east is another four-story brick building, and he avers that the defendants, being in possession thereof, have set up therein a steam-engine and boiler, and put in other machinery and fixtures, and fitted the same up as a steam flouring mill, and are running, and threaten to continue to run, the said mill with the power of said steam engine and boiler, and to use the said building with the machinery therein as such mill. He further avers that the use of such building, as a mill, causes great injury, inconvenience and damage to complainant in the occupation and use of his said building, and endangers the safety of the building itself; that the motion of the machinery, in running said mill, shakes complainant's building, weakening the walls thereof and permanently damaging the same, and creates a rumbling noise and a trembling motion, that causes the doors, windows, crockery and any other fixtures or articles that are loose in complainant's dwelling-house to rattle continuously; that the fires of said boiler and steam engine generate large quantities of soot and cinders, which are thrown out therefrom on the roof of complainant's said dwelling-house, and that the steam is thrown out from said boiler and engine, through the exhaust pipes, and condenses and falls thereon, keeping the same, and the air above it, foul and damp, and that flour collects about said mill, from the use thereof, and turns musty and sour, and poisons the air in, and about, complainant's said building. By means whereof complainant alleges that his dwelling-house is rendered uncomfortable, unhealthy, noisy and unfit for occupation, and complainant is deprived of the use of the roof thereof for the ordinary purposes of drying clothes thereon, and is hindered and prevented from renting his store and deriving gain and profit therefrom. Wherefore he prays a perpetual injunction to restrain the defendants from using their said building for such steam flouringmill, and from using or running said steam-engine, boiler and machinery therein.

Ward & Palmer, for complainant.

C. J. Reilly and Moore & Griffin, for defendants.

COOLEY, C. J. [after stating the case as above]. The case was heard in the Court below on pleadings and proofs, and although there is some conflict in the evidence, there does not appear to be any serious difficulty in arriving at a satisfactory conclusion regarding the leading facts. The buildings mentioned as occupied by the parties respectively, are situated upon one of the main business streets of the city of Detroit. . . . There can be no question that the mill causes annoyance to complainant and his family, and renders the occupation of his building, as a residence, less desirable. But we are not satisfied by the evidence that there has been any want of due care, or any wilful disregard of the rights of their neighbors, in the manner in which the defendants have carried on their business, and there is strong showing that the mill was carefully constructed with a view to avoiding, so far as should be practicable, any annoyance or injury to others.

This, we think, is a fair statement of the case; and the question which it presents is, whether the complainant, in consequence of the annoyance which the business of the defendants causes him, is entitled to have that business enjoined. . . . The right to have such a business restrained is not absolute and unlimited, but is, and must be in the nature of things, subject to reasonable limitations which have regard to the rights of others not less than to the general public welfare. . . . In a crowded city some annoyance to others is inseparable from almost any employment, and while the proximity of the stables of the dealers in horses, or of the shops of workers in iron or tin, seems an intolerable nuisance to one, another is annoyed and incommoded, though in less degree, by the bundles and boxes of the dealer in dry goods, and the noise and jar of the wagons which deliver and remove them. Indeed, every kind of business is generally regarded as undesirable in the parts of the city occupied most exclusively by dwellings, and the establishment of the most cleanly and quiet warehouse might, in some neighborhood, give serious offence and cause great annoyance to the inhabitants.

The question, therefore, in the case at bar must be, whether there is anything in the nature of the case which renders it unreasonable, in view of the relative rights, interests and wishes of both parties and the general welfare of the people, that defendants should continue upon their premises the business they are now engaged in, or whether, on the other hand, the resulting annoyance to the complainant must be regarded as one which is incident to the lawful enjoyment of property by another, and which, consequently, can form no basis for legal redress. And in considering this question, the fact is to be kept in view that the business of the defendants is one which is lawful in itself and necessary to the community, and which the public good requires shall be carried on by some persons in some locality. The question is, whether it be proper and right that it be carried on in the particular locality where it is now established. . . . In the case before us we find that the defendants are carrying on a business not calculated to be specially annoying, except to the occupants of dwellings. They chose for its establishment a locality where all the buildings had been constructed for purposes other than for residence. Families, to some extent, occupied these buildings, but their occupation was secondary to the main object of their construction, and we must suppose that it was generally for reasons which precluded the choice of a more desirable neighborhood. The number of these families, moreover, was decreasing, and in view of the size of the block, was really insignificant at the time this machinery was put in. . . . We cannot shut our eyes to the obvious truth that if the running of this mill can be enjoined, almost any manufactory in any of our cities can be enjoined upon similar reasons. Some resident must be incommoded or annoyed by almost any of them. In the heaviest business quarters and among the most offensive trades of every

city, will be found persons, who, from motives of convenience, economy or necessity, have taken up there their abode; but in the administration of equitable police, the greater and more general interests must be regarded rather than the inferior and special. The welfare of the community cannot be otherwise subserved and its necessities provided for. . . .

On the whole case we are of opinion that the complainant, having taken up his residence in a portion of the city mainly appropriated to business purposes, cannot complain of the establishment of any new business near him, provided such new business is not in itself objectionable as compared with those already established, and is carried on in a proper manner. . . . And the decree dismissing the bill must, therefore, be affirmed with costs. . .

The other Justices concurred.

801. ROBINSON v. BAUGH

SUPREME COURT OF MICHIGAN. 1875

31 Mich. 290

APPEAL in Chancery from Superior Court of Detroit. The complainants, nineteen in number, being separate owners and occupants of valuable residences in a small specified district in Detroit, substantially used for dwellings, have united in a complaint against the defendant, in which they maintain that he uses certain premises he occupies, not far off on Woodbridge Street, in such manner as to be & nuisance, and specially and greatly injurious to them in property, comfort and health. His business is that of forging, which he conducts in low, wood buildings, and on a large scale. He employs steam and consumes a large amount of bituminous coal. He works four steam hammers, one of which weighs thirty-five hundred pounds. The smoke and soot from his works are often borne by the wind in large amounts to the premises of complainants, and sometimes enter their dwellings by the chimneys and the slight cracks by the doors and windows, in such measure as to be extremely offensive and harmful, and the noise from his steam hammers is frequently so great at complainants' places as to be disagreeable and personally hurtful, whilst the jar produced by the largest greatly annoys complainants and their families, and seriously disturbs the sick, and in some cases causes substantial damage to dwellings. The complainants pray that defendant may be enjoined from carrying on his works in a way thus wrongful and injurious. Upon answer and proofs, the Court below made a decree in accordance with the prayer of the bill, and the defendant appealed. Walker & Kent, for complainants.

Gartner & Burton and Alfred Russell, for defendant.

GRAVES, C. J. . . . [after stating the case as above]. We notice

that as a further ground of defence, the answer specifies several establishments in the vicinity which are claimed to be as detrimental in their operations as that of defendant. But this, if true, cannot aid him. If others in the same neighborhood are maintaining nuisances, and even nuisances of similar character, it is no reason for refusing to stop one maintained by him, or, what is the same thing, for allowing him to continue his nuisance because other independent parties are doing wrong in the same way. . . .

Coming to the main controversy, considering the locality, character and value of defendant's works, and the way they are used, and considering the locality, value and character of complainants' dwellings, and the effect produced by defendant's operations, does the proof clearly establish the charge made by complainants? We think it does.

...

The subject cannot be safely dealt with by resorting to subtile refinements and nice theories. Extreme claims must give way, and men must yield somewhat in a spirit of accommodation and concession, and measurably recognize and respect the actual exigencies of time, place and circumstances. One living in the country must accept country life, and one living in a city must accept city life. . . . A resident of a trading or manufacturing neighborhood must submit to such ordinary personal annoyances as are fairly incidental to such legitimate trading and manufacturing as is there carried on in a reasonable way. But the requirement to bear thus much, may not be extended to extraordinary personal hurts or discomforts caused by means which, beyond "fair controversy, ought to be regarded as exceptive and unreasonable," and it cannot "apply to circumstances the immediate result of which is sensible injury to the value of the property." It is not appropriate to say that the injurious work is fitly and rightly located, and that the business is lawful in itself, when the ground of complaint is, that it causes a real and serious direct injury to the property of another. However lawful the business may be in itself, and however suitable in the abstract the location may be, they cannot avail to authorize the conductor of the business to continue it in a way which directly, palpably and substantially damages the property of others.

In the present case, the proof is clear that the defendant's works are so situated and conducted as to cause wrong and injury in regard to both person and property, and to an extent which justifies the complainants in objecting as they do.

...

The case of Gilbert v. Showerman [supra, No. 800] is, however, cited as authority against the decree made by the Court below. But the governing facts there were entirely different. The complainant's residence was situated in the very heart of a quarter substantially, and, indeed, almost wholly abandoned as a spot for living, and devoted to diverse trades and noisy occupations. . . . Here the circumstances are wholly different. ... The complainants' dwellings are in a part of

the city appropriated almost wholly to residences, and the place is among the most suitable and desirable for the purpose. The buildings are generally costly and substantial, and some of them have grounds expensively improved. The total value is very large, and in comparison with it the value of defendant's establishment proper is a mere trifle. The case of Gilbert v. Showerman cannnot apply.

COOLEY and CAMPBELL, JJ., concurred. CHRISTIANCY, J., did not sit in this case.

802. PEOPLE v. DETROIT WHITE LEAD WORKS

SUPREME COURT OF MICHIGAN. 1890.

82 Mich. 471

CERTIORARI to the recorder's court of Detroit to review proceedings resulting in the conviction of respondents for maintaining a nuisance contrary to the provisions of a city ordinance. SWIFT, J. Argued May 18, 1888, and reargued June 26, 1890. Decided October 10, 1890. Judgment affirmed. The facts are stated in the opinion.

This case was brought to this Court by writ of certiorari from the recorder's court of the city of Detroit. The defendants were convicted sis unlawfully and wilfully creating and maintaining a nuisance, connating of the creation and emission of unwholesome, offensive, and of useating odors, smells, vapors, and smoke, to the great damage and common nuisance of all people living in the neighborhood thereof, and of all people passing and repassing on the streets and alleys adjacent thereto, contrary to an ordinance of the city in such case made and provided, being section 5, chap. 55, Rev. Ord. 1884. The ordinance in question is set forth in the return of the judge to the writ. The defendant, the Detroit White Lead Works, is a corporation organized under the laws of the State. . . . The trial Court filed a written opinion and finding, of which the material part is as follows: . . . "The part of the city wherein the corporation is carried on is principally occupied by dwelling houses, and many residents in the vicinity of the lead works, during the time mentioned in the complaint, have been constantly annoyed by odors, smoke, and soot which came from the lead works and entered their houses, and produced headache, nausea, vomiting, and other pains and aches injurious to health. In warm weather, to keep out the smoke and soot, they were compelled, to their great discomfort, to close their doors and windows. The smoke and soot settled on their furniture, and on their clothing which had been washed and hung out to dry, and which they were obliged to wash again, and in some instances tainted their food."

Edwin F. Conely, for respondents.

Henry M. Cheever, Charles W. Casgrain, Charles S. McDonald, and John W. McGrath, for the people.