ON PETITION eor rehearing.
Per Chriam.Plaintiff in error has filed a petition for a rehearing, in which no authorities are cited, and no reasons advanced that were not presented or considered at the former hearing. He now concedes that the case of D. & S. F. Co. v. Domke, 11 Colo. 247, is authority for our decision in this case, but insists that the question involved here is not necessary to the decision there; but that if it was, then the case announced bad law, although sustained by the Illinois authorities, and should be overruled.
We have reexamined the Domke Case, and -are satisfied with its doctrine, and that the questions decided were properly before the court for determination. It has been followed in the two cases cited in the opinion from the 15th Colorado Reports, and we again affirm it.
Complaint is also made that, in its opinion, the court ignored the point made by the plaintiff that the operation of defendants’ road on their own lot adjoining that of the plaintiff would constitute a private nuisance which should be enjoined. In their original brief apparently so little reliance was had by counsel upon this branch of the case that, acting upon this assumption, it was deemed unnecessary to notice it in the opinion, although we did not overlook it. We are not now impressed with its merit. In this state, when duly licensed by the municipal authorities, the operation of a street railway in the streets of a town, or a populous city, or of a steam railroad upon private property therein, is not, per se, a nuisance. It is unquestionably within the jurisdiction of courts of equity to prevent a nuisance, but the courts are inclined to limit its exercise to cases of nuisance per se. Where the erection or operation of a certain thing may, or *65may not, become a nuisance, according to circumstances; or where it is impossible to tell until the thing threatened is erected or brought into being, and put into operation, whether or not it will be a nuisance; or where the benefit therefrom to the public outweighs the inconvenience or damage to the plaintiff, or where the latter has a complete remedy at law by way of damages, ordinarily equity declines to interfere by injunction to restrain its construction or operation ; and in all cases where application is made to restrain a threatened nuisance, the allegations of the complaint must clearly show that the thing complained of will, not that it possibly may, constitute a nuisance, and the mere allegation of the pleader that a private nuisance will ensue, is not sufficient. See, generally, upon this question, 1 High on Injunctions (2d ed.), chap. 13, secs. 742, 745; Wood on Nuisances (3d ed.), secs. 745 (p. 991), 786, 789, 796, 797, et seq.
It would manifestly be improper, therefore, to restrain the construction of defendants’ railroad upon their own property, or to enjoin the operation of the road, when constructed, upon the showing made in the pleadings, as it is not made to appear that it will constitute a nuisance to plaintiff’s property, or that he has no adequate remedy at law for any damages he may sustain.
The rehearing is denied.
Rehearing denied.