Northwood v. Barber Asphalt-Paving Co.

Grant, J. (after stating the facts). It is evident from reading the opinion of Judge Carpenter that in entering this decree he followed the case of Ballentine v. Webb, 84 Mich. 38 (47 N. W. 485, 13 L. R. A. 321), and made a reference to ascertain what could be done to prevent the escape of the dust and the noxious vapors. He recognized the business of the defendant as a legitimate one, which could not be restrained by the injunction of the court until all proper means had been tried to prevent the escape of dust, noxious vapors, etc. Upon the filing of the report he decreed certain specific things to be done, and to this added the general clause. It is a fair inference from Judge Hosmer’s opinion that he finds that defendant complied with this order, as to the preventives directed by the court, but that they failed to accomplish the object; that this failure was known to the defendant, and yet it continued the nuisance. The result of Judge Hosmer’s findings is either that the defendant can, by proper precautions, avoid the dust and fumes which are injurious, or that it must and will close its works entirely, for he states that his finding “ probably will preclude any annoyance in the future.” . In what manner it will preclude the annoyance does not' clearly appear. The testimony on the part of the complainants is that the dust and vapors are .worse than they were before the original decree was entered, and the devices and means therein provided carried out. If this be so, and their testimony as to the effect upon the inhabitants is true, and no means can be devised to prevent it, clearly the defendant’s business should be enjoined in toto. The case would then clearly fall within Robinson v. Baugh, 31 Mich. 290; McMorran v. Fitzgerald, 106 Mich. 649 (64 N. W. 569, 58 Am. St. Rep. 511); and People v. Detroit White Lead Works, 82 Mich. 471 (46 N. W. 735). [289] It is the contention of the defendant that the specific precautions decreed to be taken by it control; that it complied with those precautions, and, if they failed to produce the desired result, it cannot be held guilty of contempt for proceeding to carry on its business contrary to the general clause of the decree; and that complainants must proceed against it by filing a supplemental petition in the original case. Its counsel claim that these particular provisions control the general language of the decree, invoking the rule that is applied in the construction of statutes, and citing End. Interp. Stat. §§ 399, 295. It is also urged that we should look to the opinion of Judge Carpenter; citing Third Reformed Dutch Church v. Fox, 12 Phila. 296. None of the issues in the original case can be retried in this proceeding. They are res adjudicate/,. The decree prescribed certain things to be done, which, in the opinion of the court, might effect a remedy. The court, however, saw fit to add a clause in unmistakable language prohibiting the carrying on of the business to the injury of the health of the complainants, or to the interference with the comfortable enjoyment of their homes. The plain purpose of this clause was to prohibit the business unless the injurious effects upon the complainants and their families could be obviated by the use of the means proposed, or by other means. The defendant, under the finding of the court, found these specific provisions a failure, and yet- the defendant continued to carry on its business in a manner which it knew was in violation of the injunction. 5 The complainants in the chancery suit were not required to investigate the defendant’s plant, determine what it had done, and virtually commence another proceeding. The facts were peculiarly within the knowledge of the defendant. Complainants could only be expected to know that the nuisance continued, and had the right to proceed upon the theory that its continuance was in violation of the decree. When the defendant ascertained that these provisions were ineffectual, [290] it could have tried other means without any violation of the injunction; or it could have applied to the court for leave to provide other means, if it was advised that it could not proceed without the direction of the court. Its answer shows that it was contemplating other means if j_the ones adopted should prove ineffectual. Under the findings of the court, we think that the order adjudging the defendant guilty of contempt should be sustained, and it is affirmed, with costs. Montgomery, C. J., Hooker and Moore, JJ., concurred. Long, J., did not sit.