(dissenting). I am of opinion that the decree of the Circuit Court, under all the facts embodied in the record, is correct, and ought to be sustained. It was argued by appellant that the nuisance complained of is a public nuisance; that it affects all the people living in that locality — the farms, timber, agricultural lands, and the homes of all the people; that it is not specially injurious to appellee; that the damage to appellee is not different in kind and character from that suffered by the general public, except that it is less in degreeand that for these reasons appellee in its private capacity cannot maintain this suit, The answer to this contention is found in many authorities. The same argument was made by counsel in Woodruff v. North Bloomfield Gravel Mining Co. (C. C.) 18 Fed. 753, which was a suit in equity for an injunction to enjoin the continuance of a nuisance, and involved many questions similar to the case at bar. Judge Sawyer held that a public nuisance was unlawful. In the course of the opinion, he said:
“It is not unlawful as to the whole public, and lawful as to its constituents, or a part of its constituents. It is absolutely and wholly unlawful. The act being unlawful, a private party sustaining special damages from the nuisance —from the unlawful act — gains a status which enables him to maintain a private action for such injury.”
In Fisher v. Zumwalt, 128 Cal. 493, 61 Pac. 82, which was an action to abate a nuisance and for damages, the defendant on his own land erected a creamery near a public highway, in a thickly populated portion of the county; there being many farm houses in the vicinity, and some 80 people living within a radius of three miles therefrom. After the erection of said creamery the defendant permitted the refuse — whey, milk, and debris — to accumulate in certain tanks, troughs, and ditches, and to stand so as to become sour and putrid in such manner as to throw off vile and noxious odors and gases, very offensive to the senses and dangerous to the health of plaintiff and his family, and all others living in the immediate vicinity. The said odors and stenches polluted the air in and about the *644dwelling house of plaintiff, and at times rendered it unfit for occupation. The court said:
.“There is no doubt but that there are many nuisances which may occasion an injury to an individual for which an action-will not lie by him in his private capacity, unless he can show special damage to his person or property differing in kind and degree from that which is sustained by other persons who are subjected to similar injury. Among such may be mentioned the invasion of a common and public right, which every one may enjoy, such as the use of a highway, or canal, or public landing place. But this class of nuisances is confined in most cases to where there has been an invasion of a right which is common to every person in the community, and not to where the wrong has been done to private property, or the private rights of individuals, although many individuals may have been injured in the same manner and by the same means. In the one case the invasion is of a public right, which injures many individuals in the same manner, although it may be in different degrees. In the other case no public or common right is invaded; but by the one nuisance the private rights and property of many persons are injured. Because the nuisance affects a great number of persons in the same way, it cannot conclusively be said that it is a public nuisance and nothing more. The fact that a nuisance is public does not deprive the individual of his action In eases where, as to him, it is private and obstructs the free use and enjoyment of his private property. Blanc v. Klumpke, 29 Cal. 160; Yolo County v. Sacramento, 36 Cal. 195. It is provided in the Code of Civil Procedure (section 731) : ‘Anything which is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance; and by the judgment the nuisance may be enjoined or abated, as well as damages recovered.’ ”
It will be observed that in these cases, as well as others of a like character, the defendants were engaged in lawful occupations upon their own lands. They did not erect or conduct their operations upon any part or portion of the lands of the complainant. Nuisances are seldom, if ever, committed in that way. In the Woodruff Case the miners were conducting their mining operations in the only way that such operations were at that time conducted, and the only possible way that the hydraulic mines could be successfully carried on with profit to the owners. But it so happened that the methods used by them had the effect to deposit in the river large amounts of debris passing through its flumes and sluices; and by means of large freshets and floods that occurred on the banks of the river, from natural causes, and in part from the increased quantity of “slickens” produced by the working of the mines, the deposits were carried for several miles, and so filled up the bed of the river that it finally overflowed its banks, and deposited the gravel and sediment over the lands owned by the defendants in such a manner as created, an irreparable injury thereto. That case cannot, in my opinion, be distinguished in principle from the case at bar. Unless the doctrines therein announced are erroneous, it should be followed. If the ruling in that case was, wrong, it should be overruled.
In the consideration and discussion of the principles involved in this case it must constantly be remembered that the appellant is engaged in the business of mining and reduction of ores for profit and gain; that it stands upon the same level and is entitled to the same rights *645that belong to every owner of private property. In the light of the authorities I am unwilling to say that the appellee could be fully compensated by an action at law for the damage committed by appellant; the damages being, in my opinion, of an irreparable nature and character.
A vast number of authorities have been cited by appellant to the effect that it is the duty of the court to consider, in determining the question whether an injunction should be issued, the relative importance of the property of the respective parties, the comparative convenience or inconvenience to the parties from granting or withholding the injunction, the locality, and the public interest. The importance to be attached to these cases depends entirely upon the particular facts established in each case, and from an examination thereof it will be found that none of the cases cited by counsel march up in their facts to the present case, but .can readily be distinguished therefrom. It seems clear to my mind that the court, in Madison v. Ducktown Sulphur & Iron Co. (Tenn.) 83 S. W. 658, came to the conclusion it did by reason of the statute of that state referred to in the opinion of the court herein, which was regarded' “as declaring the policy of the state upon the subject referred to.” That court said:
“That the Legislature had in view the public utility of enterprises attacked on the ground of nuisance, and authorized the court to grant or withhold the injunction as a wise discretion might suggest or warn.”
There is no such statute in California, and hence I do not think the case is applicable to the case in hand. If it can be said that the court based its conclusions on grounds independent of the provisions of the statute, then its conclusions are not sustained by the weight of the authorities.
The views contained in all of the other cases are summed up in 2 Wood on Nuisances (3d Ed.) p. 1182, as follows:
“The true intent of a court of equity being to do justice between parties, it will not issue a restraining order, except where the rights of the parties demand it, and in determining this question all the circumstances of location, the effect of the act claimed to be a nuisance, and the effect upon the defendant’s business and interests will be considered; and, while the usefulness of the business, or its importance, magnitude, or extent, will not in all cases prevent interference, yet, if the injury on the one hand is small, and fairly compensable in damages, and the loss to the other party would be large and disastrous, an injunction will be refused and the party left to his legal remedy.”
In applying these principles courts have frequently and correctly held that an injunction ought not to issue where the damage is slight or trivial. In line with these decisions I fully agree that an injunction should not issue where the injury is not shown to be irreparable; where the injury is only occasional; where the evidence is conflicting; where the title of complainant is not clear; where the evidence is doubtful whether the acts of defendant constitute a nuisance. In all such cases it is the duty of courts to consider the question of comparative injury — whether the defendant will be more injured by the injunction being granted or the plaintiff by its being withheld. But, with the exception of the Ducktown Case in Tennessee, they do not hold that, where the nuisance is of such a character as to destroy the *646substance of the complainant’s property, an injunction should not be granted. This is the departing line where the reason of the cases referred to stops, and is the vital point upon which I base my individual views. I am of opinion that there is a marked difference and clear distinction between cases where the injury simply depreciates the value of the property, where the plaintiff might have an adequate remedy at law, and the cases where the injury to the property is irreparable, and if continued would result in its destruction, in which event plaintiff’s remedy would be in equity for an injunction.
When a plain and adequate remedy at law cannot be obtained, the power of a court of equity to enjoin a nuisance which is destructive of the property of complainant, or renders its use and occupation physically uncomfortable, is, in my opinion, no longer questionable. The jurisdiction of the court in such cases is predicated upon the broad ground of preventing irreparable injury, interminable litigation, and multiplicity of actions, and for the protection of rights. The rule by which the courts are guided in such cases is the ancient maxim that every one must so use his own property as not to injure another. The fact that appellant has built extensive works and made a large expenditure of money to enable it to successfully carry on its business, and in so doing invades the premises of other persons with the sulphurous, arsenical fumes and noxious and poisonous vapors arising therefrom, and then, when called upon to desist in the destruction of its neighbors’ property, claims immunity for its business on the ground that it would be injurious to it, and might involve it in ruin, constitutes no defense to this suit, and will not protect it from the strong arm of the law; nor can appellant claim immunity on the ground that it is engaged in a profitable business which is beneficial to the community at large, nor from the fact that it has brought a large number of workmen into the neighborhood. 2 Wood on Nuisances (3d Ed.) § 802, and authorities there cited; Appeal of Pennsylvania Lead Co., 96 Pa., 116, 127, 42 Am. Rep. 534.
In 1 Wood on Nuisances (3d Ed.) § 512, the author says:
“Tlie fact that the discomfort arising from the nuisance, or the actual tangible injury to property itself therefrom, is in no measure commensurate with the pecuniary loss to the owner of the works producing the injury, by having his works declared a nuisance, is entitled to no weight in a court of law, and is in no measure a defense, or a circumstance to be considered either by the court or jury. If a party has seen fit to erect works in the vicinity of the property of others, which may injuriously affect the surrounding property, by reason of its noxious character or results, the penalty of his temerity is to be visited upon him, however severe tlje loss, or however much less the damage may be to his neighbor than to himself. The innocent are not to suffer, either in their property or comfort, for the promotion of another’s interest or profit. It is well said by Thompson, J., in Casebeer v. Mowry, 55 Pa. 423, 93 Am. Dec. 766: ‘The amount of damage is not the sole object of an action of this nature. The right is the great question.’ It will not do to hold that one man may with impunity invade the premises of another by anything in the shape of a nuisance, because the damage may not be appreciable.”
And in this connection it may safely be said that in such cases the private rights of individuals and of corporations are never to be measured by their mere money value.
*647In Hobbs v. Amador & S. C. Co., 66 Cal. 161, 4 Pac. 1147, an injunction was issued to restrain the defendant from continuing to dump its mining debris, tailings, and other refuse matter from its mines into certain water courses, which washed the debris and material down upon and spread them over the plaintiff’s land, rendering it valueless for agricultural or other purposes. The court said:
“It is no part of the general and ordinary business of a corporation to do unlawful acts. Acts which are of a continuous nature, and threaten to destroy and irreparably injure the property of another, are unlawful, and enjoinable at the suit of the person injured; not upon the ground of interfering with a lawful business, but upon the ground that every person is entitled to the protection of the law in the use and enjoyment of his property. But it is claimed that the doing of the acts restrained by the injunction are necessary to the successful carrying on of the business in which the defendant is engaged, and that, if the defendant he enjoined from carrying on its business in that way, hydraulic mining cannot be carried on at all. Yet the acts restrained are none the less unlawful, if they are injurious to the private rights of others; and the defendant is bound by law to so conduct its business as that it shall not be derogatory to the private rights of other property owners. In mining pursuits, as was said in Logan v. Driscoll, 19 Cal. 623, 81 Am. Dec. 90, ‘defendant is entitled to use his mining claim in a lawful manner; but no manner can be considered lawful which precludes the. plaintiff from the enjoyment of his rights.’ No person, natural or artificial, has á right, directly or indirectly, to cover his neighbor’s land with mining "debris, sand, and gravel, or other material, so as to render it valueless.”
In Woodruff v. North Bloomfield Gravel Mining Co. (C. C.) 18 Fed. 753, 768, 806, the court, among other things, said:
“A great deal has been said about the comparative public importance of the mining interests, and also the great loss and inconvenience to these defendants, if their operations should be stopped by injunction. But these are considerations with which we have nothing to do. We are simply to determine whether the complainant’s rights have been infringed, and, if so, afford him such relief as the law entitled him to receive, whatever the consequence or inconvenience to the wrongdoers or to the general public may be.”
The business in which appellant is engaged is one that should be encouraged, fostered, and protected by the community and by the courts to the full extent of its legal rights under the law, as long as it conducts the same in a lawful manner. But because its business is lawful and furnishes profitable employment to many people, and is beneficial to the community at large, as well as profitable to the corporation which has invested millions of dollars in the erection of its works, it has no right to conduct and carry on its business in an unlawful manner, so as to destroy the property of the individual landowners in the vicinity or seriously to impair and injure the health of those living upon their own lands in the vicinity of its works; and when this effect is produced, the court must act to protect the rights of the individual, although the loss to them in a pecuniary sense is slight compared to that which the corporation will suffer.
An injury is irreparable when it is of such a nature that the injured party cannot be adequately compensated therefor in damages, or when the damages which may result therefrom cannot be measured by any certain pecuniary standard. Wilson v. City of Mineral Point, 39 Wis. 160, 164; Am. & Eng. Ency. of Law (2d Ed.) 361, and authorities there cited. Any injury which is of such a character as to work the destruction of the property as it has been held *648and enjoyed will be treated as irreparable. 2 Story, Eq. Jur. § 928; Lemmon v. Guthrie Center, 113 Iowa, 36, 43, 84 N. W. 986, 86 Am. St. Rep. 366. The destruction of ornamental or fruit trees or timber necessary for the use of a farm, or where the timber constitutes the chief value of the land, will be prevented by injunction. No principle of law is better settled in the jurisprudence of this country than that in all such cases the owner of the land is entitled to the writ of injunction.
In Daubenspeck v. Grear, 18 Cal. 443, 447, the court said:
“There is no doubt that the plaintiffs are entitled to the equitable relief prayed for. * * ' * They are threatened with injuries which must, if committed, result in the destruction of their property, and it is the duty of the courts in such cases to interpose and prevent the perpetration of the injurious acts. We can hardly conceive of a more appropriate case than the present for the administration of this species of justice. The mischief against which the plaintiffs seek protection is irreparable in its nature, and destructive of interests for which no equivalent can be returned. The fact that the defendants are willing to pay for the property is immaterial, for there are no means of determining whether the value of the property in money would compensate the plaintiffs for its destruction. It may possess a value to them which no other person would place upon it; and there is neither justice nor equity in refusing to protect them in the enjoyment of it, merely because they may possibly recover what others may deem an equivalent in money. The nature of the property, which consists of fruit trees, ornamental shrubbery, etc., gives them a peculiar claim to this protection.”
In Wilson v. City of Mineral Point, supra, the court said:
“That the threatened injuries which this action was brought to prevent would, if inflicted, be irreparable, in the legal acceptation of that term, and would greatly impair the just enjoyment of the plaintiff’s property, is perfectly well settled. No one will seriously contend that a money compensation is an adequate remedy for the loss of the trees and shrubbery which the complaint avers the defendants threaten to destroy; and it would be a denial of justice were the courts to refuse the plaintiff the protection he asks, and thus permit his home to be permanently despoiled.”
In Natoma Water & Min. Co. v. Clarkin, 14 Cal. 544, 551, the court said:
“In our judgment the right to the preventive remedy was unquestionable. The cutting, destroying, and removing of growing timber on the premises in controversy constituted, without other matter, sufficient ground for the issuance of the writ.”
In United States v. Guglard (C. C.) 79 Fed. 21, 23, the court said:
“Any injury to the inheritance or substance of the estate is irreparable. Growing trees are a part of the land whereon they grow, and their destruction is an injury to the substance of the estate.”
It is admitted that the decision of this court in Northern Pacific R. R. Co. v. Hussey, 61 Fed. 231, 235, 9 C. C. A. 463, based upon the principles announced in Erhardt v. Boaro, 113 U. S. 537, 5 Sup. Ct. 560, 28 L. Ed. 1113, is correct. But it is suggested that these cases and various others to which I have referred are distinguishable from the present case in this: that in each of them the defendant had entered upon the land of complainant and cut down and destroyed the trees, timber, and undergrowth thereon, or threatened to do so, while in the present case appellant has never entered upon *649any part of the land of complainant and cut down or destroyed any tree, or otherwise directly interfered with complainant’s freehold; that the acts of appellant which are complained of were all committed upon its own property. This is correct. But the same facts existed in the Woodruff Case, and in Fisher v. Zumwalt, supra. The acts of the defendants which constituted the nuisances there complained of were committed on their own lands. In one case the water of the river washed the debris from the mine of the defendants over the land of complainant, and thereby destroyed the substance of his estate. In the other case the defendant so conducted his creamery as to allow the whey, milk, and debris to stand in such a way as to become sour and putrid, and it threw off vile and noxious odors and gases, and these odors and stenches polluted the air, and the wind carried the same to the dwelling house of the plaintiff and rendered it unfit for occupation. In the present case appellant erected its works upon its own land, but so conducted its business as to allow its sulphurous and arsenical fumes to be carried over the land of the complainant, which poisoned and destroyed the trees and shrubbery growing thereon; and thereby destroyed the substance of appellee’s estate therein. Appellant cannot relieve itself from responsibility simply because it did not bodily enter upon the land, armed with axes and dynamite, and cut down or blow up the trees and shrubbery growing thereon. The pith, point, and substance of this whole matter is that where the acts of a party, whether individuals or corporations, wealthy or poor, destroy the substance of complainant’s estate, whether it be of great or of but little value, an injunction should be issued. This is the underlying principle, the essence and effect of all the decisions upon the subject which distinguish this character of cases from those where the injury is slight and trivial and the damage not irreparable and not absolutely destructive of complainant’s estate.
Believing that the facts' of this case show the damage to be irreparable, it is unnecessary to count the trees or shrubbery that have already been destroyed. Especially is this true in the light afforded by appellant’s answer that it intends to continue its operations under the present conditions, and if allowed to do so it cannot, in my opinion, be denied that the effect will be to absolutely destroy all the growing trees still alive on complainant’s land, and render the same entirely without any value.
The fact that appellant cannot convert the sulphur fumes from its works into a harmless form with any profit to itself, constitutes no defense to this suit. It clearly appears from the testimony of Thomas Price, a chemist and metallurgical engineer of extended experience and ability, that it is possible for appellant, by the use of mechanical devices which he explains, to render the fumes innocuous without converting them into sulphuric acid — at least “that the conditions could be ameliorated to a very considerable extent.” This explains and justifies the action of the court below in granting appellant thé privilege of applying, at any time hereafter, upon compliance with these conditions, for a modification of the decree.
*650This court has no power, under the laws of California, to declare that appellant can condemn the land of appellee for its individual use by paying “a just compensation” therefor, and this court is not possessed of any authority to compel appellee to sell its lands to appellant; nor has appellant pointed out in what manner the government could, if it wished to accept appellant’s generous offer, dispose of its land for the purpose stated without additional legislation by Congress.