dissenting:
The principle which impels a chancellor to act in that mass of cases where his action will avoid a multiplicity of recoveries at law or will stop injuries so repeated in character as likely to become excessively burdensome seems a logical result of the necessity of an equitable jurisdiction to avoid oppres*557sive litigation and irreparable mischief and in the exercise of it there is necessarily the element of a discretion based upon sound principles. The decrees made by virtue of it are often described as “ matters of grace,” a substantive thing not to be refined into a meaningless phrase, and accordingly our judicial literature furnishes an important class of litigation in which they are so designated.
In Keeling v. Pittsburg, etc., Railroad Company, 205 Pa. 31, Mr. Justice Dean, quoting, says: “An injunction is of grace and not of right and a chancellor is not bound to make a decree which will do far more mischief and work far greater injury than the wrong he is asked to redress.”
In Robb v. Carnegie, 145 Pa. 324, Mr. Justice Williams says:' “ An injunction is not of right but of grace, and will never be issued by a court of equity when it will inflict a greater injury than it will prevent.”
In Huckenstine’s Appeal, 70 Pa. 102, Mr. Justice Agnew says: “ Its (a court of equity) aid is not of right but of grace and it must be sure that the exercise of this kingly power is just, wise and proper, before it takes from the citizen his means of livelihood, and destroys the value of his property for legitimate uses.”
In Richards’s Appeal, 57 Pa. 105, Mr. Chief Justice Thompson says : “ It seems to be supposed that, as at law, whenever a case is made out of wrongful acts on the one side and consequent injury on the other, a decree to restrain the act complained of must certainly follow, as a judgment would follow a verdict in a common-law court. This is a mistake. It is elementary law, that in equity a decree is never of right, as a judgment of law is, but of grace.”J — *
As a decree in equity is a matter of grace a chancellor will not make it where it will produce a greater injury than it will prevent, and because it is a matter of grace .will balance the inconveniences that may be caused either by granting or refusing it. This principle is well illustrated in Richards’s Appeal, supra. In that case the plaintiff, a manufacturer, sought to restrain the defendant company from operating a furnace for smelting iron because in their furnaces they used semi-bituminous coal and that dense masses of smoke and soot were emitted from them filling his house and factory with sulphurous, un*558wholesome and noxious smoke, injuring the furniture and causing discomfort as well as unhealthiness. The defense was that for a period of thirty years or more bituminous coal had been used and that semi-bituminous coal was subsequently used and that the smoke was but slightly sulphurous and while it was disagreeable it was not unwholesome; that semi-bituminous coal was necessary in order to make superior bar iron; that to purchase plaintiff’s whole property would cause them less loss than the injury consequent upon stoppage; that they employed in their business a capital of $500,000 and more than 1,000 persons. Mr. Chief Justice Thompson in delivering the opinion of the court in that case says:
“ A careful consideration of the testimony satisfies us that the use of semi-bituminous coal, the fuel complained of, is necessary to the successful manufacture of iron fit for axles, cannon and the like, in the manufacture of which the defendants are largely engaged; that the process of manufacture and fuel used, are generally employed in similar establishments, and that there was neither a negligent nor wilful infliction of injury upon the plaintiff or his property in the defendants’ mode of operating their works. Whatever of injury may have, or shall result to his property from the defendants’ works by reason of the nuisance complained of, is such only as is incident to a lawful business conducted in the ordinary way, and by no unusual means. Still there may be injury to the plaintiff; but this of itself may not entitle him to the remedy he seeks. It may not if ever so clearly established, be a case in which equity ought to enjoin the defendants in the use of a material necessary to the successful production of an article of such prime necessity as good iron; especially if it be very certain that a greater injury would ensue by enjoining, than would result from a refusal to enjoin.”
In Huckenstine’s Appeal, supra, a bill was filed to restrain the conduct of a brickmaking business in which there was evolved,smoke, vapor and gases destructive of plaintiff’s vineyard, orchard and trees, and Mr. Justice Agnew in dismissing the bill and remitting plaintiff to his action at law says: “ It (brick burning) as many other, useful employments do, may produce some discomfort, and even some injury to those nearby. But it does not-follow that a chancellor would enjoin therefor. *559The heat, smoke and vapor of a brick kiln, cannot compare, with those of many manufactories carried on in the very heart of such cities as Pittsburg and Allegheny. A court exercising the power of a chancellor, whose arm may fall with crushing force upon the everyday business of men, destroying lawful means of support, and diverting property from legitimate uses, uses cannot approach such cases as this with too much caution.”
Again, he says: “In the present case the kiln of defendant is situated on an outskirt of the city of Allegheny. The properties of the plaintiff and defendant lie adjoining each other, on the hillside overlooking the city, whose everyday cloud of smoke from thousands of chimneys and stacks hangs like a pall over it obscuring it from sight. This single word describes the characteristics of this city, its kind of fuel, its business, the habits of its people and the industries which give it prosperity and wealth. The people who live in such a city or within its sphere of influence do so of choice, and they voluntarily subject themselves to its peculiarities and its discomforts, for the greater benefit they think they derive from their residence or their business there.”]•"
These cases clearly confirm the principle that a chancellor will consider whether he would not do a greater injury by enjoining than would result in refusing to enjoin and leaving the party to his redress at the hands of a court and jury.
While Robb v. Carnegie, 145 Pa. 324, was an action at law to recover damages for injuries to land in the operation of a coke furnace, Mr. Justice Williams says:
“We think it is true as held by the judge of the court below, that the evidence in this case would not justify an injunction. It shows a selection of a site as well adapted to the business, and as remote from dwellings as any in that region. To enjoin the manufacture of coke, at such a site, would amount to a prohibition of its manufacture, and the destruction of vast allied and dependent industries of immense value to the public as well as to those directly engaged in them.”
Again he says: “ It is a fundamental principle of our system of government that the interest of the public is higher than that of the individual; so that when those interests are in conflict the latter must give way. If the individual is thereby. *560deprived of his property without fault on his part, he is entitled to compensation; but if he is affected only in his tastes, his personal comfort or pleasure, or preferences, these he must surrender for the comfort and preferences of the many. Thus highways are necessary to the public business and comfort. Some noise and dust are necessarily occasioned by the legitimate use of them. This may be disagreeable, perhaps in some cases positively harmful, to some one or more of the persons living along them ; but for this there is no remedy at law or equity. It is one of the necessary consequences of subjecting the individual to the public, as to those things in which their interests are in conflict.”
In Wier’s Appeal, 74 Pa. 230, Mr. Justice Sharswood says : “ There is a very marked distinction to be observed in reason and equity between the case of a business long established in a particular locality, which has become a nuisance from the growth of population and the erection of dwellings in proximity to it, and that of a new erection threatened in such vicinity.”
It doubtless may be contended that the principle of balancing inconveniences cannot be made the means of a successful assault upon the strong wall built around the right of property which secures it from invasion and not infrequently eloquent phrase finds utterance in vindication of an established right of property from the invasion which may spring from numerous actions or the repetition of injuries. The fact of a possible series of actions or of repeated injuries does not necessarily negative an adequate remedy at law. There is a class of cases where the injury is of a continuing and permanent character and the damages are entire and susceptible of immediate recovery^ Central Branch Union Pacific Railroad Co. v. Andrews, 26 Kansas, 702; Fowle v. New Haven & Northampton Co., 112 Mass. 334; C. & E. I. R. R. Co. v. Loeb, 118 Ill. 203; Stodghill v. R. R. Co., 53 Iowa, 341. Also see Gavigan v. Atlantic Refining Company, 42 W. N. C. 465. does not follow that merely a possible recurrence of suits or of injuries will necessarily induce a chancellor to act. The energy of the equitable principle may well be aroused when beyond question the actions become so repeated and the injuries so continuous, resulting in irreparable mischief, that the vanity of the adequacy *561of the remedy at law is clearly manifest and then the equitable principle may be asserted because necessary for protection. While the facts of the present case do not furnish a case for the exercise of a jurisdiction founded upon such necessity, they however do establish one for the application of the principle of Richards’s Appeal and the kindred cases, supra. They are that the furnaces of the appellee company have been operated by it and its predecessors since 1860, on the present site and on the land purchased from Mrs. Sullivan, one of the appellants ; that the iron and steel industries of the appellee have been operated by it for nearly fifty years on their present site; that there is a bluff 150 feet above Second avenue and that appellant’s properties are situate on this bluff and about 1,000 feet from the blast furnaces the stacks of which are a little, above the level of the top of the bluff. That the district in which these mills are located is and has been for many years distinctively and exclusively a manufacturing district well suited and appropriate for manufacturing purposes extending for several miles above and below the appellee company’s furnaces and mills. That the district at the top of the bluff where appellants’ properties are located is a residential locality and has been subject more or less to annoyance from smoke and dust arising from the furnaces below.
That the blast furnaces of the appellee company represent a cash investment of 15,000,000 and in them and incidental thereto are imployed 10,800 persons, who are paid in wages monthly, 1500,000. That between March, 1898, and May, 1901, the three Eliza furnaces were improved, enlarged and rebuilt in accordance with modern and improved plans and equipped with modern and improved appliances and improvements; that they are the largest known in the iron business with a producing capacity of 500 tons daily, and a daily consumption of 4,000 tons of ore. That consequent upon “ slips ” occasioned by encrusting ore in the stack of the furnace, dust always escapes from blast furnaces. That on the top of each of the furnaces are explosion or expansion doors for the purpose of permitting the generated gas to pass into the open air; that the dust complained of is carried by the wind upon the properties of the appellants, the amount depending upon the force of the wind and the ex*562plosion. That in the manufacture of pig iron the iron ores used are known as “Old Range” and “Mesaba” ores, the former being comparatively free from dust. That the Old Range ores are almost exhausted, the output not being sufficient to permit of the exclusive use of the same in the manufacture of pig iron and in a short time none will be in the market. That the mines which control these ores are practically controlled by one company, a competitor of appellee company, and their cost is seventy-five cents per ton more than the Mesaba ores; that the latter ores have been used in all furnaces of the district in making pig iron since 1892, upon which date to 1902 the amount of the same shipped to lake ports has increased from 5,000 tons to 12,000,000 tons in 1902. That for seven or eight years appellee company has used in its furnaces thirty per cent of these ores, which is less than was generally used in the blast furnaces in the same district and at the present time uses about twenty-three per cent. That the appellee company has been diligent in its efforts to find means and adopt appliances and inventions which will prevent the escape of dust from its furnaces and that up to the present time no appliance has been found that will effectually prevent or reasonably diminish the escape of the ore dust from the blast furnaces when slips occur. That while there was a deposit of dust the same only became serious about July, 1901, and since then the dust has been coming largely upon appellants’ property. That its effects are not only annoying but injurious; that it chokes rain conductors, discolors fabrics and paints, and injures carpets and curtains; that it is destructive of fruit and shade trees and has depreciated the value of the properties of the appellants to the extent of twenty-five or fifty per cent.
Thus upon the one side is a business started many years ago which has been steadily developing until it has reached a very great magnitude. With its increase its appliances have been improved and its blast furnaces enlarged and these have been the natural growth of its business. It has managed its business with a due regard as far as practicable for those who lived near the district within which its blast furnaces were located. It has been diligent in the effort to obtain appliances and inyentions designed to avpid as much as possible any annoyance *563that might arise from smoke, dust or gases. With the Old Range ores, because of their coarseness the dust and gases were thrown out on the recurrence of slips, but with the Mesaba ores the dust and gases thrown out have been increased very largely, but not to an extent to be necessarily a nuisance per se. The supply of the Old Range ores has been gradually approaching exhaustion and is practically controlled by a competitive conc'ern and the requirements of the business compel appellees to use Mesaba ores and the amount used is about twenty-three per cent. Its use is clearly legitimate in the conduct of its large business. The necessity for the use of such ores becomes apparent upon a consideration of the enormous growth of their use, from 5,000 tons at one period to 12,000,000 tons within a comparatively short period.
The facts show that the inability of the appellee to use such ores would practically operate as a prohibition of its business and thus upon the one side a decree restraining appellee from such use would so impair its capacity to do business that it would produce disaster affecting a large manufacturing interest involving the welfare of an army of employees and be productive of irreparable damage. Upon the other side the damage that Avould arise from the continuance of that business by a refusal to make a decree would be that the rain conductors upon appellants’ houses might still be choked somewhat and their fabrics and paints discolored and their carpets and curtains injured. That they still might have some difficulty in removing the grease stains from their garments and paints and their shade trees and fruit trees, if such be of value amid the smoke of Pittsburg might be destroyed and their property might be depreciated from twenty-five to fifty per cent of its value. Such latter damage, however, being directly to the property itself is clearly ascertainable and cannot well be classed as irreparable.
The facts thus marshalled present an accumulation of injurious irreparable results likely to occur from a decree against appellee that should in view of those capable of reparation that might occur to appellants, constrain a chancellor to refuse to make it. While a judge has no right to be influenced in the determination of a case merely because of the effect of a decision, yet Avhen it is a matter of grace, guided by sound *564discretion, he may well in the exercise of such discretion, wisely consider some of the consequences that may result from his action and manifestly so when a manufacturing district on the one side and a residential locality on the other are involved and the learned trial judge very significantly says :
“ While the extent of the injury resulting to plaintiffs from the dust can be ascertained, the injury resulting to defendants by a decree cannot be estimated. Such a decree would practically mean the shutting down of not only its furnaces, but also its iron and steel works, representing together a capital of at least $60,000,000, and the employment of nearly 11,000 persons. The effect of a restraining order will not be confined to the defendant company, because, if it is unlawful for defendant company to use Mesaba ores it is also unlawful for every other furnace in this county to use those ores; an injunction therefore in this case would affect injuriously every one of the thirty-seven blast furnaces in Allegheny county, and their allied industries, with capital as shown by the industrial statistics of the commonwealth, aggregating $400,000,000 and employing 60,000 persons. As there are not sufficient “ Old Range ” ores mined to supply the demand if the exclusive use of these ores be required, a decree which makes the use of Mesaba ores impossible means the shutting down of every blast furnace in the county within a year, as the supply of u Old Range ” ores will be exhausted within that time. What that would mean to the people of this city and county needs no discussion. The damage would be inestimable.”
A decree operative of destructive results so far-reaching and extensive as thus indicated, certainly might well warrant the deduction that in it there was not a suspicion of that “ matter of grace ” held to be an element in the determination of a chancellor in cases of this character. Pittsburg is a monument to the progress and activity of the manufacturing interests and her achievements in that direction have made her one of our most conspicuous cities. Judicial restriction that would limit these activities might well be regarded as inimical to her best interests in the direction of progress, and where judicial action is based upon “ matter of grace ” guided by wise discretion, it should not be unnecessarily narrowed, but should be, to an extent as far as may be practicable and legal, broadened in *565a way most wise for the best form of progress and the highest standard of development.
I am of opinion that the decree of the court below dismissing the bill should be affirmed.