HOWELL, V. C.

Suit by the City of Elizabeth against Gilchrist & Co. On final hearing on bill, answer, replication, and proofs. Bill dismissed.

James C. Connolly, of Elizabeth, for complainant.

A. J. David, of Elizabeth, for defendant.

HOWELL, V. C. The complainant, a municipal corporation, is the owner of a recreation pier in Elizabethport facing on Staten Island Sound, which is open to use by the public during the summer season. The defendant, a manufacturing corporation, is conducting the business of grinding carbon and manganese in a building leased by it from the Central Railroad Company, which lies a short distance north of the complainant's pier. The bill alleges that the defendant, since its mill went into operation in the early part of the present year, has permitted large quantities of black dust, which is formed in its grinding operations, to escape into the air and be carried from the defendant's works to the complainant's pier whenever the wind is in a northerly direction, and that the result is that the people who use the pier have their hands and their clothing soiled by contact with the seats and railings thereon which become covered with a black adhesive dust. The prayer is that the defendant may be restrained from maintaining and operating its business on the premises which it now occupies, and that it may be required by the mandatory order and injunction of this court to discontinue said business, with a prayer for further relief. The answer denies the alleged nuisance, but says that the defendant has installed various devices to collect the dust and particles arising from the manufacture and grinding of its products, and that it is now engaged in installing a further and new device, which the defendant is assured, upon competent and expert advice, will practically eliminate the escape of dust and other particles from the plant of the defendant company while it is in operation.

The evidence shows that the devices mentioned in the answer were completed in the early part of August; one of the witnesses stating that they were completed as early as August 3, 1912. When the complainant had rested, the defendant, without any supplement to the pleadings and without objection on the part of the complainant, introduced evidence tending to show that in the month of August, 1912, and long after the filing of the answer, it had installed a dust-collecting apparatus which retained all the dust that had previously passed off into the air, and that it had thus obviated the objections made in the bill. After this defense was introduced, there was a continuance of the cause for ten days, which gave the complainant time to meet the new defense. It introduced in rebuttal some testimony which tended to show that, after the installation of the dust collectors, the conditions were very little, if any, improved.

It is quite clear to my mind that the weight of the evidence on this point is in favor of the defendant, whether it is weighed by the inherent cogency of the proofs or by the number of witnesses produced who testify to the same state of facts. The defendant's witnesses appeared to be men of intelligence and character; they testified uniformly that, since the installation of dust collectors, no dust in an appreciable quantity has escaped from the defendant's cupolas; that from the north cupola only steam escapes, and from the south cupola, which evidently had caused the principal trouble, only occasionally could there be seen any emission of dust whatever; and that this came in puffs 10 minutes, 15 minutes, or even half an hour apart, and then in such slight quantities as to be traced in the air with difficulty. This evidence is supported to some extent by that of Louis J. Richards, health officer of the city of Elizabeth, who was at the premises in question on October 11th, on which day the only thing that he saw was steam coming from the cupola and smoke from the main smokestack of the factory. He did notice a little cloud of dust over the manganese cupola, of which he says, "You couldn't see it very much." This evidence on the part of the defendant was met by the statements made by the city's wharfmaster and one of its health officers, both of whom said that the dust continued to accumulate on the pier from the defendant's works after the installation of the dust collectors, and they exhibited some cloths which they used for cleaning the seats on the pier during the present month (October, 1912), on which were large quantities of black dust.

I am convinced by the evidence that the defendant has practically succeeded in confining the dust arising from its grinding operations to its own premises. It may well be that there will occasionally be found some dust flying in the atmosphere in the neighborhood of its works, but people residing and doing business in a manufacturing community must expect some annoyance from dust, smoke, noise, and vibration, and, while these items of injury must be kept down to the lowest possible amount, it must be clear that they cannot in every case be wholly eliminated. Wolcott v. Melick, 11 N. J. Eq. 201, 66 Am. Dec. 790; Ross v. Butler, 19 N. J. Eq. 294, 97 Am. Dec. 654; Cleveland v. Citizens' Gas Light Company, 20 N. J. Eq. 201; Duncan v. Hayes, 22 N. J. Eq. 25; Reilly v. Curley, 75 N. J. Eq. 57, 71 Atl. 700, 138 Am. St. Rep. 510. These cases relate mostly to nuisance to dwellings, a situation which the courts are apt to view a little more harshlythan they do in a nuisance to a manufacturing establishment; or, in other words, what would be a plain nuisance to a dwelling house might not be a nuisance to a manufacturing establishment or to a public park or to a people's playground. After all, the decision in each case must stand upon the question of nuisance or no nuisance in that particular case; it is always a fact to be established under the circumstance of each case.

There is another ground upon which the judgment may proceed, and that is that the right to an injunction in the present circumstances is at least doubtful. If it could be said that there was a balancing testimony so that the mind of the court could not rest securely one way or the other, in such case the injunction could not issue.

In the absence of a verdict at law in favor of the complainant, an injunction will not issue unless the right of the complainant is clear and the damage irreparable. If the damage can be measured in a legal action in a cause where it is not irreparable, equity will not take jurisdiction.

Again, "Where a defendant, who has been doing what amounts to a nuisance, disclaims the intention to continue it, and is proceeding with diligence to remove and abate it, the court will, if satisfied that the cause of complaint will be removed as speedily as practicable, refuse an injunction." This is from the syllabus to King v. Morris & Essex Railroad Company, 18 N. J. Eq. 397. I think that the practice there prescribed ought to be followed in this case. It is clear that the defendant has endeavored to minimize the injury, and, in my opinion, has succeeded, but at any rate it is sensible of its position and has been and is endeavoring to do what it can toward changing the conditions.

The result is that the bill must be dismissed. No decree, however, will be advised until the pleadings shall have been adjusted to the proofs. I will hear counsel on the question of costs at the time of the settlement of the decree.