Summary
In Hennessey v. Carmony, 50 N.J.Eq. 616, 25 A. 374 (N.J. Ch. 1892), a New Jersey Court of Equity considered a case, not unlike in consequences to the case presently before us.
Summary of this case from Beatty v. Wash. Metro. Area Transit AuthOpinion
11-19-1892
HENNESSEY v. CARMONY et ux.
J. W. Wartman, for complainant. S. H. Grey, for defendants.
(Syllabus by the Court.)
Bill by Richard Hennessey against Cyrus P. Carmony and wife to restrain a private nuisance. Injunction granted.
J. W. Wartman, for complainant.
S. H. Grey, for defendants.
PITNEY, V. C. The object of the bill is to restrain a private nuisance. The complainantis the owner of a small lot of land, about 18 feet front and rear by about 96 feet deep, in the city of Camden, fronting on the west side of South Eighth street, about midway between Spruce street on the north and Cherry street on the south. Upon this lot is situated a small dwelling house, composed of a main or front part of brick, about 15 feet front by 30 feet deep, two stories high, leaving a passageway of 3 feet on the northerly side, and having a wooden extension or kitchen about 10 by 35 feet, two stories high, in the rear. The rear of this structure is 31 1/2 feet from the rear line of the lot. The ground lying to the north and west of this lot is owned by the defendants, or one of them, and is used for a dye works for coloring cotton and other materials. In the process of dyeing, it, of course, becomes necessary to dry those materials, and in order to hasten this process use is made of two machines, called in the evidence "whizzers," in to which the wet material is placed, and which, by being revolved at great speed, drive out the water by centrifugal force. These machines are driven by two small engines attached to them directly, without intermediate gearing, so that the engines must make the same number of revolutions as do the whizzers, and the more rapid the revolution, the more rapid the process of drying. The principal subject of litigation was as to the effect upon the complainant's premises of these machines. There were other matters complained of, some of which were remedied about the time the bill was filed, and such as were not remedied are capable of being remedied without serious inconvenience to the defendants. I will state them: First. The defendants, shortly before the bill was filed, had occasion to place a wire stay rope to support an iron smokestack for their steam boiler, and in so doing fastened the lower end of it to an object on their own land, so situate, as to the smoke stack that the wire rope crossed and overhung the rear of the lot of the complainant. This was removed after complaint made, but whether just before or just after the bill was Bled was a disputed question. Second. Some time previous to the filing of the bill—months or years—the defendants placed on their land, a few feet only from the sideline of complainant's lot, and near his back or kitchen door, a privy-house, which was used by their employes. This privy was placed immediately over a small brick sewer which led from defendants' works across their land to the public sewer in the street, and a small hole was made in this sewer under the privy. The defendants, at stated times, blew off their steam boiler into this sewer, with the result that the hot steam there introduced drove out the offensive odors of the privy into complainant's kitchen. Upon complaint being made of this practice, it was also discontinued, and the hole in the sewer closed, but whether before or after bill filed was also a matter of dispute. Third. The engines and the machines (whizzers) above mentioned stand near each other in a low, one-story building, Immediately in the rear of complainant's lot, and the steam is exhausted from the engines upon the roof. The complainant charges that hot water, vapor, and spray from these exhausts, when the wind blows from the dye house towards complainant's house, come over onto his lot, laden with cinders from the smokestack, and greasy filth from the engines, and interfere with the use of the yard for drying clothes, etc. Fourth. Complainant contends that the running of the centrifugal machines before mentioned has the effect of making a disagreeable noise, and also of jarring and shaking the house, so that the windows, and doors rattle, the pieces of table crockery rattle, and move upon one another on the shelves, and the walls are more or less cracked.
Upon the two latter branches of the case (especially the last one) more than twenty witnesses were sworn on the one side and the other. With regard to the charge that dirty water, vapor, and spray come onto complainant's premises from the engine exhausts, the proof is that the summer before the bill was filed defendants made certain repairs to and changes in their works, and when, after these repairs, the small engines were started up, shortly before the bill was filed, the steam exhausts led out to a point on the roof quite near the complainant's lot, with the result above stated, and that, upon complaint being made, the exhaust pipes were cut off, and made to lead directly to the roof, and to exhaust only some six inches above it. The point where they now exhaust is about 25 feet from the rear of complainant's lot, and it was contended by the defendants that this change rendered it impossible for anything proceeding from the exhaust to reach the complainant's lot. Notwithstanding this change, however, complainant's witnesses, himself, wife, and children, swear that the filthy spray continued to come onto their lot whenever the wind was blowing from the factory in that direction. In this they are supported by a Mrs. Cheeseman, a witness called by the defendants, who had been a tenant in complainant's house after bill filed. She swears to the fouling of her washed clothing from the spray from these exhausts. It was proved that oil was constantly fed into these steam cylinders while in motion, and, of course, as is well known, it is taken up by the steam, passes out with it through the exhaust, rendering the water, spray, and vapor resulting from the condensation of the steam greasy, and sometimes slightly discolored by the result of the wear of the piston. I think complainant made out his case in this regard, and is entitled to relief on that part of his bill. There is not the least difficulty in remedying the nuisance by simply extending the exhaust pipes by a bend down to one of the leaders which carry the rain water from the roof of the factory.
With regard to the alleged noise and vibration, and the right of the complainant to relief on that score if the vibrations be established, more troublesome questions arise. The proof is clear that when these machines, called in the evidence "whizzers," were first put in, some years ago, they did produce a seriousvibration in the neighboring buildings. The factory is situate in the easterly center of the block, which is oblong, and bounded north by Spruce street, east by Eighth street and south by Cherry street, and the engines are about equidistant— say 110 feet to 120 feet—from each of these streets, and about 30 feet from the rear of complainant's lot. On the west of the factory is a church and a public school-house, and the latter is more than 150 feet distant from the machines. So great was the vibration they produced at the school-house that complaint was made by the school authorities, and the defendants attempted to remedy the nuisance by constructing a solid foundation of masonry, extending some six feet below the surface, and placing the machines upon it. It is also proven by one of the defendants' witnesses, who lived in the complainant's house at and before the construction of this foundation, that complainant's house was seriously shaken by the machines. This solid foundation, put in about three years before bill filed, seems to have remedied the difficulty so far as the school-house was concerned, and, under ordinary circumstances, one would suppose that the result would be general, and include buildings as near as complainant's dwelling. But the evidence compels me to come to a contrary conclusion. Numerous witnesses living in the neighborhood —most of them much further away from the machines than complainant's house —swear to a sensible vibration when the machines, as now placed, are going at full speed. Capt. Ward, an intelligent, impartial, and, I think, reliable, witness, lived in a house over 300 feet away, and testifies to a distinct vibration felt at his house whenever the machines were in full motion, causing the windows to rattle, and dishes to move on the shelves. He testifies further that, according to his observation, the vibration is generally greater in the morning and evening, before and after school hours, a circumstance which, if true, is significant, in connection with the complaint of the school authorities, and the fact that the more rapid the revolution the greater the vibration. Capt. Ward also accounts for the vibration being felt so far in a manner satisfactory to me. He has been a contractor for building sewers, and thus had occasion to excavate extensively in different parts of the city, and he says that whenever you excavate in that neighborhood seven or eight feet below the surface you come to a sort of quicksand, wet, of course, as all quicksand is, spread to a depth or from two to four feet above the solid bottom. This quicksand resembles in its character a body of water under pressure, and forms at once a conductor of the vibratory force. It is a well-known fact that the jar of a steam pump may be carried through the water in an iron main and felt at a great distance from its source. The evidence of the complainant and his family is strong as to the noise and vibration in his house, and its effect, as above stated, in causing the windows to rattle, and the dishes to rattle and none upon their shelves, the doors to swing open, and the walls to crack; and it is corroborated not only by the evidence of the numerous witnesses who have felt it further away, but, in a measure, by that of Mrs. Cheeseman, who, as before stated, occupied the house as a tonant of the complainant after the bill was filed, and was called by the defendants. This evidence is not overcome or seriously shaken by the evidence of the witnesses of defendants who swear that in some of the dwellings in the neighborhood little, if any, vibration is felt. The schoolhouse is a large, heavy building, built of brick, and the same is true of some of the dwellings, and such buildings would not feel the jar us readily as would alight structure like complainant's dwelling and many others in the neighborhood. Then, again, if I am right in my belief that the real secret of the far-reaching effect of these little machines is that they rest upon a layer of wet quicksand, which extends with more or less uniformity throughout that neighborhood, that fact furnishes an explanation of the inequality of the effect of the same cause, viz., a variation in the thickness, and a possible break in places in the continuity, of this layer.
The serious and troublesome question in the case is as to whether the vibration established is of such a degree as to entitle the complainant to the aid of this court. Upon reason and authority I think there is a clear distinction between that class of nuisances which affect air and light merely, by way of noises and disagreeable gases, and obstruction of light, and those which directly affect the land itself, or structures upon it. Light and air are elements which mankind enjoy in common, and no one person can have an exclusive right in any particular portions of either; and, as men are social beings, and by common consent congregate, and need fires to make them comfortable and to cook their food, it follows that we cannot expect to be able to breathe air entirely free from contamination, or 1 hat our ears shall not be invaded by unwelcome sounds. Thus, my neighbor may breathe upon my land from his, and the smoke from his house fire and the vapor from his kitchen may come onto my land, or he may converse in audible tones while standing near the dividing line, and all without giving me any right to complain. So my neighbor and I may build our houses on the line bet ween our properties, or have a party wall in common, so that we are each liable to hear and be more or less disturbed by the noise of each other's family, and cannot complain of it. In all these matters of the use of the common element air we give and take something of injury and annoyance, and it is not easy to draw the line between reasonable and unreasonable use in such cases, affecting, as they do, mainly the comfort, and, in a small degree only, the health, of mankind. In attempting to draw this line, we must take into consideration the character which has been impressed upon the neighborhood by what may be called the "common consent" of its inhabitants. But when we come to deal with what is Individual property, in which the owner has an exelusiveright, the case is different. While my neighbor may stand by my fence on his own lot, and breathe across it over my land, and may permit the smoke and smell of his kitchen to pass over it, and may talk, laugh, and sing or cry, so that his conversation and hilarity or grief is heard in my yard, he has no right to shake my fence ever so little, or to throw sand, earth, or water upon my land in ever so small a quantity. To do so is an invasion of property, and a trespass, and to continue to do so constitutes a nuisance; and, if he may not shake my fence or ray house by force directed immediately against them, I know of no principle by which he may be entitled to do it by indirect means. I think the distinction between the two classes of injury is clear. At the same time it would seem that if. has, in appearance at least, been frequently overlooked by able and careful judges, and the same rules as to the degree of the injury which will justify judicial interference applied to each class. The distinction between the two classes of injuries was pointed out by Lord Westbury in Smelting Co. v. Tipping, 11 H. L. Cas. 642, 11 Jur. (N. S.) 785, 116 E. C. L. 1093. The charge of the judge under review is given in full in the report in the Jurist, and in the addenda to 4 Best & S., printed in 116 E. C. L. 1093, while a mere abstract is given in the report in the queen's bench, (4 Best & S. 608,) and in the official report in the house of lords, (11 H. L. Cas.) One of the head note a of the official report (11 H. L. Cas.) is this; "There is a distinction between an action for a nuisance in respect of an act producing a material injury to property and one brought in respect of an act producing personal discomfort. As to the latter, a person must, in the interest of the public generally, submit to the discomfort of the circumstances of the place, and the trades carried on around him. As to the former, the same ruling would not apply." Lord Westbury, in moving the judgment of affirmance, said: "In matters of this description it appears to me that it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, any thing that discomposes or injuriously affects the senses? 'or the nerves, whether that mayor may not be denominated a nuisance,' must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighborhood of another, and the result of that trade or occupation or business is a material injury to property, then there unquestionably arises a very different consideration. I think that in a case of that description the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbors would not apply to circumstances the immediate result of which is sensible injury to the value of the property." This opinion was expressly concurred in by the other judges who sat in that case. The sole question before the court was whether the defendant below(the plaintiff in error) had any reason to complain of the charge of the judge, and not whether, if the verdict had been for the defendant, the plaintiff below might not have taken exception to it; and the effect of the judgment of Lord Westbury was—as it seems to me— to hold that the charge was too favorable to the defendant below, who was plaintiff in error. This aspect of the case was noticed and pointed out by Lord Cockburn in the queen's bench, who said (4 Best & S. 615) that, if the summing up of the judge "was wrong in any respect, the error is one of which the other side is the only party entitled to complain." It is not quite safe, therefore, as it seems tome, to rely upon the charge of the judge there under review as an accurate statement of the law, without taking into consideration this circumstance. In my judgment, the distinction taken by Lord Westbury in that case is founded in reason, and should be observed; and, in looking at the language used by the judges in other cases, we ought to observe whether it was used in reference to a case of injury through the air by noise or offensive odor, or whether it was one affecting the land itself. Thus, in Sturges v. Bridgman, (1879,) 11 Ch. Div. 852, where the injunction was granted, the case was one mainly of noise, and, although the element of vibration was mentioned, the judges dealt altogether with the matter of noise. Tbe same may be said of Gaunt v. Fynney, (1872,) L. B. 8 Ch. App. 9, where the injunction was refused.
The question here, then, is not so much whether the effect of the noise and vibration caused by the rapid revolution of the defendants' machines is to render complainant's house less comfortable to live in, (though that is a matter to be considered,) but rather whether the complainant's land and dwelling is sensibly and injuriously affected by the vibration. If it be so, then it seems to me he ought, in the absence of any equitable defense, to he entitled to relief. The familiar ground on which the extraordinary power of the court is invoked in such cases is that it is inequitable and unjust that the injured party should be compelled to resort torepeated actions at law to recover damages for his injury, which, after all, in this class of cases, are incapable of measurement; and I presume to add the further ground that in this country such recovery must result in giving the wrongdoer a power not permitted by our system of constitutional government, viz., to take the injured party's property for his private purposes upon making, from time to time, such compensation as the whims of a jury may give. This ground of equitable action is of itself sufficient in those cases where the injury, though not irreparable, promises to be repeated for an indefinite period, and so is continuous in the sense that it will be persevered in indefinitely. See Boss v. Butler, 19 N. J. Eq. 302. Several matters have at various times and on various occasions been held to stand in the way of granting an injunction in this class of cases. The principal one is what may be called the" de minibus," "balance of injury," and "discretion" doctrine. It has been said and held on some occasions that, where the injury to the complainant by the continuance of the nuisance is small, and the injury to the defendant by its discontinuance is great, the court will consider that circumstance, and, if the balance is greatly against the complainant, will, in the exercise of a sound discretion, refuse the injunction, and leave the complainant to his remedy at law. As instances in which this notion has been advanced in this state may be cited Quackenbush v. Van Riper, 3 N. J. Eq. 350; Van winkle v. Curtis, Id. 422; Railroad Co. v. Prudden, 20 N. J. Eq. 530,—in the court of errors and appeals; and in the later case of Demarest v. Hardham, 34 N. J. Eq. 4(59. The two cases in 3 N. J. Eq., as well as Railroad Co. v. Prudden, were instances of interlocutory applications, and distinguishable on that ground; and, further, in Railroad Co. v. Prudden the injunction was dissolved on the express ground that the complainant's right was not clear. And at page 540 (20 N. J. Eq.) the learned judge says: "The defendants will not occupy, with the proposed track, any of the complainant's lands. For the contingent and consequential damages he may suffer from any unlawful interference with his enjoyment of his property he has his remedy by action at law, whenever and as often as loss or damage ensues; and if the use of a railroad in front of his premises becomes a nuisance, or the aggression proves to be a permanent injury, without an adequate remedy at law, then the court will be "competent to administer equitable relief by injunction to prevent its continuance, or for its removal. But a strong case must be presented, and the impending danger must be imminent and impressive, to justify the issuing of an injunction as a precautionary and preventive remedy." And, in adverting to this opinion in Carlisle v. Cooper, 21 N. J. Eq. 584, the same learned judge distinguishes it from the case of a final hearing for the abatement of a permanent and continuous nuisance. Demarest v. Hardham was on final hearing, and, while some expressions of the learned vice chancellor there found, standing by themselves, may seem to hold that the granting an injunction on final hearing as part of the decree rests in the discretion of the chancellor, I think that, taking what was said on that topic as a whole, it does not bear that interpretation.
With regard to the insignificancy of the injury to the complainant, it seems to me it cannot be taken into account if it be appreciable, and such as would clearly entitle him to damages at law. That consider a tion was urged and overruled, and with it, as I think, the "balance of injury and convenience" notion above stated, by the court of error and appeals in Higgins v. Water Co., 36 N. J. Eq. 538, at 541, which is the latest expression by that court on this subject. At page 544 the learned chief justice deals with it, and finally disposes of the doctrine that in such cases the court will consider and balance the conveniences, and, if that balance be greatly against complainant, leave him to his remedy at law by repeated suits for damages. He uses this language: "The next position taken in behalf of the defendant is that, even if the subtraction of this water is to be held to be wrongful with respect to the complainant, still a court of equity will not give relief by way of injunction, but will leave the parties injured to their remedy at law. If this were an application for a preliminary injunction, it is clear that an objection of this kind should prevail, for the act which the defendant threatens to do is obviously not of a character to inflict any irreparable injury. But, after a court of equity has entertained a bill, and, instead of sending the case to a trial at law, has itself tried the questions of fact involved, and settled the legal right in favor of the complainant, it certainly would be a result much to be depreciated, if, at such a stage of the controversy, it was the law that the chancellor were required to say to such a complainant: 'Your right is clear. If you sue at law, you must inevitably recover; and, after several recoveries, it then will be the duty of this court, on the ground of avoiding a multiplicity of suits, to enjoin the continuance of this nuisance. Still you must go through the form of bringing such suits, before this court of equity can or will interfere.' In those cases in which, to the mind of the chancellor, the right of the complainant is clear, and the damage sustained by him is substantial, so that his right to recover damages at law is indisputable, and the chancellor has considered and established his right, I think it not possible that any authority can be produced which sustains the doctrine contended for by the counsel of the defendant. For an example of such a proceeding, we were referred to the case of Earl of Sandwich v. Railway Co., 10 Ch. Div. 707; but the authority is not relevant to the point, Tor the vice chancellor expressly states that the complainant had suffered no damage. Speaking of the complainant, he says: 'What injunction is he entitled to? Is there any damage done to him? It is not pretended that there is any damage done to him.' This case, therefore, belongsto that class before referred to, where an abstraction of water has been marie in a reasonable manner by a riparian proprietor, and where such abstraction does not operate to the detriment of other proprietors, and, as I have already stated, under such circumstances no wrong is done if the transaction be measured either by the rules of law or of equity. But in the present case, if the injunction be refused, it must be refused in the presence of the facts that there has been a diminution of this stream to the substantial detriment of the complainant, and a judgment on final hearing to that effect, so that a recovery would follow as a matter of course if suits at law should be brought. Under such circumstances of fact, has a court of equity ever promoted such useless litigation? It is Impossible to conceive what benefit would result to either of the litigants from such a course. If this water company is doing a legal wrong, injurious to the complainant, such wrongful conduct must, if persisted in, either now or hereafter, be restrained in equity. After the rights of these parties have been settled in this court, suits at law, founded in this diversion of this stream, would be mere assessments of damages. Judgments in such actions, as a matter of course, must pass in favor of the complainants. To be prohibited, therefore, from doing the wrongful act, which must lead to such results, cannot be regarded, with respect to the defendant, as anything inequitable. Nor, under such circumstances, can a court of equity rightly withhold its hand on the ground of any supposed inconvenience to those who are the customers of this company. In a similar situation the English chancellor refused to listen to such an appeal. Such an appeal was made in the case of Broadbent v. Gas Co., 7 De Gex, M. & G. 486. The complaint was that vegetables growing in the market garden of the complainant were injured by the gas of that company, and, when the argument was pressed that this injury was slight in comparison with the benefits conferred by the company on the public, and that on that account this court would not exercise its power to restrain the manufacture of the gas, Lord Cranworth uses this strong language: He says: 'If it should turn out that this company had no right so to manufacture gas as to damage the plaintiff's market garden, I have come to the conclusion that I cannot enter into any question of how far it might be convenient for the public that the gas manufacture should go on.' He further remarks: 'But unless the company had such a right, I think the present is not a case in which this court can go into the question of convenience or inconvenience, and say, where a party is substantially damaged, that he is only to be compensated by bringing an action toties quoties. That would be a disgraceful state of the law, and I quite agree with the vice chancellor in holding that in such a case this court must issue an injunction, whatever may be the consequences with regard to the lighting of the parishes and districts which this company supplies with gas.'" This seems to me to settle the rule in this, state.
The case of Broadbent v. Gas Co., so cited by the learned chief justice, was affirmed on appeal, as reported in 7 H. L. Cas. 601. At page 615, Lord Kingsdown uses this language: "It is said that the balance of inconvenience is so great against granting an injunction that it ought not to be done; that, in one view of it, it may stop these large and expensive works to the great injury of the public, while, on the other hand, the only inconvenience to which the plaintiff in the suit will be subjected is the inconvenience of the trifling damage it is said (but, be it trifling or large, makes no difference in principle) that he may sustain from time to time, for which he may recover compensation by action." In this case there had been an action at law brought to trial before Lord Chief Justice JERVIS and so trifling did the action appear that the chief justice is said by Lord Cranworth (7 De Gex, M. & G. 445) to have said "with his usual keenness that it was a most ridiculous action." And I desire here for myself to say that I have never been able to see how the question of the right of the complainant to an injunction on final hearing could ever be a matter properly resting in the "discretion" of the chancellor, as I understand the force of that word in that connection. If by "discretion" is here meant that the judge must be discreet, and must act with discretion, and discriminate, and take into consideration and give weight to each circumstance in the case in accordance with its actual value in a court of equity, then I say that that is just what he must do in every case that comes under his consideration; no more and no less; and that is the sense in which 1 understand the word is used in Demarest v. Hardham. But if the word "discretion," in this connection, is used in its secondary sense, and by it is meant that the chancellor has the liberty and power of acting, in finally settling property rights, at his discretion, without the restraint of the legal and equitable rules governing those rights, then I deny such power. It seems to me that the true scope of the exercise of this latter sort of discretion in the judicial field is found in those matters which affect procedure merely, and not the ultimate right. For instance, in Re Anderson, 17 N. J. Eq. 536, the question was whether a fund belonging to an infant should be transferred from one guardian to another, and it was held that its transfer rested in the discretion of the chancellor; and other cases are there cited. So with the question whether or not an issue should be framed by the chancellor to try a question of fact. That was declared by the court of errors and appeals in Carlisle v. Cooper, 21 N. J. Eq. 576, to be a matter resting in the discretion of the chancellor. And so with the issuing of interlocutory injunctions where no property right is immediately affected.
I have taken the trouble to examine many of the cases which seem to hold more or less the contrary of what I understand to be the rule laid down by the court of errors and appeals in Higgins v. Water Co., and find most of them distinguishable.The majority of them are rulings upon preliminary injunctions, where the right was not yet settled, or where the injury was not a continuing one, and the remedy at law ample, or, if on final hearing, there was something inequitable in the complainant's conduct or case which would amount to a defense in equity to an action at law. And of the English cases it is proper further to observe that some of them gave damages instead of an injunction, under the authority of the acts of parliament for that purpose, called "Lord Cairns'" and "Sir John Rolt's" acts. The giving of damages for continuing nuisances is quite within the omnipotent power of parliament, which is competent to take private property for private purposes. In this country, under our constitutional system, as before remarked, that course is forbidden. I think the language of Lord Cranworth, quoted by the learned chief justice in Higgins v. Water Co., applies with increased force in this country.
While the "balance of injury" notion has found frequent place in many English cases, the later and best-considered of them put the rules governing courts of equity in such cases upon their true ground. Clowes v. Staffordshire Potteries Water Works Co., L. R. 8 Ch. App. 125, at pages 142, 143; Wilts, etc., Co. v. Waterworks Co., L. R. 9 Ch. App. 451; Goodson v. Richardson, Id. 221,—are examples. This last was a case of an injury to a bare right of property without any actual damage. Defendant had laid a water main in a public street, the fee of which was in the complainant, and Lord Selborne held he was entitled to a mandatory injunction compelling it to remove it. In the course of his judgment he uses this language: "It is said that the objection of the plaintiff to the laying of these pipes in his land is an unneighborly thing, and that his right is One of little or no value, and one which parliament, if it were to deal with the question, might possibly disregard. What parliament might do, if it were to deal with the question, is, I apprehend, not a matter for our consideration now, as parliament has not dealt with the question. Parliament is, no doubt, at liberty to take a higher view upon a balance struck between private rights and public interests than this court can take. But with respect to the suggested absence of value in the land in its present situation, it is enough to say that the very fact that no interference of this kind can lawfully take place without his consent, and without a bargain with him, gives his interest in this land, even in a pecuniary point of view, precisely the value which that power of veto upon its use creates, when such use i3 to any other person desirable, and an object sought to be obtained. Besides which, I am not prepared to accede to the proposition that it is an unneighborly proceeding in a man, whose motive for desiring to prevent a particular act may be collateral to the interest in his land,— such, for instance, as his being a proprietor of waterworks which may be injured by the proposed use of it,—to say to his neighbor who wishes to compete with him in that business: 'You are perfectly at liberty to enter into competition with me as a seller of water to the public of Ramsgate in any lawful manner; but you are not at liberty to take my land without my consent for the purpose of competing with me, and I shall object to your doing so.' In that, I confess, I see nothing unneighborly whatsoever. * * * I cannot look upon this case otherwise than as a deliberate and unlawful invasion by one man of another man's land for the purpose of a continuing trespass, which is in law a series of trespasses from time to time, to the gain and profit of the trespasser, without the consent of the owner of the land; and it appears to me, as such, to be a proper subject for an injunction." There was, in the case in hand, no contention that the neighborhood here in question was ever given up by common consent to mechanical or manufacturing purposes. It seems to be one mainly of cheap residences and retail shops. The language of Chancellor Zabriskie in Ross v. Butler, 19 N. J. Eq. at pages 305, 306, is apt: "I find no authority that will warrant the position that the part of a town which is occupied by tradesmen and mechanics for residences and carrying on their trades and business, and which contains no elegant or costly dwellings, and is not inhabited by the wealthy and luxurious, is a proper and convenient place for carrying on business which renders the dwellings there uncomfortable to the owners and their families by offensive smells, smoke, cinders, or intolerable noises, even if the inhabitants are themselves artisans, who work at trades occasioning some degree of noise, smoke, and cinders. Some parts of a town may, by lapse of time or prescription, by the continuance of a number of factories long enough to have a right as against every one, be so dedicated to smells, smoke, noise, and dust that an additional factory, which adds a little to the common evil, would not be considered at law a nuisance, or be restrained in equity. There is no principle in law, or the reasons on which its rules are founded, which should give protection to the large comforts and enjoyments with which the wealthy and luxurious are surrounded, and fail to secure to the artisan and laborer, and their families, the fewer and more restricted comforts which they enjoy."
Looking at the instances in which a court of equity has granted relief in cases like the present, we have, in this state, the case of Demarest v. Hardham, supra, in Which the report shows a vibration probably somewhat greater than that shown by the evidence in this case. There the parties occupied adjoining buildings whose walls touched, and complainant manufactured harness, and defendant operated steam printing presses, and the vibratory force was not, as hero, transmitted many feet through the earth. But I think the right of action at law is quite as clear in the case in hand as it was in Demarest v. Hardham. In Hurlburt v. McKone, 55 Conn. 31, 10 Atl. Rep. 164, there was a vibration of the same character and degree, as near as may be, as that shown in this case. "The windows rattle in the casings:dishes and otherlike things standing on the table or on shelves will shake and jolt together." There was, however, in that case, art additional element of dense smoke, like that enjoined in Ross v. Butler, and there was proof that the health of a person living in the house was seriously affected by the general nuisance. In McKeon v. See, 51 N. Y.300, the action was for both damages and an injunction under the New York Code, and the trial judge found that the action of the defendant's machinery, used to saw marble, produced a jarring and shaking of complainant's two houses, injuring the same, and amounting to a nuisance, (the degree of vibration was not stated,) and gave judgment for $967,—apparently for loss of rent,—with an award of an injunction. The general terra of the supreme court struck out the judgment for damages, but made the injunction perpetual. The court of appeals affirmed this judgment. A case similar in its circumstances to the last is Goodall v. Crofton, 33 Ohio St. 271. There the superior court of Cincinnati enjoined the operation of a marble and stone sawing and dressing mill, because it caused a jarring and vibration of complainant's house on the adjoining premises, and the supreme court, on error, reversed this judgment, on the. ground that in Ohio the court will not interfere by injunction when a party had an adequate remedy at law in damages, which they held he had in this case. I have already shown, to my own satisfaction at least, the vice of that position, and cannot but think that the judgment of the lower court was correct. Several other instances of relief against noise combined with vibration are given in Wood on Nuisances (sections 553-556;) and in section 769 et seq. he treats of the remedy in this court. It was said in the Ohio case that it was argued here that, if this court is to enjoin a vibration of this character, then it must also enjoin the passage of vehicles on the street, which shake the dwellings or the adjoining houses But the case is quite distinguishable. A man builds his house on the street subject to the right of the public to pass upon it with all its annoyance of noise and jar from passing vehicles. This right of passage is a public necessity and benefit, as well as an advantage to the dwellers thereon, and, where the land bus been taken by condemnation proceedings, the injury, if any, to result from its proximity to the street is presumed to have been taken into consideration. Where it has been dedicated, of course there can be no cause of action.
Another objection taken was that if the fact that the vibration as felt in this case is due to the presence of an underlying layer of quicksand, then the defendant should not be held responsible for it. I am unable to discover any strength in that position. I do not see how the fact that nature has provided a very convenient medium through which my neighbor may injure my property should be held to give him the right to injure it. Nor do I think that the presence of this quicksand renders it impracticable for the defendant to remedy the nuisance without stopping his works. Capt. Ward suggests that he should drive piles Tor a foundation to his machines. There was no proof as to whether it was impossible to reach solid ground with masonry, but it seems to me probable from the evidence that there will be no difficulty in so doing, and that, at a comparatively trifling expense, the defendant may so arrange matters that his neighbors will not be annoyed by his machinery. The result of a careful review of the evidence upon my mind is to lead ma to the conclusion that the degree of injury is such as to entitle the complainant to damages in an action at law, with the result that he is entitled to an injunction in this court. The injury, to be actionable, must be sensible and appreciable, as distinguished from one merely fanciful, and in a case like this I assume, for present purposes, that it must have the effect of rendering the premises less desirable, and so less valuable for ordinary use and occupation. Now, it seems to me that a vibration that causes the windows and doors of a house to rattle in their casings, and dishes on the shelves to rattle and move on one another, and the walls to crack, and is distinctly felt by persons in the house, would have such effect, and is therefore actionable; while smoke and noise might have a similar effect in rendering the house less desirable without being actionable, because the degree of discomfort would not be sufficiently great to reach the standard (if, indeed, any standard has been established) applied to that class of injuries. See Walter v. Selfe, 4 Be' Gex & S. 318, 20 Law J. Ch. 434, 15 Jur. 416; Ross v. Butler, 19 N. J. Eq. 294, 299, 306. There is evidence tending to show that complainant made little or no complaint with regard to this vibration until about the time the bill was filed, when the invasion of his property rights by hanging the stay wire over his land, by driving the filthy steam from these wer into his kitchen, and the sprinkling of spray over his back yard, seemed to combing to exasperate him. This apparent acquiescence can only be used as evidence that the complainant did not consider the vibration as serious, but I think that is not sufficient in that regard to overcome the weight of the evidence that his house is injured. 1 will advise a decree that the defendant be restrained from so using his machines as to cause the complainant's house to vibrate, and also from allowing the water and spray from the exhaust of his engines to come onto the complainant's lands.