Rhodes v. Dunbar

1. That a building alleged to be a nuisance would prevent the use of the neighboring ground “for such buildings as in the ordinary course of affairs and the extension of the city would be put up,” is a question for the authorities of the city or the legislature to determine, not for the courts. 2. The courts deal with people’s rights, not with questions of mere policy, local or general. 8. The courts have power to restrain the erection of any building intended for a purpose which will be a nuisance pen' se. 4. The courts have power to restrain noises which disturb rest and prevent sleep. 5. Irreparable injury is the foundation for intervention by injunction : not irreparable because so small that it may not be estimated, but because likely to be so great as to be incapable of compensation in damages. 6. There must be injury and damage both to justify injunction. 7. If the injury be doubtful, eventual or contingent, equity will not enjoin. 8. Mere diminution in the value of property without irreparable mischief, will not furnish foundation for equitable relief. 9. It is no ground for equitable relief, that the erection of a building will increase the rates of insurance to neighboring buildings. 10. If the business be lawful and carried on reasonably and does not affect the health, comfort or ordinary uses and enjoyment of neighboring property, it cannot be a nuisance in fact or in anticipation, and the courts cannot interfere with it.

Certificate from Nisi Prius: In Equity: No. 14, to July Term 1866. This was a bill in equity by William A. Rhodes and thirteen others against Elon Dunbar, John D. Jones, John H. Dunbar and Edward Clemens. The bill set out that the plaintiffs were owners of houses and lots on Chestnut street between Twentieth and Twenty-first streets, Philadelphia, that John D. Jones, one of the defendants, had owned a planing-mill on Twenty-first street near Chestnut street, that “ the character of the work done in said mill, and the mode in which it is worked, renders it entirely unsuited to a neighborhood closely built up, and especially to one occupied by handsome buildings used as residences, and it is calculated to prevent the use of the neighboring ground for such buildings as would in the ordinary course of affairs and the extension of the city in that direction, be put up there;” that the work done in it was planing boards by steam power, that it necessarily produced a very large quantity of shavings, chips and saw-dust; that the material used was of a most inflammable character, and rendered it dangerous to buildings in the vicinity; that the refuse matter was used to generate steam, and produced large quantities of smoke and soot which spread over the neighboring buildings, causing discomfort and annoyance to the neighborhood and interfering with the wash-mg of clothes; that the running of the machinery produced loud and offensive noises, which created a positive nuisance to the plaintiffs and other persons in the neighborhood, and was injurious to improvements suitable for that locality; that the building was burned in May 1866, injuring many houses in the neighborhood, and that the defendants, as plaintiffs were informed and believed, were about to rebuild the mill for the same or similar purposes; the bill charged that all the above injurious consequences would ensue if the design should be carried out. They prayed for an injunction restraining the defendants from erecting such mill, or, if that should not be granted, for an injunction restraining them from using the building which might be “ erected, in the manufacture of lumber, or in the sawing, planing, tongueing or grooving of such material, or in any similar way; and from employing it in any use or for any purpose which shall be productive of noise, dirt, smoke, soot, which shall be annoying, or injurious, or offensive to the plaintiffs or to the persons residing or owning property in the neighborhood; or in any business which renders the building hazardous, and liable to fire to an extent that will be hazardous to the buildings in the vicinity.” On motion for special injunction, Read, J., delivered the following opinion:— “ A glass-house, a chandler-shop, a swine-yard, a pig-sty, a pig boarding-house, a soap-factory, a tallow-furnace, a slaughterhouse, a bone-boiling establishment, a horse-boiling establishment, a mill-dam, a melting-house of animal fat and tallow, a cotton-press, finishing steam-boilers, the use of a public place for immigrants, brick-burning, laying up wet jute, storing wood-naphtha, gunpowder, petroleum or nitro-glycerine, a lime-kiln, a dye-house, a furnace, a smelting-house, a smith-forge, a livery-stable, a tannery, gas-works — all are or have been declared nuisances. / Some are nuisances per se¡ others are nuisances according to the locality in which they are placed. In offensive trades either smell or noise may create a nuisance. In dangerous trades the imminent risk of fire or explosion may be sufficient. “ Carrying on an offensive trade for twenty years in a place remote from buildings and public roads does not entitle the owner to continue it in the same place after houses have been built and roads laid out in the neighborhood, to the occupants of which, and travellers upon which, it is a nuisance: Commonwealth v. Upton, 6 Gray 473. As the city extends such nuisances should be removed to the vacant grounds beyond the immediate neighborhood of the residences of the citizens. This, public policy, as well as the health and comfort of the population of the city, demand: Brady v. Weeks, 3 Barbour S. C. R. 159. And in 4 Wisconsin 387, Douglass v. The State, it was held that it is no defence to an indictment for maintaining a nuisance by means of a mill-dam, that it was erected before any inhabitants had settled along the margin of the stream flowed by it. 4 There is no such thing 'as a prescriptive right or any other right to maintain a public nuisance1 Denio 524. 4 Nor does the law recognise any distinction between the several points of a city dedicated to public use.’ 4If the one that is before you is sanctioned, aman will have a perfect right to open another opposite this court-house:’ Per Sergeant, J., Brightly’s N. P. Rep. 74. 44 These principles are applicable in their most stringent form to the great cities of Boston, New York, Philadelphia and Baltimore on the Atlantic, and enjoying the inestimable benefit of a pure atmosphere, clear from smoke by the use of the anthracite coal of this state. These cities have increased, extended and spread beyond all example, and our own, now covering 129 square miles, is not the least wonderful of the four. The city proper, from 1682 to 1854, according to Holmes’s plan, extended one mile on each river, and two miles from river to river, covering about two square miles, being nearly double the size of the city of London. 44 By the charter of 1701, the ends of the streets extending into the Delaware were made free for the use and service of the city, but the same privilege was not extended to the ends of the streets extending into the river Schuylkill until the year 1805. Market, or High street, occupied the centre, from east to west, was 100 feet wide, and was crossed by another wide avenue, from north to south — by -Broad, 0r Fourteenth street. The first principal street north of Market is Mulberry, now Arch street, 66 feet wide, and the corresponding one south is Chestnut street, 50 feet wide, and 484 feet south of Market street. 44 The ordinary square between the north and south streets is 396 feet, but the square between Twentieth and Twenty-first streets is 495 feet. The ordinary streets are 50 feet wide, but Front street on the Delaware, and Twenty-second on the Schuylkill, are 60 feet streets. The square between Twenty-second street and Asheton, or Twenty-third street, is 272 feet, and between it and Beach street or Twenty-fourth street only 240 feet. Aspen street runs midway from Lombard to Barker street, between Twenty-first and Twenty-second streets, and 25 feet 6 inches north of Chestnut street widens, according to one plan, 28 feet, and according to the plan in the surveyor’s office to 36 feet, and this portion on a city map by William Allen, in 1830, was called Aspen’s court. The square on Chestnut street, from Twentieth to Twenty-first streets, is filled with new and substantial dwelling-houses on the north side, built in the modern style, and are admirable specimens of house architecture. The south side is nearly filled up and the row extends to Twenty-first street. ■“ The corresponding square, on Walnut street, on the north side, is built up in the same way, my brother Strong occupying No. 2043, whilst on the south side are some costly edifices, and that portion will be soon filled up in a corresponding manner. The north side of Walnut street, between Twenty-first and Twenty-second, has a row of dwellings erecting, terminating at % Twenty-second street. On the north side of Arch street the dwellings are extended to Twenty-second street. On the south side, the dwellings extend to Twentieth street, the two last being very large. From Twentieth to Twenty-first streets, there are two rows of beautiful houses, separated by a screw-bolt factory, which would be removed if the proprietors were obliged to occupy 2036, instead of their present quiet and retired residence. “ The improvement on Arch street is stopped by a great public nuisance, the gas-works, which, I suppose, the city could dispense with, as the works at Point Breeze must be sufficient. Market street is devoted to stores and to business, but on each side, certainly west of Broad street, Arch street and Chestnut street are, and should be, devoted to private residences. In the old city the current has been steadily westward on both these streets — retail stores, then wholesale stores, occupying their eastern portion. My recollection extends back sixty years, when Chestnut street was not paved between Seventh and Eighth, and the south-west corner of Seventh and Chestnut streets was a hill 15 feet high, with an old wooden house on it, and the north side of Chestnut street, up to Mr. Fitzimons’ house, afterwards Pepper’s, with .one exception, was in a similar state. Judge Sergeant in Commonwealth v. Alburger, 1 Wharton 486, has described the various uses to which the city squares were put before they became ornaments to the city and places of recreation for its citizens. Washington Square was a horse-market and potter’s field; Logan Square was a potter’s field, and the hanging-place of John Joyce and Peter Matthias, for a cold-blooded murder of an old woman. Markoe’s lot, at Tenth and Chestnut streets, was a skating-ground in winter and a shinny-ground in summer. Brick-kiln ponds are now covered with noble dwellings, and the executors of Stephen Grirard, thirty-four years ago, burnt the bricks on the ground between Eleventh and Twelfth on Chestnut street with which the Grirard houses were erected. “ The old engine-house on Chestnut street, afterwards used as a china factory, disappeared years ago, a magnificent bridge, connecting East and West Chestnut street will be opened in a few days, and East Chestnut will be filled with dwellings to the water’s edge, unless stopped by existing obstructions. ’ On the south side of Chestnut street is the depot of the Philadelphia City Passenger Railway Company, which is to be removed over Schuylkill, and may therefore be considered as gone; the lot on north side of Chestnut street west of Aspen street is a stone yard, and of course both sides will be, or are, ready to receive first-rate dwellings. There only remains the half square east of Aspen street and south of Barker street. This street is 25 feet wide and the north lot on Market street is 125 feet deep, making 150 feet and leaving 344 feet between Barker street and Chestnut street. Of this space, including the alley, the ten houses of Dr. Stewart represent 80 feet, and the Jones lot, on which the planing-mill stood, 123 feet 9 inches, making 203 feet 9 inches. If this planing-mill is rebuilt, and is not destroyed by fire, it will form a permanent obstruction to the improvement of this part of Chestnut street, and, of course, reduce the value of the surrounding property, which must depend upon its fitness for dwelling-houses of a superior kind. But this leaves still the question, Is a steam planing-mill, with its steam-engine and its machinery, its chips and shavings and surrounding lumber, and its lumber in the process of manufacture and manufactured, with the refuse chips and shavings used as fuel, a public or a private nuisance ? If it is either, are all or any of these parties entitled to the injunction asked for ? “ The first planing-machine or mill was, I believe, erected on Arch and Broad streets, and opposite the Arch street prison. They have disappeared, and Arch street, from Broad to the Schuylkill, is a magnificent street, covered with beautiful dwellings and churches. In the face of these improvements, the planing-mill moved to a more congenial neighborhood. I don’t believe Judge Sergeant would have thought' that the Fifteenth street planing-mill, with its unceasing whirr and noise of the machinery, should have been permitted to be opened opposite the court-house, any more than the pig-sty he so emphatically eschewed. “ It is established beyond all doubts, that the neighbors were greatly annoyed by the soot, smoke and dust from the mill, the fuel used being the refuse wood, shavings and chips of the mill;' This is proved distinctly by Dr. Stewart, Mr. Rhodes, and Mr. Jeanes, who specifies also the danger from cinders or sparks, which are also testified to by Messrs. Nathans, Dickey and Coffin; and Mr. Hoxie testified to constant complaints of annoyance from soot and cinders of the mill, by all sorts of persons in the neighborhood, his own family and nearly every neighbor; by Mr. Josiah B. Thompson, who says : ‘ There has been constant annoyance to myself and family from the soot, smoke and cinders from the mill. This has been incessant, entering through every window when opened, covering the window-sills when shut, and covering the steps and pavement. It has greatly interfered with the washing and drying of clothes. This nuisance has been a constant and general subject of complaint among the neighbors.’ Mr. Berry the hotel-keeper gives similar testimony, and it is closed by a long list of neighbors, certifying to the same or similar facts. “ I cannot, therefore, hesitate to believe that from the causes assigned, the neighbors have suffered from this mill such annoyances and discomforts as cannot be permitted in the built-up and improved parts of our city, and that it must necessarily affect also the value of property in the neighborhood, and if rebuilt, prevent its future improvement by buildings suited to the street and locality. “ The same witnesses prove the hazardous nature of the business in regard to fire, not only with regard to the mill itself, but the neighboring properties. The mill, it appears, has been on fire several times, and was burnt to the ground on the morning of the 1st of May last, injuring some of the adjoining houses, and there can be little doubt that if it had taken place at night, with a strong north-west wind, it would have caused a large destruction of property, with probable loss of life. “ There is, however, positive testimony as to the hazardous and dangerous character of such a planing-mill in a built-up and improving part of the city. Mr. Blackburn, our experienced and able fire marshal, with a practical experience of nearly sixteen years in matters connected with fire, in his affidavit, says :— “ ‘ As far as my knowledge and experience go, I regard planing-mills, sawing-mills, and establishments worked by steam, in which lumber is worked into planed boards, sashes, mouldings, doors and the like, as among the most hazardous of all risks. The accumulation of a large body of worked and unworked lumber, shavings, chips and bits of wood, necessarily makes'this the case. I regard the destruction of such establishments, where the fuel used in making the fires is from the refuse wood, chips and shavings, as a mere question of time. Sooner or later they are almost invariably burnt. In confirmation of this, I will give particular instances.’ He then gives three cases in which the mills were burnt down twice, and nine others in which they were entirely burnt down once, except in one instance where the building was badly damaged twice. In one case there was a loss of over a quarter million of dollars, and the cause of the conflagration was the ignition of a lot of refuse wood and stuff in front of one of the furnaces. “ He then says : ‘ I think I could give from my records a hundred instances of such establishments which have been more or less injured by fire, many of them totally destroyed.’ “ ‘ I regard a planing-mill or any establishment of the kind as entirely unsuited to a densely-built portion of the city, as there is always very great risk of conflagration to itself and the adjoining buildings, and necessarily great hazard to property in the neighborhood, and danger of loss of life, especially when the fire occurs in the night time.’ • “ ‘ When Murphy & Allison’s car establishment was burned, their watchman was so severely injured by the fire as to cause his death in a few hours afterwards.’ “ Mr. Nathan H. Wood, who rented a room in the mill, speaks of the complaints of neighbors and threats of prosecution, of the number of times it was on fire, and says, ‘ In my opinion, and from my experience I think there is no kind of factory, except that for the making of gunpowder, more hazardous or liable to fire.’ He then mentions a fire-proof planing-mill in New York which took fire during the day, in the absence of the engineer for a few minutes, and was destroyed. “ £ The flames,’ says Mr. Jeanes, £ extended forty or fifty feet above the hotel, at the corner, which is a four-story building.’ Mr. William Green, who has been surveyor of the Eranklin Eire Insurance Company for upwards of twenty years, says, £ So far as my experience goes, which is considerable, I regard planing-mills as the most hazardous of all risks, after gunpowder-mills and petroleum establishments. I do not see how it is possible to erect and run such a mill without great danger of loss by fire. As evidence of this my experience is, that all such establishments are almost always burnt down. It is merely a question of time.’ ££ £ If the wind had been blowing strongly from the north-west, and the fire had taken place at a late hour of the night, on the occasion of Jones’s planing-mill being burned, I think there would have been imminent danger of fire to all the houses on both sides of Chestnut street between Twenty-first and Twentieth streets.’ ££ £ 5. I am strongly of opinion that no such establishment should be allowed in the built parts of the city or in a neighborhood like that in which Jones’s planing-mill recently stood.’ “£ 6. I have read Mr. Blackburn’s affidavit and concur fully with what he says in it.’ ££ The affidavit of Walter Allison, one of our most experienced builders, and whose shop was next to the mill, is conclusive on the point of danger :— “ £ 2. I consider such a mill as this,’ says he, £ and all similar establishments extremely dangerous in the built-up parts of the city, by reason of the risk from fire, and have known several such mills to be burned down.’ ££ £ 3. In my opinion I think no such establishments should be permitted to be located in built-up portions of the city. I have already expressed myself to this effect, saying that they were little better than powder magazines. It is almost utterly impossible to put them out when once fairly on fire. On the occasion of the mill burning down in May last, the heat was so intense that my men were unable to remove the frames, doors and sashes under my shed in my yard. The heat was so intense that the glass in the sashing was melted into lumps.’ “ ‘ 4. I do not believe it would be a great disadvantage to lumbermen and builders if such mills were located in unbuilt portions of the city. In my judgment all such establishments should be located away from built-up portions of the city. Had that fire occurred at night, with a strong wind blowing, there would have been not only very great danger to all the property in the neighborhood, but very great peril to the lives of the persons dwelling near the mill. There is danger from explosion of the engine-boilers as well as danger of fire.’ “ After this evidence, is it necessary for me to discuss the question, whether such a mill is a public or a private nuisance ? It is a nuisance, and the plaintiffs are entitled to relief because, no matter what improvements may be introduced, the building proposed to be erected must be a nuisance, and I should regard myself as derelict if I did not interpose the strong arm of the law to prevent it. “ I pass over the minor injuries to property by increased rates of insurance, because there stands out in broad relief the imminent danger to the lives and property of our fellow-citizens. “ In England, wood naphtha and wet jute are nuisances, and so I should consider petroleum if brought into the built parts of the city. We have had one dreadful example of this, when buildings were burned and the gutters ran living fire, preventing the escape and destroying the lives of helpless women and children. “ Fire is the most dreadful infliction of the present time. You can hardly open a newspaper without meeting the account of some terrible conflagration attended with immense loss of property and great sacrifice of human life. It is, therefore, our duty to narrow the circle of danger by forbidding erections which must certainly be destroyed by the inherent vices of their constitutions. “ The late English decisions correspond with the increasing civilization of the age. In Reg. v. Lister, 3 Jur. N. S. 571 (May 30th 1857), the Court of Criminal Appeal, composed of twelve of the fifteen -law judges, including the three chiefs of the three superior courts of law, held that keeping in a warehouse near to divers streets and dwelling-houses divers large and excessive quantities of a dangerous, ígnitable and explosive fluid, called ‘ wood naphtha,’ was a nuisance, and indictable as .such. The jury found, if ignited, water could not put out the fire, except where rvater .was applied in enormous quantities; and they also found that it was the practice never to allow any candles, or fire, or gaslight to enter the warehouse, and so long as that continued the naphtha would not produce danger. “ So of wet jute, a substance resembling hemp, deposited on an open lot, it being proved that it had been the occasion of large and destructive fires in London, and the very lot of jute itself had been saved from such a fire as a damaged article: 11 Jur. N. S. p. 132. So gunpowder, stored by grocers and others, which the unscientific portion of the community always believed was the cause of the explosions and extension of the great fire on the eastern front of the city in 1850; and it was then asserted that if the fire had extended a block further, it would have reached a store where several barrels of gunpowder were stored contrary to law. So in Bamford v. Turnley, in the Exchequer Chamber, 9 Jur. N. S. 377, it was held, where a man burns bricks on his own land, so as to annoy his neighbor in the enjoyment of his house, he cannot excuse the act by showing that it was done in a proper and convenient place, and was a reasonable use of the land. So in Cavey v. Lidbetter, Common Pleas, 9 Jur. N. S. 798, it was held no misdirection in the judge to refuse to leave to the jury, whether the bricks had been burnt in a proper and convenient place for that purpose. In Beardmore v. Tredwell, 9 Jur. N. S. 272, V. Ch. Stuart held that where a public contractor, for furnishing bricks for fortifications, commenced burning bricks within 340 yards of the plaintiff’s mansion, was a nuisance, and restrained it, and directed that the defendant should not burn any bricks within a distance of 653 yards, or 1959 feet, from the plaintiff’s house. “ In The Stockport Waterworks Company v. Potter, 7 Jur. N. S., p. 880, carrying on a lawful trade in the ordinary and obvious manner, is not necessarily carrying it on in a proper manner. “ In The St. Helens Smelting Company v. Tipping, decided in the House of Lords on July 5th 1865 (12 L. J. R. N. S. 776), the smelting works were held a nuisance though a mile and a half distant. ‘ Of the effect of the vapors exhaling from these works upon the plaintiff’s property, and the injury done to the trees and shrubs, there is abundance of evidence,’ says Lord Westbury. The injury in this case was to the vegetation. In Scott v. Forth, 10 L. T. R. N. S. 240, Justice Blackburn, in a case where tilt-hammers shook the cottages of the plaintiff, cracked the walls, and the tenants left, the defence being that the grievances complained of were caused in the reasonable and proper exercise of liis trade, in a reasonable and proper place, held that in law this was no answer to the action. The jury, probably Sheffield men, found-'it was not a nuisance. “ There are two articles in the last English Quarterly and Edinburgh Reviews of great interest, not only to England, but to the United States, and particularly to this state and city. The first is the 5th article, entitled ‘ coal and smoke,’ and treats of the probable exhaustion of their coal-mines, and the effect of the bituminous coal-smoke on the metropolis and other cities of the kingdom, and at the same time recognising the incalculable value of the anthracite region of this great state, as found in its three great coal-fields of the Schuylkill, the Lehigh and the Wyoming or Susquehanna — all connected by water and rail with this city. It is instructive to read the effects of coal-smoke on the atmosphere of London. It reminds us of some localities in the West. ‘And not only,’ says the reviewer, ‘ do our hands and faces contract dirt, but soot finds its way into the air-tubes of our lungs. Plants as well as animals are poisoned by smoke, and see.'how they struggle for existence in the parks of London. The fiiie trees in Kensington Garden are dying apace, and roses bloom not within some miles of Charing Cross. Then how great oppression falls on our spirits from the fuliginous exclusion of the .pure light of the sun V Poor Mr. Peabody, according to this authority, as a reward for his magnificent charity, will have ‘ a thing we call a statue, which, though consisting of bronze, is blackened with soot — an effect which, it is reported, an eminent deceased sculptor admired as they were thus boldly relieved against the sky.’ “ The second article is the third series in the Edinburgh, headed ‘ Water Supply,’ which points out the present inadequate supply, and the necessity of resorting to the mountains of Wales for pure water. “We can never be sufficiently grateful to our great founder, William Penn, for the selection of the site of this City of Brotherly Love on the banks of two fresh-water streams, which, when the Schuylkill is exhausted, can be supplied by the inexhaustible Delaware from above the Falls of Trenton. With these natural advantages we have the coal and iron side by side, and the best and most secure position for a great navy-yard in the world. “ One of the scientific witnesses has been unfortunate in the selection of the screw-bolt factory on Arch street, with its trip-hammers, for the owner of No. 2036 could soon teach him the law on this question, and Esler’s planing-mill is only saved by being in the rear of the Church of the Epiphany, and separated by a small street being on the Market street portion of the block, and with similar mechanical trades near it. “ If either of these factories were opposite this court-house, it would not require a judge to tell us they were public nuisances. “ The case of Elmhirst v. Spencer, 2 Mac. & G. 45 (Dec. 6th 1849), is no longer law in England, since the alteration in the Court of Chancery by the Chancery Amendment Act, as stated in Goldsmid v. Tunbridge Wells Improvement Commissioners, 14 L. T. R. N. S. 154, decided by the Lords Justices on the 24th of March 1866 — and certainly on a motion for a preliminary injunction would not be applicable here: Sunbury and Erie Railroad Co. v. Cooper, 9 Casey 280; Holsman v. Boiling Spring Bleaching Company, 1 McC. N. J. Ch. 135. “ This court is both a court of law and equity, and the judge is therefore entirely competent to decide all questions of law, and upon the equity side of fact — unless he desires to have the assistance of a jury, which is clearly not required in this case.” On the 16th of June 1866, a special injunction was granted. The defendants them put in separate answers. Jones answered, averring, amongst other things, that his mill, from the kind and manner of work, was not unsuited to the neighborhood, or more undesirable than other manufactories, and that it was not calculated to prevent the erection of suitable buildings in the neighborhood; that the risk of fire was less than from many carpenter shops, cotton factories, &c., and the like, in other built-up parts of the city; the smoke and soot might be prevented from annoying the neighbors by suitable appliances. He then averred, that before the burning of the mill he had agreed with the defendants, Clemens and John H.' Dunbar, to introduce improvements into the mill, but owing to the fire, he had sold the lot to them, and agreed to erect for them a new mill, which would be built in a secure manner (describing it), “ with every precaution against fire that practical ingenuity can suggest,” with such applianees to carry off smoke and soot as would occasion no nuisance to the neighborhood, and that the noises would be far less than many places of business in the city. J. PI. Dunbar and Clemens answered, averring the agreement to improve the mill, the subsequent purchase of the lot by them, and agreement for building set out in Jones’s answer; also, that expensive arrangements for rebuilding had been made. They also set out the character of the building, its security as to fire, &c., as averred in Jones’s answer. Elon Dunbar answered, that he had no interest in the property or business except as a creditor of J. H. Dunbar and Clemens for money loaned to them. He made substantially the same averments as Jones. The plaintiffs put in a general replication. The matter was referred to Samuel C. Perkins, Esq., as examiner and master, who took and reported a large amount of testimony as examiner. Pie concludes an able report as master, as follows :— ~- “ The master is of opinion that the steam planing-mill could hardly, in the common course of things, be used without working mischief to the property of the plaintiffs and other property in the neighborhood — by causing annoyance, inconvenience and discomfort ; by exposing such property to the risk of destruction or damage by fire; and by depreciating its value, and hindering improvements of a class suited to, and such as would naturally seek that locality. “ That other manufacturing establishments and operations of the same or other kinds, not less, or even more dangerous or offensive, are carried on in other parts of this and other cities, affords no excuse. Each case must be decided by itself, under all the circumstances of time, locality, surroundings and the whole nature of the thing. “ Upon the whole case, therefore, the master is of opinion, and' so reports to the court, that the plaintiffs are entitled to the relief prayed for. He therefore reports that the injunction as decreed should be made perpetual.” On the final hearing, upon exceptions of the defendants to the/ master’s report, the injunction was made perpetual, and the defendants directed to pay the costs. The defendants appealed and assigned for error the decree at Nisi Prius.'