(concurring in part and dissenting in part). We are late with determination of these cases. The interim concern voiced in Township of Bloomfield v. Beardslee, 349 Mich 296, 310, and the far-reaching effect of zoning doctrines the appellee township presses upon us, have forced continuance of our deliberations from conference to conference through 1957 and on into 1958. It is now time to cut through the maze of conflicting and gypsum-dusty contentions, and the perplexing uncertainties of proof and counterproof having to do with corporate prediction and municipal alarm, to what is known among brief writers as the jugular of the case. That I shall treat in division “Second” hereof.
First: As to the Laiv Case.
Much has been written in these cases, in the court below as well as here, mostly of necessity considering what is above and what is below the surface of Paris township and the warring uses that are proffered for judicial choice. In these circumstances my own observations with respect to the scrutinized ordinance are due for sharp abridgment.
As an ordinance enacted pursuant to our township rural zoning act projects its regulatory tentacles toward nether regions, the proponent side of the “debatable question” is progressively weakened and the contestant voice is correspondingly strengthened. This I think was made clear by the *467warning rule of City of North Muskegon v. Miller, 249 Mich 52, 57.* To sustain the ordinance in such case there must be some dire need which, if denied the ordained protection, will result in “very serious consequences.” So, and if the ordinance in its proposed application to mining fails to meet the test quoted in the footnote, the result must be a judicial determination of constitutional unreasonableness.
On these premises I agree that the ordinance in question does not, by itself, validly prohibit the necessarily combined mining and manufacturing project plaintiffs would have us approve. My conviction in such regard stems principally from the evidence, photographic and otherwise, showing that present use of this area of Paris township is devoted in approximate entirety to scattered light industry and agriculture and that plaintiffs’ planned operations will cause no serious consequences if— and the “if” is a big one — those operations are carried on consistent with confident asséverations that are made here. I turn now to the latter.
Second: As to the Chancery Case.
Mr. Justice Edwards would direct entry of a declaratory decree authorizing plaintiffs to proceed with the mining and manufacturing of gypsum, beneath and on the surface as sought by them, subject to decretal provisions outlined in the conclusion of his epinion. Holding as I do that the case is not ready for declaratory relief at this time, I cannot join. Here we have no mere zoning case. Its impact without doubt will be felt for years to come in great areas of Michigan where zoning is as yet unknown. "We are confronted actually with a bill to obtain *468advance approval of that which may or may not, depending upon the future and the effectiveness of equity’s process, become an enjoin able public nuisance. Standing as this case does on the edge of great and yet not fully explored vistas of equity jurisdiction to control and suppress threats upon man’s right of comfortable habitation, we must proceed with the greatest caution, utilizing “the inestimably valuable flexibility and capacity for growth and adaption to newly emerging problems which the principles of equity have supplied in our legal system.” (Frank, J., in Bereslavsky v. Caffey [CCA], 161 F2d 499, 500.) So, the mentioned ordinance having been eliminated as a decisive factor,* it seems to me that attention should now be concentrated on the real issue of the case; an issue not as yet framed below (there is no cross bill or appeal for equitable protection other than on strength of the ordinance) or fully tried to the chancellor. That issue is the nature and scope of protective relief to which the inhabitants of Paris township are-entitled, in’this declaratory proceeding, as against the feared threat upon their rights. Such rights were defined generally in Edwards v. Allouez Mining Co., 38 Mich 46, 50, 51 (31 Am Rep 301), per Cooley, J., as follows:
“What is the irreparable injury which is done or threatened in this case? We can see very plainly what it is in the case of many nuisances, and the-equity of this particular remedy is then very manifest. If one man creates intolerable smells near his neighbor’s homestead, or by excavations threat*469ens to undermine Ms house, or cuts off his access to the street by buildings or ditches, or in any other way destroys the comfortable, peaceful and quiet occupation of his homestead, he injures him irrevocably. No man holds the comfort of his home for sale, and no man is willing to accept in lieu of it an award of damages. If equity could not enjoin such a nuisance the writ ought to be dispensed, with altogether, and the doctrine of irreparable mischief might be dismissed as meaningless.”
This declaratory proceeding fairly calls for warning, conveyed by way of remand with directions, that plaintiffs may proceed solely at their own risk and under the steady judicial surveillance of interim orders and decrees. Otherwise, considering known strength of the fait accompli and the 9-point rule of possession, we of the chancellery are apt to generate additional trouble here as well as in Paris township. Once the enormous expenditures, contemplated by plaintiffs have been made, and once the mining and manufacturing operation contemplated by their bill is under way without prior safeguards, equity is likely to experience that difficulty her chancellors invariably face when the given operation is a going fact and the natural cry is raised that those who seek injunctive process against nuisance — if any — are out to destroy industry, production, jobs and wages. This we can avoid in this exceptional case. I think for the good of all we should fully utilize its special advantage; that we should firmly provide that the chancellor fix all stakes and odds before bets are made.
Here, in circumstances of promissory testimony and grim controversy, this Court is asked to approve, beforehand, that which all readers of this 900-page record must recognize as being an out-and-out experiment. The question is: Which of the respective contending parties should assume the risk of failure. *470should any failure take place? We do not expect failure, yet we should provide now for that unhappy event should it occur. Let me summarize the principal promises it is' said we should accept now in lieu of supervised and ultimately proven performance:
A. It is said that plaintiffs’ blasting operations, to be carried on underground in furtherance of gypsum mining as proposed, can and will be conducted by means of what is known as the millisecond method of “shooting,” the feature of which is that of setting off a number of small distinguished from heavy charges, separated by “delays.” According to plaintiffs’ ex-pert witnesses “millisecond shooting” reduces substantially the shock which is ordinarily felt at the surface in nearby areas.
B. Plaintiffs’ experts say that by a new method of dust control — known as elootrostatie precipitation, —99% of the gypsum dust created by the intended operations will be retained on the actual premises of process* and that no dust nuisance will result.
C. As to the fear of township authorities that the intended mining operation will cause serious if not disastrous subsidence of land surfaces in the vicinity thereof, plaintiffs represent with considerable vigor that modern methods of mining, which they are willing to pursue, will provide due guarantee against any such danger.
The foregoing are salient concerns to which supplemental pleadings and additional testimony (as needed) should be devoted on remand for rightful declaratory determination. That the residents of Paris township are entitled to the vigilant protee*471tion of equity in above regard is apparent. That plaintiffs should be told now that theirs is the risk, theirs the continuing burden of making good the representations of their expert witnesses, becomes a matter of judicial duty. In fact, and prior to commencement of the project as sought in their bill, I would have the chancellor admonish these plaintiffs much as was done a half century ago in the historic and ultimately prosperous Ducktown Cases: Go ahead with the promised remedial processes, yet be ready to suffer, should your remedies fail, injunctive cessation of that which we reserve the right to find has become or remains an enjoinable nuisance.
• The Ducktown litigation started with Madison v. Ducktown Sulphur, Copper & Iron Co., 113 Tenn 331 (83 SW 658). It went on to successive decrees of the supreme court as shown in Georgia v. Tennessee Copper Co., 206 US 230 (27 S Ct 618, 51 L ed 1038, 11 Ann Cas 488); 237 US 474 (35 S Ct 631, 59 L ed 1054); 237 US 678 (35 S Ct 752, 59 L ed 1173); 240 US 650 (36 S Ct 465, 60 L ed 846). The steady pressure of judicial inspection and supervision by successive decrees finally resulted in that which originally was thought unattainable; the mutually satisfactory elimination of airborne fumes rising from the smelteries of copper mining which fumes, theretofore, had ravaged crops and vegetation in the limited area where Georgia, Tennessee and North Carolina meet together.*
Summary
The critical problem in this case arises because of our inability to peer into the future, and to predict the effect of what are asserted to be new and improved methods of dust, blast and subsidence con*472trol. Here is the background of the writer’s present caution:
Not far from this area of Paris township there is .another mine and plant operated by plaintiffs for the same purposes. There is no doubt that such operation has resulted in a blighted area. With this vivid and daily reminder of what can be seen and felt, the defendants vigorously oppose similar operations. The plaintiffs, however, reply that this time things will be different; dust will be eliminated, blasting will be properly controlled, and there will he no subsidence of land. Yet the chancellor remained unconvinced and the effect of his action was to restrain any start of the project, on condition or otherwise.
Are the plaintiffs right? Considering their asserted willingness to lend every effort to the elimination of that which is assertedly threatened by such operations (and certainly experienced nearby), is elimination feasible as a practical matter? The judicial answer should, I think, be postponed until performance distinguished from promise is proven to the chancellor’s satisfaction.
The first case brought here, known below as law action No. 43,556, should be reversed with remand for entry of judgment in favor of plaintiffs and against defendants. The second case brought here, known below as chancery case No. 57,706, should be remanded for the framing and hearing of declaratory issues having to do with defendants’ right to equitable supervision and control of this mining and manufacturing project so that performance of plaintiffs’ representations is fairly assured; for the taking of such additional testimony as may to the chancellor appear requisite to such continuing supervision ; for utilization at expense of plaintiffs of the •services as needed of a circuit court commissioner and' other arms of court, and for the entry of such *473interlocutory decrees pending final determination of the case as may be indicated in the court below;
The-declaratory decree, as entered, should be reversed with remand for further proceedings, all in pursuance of the practice shown in Georgia v. Tennessee Copper Co., supra; and in Arizona Copper Company, Limited, v. Gillespie, 230 US 46 (33 S Ct 1004, 57 L ed 1384); and Swetland v. Curtiss Airports Corp. (CCA), 41 F2d 929.* No costs should be allowed. .
Dethmers, C. J., and Smith, and Voelker, JJ., concurred with Black, J. Kavanagh, J., took no part in the decision of this case.“The courts have particularly stressed the importance of not destroying or withholding the right to secure oil, gravel, or mineral from one’s property, through zoning ordinances, unless some very serious consequences will follow therefrom. (Village of Terrace Park v. Errett [CCA], 12 F2d 240).”
Solely in respect to our determination that the ordinance does not of itself prohibit mining- and manufacturing of gypsum as sought by plaintiffs’ first application to the township board. Plaintiffs’’ right to reapply, in the light of such determination, for the desired 750-foot extension of the industrial zone, and the right of local authority to hear and grant or deny such new application, should remain intact.
That indeed may not he enough, as Judge Searl pointed out in his thorough and painstaking opinion. Even so, it furnishes evidence that plaintiffs are ready to guarantee, as they should, that no gypsum dust will settle on Mrs. Jones’ piano, in the present and prospective residential portions of Paris township, as a result of their intended operations.
Eor a description of the tribulations and final satisfactory outcome of this Ducktown litigation, see chapter 6 of David E. Lilienthal’s “TVA — Democracy On The Mareh” (Harper & Brothers, 1944).
See 66 CJS, Nuisances, § 132, p 936, “Allowing case to stand without final decree; reserving right to renew.”