Campbell v. Seaman. Helen Smelting Co., 4 B. & L. 505; Crump v. Lambert, L. R., 3 Eq. Cas. 409; Pointer v. Gill, 2 Rolle's Abr. 140. Without further citation of authority, I think it may safely be said that no definition of nuisance can be found in any text-book or reported decision which will not embrace this case. But the claim is made that although the brick burning in this case is a nuisance, a court of equity will not and ought not to restrain it, and the plaintiffs should be left to their remedy at law, to recover damages, and this claim must now be examined. Prior to Lord ELDON's time, injunctions were rarely issued by courts of equity. During the many years he sat upon the woolsack this remedy was resorted to with increasing frequency, and with the development of equity jurisprudence, which has taken place since his time, it is well said that the writ of injunction has become the right arm of the court. It was formerly rarely issued in the case of a nuisance until plaintiff's right had been established at law, and the doctrine which seems now to prevail in Pennsylvania, that this writ is not a matter of right, but of grace, to a large extent prevailed. But now a suit at law is no longer a necessary preliminary, and the right to an injunction, in a proper case, in England and most of the States, is just as fixed and certain as the right to any other provisional remedy. The writ can rightfully be demanded to prevent irreparable injury, interminable litigation and a multiplicity of suits, and its refusal in a proper case would be error to be corrected by an appellate tribunal. It is matter of grace in no sense except that it rests in the sound discretion of the court, and that discretion is not an arbitrary one. If improperly exercised in any case either in granting or refusing it, the error is one to be corrected upon appeal. Corning v. Troy Iron and Nail Factory, 40 N. Y. 191; Reid v. Gifford, Hopkins' Ch. 416; Pollitt v. Long, 58 Barb. 20; Mohawk and Hudson R. R. Co. v. Artcher, 6 Paige, 83; Parker v. Winnipiseogee Lake Cotton and Woolen Co., 2 Black (U. S.), 545, 551; Webber v. Gage, 39 N. H. 182; Dent v. Auction Mart Association, 35 L. J. Ch. 555; Attorney-General v. United Kingdom Tel. Co., 30 Beav. 287; Wood v. Sutcliffe, 2 Sim. (N. S.) 165; Clowes v. Staffordshire Potteries Co., L. R., 8 Ch. App. 125. Here the remedy at law was not adequate. The mischief was substantial and, within the principle laid down in the cases above cited and others to which our attention has been called, irreparable. The plaintiffs had built a costly mansion and had laid out their grounds and planted them with ornamental and useful trees and vines, for their comfort and enjoyment. How can one be compensated in damages for the destruction of his ornamental trees, and the flowers and vines which Campbell v. Seaman. surrounded his home? How can the jury estimate their value in dollars and cents? The facts that trees and vines are for ornament or luxury entitles them no less to the protection of the law. Every one has the right to surround himself with articles of luxury, and he will be no less protected than one who provides himself only with articles of necessity. The law will protect a flower or a vine as well as an oak. Cook v. Forbes, L. R., 5 Eq. Cas. 166; Broadbent v. Imperial Gas Co., 7 De G., McN. & G. 436. These damages are irreparable too, because the trees and vines cannot be replaced, and the law will not compel a person to take money rather than the objects of beauty and utility which he places around his dwelling to gratify his taste or to promote his comfort and his health. Here the injunction also prevents a multiplicity of suits. The injury is a recurring one, and every time the poisonous breath from defendant's brick-kiln sweeps over plaintiff's land they have a cause of action. Unless the nuisance be restrained the litigation would be interminable. The policy of the law favors, and the peace and good order of society are best promoted by the termination of such litigations by a single suit. The fact that this nuisance is not continual, and that the injury is only occasional, furnishes no answer to the claim for an injunction. The nuisance has occurred often enough within two years to do the plaintiffs large damage. Every time a kiln is burned some injury may be expected, unless the wind should blow the poisonous gas away from plaintiffs' lands. Nuisances causing damage less frequently have been restrained. Ross v. Butler, 19 N. J. 294; Meigs v. Lister, 23 N. J. Eq. 200; Clowes v. North Staffordshire Potteries Co., supra; Mulligan v. Elias, 12 Abb. Pr. (N. S.) 259. It matters not that the brick-yard was used before plaintiffs bought their lands or built their houses. Taylor v. The People, supra; Wier's Appeal, 74 Penn. St. 230; Brady v. Weeks, 3 Barb. 156; Barwell v. Brooks, 1 Law Times (N. S.), 454. One cannot erect a nuisance upon his land adjoining vacant lands owned by another and thus measurably control the uses to which his neighbor's land may in the future be subjected. He may make a reasonable and lawful use of his land and thus cause his neighbor some inconvenience, and probably some damage which the law would regard as damnum absque injuria. But he cannot place upon his land any thing which the law would pronounce a nuisance, and thus compel his neighbor to leave his land vacant, or to use it in such way only as the neighboring nuisance will allow. It is claimed that the plaintiffs so far acquiesced in this nuisance as to bar them from any equitable relief. I do not perceive how any acquiesc. ence short of twenty years can bar one from complaining of a nuisance, VOL. XX.-73 Campbell v. Seaman. unless his conduct has been such as to estop him. There is no proof that plaintiffs, when they bought their lands, knew that any one intended to burn any bricks upon the land now owned by defendant. From about 1840 to 1853 no bricks were burned there. Then from 1853 to 1857 bricks were burned there, and then not again until 1867. From 1857 to 1867 the brick-yard was plowed and used for agricultural purposes. Before suit brought, plaintiffs objected to the brick burning. No act or omission of theirs induced the defendant to incur large expenses or to take any action which could be the basis of an estoppel against them, and therefore there was no acquiescence or laches which should bar the plaintiffs, within any rule laid down in any reported case. It is true that if a party sleeps on his rights and allows a nuisance to go on without remonstrance or without taking measures either by suit at law or in equity to protect his rights, and allows one to go on making large expenditures about the business which constitutes the nuisance, he will sometimes be regarded as guilty of such laches as to deprive him of equitable relief. But this is not such a case. Radenhurst v. Coate, 6 Grant's Ch. (Ont.) 140; Heenan v. Dewar, 18 id. 438; Bankart v. Houghton, 27 Beav. 425. The defendant claims a prescriptive right to burn bricks upon his land and to cause the poisonous vapors to flow over plaintiffs' lands. Assuming that defendant could acquire by lapse of time and continuous user the prescriptive right which he claims, there has not here been a continuous use and exercise of the right for twenty consecutive years. Anthracite coal was first used for burning bricks in this yard in 1834, and after six years brick burning was discontinued. It was not resumed again until about 1853, and after four years it was again discontinued, and it was not resumed again until 1867. So that anthracite coal, which caused plaintiffs' damage, had not been used in all for twenty years and certainly not continuously in burning bricks upon the yard now owned by defendant. If he could acquire the right claimed by prescription, he, and those under whom he holds, must for twenty years have caused the poisonous gases to flow over plaintiffs' land whenever they burned bricks and the wind blew from the direction of the kiln. Such a prescription neither the allegations in the answer nor the proofs upon the trial, nor the findings of the referee, warrant. The referee finds that the premises of defendant have been known and used as a brick-yard for over twentyfive years. This is not a finding that they have been used as a brick-yard for twenty-five years continuously, or that they have caused the poisonous. gases to flow over plaintiffs' land for that length of time continuously. Ball v. Ray, L. R., 8 Ch App., 467; Parker v. Mitchell, 11 Ad. & El. Campbell v. Seaman. 788; Battishill v. Reed, 18 C. B. 696; Bradley Fish Co. v. Dudley, 37 Conn. 136. Where the damage to one complaining of a nuisance is small or trifling, and the damage to the one causing the nuisance will be large in case he be restrained, the court will sometimes deny an injunction. But such is not this case; here the damage to the plaintiffs, as found by the referee, is large and substantial. It does not appear how much damage the defendant will suffer from the restraint of the injunction. He does not own the only piece of ground where bricks can be made. We know that material for brick making exists in all parts of our State, and particularly at various points along the Hudson river. An injunction need not therefore destroy defendant's business or interfere materially with the useful and necessary trade of brick making. It does not appear how valuable defendant's land is for a brick-yard, nor how expensive are his erections for brick making. I think we may infer that they are not expensive. For aught that appears, his land may be put to other use just as profitable to him. It does not appear that defendant's damage from an abatement of the nuisance will be as great as plaintiff's damages from its continuance. Hence this is not a case within any authority to which our attention has been called, where an injunction should be denied on account of the serious consequences to the defendant. We cannot apprehend that our decision in this case can improperly embarrass those engaged in the useful trade of brick making. Similar decisions in England, where population and human habitations are more dense, do not appear to have produced any embarrassment. In this country there can be no trouble to find places where brick can be made without damage to persons living in the vicinity. It certainly cannot be necessary to make them in the heart of a village or in the midst of a thickly settled community. Defendant complains that the damage allowed by the referee was too great. He had the evidence and all the circumstances before him, and we cannot review his decision upon the amount of damage. It is also complained that the injunction contained in the judgment as entered is broader and more unlimited than that ordered by the referee. This is a matter not to be corrected upon appeal. Defendant should have compelled an entry of judgment in accordance with the decision of the referee. If plaintiffs entered a judgment not authorized by the referee's report, defendant should have moved to set it aside or to correct it. One of the three judges who heard the appeal in the General Term of Campbell v. Seaman. the Supreme Court died before the decision was made, and the appeal was decided by the remaining two judges, and this appeal is from the judgment entered upon that decision. It is now objected that the two judges could not make a decision. Even if the defendant, after he has appealed from the judgment, can raise the objection, we are of opinion that the objection is not well founded, and that two judges can hold a General Term and decide cases argued there. Van Rensselaer v. Witbeck, 2 Lans. 499. It follows from these views that the judgment should be affirmed. Judgment affirmed. NOTE.-See Huckenstine's Appeal, 10 Am. Rep. 669, and note; S. C., 70 Penn. St. 102; State v. Rankin, 16 Am. Rep. 737; S. C., 3 S. C. 438; Slight v. Gutzlaff, 17 Am. Rep. 476; S. C., 35 Wis. 675; Adams v. Michael, 17 Am. Rep. 516: S. C., 38 Md. 516; Wood on Nuisance, 515.-REP. |