Bell v. A. Riggs & Bro.

The opinion of the Court was delivered by Fenner, J. Defendants are cistern makers, who carried on that “'business on property owned by themselves and adjoining the dwelling bouse of plaintiff. Being desirous of applying steam power to their factory, they presented a petition to the city council for permission to do so, representing that it would not injure neighboring property, and declaring their ¡intention “to confine tlie boiler used in their factory within a brick room with iron roof and doors, and the whole independent of and .away from their main factory building.” They accompanied their petition with one signed by eighteen owners of property in tlie immediate neighborhood, expressing the opinion that no injury would result, and approving the granting of the permit. The plaintiff, with thirteen other property holders of the vicinage, .presented a counter-petition opposing the permit. The council, after consideration of the premises, on July 24, 1884, adopted the following resolution: “Resolved, That permission be granted to A. Riggs & Bro. to erect and maintain a small steam-engine .■and boiler on their premises, used as a cistern factory, No. 247 Delord •street; this privilege revocable at the pleasure of the council.” It seems sufficiently obvious that the council, in this exercise of the ¡police power, has been influenced by the representation that the work «would not injure neighboring property, and lias carefully guarded itself [556] in case such representation should prove to be false, by reserving the* power of revoking the privilege at its pleasure. It is equally evident, in view of this reservation and of the right of neighboring proprietors to have legal redress against private nuisances, that it would be the interest as well as the duty of defendants so to construct their works as not to injure, or to injure to the least possible extent, their neighbors. Nevertheless, without waiting to see in what manner the works would be built, what safeguards would be adopted to prevent apprehended injury, and whether such injury would actually result, the plaintiff rushes into court with this suit for an injunction to restrain defendant “from proceeding to erect and from erecting any steam-engine, boiler* or appurtenances thereto on the premises No. 247 Delord street’.” The action cannot be sustained. The rule is founded in reason and firmly established by authority that injunction will not lie against a prospective nuisance except in cases where its establishment will occasion imminent danger or irreparable injury, or at least where there is no question that the proposed erection will be a nuisance violative of legal right. Wood, Law of Nuisances, $§ 103, 104. The grounds of plaintiff’s action are substantially: 1st. That by reason of the accumulation of lumber and shavings in¡ defendant’s business, the erection of a steam-engine would create danger of fire, imperilling the property and lives of plaintiff and her family. 2d. Because the noise and smoke and steam therefrom would injure the health and peace of herself and family and impair the value of her property. We consider these apprehended consequences by no means so certain, as to justify the judicial interference now invoked. The evidence establishes that the defendants propose to erect their engine and boiler at a point as remote as possible from their own factory and from plaintiff’s house; that the boiler, in connection with, which alone fire is to be used, is to be_ detached from the engine and enclosed in a brick, fire-proof building; that a smoke-stack considerably higher than the surrounding buildings is to be used; that it is to ■ be fitted with a spark-arrester or other arrangement to prevent the • emission of sparks; and that the escape of steam is to be in the ■ smoke-stack, so as to neutralize the noise as far as possible. It may be that the effect of such precautions may denonstrate the apprehensions of plaintiff to be imaginary; but, at all events, she. [557] may well await tlie"result before seeking redress for apprehended injuries. We can discover no such imminent danger or irreparable injury from the erection of the steam power, as may not find redress by prompt ■resort to judicial remedy when the danger or injury has arisen. What amount or character of danger or injury would entitle plain-tiff to relief, in any event, is a question not now presented,#aud will be determined only when necessary. But see C. C. 669; Blanc vs. Murray, 36 Ann. 167; Lewis vs. Behan, 28 Ann. 130; City vs. Lambert, 14 Ann. 247. Judgment affirmed. Watkins, J., not having heard the argument, takes no part.