different block and across the street. The testimony of defendant’s witnesses, having a material bearing upon the inquiry, should not be ignored, but accorded such right as it may be entitled to, when the entire evidence and the construction and operation of the plant are considered. We shall not attempt, however, to follow counsel in their — 266 — elaborate discussion of the evidence. Though, the testimony of the witnesses on the part of complainants may be somewhat exaggerated by super-sensitiveness, and an excited imagination, it may be conceded that their evidence strongly tends to show material annoyance and inconvenience caused by the smoke, soot, noise and vibration during the administration of Cawthorn, and even for a time after defendant purchased and operated the plant. The evidence, however, shows that defendant has made alterations and improvements, especially as to the escape of steam, which have greatly diminished the evils complained of. As to an establishment of public utility in a city, the rule is, that its lawful use will not be perpetually enjoined, when, by the application of scientific appliances, such alterations in the machinery may be made as will remedy the evils. In such case,' the court will go no further than to require such appliances to be introduced; and in some cases will direct a reference, to ascertain if the evils can be thus remedie&j— Green v. Lake, 54 Miss. 540; s. c., 28 Am. Rep. 378; 1 High, on Inj., § 787. RDn the same principle, the court will not make the injunction perpetual, when such appliances have been used, even during the pendency of the suit, and the desired results effected., The real and important question is, does the manner1 in which defendant operates the plant, since the alterations and improvements were made, interfere with comfortable use and enjoyment of their residence by complainants to such extent as to create a nuisance, which, when the locality and the circumstances are considered, it becomes the duty of the court to enjoin ? The witness Long testifies, that the noise has been diminished exceedingly, and tha't it “is not a hundredth part of what it was before these changes were made;” and Sossa-man says, “I could feel no vibration there, but I know that sometimes, while walking down the street, one can feel a little shaking, which is caused by the running of a dray, and I noticed no more vibrations about that place than the running of a dray might cause. At the time I speak of the machinery was in motion.” We have especially referred to the testimony of these witnesses, for the reason that Long resides in the dwelling owned by complainants and mentioned in the bill, and Sossaman went to the house at the instance of complainants, to examine and give an opinion; his attention was directly called to the subject. Their evidence is corroborated by the testimony of several other witnesses. There is, however, conflicting-evidence on the part of complainants. — 267 — Tbe evidence further shows, that by a comparatively small expense complainants could avoid the inconveniences and annoyances arising from the vibratory motions. When such is the case, a perpetual injunction will not be granted, full compensation being obtainable at law. In Rosser v. Randolph, 7 Porter, 238, the bill was filed to enjoin the erection of a mill, which, it was alleged, would be injurious to the health of the neighborhood, and would drown and render useless a spring on which complainant relied to furnish himself and family with pure water. The mill having been erected, and it not appearing that the health of the community had suffered, the court said in reference to the spring: “By the application of labor, the value of which can be ascertained, or which the defendant, if applied to, might be willing himself to do, the spring can be restored to its original state ; thereby giving to complainant the full enjoyment of his spring of water, and at the same time securing to the defendant those rights which appertain to him as owner of the adjacent land.” Also, in Kingsbury v. Flowers, 65 Ala. 479, where the bill was filed to enjoin future interments in a private burial-ground, it is said : “The apprehension of injury from this course, it is evident, could be quieted by but slight labor expended in drainage — a labor, it may be, if requested, the defendant would have performed, rather than to have been forced into this litigation.” These were cases in rural districts ; the rule is especially applicable to industrial establishments in a large city. We do not think the evidence shows that the locality in which the plant was situated is so exclusively devoted to industrial enterprises, or business purposes, or so remote, as to afford defendant immunity on this account. The dwellings of complainant and others in the vicinity were erected long before the plant was established. However, a person can not expect to possess, in a city, the peace, quiet, enjoyment and freedom from annoyances of the country, and must submit to the ordinarily incidental annoyances of living in a city. It has been aptly said: “A person who resides in a large city must not expect to be surrounded by the stillness that prevails in rural districts. He must necessarily hear some of the noise, and occasionally feel slight vibrations, produced by the movements and labor of its people, and by the hum of its mechanical industries. The aid of a court may be invoked to keep annoying sounds within reasonable limits. Every noise, however, is not a nuisance, nor, when produced in the exercise of a lawful occupation, should the strong arm of a chancellor be extended — 268 — to suppress it.” — McCaffrey's Appeal, 105 Penn. State, 253; Louis. Coffin Co. v. Warren, 78 Ky. 400; s. c., 57 Amer. Rep. 467. Whether or not the transcendent power of the court should be exercised, under such circumstances, must be determined iu view of the relative rights of the parties and the public welfare.— Gilbert v. Showerman, 23 Mich. 448. Unquestionably, the electric plant is of great public utility, and its abatement by injunction would entail heavy loss upon its owners, and, according to the testimony, increased cost of light to the citizens of Mobile. The machinery is of the best quality employed for electrical purposes ; its officers and agents are shown to be skillful, and acting in good faith. Efforts have been made with considerable success, and are still being made, to prevent injury and annoyance tn the occupants of adjoining dwellings. One of the chimneys is eighty feet high, and the other seventy, forty or fifty feet higher than the roof of complainant’s residence, and sufficiently high to discharge the smoke in the air, so as not to incommode complainant, unless in abnormal conditions of the atmosphere, which occur only occasionally. Though the locality in which the plant is situated may not be of such nature as to defeat its abatement, if its operations cause substantial injury to neighboring dwellings, or material annoyance to the occupants; yet, f?hen by the application of scientific appliances, or by the expenditure of a reasonable amount of labor and money, the evils can be obviated, or diminished so as to amount to no more than are ordinarily incident to a city life, the rights of the parties will be preserved, the infliction of heavy loss prevented, and the public interest subserved, by withholding equitable interference, and leaving the complaining party to pursue the legal remedy. By the settled rule in this State, a case must be proved which establishes the necessity of a preventive remedy —-a case within that class of cases of irreparable or continuous injury which can be adequately redressed only by injunction ; and in all cases, where the right is doubtful, and the exercise of the power would interfere with industries promotive of public utility, it becomes the duty of the court to abstain from interfering. In such cases, the proof should be clear and convincing, and the power “should be cautiously and sparingly exercised.” — Ray v. Lyons, 10 Ala. 63 ; Rouse v. Martin, supra. A careful examination and review of the mass of evidence forces the conclusion, that complainants have failed to establish, clearly and convincingly, a case of imperative necessity. The evidence leaves the mind in — 269 — doubt, whether complainants have suffered, since the alterations and improvements were made, any substantial injury, or material discomfort, more than is usually incident to a residence in a city, or which could not be prevented by the application of labor or money, that may be adequately redressed at law. Affirmed.