Milligan v. Nelson

Mr. Justice Watermast,

dissehtirg-.

I think that the decree in this cause should be reversed and the cause remanded for a modification of the injunction.

In a growing city such as is Chicago, injunctions of this kind should not be made perpetual.

The character of neighborhoods so change here that the doing of that which is a nuisance at a particular place, five years thereafter may cease to be, there, such. Injunctions of this kind should, therefore, in rapidly growing and changing towns, be for limited periods, or leave should be given in the order, to, after a certain time, apply for a dissolution or modification of the injunction.

' The bill in this case is brought by an individual, not by the representatives of the public; the decre'e therein should have reference only to the rights of the complainant in respect to the premises in the enjoyment and use of which the complainant has been injured. It is not merely the emitting of the dense smoke from the chimneys of appellant that has damaged the complainant; it is because, as found by the decree, the air in and about his premises has been and is filled with dust and soot issuing from the chimneys of said hotel, to complainant’s annoyance and discomfort; because “ the soot falling from the chimneys of said hotel has sifted through the doors of complainant’s dwelling house so that complainant could not keep the draperies, carpets, etc., in his house free from soot;” and because “ when the wind blew from said hotel building in the direction of complainant’s dwelling house he could not open his windows without having dust, smoke and soot enter into his said dwelling house to the great damage of his furniture, draperies, etc., and to the physical discomfort and annoyance of his family,” and because “ it is impossible for him to keep his furniture, etc., free from soot, and that the porch, steps and roof of complainant’s said dwelling house could not be kept clean or free from the soot and dust proceeding from appellant’s said chimney,” that complainant has suffered damage. It is on account of the doing of these things, an injury and nuisance to complainant in the use and enjoyment of his said premises, that he is entitled to relief; and the injunction should restrain the doing of these things. The restraint should not be in this case against the emitting of dense smoke, for it does not appear that with the wind in certain directions such emission would be a nuisance or injury to complainant. Kerfoot v. People, No. 180, October term, 1893, Ill. App.; Attorney General v. Newberry Library, 51 Ill. App. 166.

The casting of smoke and soot into and upon the premises to the injury of furniture and draperies, and the physical annoyance and discomfort of his family is a nuisance; and appellee is entitled to be protected therefrom the same as appellant would be entitled to protection from noxious and unwholesome odors emitted from an establishment for rendering dead horses into oil, converting their hides into leather, and their hoofs into glue, should appellee’s premises be converted into such a factory. Laflin v. Tearney, 131 Ill. 326; Calef v. Thomas, 81 Ill. 480; Ottawa Gas Co. v. Thompson, 39 Ill. 600; Harmon v. City of Chicago, 110 Ill. 406; Ross v. Butler, 19 N. J. Eq. 298; Wood on Nuisance, Sec. 505; Rex v. Waterhouse, L. R. 72, B. 545; Crump v. Lambert, L. R. 3 Eq. 409; High on Injunctions, Sec. 773; Wahle v. Reinbach, 76 Ill. 326.

The maxim sio utere tuo ut aliemom non Iwdas—so use your own property as not to injure that of another, is as applicable to the great hotel of appellant as to the small dwelling of appellee, and restricts the pouring of soot and smoke upon the premises of another in the same way that it would restrain appellee from driving the guests of this hotel away by sickening odors arising from the carrying on of a lawful business. This hotel is situated in, a residence neighborhood, and it is fair to presume that its proprietors desire that such should continue to be the character of its surroundings; that they would strenuously object to the erection about it of packing houses, soap factories and tanneries.

Being in a residence neighborhood, complainant has a right to be protected in the enjoyment of his dwelling house, from such things as are incompatible with the physical comfort and health of his family, and are nuisances.

It is not a sufficient answer for appellants, in effect, to say that considering the magnitude and nature of their establishment they have done, and are doing, the best they can, unless they use hard coal, to prevent appellee from being annoyed, his physical comfort destroyed, and his furniture ruined by the smoke from their chimneys, and that other establishments in that vicinity also send out a great deal of smoke. Cartwright v. Gray, 12 Grant’s Chy. (Ont.) 399-404; Crump v. Lambert, supra; Cropley & Son, Limited, v. Lightowler, L. R. 3 Eq. Cas. 279; 1 Wood’s Law of Nuisance, 694; Hilliard on Injunctions, 341; 1 High on Injunctions, Sec. 746; 2 Story’s Eq. Jur., 11th Ed., Sec. 927 d.