Rainey v. Herbert

DALLAS, Circuit Judge. This ha an appeal front a decree for an injunction restraining the erection of certain coke ovens. The jurisdiction of the circuit court was dependent upon the amount involved in the controversy. There was some conflict of testimony as to the amount of the damage 'which would result to the complainants from the construction and operation of the ovens, but ike court below found that the averment that It would exceed §2,000 was supported by abundant evidence; and, if the matter in dispute were simply and solely the threatened injury to the plaintiffs, this finding of fact might be accepted as in itself conclusive; but, if this [444] were otherwise, the want of a sufficient amount of damage having been alleged and proved to give the federal courts jurisdiction, would not defeat the remedy, as the prohibition of the contemplated erection of the ovens .was the matter of controversy, and the value of that object (admittedly in excess of the jurisdictional amount) must govern. Railroad Co. v. Ward, 2 Black, 485, 492. Consequently the first assignment of error has not been maintained. The opinion of the court below presents the law and the facts relating to the erection and operation of coke ovens “in or upon Front street, in the village of Sedgwick,” in a manner entirely satisfactory. It is therefore adopted by this court as correctly disposing of the several questions which are raised by the assignments of error from the second to the sixth, inclusive. The decree, however, goes further, and is, we think, too comprehensive. It not only restrains the placing of ovens upon Front street, but also forbids their operation on the defendant’s own property “so near the premises of the said complainants as to injure the same by reason of flames, heat, gases, or smoke emitted therefrom.” The only prayer for special relief was for “a preliminary injunction, hereafter to he made perpetual, restraining the respondent from locating, erecting, and operating said coke ovens, or any of them, upon the said street in front of or near the said premises belonging to your orators as aforesaid.” The particular relief which was awarded by that portion of the decree now under consideration was not prayed in the bill, nor . did it even suggest that such relief would be asked upon the hearing. There was, it is true, a prayer for general relief; but it is a familiar rule of equity pleading that under such a prayer the court will afford a complainant such relief only as is agreeable to tbe case made by his bill, and the case made by the bill upon this record is wholly confined to the distinct subject of the proposed erection and operation of coke ovens upon Front street. The bill will not hear any other construction. Its language is perfectly clear. The gravamen of the complaint is that coke ovens “upon the said Front street, of the said town of Sedgwick, will be a permanent and continual trespass, * * * and a permanent obstruction;” and although it is added that a nuisance from smoke, etc., will result, this, too, is averred with respect, only, to ovens upon the street, From beginning to end, not a word is said about nuisance to arise from the operation of ovens elsewhere; the special prayer does not relate to any such nuisance; and, as we have said, the general prayer cannot he applied to it. This branch of the case was disposed of by the learned judge below in a single paragraph of the opinion which he filed, from which it does not appear that his attention had been directed to tbe restricted character of the bill; but we, with that fact in view, are constrained to hold that, in so far as ovens not upon the street were included in the terms of the decree, it was improvidently made. English v. Foxall, 2 Pet. 595, 611; Hobson v. McArthur, 16 Pet. 182, 195; Savory v. Dyer, Amb. 70; Wright v. Atkyns, 1 Ves. & B. 313. If, however, a nuisance, independently of the encroachment upon Front street, had been duly alleged, it would not necessarily follow [445] ¡lisa the complainants would have been entitled to an injunction based upon (hat. allegation. We vriU not enter upon an extended discussion of this aspect of the matter, because it is not necessary ¿bat we should do so, bat we deem it proper to suggest, with reference to any possibly contemplated further proceedings, that, while It is generally true Unit annoyances which substantially detract from ibe ordinary comfort oí' life may be enjoined, yet equity will never interpose where a due regard for all the attendant cimmis!anees should impel a chancellor io withhold his hand. In Robb v. Carnegie Bros. & Co., 145 Pa. St. 324, 22 Atl. Rep. 649, it is said that the opera!ion of coke ovens at an appopílate phuv will not bo enjoined; and in Ruckeuistinc’s Appeal, 70 Pa. St. 102, an itijuncion against brick burning was. in view of the surrounding ciivuroviam-ra, refused. There are n cm ero us other judicial decisions of the same import, but In these two cares the principle to which we desire to direct attention is sufficiently exemplified. The seventh -awtigmnent.of error is sustained. Tine eighth and twelfth assignments of error are to the allowance an amendment by which T feur.v Rei-bert and Margaret Herbert ,vere made parties plain (iff, and to the Imposition of the cosía upon r.Tio defendant below. They are not supported, bio wrong was dore •¡he defendant by admitting the life tenants as joint co'nplamanta with (he remainder-men, or by the manner of their admission: ¡m3 the coals cf the procec<!iug were not, increased because this war* bone, oi* by reason of the tinte at which it was done. !”o furl her amendment of the bill became requisite, or was mude, in consequence of the addition of these parties,, and the evidence which had been previously taken was as pertinent sifter their addition sus it war» before. The remaining assignments do not require separate consideration. They are not soArbied. The decree of the circuit comb is, now modified by striking iherefrom the second paragraph thereof, viz.: “fiecond, irons operating any coke ovens so near the premises of the wild complainants as to injure the same by flames, heal,, gases, or smoke emitted 1 herefrom;’'' and, as thus modified, the decree is affirmed. And it is further ordered that one half of the costs of 'Oils appeal shall be paid by the appellant, and one half thereof by the appellees.