CLARK, C. J., dissenting. This case is reported 141 N.C. 716. Upon careful consideration of the petition to rehear the same, we are of the opinion that the decree of the Superior Court should be modified. The action was brought to enjoin the defendant from erecting an additional of (452) seventy feet to its freight warehouse on its property in the city of Hickory, upon the ground, as indicated by the pleadings and plaintiff's evidence, that it would create a public nuisance by obstructing the view along the railroad tracks and thereby make it dangerous for persons to cross defendant's tracks at Marshall Street. The following is the material issue submitted to the jury: "Will the enlargement of defendant's present freight depot by an extension on the eastern side thereof constitute a public nuisance? Answer: Yes."
When the fact of nuisance is established by the verdict of a jury, the ordinary judgment is that the defendant be required to abate it. It is not always that the "far-reaching arm of the chancellor" — the writ of injunction — will be extended even then. The general rule is that an injunction will be denied in advance of the creation of an alleged nuisance when the act complained of may or may not become a nuisance according to circumstances, or when the injury apprehended is doubtful, contingent or eventual merely. That is the universal law in all the courts in this country. See 21 A. and E. Encyc. Law (2d Ed.), 705, where the cases are collected from all the Stated. Mr. High also states the law to be without a discordant note, that when the injury complained of is not an existing nuisance per se, but may or may not become so according to circumstances, and when it is uncertain, "or productive of only possible injury," equity will not interfere. In support of that he cites thirty-odd cases, two being from this State. All the decisions in this Court support the rule referred to. Simpson v. Justice,43 N.C. 115; Barnes v. Calhoun, 37 N.C. 199; Wilder v. Strickland,55 N.C. 386; Ellison v. Commissioners, 58 N.C. 57; Walton v. Mills,86 N.C. 280; Dorsey v. Allen, 85 N.C. 358. In the latter case ChiefJustice Smith says: "While it is true that a business lawful in itself may become so obnoxious to neighboring dwellings as to (453) render their enjoyment uncomfortable, whether by smoke, noxious and offensive odors, noise, or otherwise, and justify the protecting arm of the law, yet there must be the ascertained and not probable effectsapprehended. When the anticipated injury is contingent and possible only, or the public benefit preponderates over the private inconvenience, the Court will refrain from interfering."
In Barnes v. Calhoun, supra, an action to restrain the erection of a *Page 348 mill, Gaston, J., says: "But it (a court of equity) will only act in a case of necessity when the act sought to be prevented is not merely probable, but undoubted, and it will be particularly cautious thus to interfere when the apprehended mischief is to follow from such establishments and erections as have a tendency to promote the public convenience."
Mr. High, in his work on Injunctions, also says: "When an injunction is asked to restrain the construction of works of such a nature that it is impossible for the Court to know until they are completed and in operation whether they will or will not constitute a nuisance, the writ will be refused in the first instance." Secs. 488 and 489, note 1.
It seems to us that Mr. Elliott has given us the true and just rule which should guide us in the disposition of this case, fair to plaintiff and defendant alike. He says: "Where a street is laid out across the right of way of a railway company at a point where the company has only one track, no question can justly arise as to the impairment of the company's franchise by such taking, for under such circumstances both the use as a highway and the use as a railroad can stand together, and do not interfere with each other." Elliott on Railroads, sec. 1104.
The extension of defendant's warehouse and the safe use of (454) Marshall Street can easily coexist. The defendant can readily construct gates across the street for the protection of persons crossing the tracks from injury by its trains. There is no evidence that the defendant will not do this, and it can be compelled to do so by this Court by order in this case. This Court can direct a mandatory injunction compelling defendant to establish such gates and provide such gatemen as are usual at much-frequented crossings, or it can direct that the defendant be enjoined from building the extension until it does erect such gates. it must be admitted that this will afford the most perfect relief, and that conditions would be much safer that they now are or ever have been since the street was opened.
We must take it as true that the record discloses the only purpose for which the suit is brought, viz., to lessen the danger to passers and traffic along Marshall Street. The modification of the decree affords the most perfect safety possible. It is a method of safety universal in this country. We have a direct authority in this State for such an order. Hyattv. Myers, 71 N.C. 273. In that case the nuisance complained of was a steam-mill across the street from plaintiff's residence. The fact of an existing nuisance was established by a jury. The Court, notwithstanding the verdict, declined to enjoin the defendant, but directed him, of its ownmotion, to raise his smokestack twenty feet and to attach spark-arresters thereto, or otherwise to abate the nuisance. So, if defendant's freight station was already extended, and an existing nuisance and danger as alleged, and the fact so found, the defendant should be allowed *Page 349 to abate the nuisance by establishing protecting gates. It cannot abate it now, because it does not exist.
In Hyatt v. Myers, 73 N.C. 233, Chief Justice Pearson states the law to be that, even after a verdict establishing nuisance, equity will not necessarily enjoin. The application of that remedy will (455) always depend upon circumstances, the chief of which is, "Can the trouble be otherwise remedied?" This case is cited and affirmed inBrown v. R. R., 83 N.C. 130, by Judge Dillard, who holds in substance that equity will not enjoin, even after verdict establishing it, unless the nuisance is irreparable, or one "which cannot be otherwise relieved against." To the same effect is Story Eq., sec. 925; Adams Eq., 211; 3 Daniel Chancery, 1587. In Simpson v. Justice, 43 N.C. 120,Chief Justice Pearson says that the jurisdiction of courts of equity to interfere by injunction in cases of this kind should be exercised "sparingly and with great caution." "There is," says that eminent Judge, "an obvious difference between a thing which is a nuisance itself, and one which may or may not be a nuisance according to the manner in which it is used."
We, therefore, think it proper to direct a modification of the decree of the Superior Court so as to permit the defendant to remedy and guard against any possible danger to persons crossing its tracks at Marshall Street by erecting suitable gates or barriers on its right of way across said street, and to provide a gateman, as is usual and customary at all dangerous and much-frequented railroad crossings in cities and towns. Said structure shall be such as is reasonably sufficient to afford protection to persons using said crossing from injury by passing trains and to be maintained by the defendant.
Upon presenting its petition to the Superior Court and satisfying the Judge thereof that defendant has fully complied with the decree as modified and amended, the perpetual injunction enjoining defendant from extending and enlarging its freight depot shall be vacated.
As to the other contention of defendant relating to the title to certain land, we will add nothing to what is said in the opinion at the last term. We, generally, affirm the judgment subject to the (456) modification made.
Let the costs of this rehearing be equally divided between plaintiff and defendant.
Former Decree Modified.