Upon original consideration of this cause, this court was not favored with brief for appellee. Upon application for rehearing, appellee cites section 9277, Code of 1923, as having material bearing in support of the decree of the court below. There was no intimation in the record, including the learned chancellor's opinion or in brief for appellant, concerning any application of this Code section, and this we offer as some excuse (though admittedly insufficient) for the fact that this statutory provision (a codification of the Act of 1915, p. 744) escaped our notice. The exigencies of this case do not require a determination of the full force and effect of this statute. We are persuaded, however, that its provisions are not inconsistent with the conclusion reached in the instant case. It is therein expressly provided that the statute shall "not apply whenever a nuisance results from the negligent or improper operation of any such plant, establishment or any of its appurtenances." That a smoke nuisance to complainant has been established by the evidence we think is quite clear.
As indicated in the original opinion, a study of this record is rather persuasive that this nuisance and harmful damage to complainant may be abated at reasonable cost and effort on respondent's part, and for the ascertainment of the most feasible and practical method to that end, a reference to the register was suggested. We are of the opinion that under the above-quoted proviso of the statute, the continuance of the nuisance which could, by reason of modern methods or inventions and at reasonable cost, be abated, would properly be classed as "a negligent or improper operation of any such plant," and therefore without the protective feature of the statute. Such is the effect of the holding in the instant case, and the ruling is therefore not out of harmony with the statute.
Under rule 38 of this court, appellee having filed no brief upon original consideration is without right to make application for rehearing. As the statute to which our attention is now directed was overlooked, and in view of the further progress of the cause, we have deemed it proper to express our views thereon. But the application for rehearing must be stricken, in view of the cited rule, and in accordance with appellant's motion to that end.
Application stricken.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.