Milligan v. Nelson

Mr. Justice Gary

delivered the opinion of the Court.

The appellants are lessees and operators of an eight-story hotel on Fifty-first street, and the appellee has a fine residence about one hundred feet south of the hotel.

He complains that from the chimneys of the hotel the appellants permit dense smoke, dust and soot to issue, to the great annoyance and discomfort of himself and family and to the great damage of his furniture, etc. He filed this bill to enjoin them, and on the hearing the court by decree perpetually enjoins them, “ their agents, servants and employes, from permitting or allowing dense smoke to he emitted from any of the chimneys of the” hotel.

The cause -was heard by agreement upon the affidavits, on both sides, filed upon the application for a temporary injunction and the bill and answer, no replication appearing in the record. As to the evidence it may fairly be said that everything as to the actual nuisance by smoke is denied with as much emphasis, and with as great a volume of testimony by one side, as it is alleged by the other.

The administration of the law should be practical— adapted to the condition and necessities of civilization. Courts do not- exist for their own sake, but as adjuncts to, and safeguards of, the interests of the great body of the people who do the actual work of the world.

Those who seek and enjoy the advantages of life in a great city must take them with all the inevitable drawbacks that attend the concentration of a large population, and the industries in which that population is engaged. The air of open fields can not be hoped for in the streets of a commercial and manufacturing metropolis.

This record shows that in the same immediate neighborhood with these parties are many other structures using a good deal of steam, to produce which a large quantity of coal is consumed. It may be that if anthracite coal were used there would be less smoke; but may we interdict the use of practically the only fuel supplied by nature to several great States upon Avhose prosperity Chicago lives and grows? We need not noAV go into a consideration of that question.

Besides the structures before mentioned it is alleged, and not denied, that the Illinois Central Railroad is within about five hundred feet of the residence of the appellee, and that about four hundred locomotives pass thereon daily, and that the greatest amount of smoke in that neighborhood comes from those locomotives; yet the appellee sivears that he has not suffered any damage from that cause.

It is obvious that smoke emitted from the chimneys of the hotel could do no harm to the appellee whenever the wind would blow it in a direction away from the place of his residence, and that not less than three-quarters of the compass would be open to the appellants; yet this injunction is absolute against dense smoke at all times.

Should this injunction stand it would be a foundation for interminable proceedings hereafter. It does not prohibit smoke (by itself smoke) but dense smoke. Dense is an adjective which, in the mouths of different witnesses, would, by some, be applied to steam somewhat darkly tinged, and by others be withheld from clouds black as Erebus. The affidavits in this record illustrate this difference of views.

The woman of Samaria, who, after a few minutes conversation at the well tells her neighbors, “ Come, see a man, which. told me all things that ever I did,” would see the color of “ the smoke of their torment ” that “ ascendeth up for ever and ever,” or “ of the great white throne,” as her bias might happen to be.

Upon an application to punish for breach of this injunction there would be as great difficulty in arriving at the truth, as is so humorously described by Chancellor Walworth in De Rivafinoli v. Corsetti, 4 Paige 204, in relation to opera music. It is clear that the appellee can be entitled to an injunction only when the wind would turn the smoke upon him, or a calm would permit it so to settle.

On the whole case the facts are too doubtful, and the remedy too difficult and uncertain of application, to justify an injunction.

It is not the theory of the bill that the appellee is entitled to an injunction against smoke—all smoke—but only against dense smoke.

Who can anticipate the mind of the chancellor when he shall be called upon to compare that adjective or to separate smoke from the chimneys of the appellants from that emanating from other sources ? This is a case for a chancellor to “ consider whether he would not do a greater injury by enjoining than would result from refusing, and leaving the party to his redress at the hands of a court and jury.” Richards’ Appeal, 57 Pa. St. 105.

The decree is reversed and the cause remanded with directions to the Superior Court to dismiss the bill at the cost of the appellee. Reversed and remanded.