(dissenting in part).
With great respect, I reach a different conclusion, in part:
(1) Liability for Nuisance. Indiana provides a cause of action for nuisance for “Whatever is . offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of life or property.” Burns Indiana Statutes Annotated §§ 2-505 through 2-507.
With respect to defendant’s air pollution, the district court found it sufficient to interfere with the comfortable enjoyment of life and property in the neighborhood. With respect to ground vibrations and noise caused by the defendant’s operations, the court found they were such as to cause physical discomfort to persons of ordinary sensibilities having regard for the conditions in the surrounding neighborhood. Impliedly, at least, in the findings as to property damage, the court found that the ground vibrations caused physical structural injury to many of plaintiffs’ properties.
I am unable to conclude that these findings are clearly erroneous, and they seem a sound predicate for the decision that defendant is liable for nuisance. Davoust v. Mitchell, 146 Ind.App. 536, 257 N.E.2d 332 (1970). This is true even though defendant’s business conforms to the zoning ordinance. Cox v. Schlachter, 147 Ind.App. 530, 262 N.E.2d 550 (1970).
(2) Punitive Damages. The district court wrote: “The defendant’s conscious disregard for the rights of the plaintiffs and intervenors to the free use of their property, and so as to essentially interfere with the comfortable enjoyment of their life and property, is such that the court in its judicial discretion feels compelled to find that punitive damages should be assessed against the defendant and awarded the plaintiffs and intervenors.” I agree with the majority that under the circumstances, including defendant’s efforts to make its operations less destructive and annoying, and defendant’s compliance with zoning requirements, the award of punitive damages was an abuse of discretion.
(3) Compensatory Damages for Injury to Property. The findings of the district court were extensive and carefully prepared. The damages listed as “Actual Damages,” were in many instances a combination of separate allowances for personal annoyance and the like and for injury to property.
With respect to the latter, as I understand the findings, the court found that physical injury to the plaintiffs’ structures had been caused by the vibrations transmitted from defendant’s operations, and, after considering the testimony as to value before the operations began and value at the time of trial, and testimony as to the cost of repair, fixed a damage figure. In many instances, the allowance was substantially less than the cost of repair. The allowance exceeded the estimated cost of repair in only a few instances. I do not understand that these allowances assumed the future continued operation of the shredder as an element depressing the market value of the property and enhancing the allowance. It appears that the court followed a sound method of determining damages for physical injury to property, which would not be alleviated by the abatement of the nuisance. Although the findings of causation are not generally supported by expert testimony, I conclude they represent reasonable inferences from the circumstances and the se*1127quence of events disclosed by the testimony, and I am not able to deem them clearly erroneous. Certain allowances for repair to machinery should likewise be sustained.
In the case of plaintiff Harrison, there may well have been duplication and hence error, since he was allowed both repairs to his building and loss of value of his premises.
It seems also if the dissolution of the injunction now means that the nuisance will continue, plaintiffs will be entitled to at least the damages for injury to property already allowed, and probably more.
(4) Compensatory Damages for Personal Annoyance and the Like. In a number of instances, the district court awarded damages for inconvenience, discomfort, and loss of enjoyment, by allowing $20.00 per day from the commencement of defendant’s operation to the close of the trial. This type of formula might well achieve a reasonable and defensible result, but appears to be inconsistent with a principle of damages followed in Indiana. Davoust, supra. Apparently because the nuisance is deemed, while it continues, to reduce the value of a plaintiff’s use of his property, damages for a nuisance which is abated are measured by the diminution of the rental value of the property during the time the nuisance existed. As to this element of damages, I agree that there is no evidence of diminution in rental value to sustain the $20.00 per day figure for those to whom it was allowed.
(5) Injunction. In this connection the district court said:
“Short of dispossessing the plaintiffs and intervenors of their properties by the defendant’s buying them out, the hurt worked upon them is of such a continuous and frequent recurrence that no reasonable redress can be had at law. So far as this Court knows, American Jurisprudence has not reached the point where the plaintiffs and intervenors can be forced to sell and vacate their properties against their will. For these reasons the Court finds that the plaintiffs and intervenors should be granted the injunctive relief they seek. And in this respect the Court has carefully weighed the comparative injury the plaintiffs and intervenors will suffer on the one hand, and the defendant on the other, in granting or withholding injunctive relief. Here the defendant is not engaged in the development of any natural resources such as the mining of coal or the quarrying of stone. It is engaged in a business that may be carried on elsewhere less injuriously to the rights of others.”
I find it difficult to fault the district court’s consideration of the matter or its conclusion. I would, however, because of the policy considerations noted by the majority, conclude that the injunction should be modified so as to permit further operation of defendant’s facility, subject to appropriate conditions and judicial supervision, to the end that it might be determined at what level, if any, the facility could be operated without unreasonable interference with the comfortable enjoyment of claimants’ property, or could reasonably be operated upon payment of compensation to claimants for the continuing burden.