On Rehearing.
lEn Banc. January 3, 1922.]
Mackintosh, J.Upon a reargument of this case, the court has decided that the opinion of the Department on the prior hearing is incorrect, and that the judgment of the trial court should have been affirmed.
A reference to the prior opinion is sufficient to give an understanding of the facts of the case. Without determining whether Volunteer Park has been dedicated by declaration, use and the expenditure of public money thereon to exclusive park purposes, so that it cannot now be used for any other purpose, and without determining whether exclusive jurisdiction has been placed in the park department rather than in the city council, and leaving undetermined the question of whether the respondents are entitled to an injunction against the appellant based on the impairment of the beauties of the park, leaving also undetermined the question whether the proposed reservoir might be contaminated by its proximity to a large burial ground, we will pass to the question which determines the respondents’ rights to an injunction.
The respondent property owners complain against the construction of this reservoir in Volunteer Park, *662on a side hill which extends westerly a considerable distance, with its fifty-six foot embankment as the only protection between their homes and the mass of water impounded behind it, for the reason that they claim its existence will constantly menace their lives and property. It is true that expert witnesses called on behalf of the city testified that a reservoir constructed in this place and manner would present no such peril as the respondents picture, and the city points to another reservoir in this park, which has existed some twenty years and never has occasioned damage to adjacent property. The old reservoir, it must be remembered, is small compared with the proposed one, and its westerly side is protected by an embankment only about one-third as high as would be that of the new reservoir. But at that, the fact that the old reservoir has occasioned no damage is far from conclusive proof that a new one, constructed under different conditions, would be equally as harmless. On the other hand, experts on behalf of the respondents testified that the proposed reservoir would continually threaten danger. With such a record before us, it is difficult to say that the respondents have not a reasonably grounded apprehension.
The test as to whether a structure of the proposed character is to be declared a nuisance turns on whether the complaining property owners are under a reasonable apprehension of danger, and the question of the reasonableness of the apprehension turns again, not only on the probable breaking of the reservoir, but the realization of the extent of the injury which would certainly ensue. That is to say, the court will look to consequences in determining whether the fear existing is reasonable. For instance,.if the reservoir were being built in some place where, should it break, the resultant damage would be merely to property which could ade*663qnately be recompensed, the court would be more apt to hesitate in declaring it a nuisance than where, should a break occur, not only property of immense value would be destroyed, but many lives would be lost as well.
It'cannot be said that the property owners 'dwelling in the shadow of the fifty-six foot embankment would not live under a reasonable apprehension, based upon the testimony in this case, that sooner or later they and their property would be destroyed by this contemplated reservoir. Reservoirs built upon the expert advice of city engineers, and sealed with the approval of other experts called in to substantiate that advice, have been known to not hold water. All the experts agree that there will be an inevitable leakage, to some extent, in the proposed reservoir. With this advice of these experts, and with a general knowledge of the contour of the ground, the nature of the soil, the prevalence of slides in similar situations in Seattle, and the disasters that have happened from the bursting of impounded waters, the respondents have, as a result of all these things, a fear which interferes with their comfortable enjoyment of life and property, and allege that the construction of the reservoir annoys, injures and endangers their comfort, repose and safety, and renders them insecure in life and the use of their property. If they have reason for this attitude they must succeed in this action. If this situation supports a reasonable expectation that disaster may happen, and such expectation leads to a depreciation in the value of adjoining properties, the structure will be considered a nuisance.
This court has already held in Everett v. Paschall, 61 Wash. 47, 111 Pac. 879, Ann. Cas. 1912B 1128, 31 L. R. A. (N. S.) 827, that the building of a tuberculosis sanitarium in the residential section of a city will be en*664joined as a nuisance where its construction creates fear and dread of disease, which will result in a depreciation of the value of adjacent property, and where it will affect the mind, health and nerves of the occupants thereof. Sections 943 and 8309, Bern. Code (P. C. §§ 8231, 9131-68), describe as a nuisance anything which is injurious to the health, or which is an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life and property. The court said, in the sanitarium case, supra, that, although the danger of communication of disease might be reduced to a negligible quantity, and that such a sanitarium might be constructed with due regard to the safety of patients and the public, and that there might be no danger to persons living in the immediate vicinity, and that the sanitarium would be a great benefit to the general community, yet that it constituted a nuisance for the reason that there had grown into the law of nuisances an element not recognized at common law; that is, that making uncomfortable the enjoyment of another’s property is a nuisance. It was there held that, though the fear of disease might be unfounded, imaginary and fanciful, yet where there is a positive dread which science has not yet been able to eliminate, such dread, robbing as it did the home owner of the pleasure in and comfortable enjoyment of his home, would make the thing dreaded an actionable nuisance, and the depreciation of the property consequent thereon would warrant a decree against its continuance. Further, that dread of disease and fear induced by the proximity of the sanitarium, if that in fact destroys the comfortable enjoyment of the property owners, is not unfounded and unreasonable when it is shared by the whole of the interested public, and property values become endangered, and that:
*665“The question is, not whether the fear is founded in science, hut whether it exists; not whether it is imaginary, but whether it is real, in that it affects the movements and conduct of men. Such fears are actual, and must be recognized by the courts as other emotions of the human mind. . . . Comfortable enjoyment means mental quiet as well as physical comfort. . . . Nuisance is a question of degree, depending upon varying circumstances. There must be more" than a tendency to injury; there must be something appreciable. The cases generally say tangible, actual, measureable, or subsisting. But in all cases, in determining whether the injury charged comes within these general terms, resort should be had to sound common sense. . . . The theories and dogmas of scientific men, though provable by scientific reference, cannot be held to be controlling unless shared by the people generally. . . The only case we find holding that fear alone will not support a decree in this class of cases is Anonymous, 3 Atk. 750. . . . Our statute modifies, if indeed it was not designed to change this rule. Under the facts, we cannot say that the dread which is the disquieting element upon which plaintiffs’ complaint is made to rest, is unreal, imaginary or fanciful.”
It was held in Goodrich v. Starrett, 108 Wash. 437, 184 Pac. 220, that under §§ 943 and 8309 of Bern. Code (P. C. §§ 8231 and 9131-68), which define nuisance, and which add to the common law definition the new element of “comfortable enjoyment of one’s property”, that an undertaking establishment in the residential section of a city, so constructed as to affect property values in the neighborhood, is a nuisance and will be enjoined. In that case the case of Rea v. Tacoma Mausoleum Ass’n, 103 Wash. 429, 174 Pac. 961, 1 A. L. R. 541, referred to in the department opinion, was discussed and held not to be in conflict with the case of Everett v. Paschall, supra. The reference to cases from other jurisdictions which follow the common law rules on nuisance, *666or statutory rules not so broad as those obtaining with us, are of very little help in solving this question.
In the case of Hughes v. McVay, 113 Wash. 333, 194 Pac. 565, it was held that the facts showed that the property of the persons complaining was so far away from the situation of the detention home that the fears of the complainants were based only on imagination, conjecture and uncertainty, and were the product of a fastidiousness which the law would not sanction. These cases and the cases upon which they are founded present facts which the writers of the opinions in Goodrich v. Starrett and Hughes v. McVay, supra, hold distinguish them from the situation here. In the present case, we find a very large section of the city of Seattle, composed of men and women who, in the ordinary business of life, are not to be charged as victims of hysteria, nor ready dupes of conjectural and imaginary fears, having a very real and present apprehension that their lives and properties will be jeopardized by the hanging of this modern sword of Damocles above their heads, and that fear is bolstered by the testimony of expert witnesses, and confirmed by the common sense of any one to whom the facts come. It does not take the testimony of experts, although that was produced, to advise one that the proposed structure would cause a most serious depreciation of property values within the affected area. It is an obstruction to the free use of property, as it interferes essentially with the comfortable enjoyment of life and property. It is a nuisance, for it annoys, injures and endangers the comfort, repose, health and safety of these respondents and renders them insecure in life and the use of their property. The Department opinion refers to the reservoir as a necessity, and it may be so, but there is no contention made that the necessity exists to the point where it must be erected at this particular spot and no other.
*667From our review of the testimony, it is clear and satisfactory to us that the injury to these respondents will be the probable effect of the action which they seek to restrain. The judgment of the lower court is affirmed.
Hovey, Bridges, Fullerton, and Holcomb, JJ., concur.