Aufderheide v. Polar Wave Ice & Fuel Co.

4 S.W.2d 776, 319 Mo. 337, 1928 Mo. LEXIS 518

• Court: Supreme Court of Missouri
• Decided: March 17, 1928
• Status: Published

Opinions

This is a suit in equity, wherein plaintiffs (respondents) seek to perpetually enjoin an alleged potential, prospective, or anticipated, nuisance. The plaintiffs are four in number, and own, and reside in or upon, certain residential properties on Penrose Street and Obear Avenue, facing, or fronting upon, City Block No. 2485 in the city of St. Louis, which city block is bounded on the east by Grand Avenue, on the south by Penrose Street, on the west by Obear Avenue, and on the north by Carter Avenue. It is alleged in the bill, or petition, that "these plaintiffs (four in number) bring this suit not only in their own behalf, but at the request and on behalf of thirty-seven other residents and property owners in said neighborhood, too numerous to be joined as plaintiffs herein, who are threatened with similar irreparable injury and damage, and have the same causes of complaint as plaintiffs herein." One of the plaintiffs testified that the four plaintiffs of record had brought the suit on behalf of a syndicate of individual property owners in the neighborhood, some forty-two or forty-three in number. The defendant (appellant) is a corporation engaged in the business of manufacturing and distributing ice in wholesale and retail quantities.

The petition does not allege the present existence of a nuisance or seek to abate such an existing nuisance, but, on the other hand, seeks to perpetually enjoin the defendant from commencing or completing the erection, construction and operation of a plant and building upon defendant's real property located in the southwest corner of said City Block No. 2485, being the northeast corner of Obear Avenue and Penrose Street. The petition alleges, in substance, as grounds for the purely equitable relief sought, that defendant has acquired a lot of ground on the southwest corner of said City Block No. 2485, "not more than sixty feet distant from said residences of these plaintiffs, and is now proceeding to erect and construct thereon a large brick building to be used by it for the purpose of manufacturing, storing and selling ice therein and therefrom; . . . that defendant intends to use the remainder of said lot for the erection of stables, garages, wood sheds and coal bins, to house its motor trucks, ice and coal wagons, mules and horses, to be used in said business, and for the storage therein of wood and coal, to be bought and sold by it;" that the successful manufacture of ice in said plant "will necessarily require its operation during all hours of the night and defendant intends to so operate the same; that the sale of ice therefrom cannot be successfully carried on except in the late hours of the night and the early hours of the morning, and the defendant intends to so conduct said business; that the maintenance and operation of said plant will daily, and especially during the late hours of the night and early hours of the morning, bring to and around said premises, and into said neighborhood, large numbers of noisy motor trucks and animal-drawn wagons, and large numbers of boisterous and noisy ice and fuel vendors, peddlers, teamsters and chauffeurs, by reason of which there will be created in and around said premises, during said hours, loud and disturbing noises and disorder, and loud, profane and vulgar language, which will be heard throughout said neighborhood; that in the manufacture of ice in said plant, large quantities of ammonia will necessarily be used, from which fumes and vapors will escape into the air and diffuse themselves through the neighborhood, greatly injuring and destroying the vegetation growing upon the premises of plaintiffs and along the sidewalks of said neighborhood;" that the process of manufacture of ice which defendant has planned and intends to use in said plant contemplates the construction of a cooling system on or near the top of said building, and from thirty-five to fifty feet above the street, which will consist of "a large number of coils of iron pipe two or three inches in diameter, the length and number of which are unknown to plaintiffs, over which a constant flow of water will be maintained day and night that will fall through the open air, some ten or twenty feet, to a receptacle beneath; that said cooling system will be so constructed as to be exposed to the wind from at least three cardinal points of the compass, and as said water flows over said coils and breaks into small particles, a slight wind will cause it to form into mists and to be carried from said plant onto the premises of the plaintiffs, injuring their property and impairing their use and enjoyment thereof; that, in making ice in the manner planned by defendant, a large number of metal containers of varying sizes will be used, in which water will be frozen, and which must be emptied every night in order to remove the ice therefrom, and, in handling said metal containers, in the early hours of the morning, it will be impossible to do so without making great and loud noises, which will be heard throughout the neighborhood; that the maintenance of horses and mules on said premises, necessary in conducting said business, will necessarily produce large quantities of manure and refuse matter, drawing flies and emitting unhealthful and annoying odors in said neighborhood; that the loading and unloading of large quantities of coal, fire wood and kindling on said premises and the bringing thereto of large numbers of motor trucks, ice and coal wagons will create on and around said premises large quantities of dirt, dust and gasoline fumes, which will be scattered over the neighborhood and into the houses and on the premises of these plaintiffs; that heavy machinery is intended to and will be necessary, in manufacturing ice in said plant, and the operation of said machinery will be constant throughout the day and night, and will, by reason thereof, make continuous and disturbing noises during the usual hours of rest;" that the erection, maintenance and operation of said plant, as aforesaid, will, in law and fact, constitute a nuisance to plaintiffs, their families and other adjacent property owners and residents, in that "(a) the character of the structure and plant, and the nature of the business carried on therein and thereat, in a residential neighborhood, as alleged herein, will greatly and unreasonably destroy and depreciate the market value of the property of these plaintiffs; (b) the noises, odors, mists, dust and dirt, emanating from the operation of said plant and created thereby, as aforesaid, will be so great as to unusually disturb the comfort and quietude of plaintiffs and the members of their households, and to render their homes uninhabitable with any reasonable degree of comfort and peace, and will so greatly disturb the sleep and rest of the plaintiffs, and the members of their households, as to force them to abandon their homes, or become ill and sick therefrom, thereby inflicting upon plaintiffs and their property great and irreparable injury and damage." The answer of defendant is a general denial.

Evidence was adduced by the respective parties as to the uses and character of the City Block No. 2485 and the surrounding, or contiguous, territory and neighborhood. The dimensions of the city block are approximately 513 feet from north to south and approximately 315 feet from east to west. As hereinbefore stated, the block is bounded on the east by Grand Avenue, on the south by Penrose Street, on the west by Obear Avenue, and on the north by Carter Avenue. The north 150 feet, approximately, of the block is owned by a planing mill company, upon which has been operated, for twenty-five years or longer, a large planing mill, with a lumber yard, abutting on the south side of Carter Avenue. The planing mill and lumber yard were located and operated prior to the times plaintiffs acquired their respective residential properties. The south 363 feet of the block is owned by the defendant. Prior to defendant's ownership of the south part of the block, that portion of the block had been used and occupied by an airdome, or outdoor moving picture theatre. The south part of the block, abutting on the north side of Penrose Street, was originally a deep hole or hollow, thirty feet in depth, but had been used as a public "dump" and was gradually filled in with cans, ashes and other debris. The northeast corner of Grand and Carter avenues, diagonally across the intersection from the lumber yard, is an abandoned quarry, which has long been used as a public "dump" and has likewise been filled in with dumpings and debris. A gasoline and oil station appears now to occupy a portion of this corner. The southwest corner of Obear and Carter avenues is occupied by a furnace and tin shop, the front end of the ground floor being used as a display room, and the rear end being used as an assembling plant, with residential or living quarters on the second floor. On the southwest corner of Obear Avenue and Penrose Street (diagonally across the intersection from defendant's plant site) is a building formerly occupied by a saloon, but now used, perforce of the Volstead law, as a "soft drink parlor." At the southeast corner of Obear Avenue and Penrose Street, immediately across Penrose Street from defendant's plant site, the plaintiff Aufderheide maintains, and has so used and maintained for many years, a material yard, which he described in his testimony thus: "I have a lot 59 by 103, which they call a junk yard, which is a material yard. I take contracts to alter buildings and get material what we cannot use and put in new material and take the old building material to this yard, and at times use in different yards, and sometimes they lay there for a while and dirt accumulates on it, but they are not decayed, but they are serviceable lumber and things to use, and I pay taxes for that thing and Iam entitled to use it as a lumber yard or anything I prefer; not lumber yard, but contract material yard." In the block immediately south of Aufderheide's material yard, on the east side of Obear Avenue, extending the length of the block between Lee and Kossuth avenues, is a large open car barn, used by the street railway company as a storage lot for street cars. Approximately two or three blocks south of defendant's plant site is a public city park, known as Fair Ground Park. With the exception of the furnace and tin shop aforementioned, the lots abutting on the west side of Obear Avenue, between Carter Avenue and Penrose Street, are either vacant and unimproved or used for residential purposes. The property of plaintiff Aufderheide occupies approximately the west half of the block on the south side of Penrose Street, between Obear and Grand avenues, and, except the material yard aforementioned, is improved with three two-story brick flat buildings, with a one-story frame garage building extending between two of the flat buildings. It is fair to plaintiffs to say that photographs of their respective residential properties in evidence indicate that their properties are modest, but nevertheless substantial and attractive, residential properties. The evidence tends to show that the properties from two to several blocks distant from City Block No. 2485 are vacant lots or are occupied by small stores, single family residences, flats and apartments, but that such properties are predominantly residential in their uses. There is no evidence that City Block 2485, or any part thereof, has ever been used for residential purposes, or for any use or purpose other than commercial or industrial. Neither is there any evidence in the record that City Block No. 2485, or any of the contiguous and surrounding tracts of land, have been restricted, by the acts of present or prior owners, as to use or occupancy; in other words, there is no evidence herein that any of the properties aforementioned are burdened with restrictive covenants, running with the land, as to use or occupancy. Penrose Street is approximately fifty feet wide and Obear Avenue is approximately sixty feet wide. So much for the locus in quo.

Necessarily, since plaintiffs were seeking to prove and establish that an ice plant not yet in existence will be a nuisance at some future time, their evidence consisted largely of testimony of witnesses respecting conditions (similar to those conditions which it is alleged in the petition will follow or result from the erection and operation of defendant's plant) incident to, and attendant upon, the operation of other existing ice plants in the city of St. Louis. Defendant offered the testimony of witnesses to the contrary. Suffice it to say that there was much testimony, pro and con, respecting conditions attendant upon, and incident to, the operation of existing ice plants, and whether their operation constituted, or did not constitute, a nuisance. Such testimony, in our judgment, after a careful study and analysis of a rather voluminous printed record, was evenly balanced and preponderated in favor of neither of the opposite parties to this action. Some of the existing plants, referred to in such testimony, are owned and operated by defendant, while others are owned and operated by parties foreign to this action. The method of operation of the existing plants seems to have varied widely, that is, some of the existing plants are operated by steam power and the use of coal and smoke-producing fuels, while others are operated by electrical power and from electrical current obtained from public utilities, separate and apart from the ice plants. Likewise, the ice-making machinery and appliances in use in existing plants are widely different, and (so far as the record discloses) none of the existing plants is equipped with the modern machinery and appliances which defendant purposes to install and use, in the manufacture and distribution of ice, in the plant in controversy in the instant action.

Defendant's evidence tended to show that it purposes to erect, upon its land in the south part of City Block No. 2485, a modern brick and concrete ice-manufacturing plant equipped with the latest and most improved ice-making machinery and equipment. The plans for such plant were put in evidence and explained in detail by defendant's architect, who was called as a witness by plaintiffs. The nature and operation of the modern machinery and equipment purposed to be used in said plant, and contracted for by defendant, were likewise explained in detail by an officer and representative of the machinery and equipment company. It appears from the record that the contemplated building is to be erected (and has, since the trial of this action, apparently been erected and put into operation) in the southwest corner of defendant's tract of land. The building is to be, and apparently has been, erected to the lot lines, or inner sidewalk edges, of Penrose Street and Obear Avenue. The building extends east 122 feet on Penrose Street and north 210 feet on Obear Avenue. The extreme height of the building is thirty-nine feet above the street grades. The rear or north part of the building, occupying more than one-half of the floor area of the building, is to be used for the storage of ice. It has a capacity of 10,000 tons of ice. On the front of the building, or Penrose Street side, are an engine room, a brine-tank room, and a shipping room for delivery of ice, extending east on Penrose Street in the order named from Obear Avenue. East of and adjoining the shipping room is a loading dock or platform, with a private entrance or roadway leading thereto from Penrose Street for the accommodation of delivery vehicles. The private entrance for vehicles is on Penrose Street, approximately 151 feet east of Obear Avenue, about midway between Obear and Grand avenues. The loading platform, roadway and entrance thereto are wholly on defendant's property and, according to the plans in evidence, are fenced off from Penrose Street by a solid brick wall, approximately twenty feet high, with the exception of a gateway or entry from Penrose Street into the private roadway. It is purposed to pave the private roadway with granite paving blocks laid on a cement and sand cushion, and then grouted with asphalt, as a cushion and sound deadener, in order to effect a noiseless pavement. The plans in evidence indicate that the exterior of the building bears an attractive architectural appearance, or at least as attractive an appearance as a manufacturing plant may bear.

In order the better to comprehend and understand the machinery and equipment contemplated to be used in the defendant's plant, and its operation in the manufacture and distribution of ice, it may be well to explain briefly the process of freezing ice to be used in the plant in controversy. Ammonia is used in the freezing process, and enters upon the freezing process in the form of a gas. The gas is subjected to pressure in a machine called a "compressor," which is used to heat the ammonia gas. The gas comes out of the compressor at a relatively high temperature and passes into another machine, called a "condenser," where it is cooled and liquefied. The condensers generally used in ice plants are of two types, viz., the open, or atmospheric, type, and the closed type. The open type of condenser is usually placed on the roof of the plant and water is pumped to the roof and allowed to run over a series of parallel pipes, constituting the condenser. The closed type of condenser is of two kinds, the tube-and-shell and the two-pipe system. The tube-and-shell type is the one purposed to be used in defendant's plant. It is not located upon the roof of the plant, as in the use of the open, or atmospheric, type of condenser, but is located inside the engine-room on the ground floor of defendant's plant. No water flows or falls over the outside of the condenser, but the pipes are contained within a solid steel shell and the water runs through the pipes and thereby cools the ammonia gas, which is confined within the solid steel shell. In the process of cooling the heated ammonia gas in the condenser, the water used for such purpose becomes warm and must be recooled. This is done by means of a cooling system, which is to be located upon the roof of defendant's plant. The cooling of the water is effected by means of revolving nozzles, or devises, which, by centrifugal force, spray the water horizontally into the air, from whence it falls into a spray pond beneath, and thence is conducted again to the condenser, where the process of liquefying the ammonia gas is repeated. After the heated ammonia gas is cooled and liquefied in the condenser, the liquid ammonia is conducted by means of pipes into and through the brine tank, where it absorbs the heat and thereby cools the brine in the tank, resulting in the freezing of the water which is enclosed in tanks submerged in the brine. The water is placed in closed tanks or receptacles, approximately 10× 20× 44 inches in dimensions, which are immersed or submerged in the brine tank. The freezing process requires about 36 to 48 hours, when the water in the tanks is frozen into 300 pound blocks of ice. The tanks or cans are then lifted from the brine tank by means of an overhead automatic crane or hoist, dipped in a tank of warm water to loosen the ice from the can, and then the cans, by means of a mechanical devise, are slowly turned upon a tipping table, allowing the ice to slip from the cans onto an incline and thence into the shipping room or into the storage room. The machinery above described may be operated by steam or electricity. The testimony tends to show that the modern ice plants are electrically operated, and the plant in question is to be so operated, according to defendant's testimony.

Defendant's evidence tends to show that the roof of the Penrose Street side of the plant in controversy is twenty-five feet above the street; that the spraying nozzles, constituting the cooling system above described, stand forty-two inches higher than the roof; that the water is thrown horizontally from the rotating spraying nozzles and rises only two or three inches above the height of the nozzles; that the roof is enclosed on the four sides thereof by walls, extending fourteen feet above the level of the roof and ten or eleven feet above the extreme top of the sprays of water. The north wall of the roof is the south wall of the storage house, and is a blank wall fourteen feet higher than the roof of the front, or Penrose Street side, of the building. The east, south and west walls of the roof are brick parapet walls fourteen feet in height. Louvers, so-called, are built into these parapet walls to admit the air, but the louvers are set at an angle so as to confine the spray or moisture within the four walls of the roof. These louvers are constructed of overlapping planks, set close together, seven-eighths of an inch in thickness and six to eight inches wide. The louvers are faced on the outside, or exterior, of the parapet walls with a latticed terra cotta grill, and the brick parapet walls are solidly extended above the louvers a distance of approximately four feet. The function of the louvers, as explained by defendant's mechanical engineer, is "to hold the drift or the spray and confine it onto the roof. Spray hits that side and hits this side; it is deflected to here; it is deflected to there; it is deflected to here (indicating). Five times it is broken. The theory of this is the mechanical scheme used in all vessels where the separation of moisture and gas is required. The breaking up of the current is what separates our water. You can hold your handkerchief there and you don't get any moisture." In other words, defendant's evidence tends to prove that there is no possibility of spray or mist being blown by the wind from the roof of the plant onto the sidewalks and contiguous properties below. The cooling system above described, and contemplated to be used in defendant's plant, is in use in no existing plant in St. Louis and is believed by the defendant's witnesses to be an improvement over existing systems of cooling and to absolutely and certainly prevent the escape of the spray or mist from the roof of defendant's plant.

Defendant's evidence tends to show that the closed tube-and-shell type of condenser to be used in its plant will not permit the escape of ammonia gas or fumes and that, even if the gas should come in contact with the water in the condenser, no fumes will escape, because water has a 700 to 1 volume affinity for ammonia, and the presence of ammonia in water can only be detected by the use of litmus paper or Nesler's solution, and not by the sense of smell.

Plaintiff's evidence tended to show that there is considerable noise occasioned by the handling and dumping of the cans of ice in existing plants. It was shown by defendant's evidence that an improved method of handling and dumping the cans will be used in the plant in controversy. By the improved "group method," so-called, the cans will be submerged in the brine tank in series or groups of eight cans. The eight cans are riveted onto an iron frame, or "basket," so called, so that the cans do not come in contact and "bang" together when emptied of their contents on the tipping table. They are handled by an electrical crane and raised and lowered by an automatic system of gears, which are enclosed by oil-tight housing in a bath of oil (somewhat like that of an automobile lubricating system), thereby rendering the operation of the gears noiseless. The improved system just described is in use in no existing plant in St. Louis.

Defendant's testimony was to the effect that no stables, garages, coal or fuel bins, are to be maintained or used in the plant in controversy, and the plans for the plant provide for no such accessories. No horses or mules will be stabled on the premises, according to defendant's evidence. Testimony was introduced by plaintiffs to the effect that there is considerable noise and confusion, loud, boisterous and profane talk among drivers of vehicles, and obstruction of streets and passageways, incident to the sale and loading of ice at the existing ice plants in St. Louis; that such annoyances occur in the early hours of the morning and disturb the slumber, quietude, peace and comfort of residents of the neighborhoods surrounding the existing plants. Defendant, on the other hand, introduced testimony of witnesses, residing near by existing plants, to the effect that they are not disturbed or annoyed by the loading of ice upon vehicles at the existing plants. According to defendant's evidence, the loading platforms at its existing plants are not opened to vendors of ice until five or six o'clock in the morning, and its platform or dock foremen see that order is maintained among the teamsters and peddlers of ice and that confusion in loading of vehicles is avoided. There was some testimony that the "hum" of the electrical machinery is audible outside of some of the existing plants, but that such "humming" noises may be largely, if not entirely, eliminated by closing the windows of the engine-room. Defendant's evidence was to effect that the "hum" is no more than that of any running motor, which cannot be entirely eliminated, but is not sufficient to prevent the carrying on of a conversation, in moderate and ordinary tones, inside of the engine-room.

Upon the evidence above detailed, the trial chancellor, on July 21, 1924, entered a decree and judgment in favor of plaintiffs and to the effect that defendant, its officers, agents and servants, "be and are hereby forever and perpetually restrained, prohibited and enjoined from commencing to construct, to erect or to build, or from completing or finishing the erection, construction or building, or from doing any act which tends, directly or indirectly, to complete or finish the construction, erection or building, on the aforesaid lot and block, of any house, building or other structure, or the erection, placing or installation therein or thereon of any machinery or other fixtures or equipment designed or intended to be used for the manufacture, storage, distribution or sale of ice therein or therefrom, and from operating or causing to be operated any ice manufacturing plant on said lot and block, and from selling or distributing ice from any ice manufacturing or storage plant located on said lot and block, or from doing any other act or acts in violation of the letter and spirit of this decree." The decree was subsequently amended so as to "permit defendant to complete the erection of the walls, roofs and structure beams, columns and other supports thereof, in order to make said building safe and to avoid damage and deterioration thereto and to the machinery now in said building from the elements; and that in all other respects said decree remain in full force and effect."

Timely motions for new trial and in arrest of judgment were filed by defendant and overruled by the trial court. On September 5, 1924, defendant filed herein, and presented to the then Chief Justice of this court, for his inspection, a copy of the record herein, together with an affidavit and application for an appeal to this court, pursuant to Section 1474, Revised Statutes 1919. On September 8, 1924, it appearing to the Chief Justice of this court that material error was committed by the trial court against the defendant herein, this court made and entered an order granting defendant an appeal to this court, and ordering defendant to file in the circuit court an appeal, orsupersedeas, bond in the sum of $25,000, which bond was timely filed by defendant and approved by the trial court, as ordered by this court. Timely notice of appeal was served upon, and accepted by, respondents (plaintiffs), in accordance with Section 1477, Revised Statutes 1919. Such is the record before us.

I. As a preface to this opinion, we pause to remark that this appeal does not involve the applicability, construction, validity, or constitutionality of any zoning ordinance (so called) of the city of St. Louis. The purposed location of defendant's ice plant upon the lot of land now inZoning controversy was before this court en banc, in anOrdinance. earlier proceeding. [State ex rel. v. McKelvey, 301 Mo. 1.] That was an original proceeding in mandamus, brought in this court, to require the Building Commissioner of the City of St. Louis to issue to the relators therein a permit for the erection of the ice manufactory now in controversy. The proceeding turned upon the constitutionality of the then applicable and existing zoning ordinance of that city, which zoned the territory in which the lot in question is situated as a "second residence district." the lands within which district were limited and restricted by the ordinance to uses other than commercial and industrial. A majority of the then membership of this court ruled the zoning ordinance of the city of St. Louis therein involved to be violative of our State Constitution, and therefore invalid and ineffective. The effect of our ruling and judgment in that proceeding was to relieve the lot now in controversy from restrictions as to its use imposed by the zoning ordinance therein ruled to be unconstitutional and invalid. Our ruling in the McKelvey case, supra, therefore became a rule of property, and so the rule of stare decisis applies, at least so far as the use of the lot now in controversy, as affected by that zoning ordinance, is concerned. Relying upon our ruling and judgment in the McKelvey case, the defendant herein had the undoubted right to the issuance of a permit by the municipal officers of the city of St. Louis for the erection of the ice manufacturing plant now in controversy upon the lot or tract of land defendant now owns in City Block No. 2485, and presumably the officers of the city have issued such permit. In other words, under our judgment and ruling in the McKelvey case, the zoning ordinance there in question (and ruled to be void and ineffective) no longer is applicable to the lot in controversy and imposes no restriction upon its use for commercial or industrial purposes. It therefore matters not (in this case) what the views of the present membership of this court may be (or what views the writer of this opinion may entertain) respecting the constitutionality and applicability of similar subsequent or existing zoning ordinances of the city of St. Louis, or what expression we may have given to our views on the subject in any case ruled subsequently to the McKelvey case, for no zoning ordinance is directly, or even indirectly, involved in the instant case as a ground of the injunctive, and purely equitable, relief sought herein. As we said in the beginning, this action is one brought to enjoin an alleged potential or anticipated nuisance, and no existing zoning ordinance of the city of St. Louis has anything to do with the single question presented by the record before us on this appeal, namely, whether the contemplated ice plant of defendant will, or will not, necessarily and inevitably become a nuisance.

II. We are confronted at the threshold of this matter with the contention of respondents (plaintiffs) that this court is without jurisdiction of this appeal in that the record fails to disclose that the pecuniary value of the relief granted toAppellate the plaintiffs herein, and of the loss toJurisdiction. defendant, if the decree nisi be affirmed, exceeds $7500, exclusive of costs; furthermore, that, inasmuch as the appeal herein was granted and allowed by this court, as provided in Section 1474, Revised Statutes 1919, rather than by the trial court, therefore, if this court is without jurisdiction of the appeal, the cause cannot be transferred by this court to the proper Court of Appeals, but the appeal granted by this court must be dismissed, under the ruling of Division Two of this court announced in State v. Hartman, 282 Mo. 680. Hence, we must give attention to the jurisdictional point raised by respondents.

It has been held by this court, in determining our appellate jurisdiction in actions seeking purely injunctive relief, or wherein relief other than a money judgment is sought, that "the amount involved must be determined by the value in money of the relief to the plaintiff, or of the loss to the defendant, should the relief be granted, or vice versa, should the relief be denied." [Gast Bank Note Lithograph Co. v. Fennimore Assn.,147 Mo. 557; Kitchell v. Railway Co., 146 Mo. 455; Gary Realty Co. v. Kelly, 284 Mo. 418; Cambest v. Hydro Electric Co., 292 Mo. 570; Handlan v. Stifel, 219 S.W. 616; State ex rel. v. Mid-State Serum Co., 264 S.W. 878.] In the cited cases, however, there was nothing upon the record before us whereby we could approximate the pecuniary value of the equitable relief sought by plaintiffs, or the pecuniary loss to the defendants, should the equitable relief be granted: in other words, our conjecture upon the pecuniary amount in dispute, so far as disclosed by the record in the cited cases, might have been equally well grounded that the pecuniary amount in dispute was less than our pecuniary jurisdiction as that it was within our pecuniary jurisdiction. Not so, however, in the instant case.

It appears from the record before us that the four nominal plaintiffs herein "bring this suit not only, in their own behalf, but at the request and on behalf of thirty-seven other residents and property owners in said neighborhood, and as representatives of a class of other residents and property owners in said neighborhood, too numerous to be joined as plaintiffs herein, who are threatened with similar irreparable injury and damage, and have the same causes of complaint as plaintiffs herein." One of the nominal plaintiffs testified that the nominal plaintiffs are acting for and on behalf of some forty-one or forty-two individual property owners. It is charged and alleged in plaintiffs' bill that defendant's structure and plant, and the nature of business carried on therein, "will greatly and unreasonably destroy and depreciate the market value of the property of these plaintiffs" (i.e., the property of the four nominal plaintiffs and of the thirty-seven other property owners whom they represent and on whose behalf the action is maintained). Evidence was adduced by plaintiff's that an ice plant in a residential neighborhood will substantially decrease property values; that "property values would be adversely or detrimentally affected for residence purposes in the vicinity of the proposed plant;" and that values of residence properties in the neighborhood "would be considerably depreciated." Photographs of the residential properties of the several nominal plaintiffs are in evidence and shown in the record, upon which we can base a reasonable conclusion as to the cost and value of such structures and improvements.

Besides, the respondents (plaintiffs) filed of record in this court a motion to advance the cause upon our docket. Adverting to that motion, we find stated therein by respondents, as ground of the motion: "The granting of the supersedeas in this cause has deprived respondents of all remedy by injunction, under the laws of this State, until this cause is finally determined in this court. Moreover, it seems quite obvious that the appeal bond, furnished by appellant, a copy of which is among the files, isno protection to respondents against damages resulting to them from the suspension of the decree and appellant's violation thereof pending the settlement of this appeal." (Italics ours.) The amount of the appeal bond was fixed by this court at $25,000, and filed in that amount by appellant. Hence, we find in our own records a motion filed by respondents admitting, in substance and effect, that the appeal bond filed by appellant in the sum of $25,000, conditioned that appellant (defendant) will "pay alldamages and costs which may be awarded against it" is "no protection to respondents against damages resulting to them." From all of which, the conclusion reasonably and logically may be drawn, we think, that the pecuniary value of the relief sought by plaintiffs herein, if such relief be denied them, exceeds the amount of the appeal bond filed herein, which amount has been fixed by this court in the sum of $25,000. Again, it is admitted by respondents' motion to advance the cause on our docket that the defendant has constructed and is now maintaining and operating the ice plant in controversy. Such fact also appears to be conceded by all the parties to this action in their respective briefs filed herein. Plans of the plant in controversy, in evidence, and the testimony of witnesses explaining the size and character of the plant, machinery and equipment, force the reasonable conclusion on our part that the original cost thereof far exceeds the pecuniary jurisdiction of this court, and that the building structure, by reason of its peculiar and special design, cannot easily or readily be made available for any other use than that of manufacturing ice and storing the same. Likewise, the nature and size of the special machinery and equipment to be installed and used in the defendant's plant, and which, according to the testimony of one of the witnesses, had been delivered at the plant site at the time of the trial (and which has been actually installed and put into use and operation, as apparently conceded by the briefs of the parties herein), leads us to the reasonable conclusion that such machinery and equipment cannot be disassembled, taken down and removed from the plant for any amount of money less than the pecuniary jurisdiction of this court. By reason of experience, if from no other source, we have some accurate knowledge of the present high cost of building and of the manufacture and installation of machinery and equipment. Where the record before us on appeal shows (as we find it does here) that the pecuniary value of the relief to plaintiffs, or of the loss to defendant, should the relief be granted, or viceversa, should the relief be denied, exceeds the sum of $7500, exclusive of costs, then we must take jurisdiction of the appeal. We have so ruled in State ex rel. Union Electric Light Power Co. v. Reynolds, 256 Mo. 710, and Tureman v. Ketterlin,304 Mo. 221.

That more than $7500 is actually involved in this case, we think conclusively appears from the record as made in the trial court. No one examining that record can arrive at any other conclusion. If, from the whole record, it suffices to show our jurisdiction, then it is our clear and positive duty under the constitutional mandate to pass upon the merits of the appeal. Coupled with the facts as to the amount involved, as disclosed by the record in the trial court, is the admission of respondents, made in their motion, filed in this court, to advance the cause for hearing on our docket, disclosing therein the construction of the respondents themselves upon what the record as made in the trial court discloses respecting the amount involved. While it is true that we have repeatedly ruled, and rightly so, that parties cannot confer jurisdiction upon this court by acquiescence or agreement, nevertheless the admissions made by a respondent in this court may be looked to for the purpose of viewing the respondent's construction of what the record before us discloses respecting the amount involved. Such a situation is far different from that wherein an appellant, by an affidavit filed in this court, or in the trial court, after judgment nisi, seeks to supply the facts showing the amount involved and necessary to confer jurisdiction of an appeal in this court, although appellant's affidavit be not controverted by respondent. Here, the respondents, by their motion to advance, place their own construction upon what the record nisi discloses respecting the amount involved. Their construction of what the record nisi discloses on that question accords with and confirms our own construction of the recordnisi. The construction given to a record by a party, and the written admissions of a party, we think, are always properly for the consideration of the appellate court when the appellate court itself is passing upon and construing that record. At any rate, we find ample reason, in the record made in the trial court and now before us, to retain jurisdiction of the cause upon this special appeal upon the ground that the pecuniary value of the relief granted to plaintiffs and respondents, or the loss to defendant and appellant (when measured in money), as a result of the judgment, far exceeds the sum of $7500, exclusive of costs. Being convinced of our jurisdiction herein, we proceed to the merits of the appeal.

III. It cannot be doubted or seriously questioned, we think, that the business of manufacturing, storing, selling and distributing ice is a legitimate and lawful business, and, when reasonably and properly conducted, does not constitute a nuisance per se. Such seems to be the uniform and undoubted trend ofIce. judicial decision and authority. [Goose Creek Ice Co. v. Wood (Tex. Civ. App.), 223 S.W. 324, 327; Flood v. Consumers Co., 105 Ill. App. 559, 563.] Neither can it well be doubted or questioned that such business is a useful and necessary one, wherein the general public is vitally interested and from which they derive immeasurable benefit, for the reason that ice is a useful commodity and one which is well-nigh necessary to the public health and comfort. It preserves the food we eat from decay and putrefaction, it cools and renders palatable the water which we drink, and performs countless other functions necessary and essential to the preservation of the public health and the comfort and well-being of human life and existence. Furthermore, in our large cities and centers of population, such as the great city of St. Louis, it is well-nigh essential that ice manufactories shall be operated in several and separate parts of the city, closely contiguous to residential districts, in order that long hauls and wastage and melting of ice may be avoided, if not entirely eliminated. Such avoidance tends to decrease, or keep uniform and level, the price to the consumer of this necessary and useful commodity; otherwise, the price of the commodity would accordingly have to be fixed in contemplation of the length of the haul and the wastage of the commodity which would necessarily result from long hauls and consequent delays in delivery to the consumer. While the manufacture of ice and its sale and distribution as a commodity has been recognized by this court as a public necessity, yet it has been ruled that a municipality of the State, by reason of the limitations of our Constitution, cannot use or expend the public funds to engage in such enterprise, but such necessary business must be left largely, if not entirely, to private enterprise. [State ex rel. Kansas City v. Orear, 277 Mo. 503.] We must therefore start with the premise that the manufacture, distribution and sale of ice is a useful, legitimate and lawful business enterprise, and does not constitute a nuisance per se, although conceding, of course, that the method and manner of operation of such business enterprise may render it a nuisance, depending upon the circumstances applicable and incident to its operation.

As in other cases, the burden of proof rests upon the plaintiffs (respondents) herein to establish, by the greater weight of the evidence, that the method and manner of operation of defendant's contemplated ice manufactory willCharacter necessarily and inevitably result in the preciseof Proof. annoyances which are alleged in the bill or petition herein will follow, or result from, the completion and operation of defendant's plant, and thereby constitute a nuisance. This being an action to enjoin an alleged anticipated or prospective nuisance, as distinguished from an action to abate an existing nuisance, the degree and character of proof required differs from that required in an action to abate an existing nuisance, and must be such as to make clear, certain, and free from all substantial doubt, that the anticipated nuisance certainly and inevitably will result. Such is the uniform rule of evidence and practice laid down by the text-writers on the subject, and amply supported by judicial authority.

Thus, Mr. High in his recognized and meritorious text on Injunctions (4 Ed.) sec. 787, says: "Great caution is exercised in interfering with establishments and erections which tend to promote public convenience, . . . and in such cases it will not suffice to show a probable or contingent injury, but it must be shown to be inevitable and undoubted." And, again, the same text-writer says (Sec. 743): "Where an injunction is asked to restrain the construction of works of such a nature that it is impossible for the court to know, until they are completed and in operation, whether they will or will not constitute a nuisance, the writ will be refused in the first instance."

Joyce on the Law of Nuisances (1906) sec. 102, thus lays down the rule: "The fact that a business which is lawful may become a nuisance after it has been commenced is not a sufficient ground for enjoining the same. It must clearly appear to the satisfaction of the court that it will become a nuisance. So, it has been said in this connection: `Before a court of equity will restrain a lawful work from which merely threatened evils are apprehended, the court must be satisfied that the evils anticipated are imminent and certain to occur. An injunction will not issue to prevent supposed or barely possible injuries." [Citing Windfall Mfg. Co. v. Patterson, 148 Ind. 414.]

Wood on Nuisances (3 Ed.) sec. 797, says: "Injunctions againstthreatened nuisances will seldom be granted except in extreme cases where the threatened use of property is clearly shown to be such as leaves no doubt of its injurious results. The bill must set forth such a state of facts as leaves no room for doubt upon the question of nuisance, for if there is any doubt upon that point, the benefit of it will be given to the defendant. . . . But the mere fact that the building is to be devoted to a use that has always proved a nuisance elsewhere is by no means conclusive that it will be a nuisance in the instance charged in the bill. Therefore, the bill should set forth not only the use to which the building is to be devoted, but also the manner in which the building is to be used, so far as known to the plaintiff, in order that the court may see whether, in the light of human experience, the particular use will be injurious. If the answer denies the nuisance and sets forth a peculiar method of use, the effects of which are unknown, the practice now seems to be, particularly in Scotland, and its justice commends itself to all courts, to temporarily dissolve the injunction and allow the experiment to be tried to determine whether an actual nuisance will result from the particular use in question."

In the well-known Illinois drainage canal case, State of Missouri v. State of Illinois, 180 U.S. 208, l.c. 248. Mr. Justice SHIRAS, speaking for the majority of the Federal Supreme Court, said: "We fully agree with the contention of defendants' counsel that it is settled that an injunction to restrain a nuisance will issue only in cases where the fact of nuisance is made out upon determinate and satisfactory evidence; that if the evidence be conflicting and the injury be doubtful, that conflict and doubt will be a ground for withholding an injunction; and that, where interposition by injunction is sought to restrain that which is apprehended will create a nuisance of which the complainant may complain, the proofs must show such a state of facts as will manifest the danger to be real and immediate."

The general rule is thus clearly stated in Pope Bros. Co. v. Gas Co., 52 W. Va. 252, 256: "Mere possible, eventual or contingent danger is not enough. That injury will result must be shown beyond question. `In order for equity to enjoin a private nuisance, the danger must be impending and imminent and the effect certain, not resting on hypothesis or conjecture, but established by conclusive evidence. If the injury be doubtful, eventual, or contingent, or if the matter complained of is not per se a nuisance, an injunction will not be granted.' [Hough v. Doyleston, 4 Brews. (Pa.) 333, approved in Chambers v. Cramer, 49 W. Va. 395, 400.]"

As aptly expressed in McCutchen v. Blanton, 59 Miss. 116, 122: "The principle on which the preventive aid of courts is rendered against threatened injury is well understood. . . . Great caution should be used in dealing with a matter so delicate and difficult. Every doubt should be solved against the restraint of a proprietor in the use of his own property for a purpose seemingly lawful, and conducive both to individual gain and the general welfare. Relief by injunction is so severe in its consequences that it is not to be granted in such a case, except when the right to it is clearly and conclusively made out. To interfere with one's right to use his own land for the production of what he pleases, in a case of doubt, would be a flagrant abuse of power. It is not enough to show a probable or contingent injury, but it must be shown to be inevitable and undoubted. [Wood on Nuisances, sec. 6; Green v. Lake, 54 Miss. 540.]"

So, our own court has said, in Lester Real Estate Co. v. St. Louis, 169 Mo. 227, 235, authoritatively quoting 2 Story on Equity Jurisprudence (13 Ed.) sec. 924a: "But in all cases of this sort (i.e., threatened or anticipated nuisances), courts of equity will grant an injunction only in cases where the fact is clearly made out upon determinate and satisfactory evidence. For if the evidence be conflicting, and the injury to the public doubtful, that alone will constitute a ground for withholding this extraordinary interposition. And, indeed, the same doctrine is equally applicable to cases of private nuisance."

Furthermore, proof of depreciation in value of contiguous property alone is not sufficient to call forth the aid of injunctive relief (Rouse v. Martin, 75 Ala. 510, 515), and "matters that annoy by being disagreeable, unsightly and undesirable are not nuisances simply because they may to some extent affect the value of property. These are some of the natural and necessary incidents of life in a city or town, compactly built and inhabited. Those who reside or own property in such a city or settlement must rest content, so far as the law is concerned, notwithstanding they may be subjected to many such annoyances and discomforts." [Dallas Land and Loan Co. v. Garrett (Texas Civ. App.), 276 S.W. 471, 474.] This court has given expression to a similar thought in Van De Vere v. Kansas City,107 Mo. 83, 91, where we said, quoting an eminent text-writer: "Unless the owner is disturbed in the enjoyment of some right which he is entitled to make use of in connection with his property, he cannot recover. If the loss or depreciation arises from the mere proximity of the work or improvement, or from its unsightly nature or its incongruity with the uses to which the neighboring property is put, there can be no recovery."

Nor does proof that other and existing ice plants, constructed and operated in a different manner and way than that contemplated by defendant herein, cause annoyances, tend to show that defendant's plant will cause similar annoyances. [Robinson v. Dale, 62 Texas Civ. App. 277[62 Tex. Civ. App. 277], 279; Gavigan v. Refining Co., 40 A. 834; Stephens v. Creamery Co., 57 P. 1058.] And, while profanity, obscenity and vulgar talk may be enjoined, when shown to constitute a nuisance, the interchange of conversation among those whose business or vocation brings them together "is a matter for the police to regulate, rather than for a court to dispose of by injunction" (Thoenebe v. Mosby, 257 Penn. St. 5, 6.).

In Flood v. Consumers Co., 105 Ill. App. 559, plaintiff sought to enjoin defendant from completing a wooden building in the city of Chicago designed and intended for the storage and distribution of ice. The allegations of plaintiff's bill were quite similar to those found in the bill in the instant case. Said that court, in denying injunctive relief: "In order to create a nuisance from a use of property the use must be such as to work a tangible injury to the person or property of another, or such as renders the enjoyment of property essentially uncomfortable. It is not enough that it diminishes the value of surrounding property. It is not enough that it renders other property unsalable, or that it prevents one from letting his premises for as large a rent as before, or to as responsible tenants. It must be such a use as produces a tangible or appreciable injury to the property, or as renders its enjoyment essentially uncomfortable or inconvenient. [M. E. Railroad Co. v. Prudden, 20 N.J. Eq. 530.] . . . A structure erected upon the owner's land is not a nuisance because it is capable of a use that will make it a nuisance. . . . It cannot be known whether noises will come from the building in loading or unloading ice. It all depends upon how and with what care the work is done. The building is to be closed up tight upon all sides except on the northern side, furthest removed from appellant's property. The sound of ice-wagons over the pavements will depend entirely upon the kind of pavements on the streets and the character of the wagons used. This matter may or may not be regulated by an ordinance of the city council and, in any event, it is altogether too conjectural in its consequences to require the extraordinary writ of the court. It is suggested in the bill that offensive odors will come from the horses attached to the ice-wagons, being and standing near appellant's property. Again we say this objection depends entirely upon where the horses are stationed, their number and the care and attention given to them. . . . A court of equity will not restrain the erection of a building by an owner upon his property, unless it is clear that the business to be carried on therein will be a nuisance and that it cannot be carried on thereon so as not to be a nuisance. [Duncan v. Hayes, 22 N.J. Eq. 25; Iliff v. School Directors, 45 Ill. App. 419.] Ordinarily an injunction will be granted when the act or thing threatened is a nuisance per se, or necessarily will be a nuisance, and will be denied when it may or may not be a nuisance, according to circumstances, or when the injury apprehended is doubtful or contingent. [Lake View v. Letz,44 Ill. 81; Duncan v. Hayes, supra.] The jurisdiction of courts of equity over the subject of nuisances is not an original jurisdiction. This power was formerly exercised very sparingly, only in extreme cases, at least until after the right and question of nuisance had been first settled at law. While in modern times the strictness of this rule has been somewhat relaxed, there is still a substantial agreement among the authorities that, to entitle a party to equitable relief before resorting to a court of law, his case must be clear and free from all substantial doubt as to his right to relief. To entitle him to come into a court of equity in the first instance there must be a `strong and mischievous case of pressing necessity.' [Oswald v. Wolf, 129 Ill. 200; Nelson v. Milligan, 151 Ill. 462; Windfall Mfg. Co. v. Patterson, 148 Ind. 414.]"

Similar conclusions were reached, based upon like reasons, in Goose Creck Ice Co. v. Wood, 223 S.W. 324; Lindblom v. Purity Ice and Ref. Co., 217 Ill. App. 306; LeBlanc v. Orleans Ice Mfg. Co.,121 La. 250; and Knaub v. Meyer, 141 N.Y.S. 819, all of which cases involved the question whether the erection and operation of a plant for the manufacture and distribution of ice constituted, or would certainly and inevitably constitute, a nuisance.

Applying the principles announced by the weight of judicial authority, as above stated, to the facts in evidence, as disclosed by the record herein, we cannot say that plaintiffs' right to the injunctive relief granted by the learned trial chancellor's decree herein is clear and free from all substantial doubt, or that the proof respecting the apprehended danger or result in the operation of defendant's contemplated ice plant shows such a state of facts as clearly manifests the apprehended danger to be real, certain, inevitable and immediate. Having reached that conclusion only after a careful and exhaustive review of the judicial authorities bearing upon the subject and cited by respective counsel, and after having made a scrutinous analysis of the evidence contained in a rather voluminous record, we are convinced that the decree of the circuit court is wrong and that it must be reversed outright. In arriving at such conclusion, we have given careful consideration to the several judicial authorities cited by respondents' learned counsel in his brief, reference to which authorities discloses that they dealt largely, if not entirely, with the subject of abatement of existing nuisances, to which character or class of cases an entirely different, and much more liberal, rule of evidence and practice applies than the rule of evidence and practice which is uniformly applied in actions which seek to enjoin an apprehended or potential nuisance. We believe that the authorities herein quoted make clear the distinction and applicability of these widely different rules of evidence and practice. If, perchance, the plaintiffs, or any of them, are hereafter damaged, or unlawfully or unreasonably annoyed, by the method of the operation of defendant's plant, or by the manner of operation of any phase or department thereof, then they are free to pursue any appropriate and available remedy by suit or action, whether for relief by way of injunction, recovery of consequential damages, or otherwise, without prejudice by reason of our opinion on this appeal.

It follows that the decree and judgment nisi must be reversed, and it is so ordered. Lindsay and Ellison, CC., concur.