Opinion,
Me. Chief Justice Paxson:
The mill-dam in this case is not a nuisance per se. The master so finds, and the evidence fully warrants it. If a nuisance at all, it has become so by the gradual growth of the city of New Castle around it, and the emptying of cess-pools into it. The dam, in some shape, has been in existence for over half a century, and the water power therefrom has been used [561]*561for milling and manufacturing purposes. At present, it is only used for a flour-mill, which., in times of low water, is operated by steam. It is not denied that the water power is valuable, and that its destruction would entail a serious loss on the owner. The city of New Castle filed this bill, praying the court below to decree the dam a nuisance, and order its removal. The bill avers that it is “a public and common nuisance; is greatly injurious to the public streets, highways, safety, health, and general welfare of said city, and seriously affects and damages the inhabitants thereof in their property, business, and occupations, and interferes with and prevents the proper drainage of a large part of the territory.” The learned master has found the dam to be a public nuisance, which finding was approved by the learned court below, and a decree entered for its removal. From this decree the defendants have appealed.
While it may be conceded that a business which is useful and necessary may become a nuisance by reason of the growth of a village or town around it, yet there is a manifest distinction between such case and that of a man who seeks to establish an offensive business in a thickly populated neighborhood. It was said by Justice Shabswood in Wier’s App., 74 Pa. 230: “ There is a very marked distinction to be observed in reason and equity between the case of a business long established in a particular locality, which has become a nuisance from the growth of population and the erection of dwellings in proximity to it, and that of a new erection threatened in such a vicinity. Carrying on an offensive trade, for any number of years, in a place remote from buildings and public roads, does not entitle the owner to continue it in the same place after houses have been built and roads laid out in the neighborhood, to the occupants of which, and travelers upon which, it is a nuisance. As the city extends, such nuisances should be removed to the vacant grounds beyond the immediate neighborhood of the residences of the citizens..... It certainly ought to be a much clearer case, however, to justify a court of equity in stretching forth the strong arm of injunction to compel a man to remove an establishment in which he has invested his capital, and been carrying on business for a long period of time, than in the case of one who comes into a neighborhood proposing to establish [562]*562such a business for the first time, and who is met at the threshold of his enterprise by a remonstrance and notice that if he persists in his purpose application will be made to a court of equity to prevent him.” We may supplement these well-considered remarks by saying that they apply with especial force to a case where the property alleged to be a nuisance cannot be removed, and a decree to abate it means its destruction. In such cases a court of equity should move slowly, and decline to act upon conflicting evidence.
We do not question the power of a court of equity to restrain and abate public nuisances. This is settled by a line of decisions. But the authorities uniformly limit the jurisdiction to cases where the right has first been established at law, or is conceded. It was never intended, and I do not know of a case in the books where a chancellor has usurped the functions of a jury, and attempted to decide disputed questions of fact, and pass upon conflicting evidence in such cases. The learned master below held that “ the right at law need not be first established,” and cites in support of his ruling Commonwealth v. Rush, 14 Pa. 186, and Bunnell’s App., 69 Pa. 59.
It requires but a glance at those cases to see that they are not authority for such position. In Commonwealth v. Rush the aid of equity was invoked to restrain the erection of a dwelling-house upon a public square of the city, and the facts were admitted by the pleadings. There was no disputed question of fact. Such an erection was a nuisance per se. The learned judge who heard the case below, in Commonwealth v. Rush, delivered an elaborate opinion, in which he discusses this subject, and cites numerous authorities, after which he said: “ The principle, then, appears to be that where the bill is filed by the attorney general, and the right is clear, and the threatened injury irreparable, an injunction will be awarded, although the right has not been established at law. And that this is in accordance with the fifth clause of the act of assembly, above referred to, giving equity jurisdiction to this court, is clearly stated in the case of Hagner v. Heyberger, 7 W. & S. 107, by Mr. Justice Sekg-eajstt, who says: ‘ The object of this clause was to provide adequate redress in cases where, although an action at law was maintainable, yet the injury might be irreparable, and it was necessary to justice to step in and prevent [563]*563its being committed by a summary process. Thus, if there were sufficient ground to believe, in consequence of threats or otherwise, that an individual was about committing waste in timber, etc., or that a corporation was grossly abusing its privileges, or that a public officer was destroying, or about to destroy, public boobs,.....or, in short, any act was doing, or likely to be done, for which damages could not, perhaps, compensate, and the legal redress might be too tardy and inefficient, which was in the nature of misfeasance, nuisance,- waste, spoil, or destruction of property, and the act was contrary to law, and injurious to the community or individuals, a summary remedy is given, by the strong arm of an injunction, to stop it, or prevent its being done.’ ” I have quoted this extract from the opinion of the court below in Commonwealth v. Rush because the case was affirmed here upon said opinion, and it thus became in a measure the opinion of this court. It promulgates a doctrine which no one denies, that where the right is clear a court of equity may, in extreme cases, where irreparable injury is threatened or being done, and prompt action is necessary to avert it, interpose by an injunction. But such vigorous and speedy remedy can hardly be held to apply to a mill-dam which has been in existence for over half a century.
In Bunnell’s Appeal, the syllabus, which correctly indicates the point decided, is as follows: “ A road was laid out in 1820 through Bunnell’s land. In 1868 he erected a ‘ stone row ’ across what was alleged to be the road. In a proceeding in equity to restrain him from maintaining the erection, etc., alleging it to be a public nuisance and a special injury to the plaintiff, the evidence was conflicting as to whether the road had been opened by the supervisor, where it had been opened, and that the route of the road had been frequently changed, etc. Held, that the proceeding in equity could not be maintained, (1) because of the uncertainty of the location of the road; (2) that there was a full remedy at law; (3) that the injury was not permanent and irreparable.” In that case it was said by Mr.
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Opinion,
Me. Chief Justice Paxson:
The mill-dam in this case is not a nuisance per se. The master so finds, and the evidence fully warrants it. If a nuisance at all, it has become so by the gradual growth of the city of New Castle around it, and the emptying of cess-pools into it. The dam, in some shape, has been in existence for over half a century, and the water power therefrom has been used [561]*561for milling and manufacturing purposes. At present, it is only used for a flour-mill, which., in times of low water, is operated by steam. It is not denied that the water power is valuable, and that its destruction would entail a serious loss on the owner. The city of New Castle filed this bill, praying the court below to decree the dam a nuisance, and order its removal. The bill avers that it is “a public and common nuisance; is greatly injurious to the public streets, highways, safety, health, and general welfare of said city, and seriously affects and damages the inhabitants thereof in their property, business, and occupations, and interferes with and prevents the proper drainage of a large part of the territory.” The learned master has found the dam to be a public nuisance, which finding was approved by the learned court below, and a decree entered for its removal. From this decree the defendants have appealed.
While it may be conceded that a business which is useful and necessary may become a nuisance by reason of the growth of a village or town around it, yet there is a manifest distinction between such case and that of a man who seeks to establish an offensive business in a thickly populated neighborhood. It was said by Justice Shabswood in Wier’s App., 74 Pa. 230: “ There is a very marked distinction to be observed in reason and equity between the case of a business long established in a particular locality, which has become a nuisance from the growth of population and the erection of dwellings in proximity to it, and that of a new erection threatened in such a vicinity. Carrying on an offensive trade, for any number of years, in a place remote from buildings and public roads, does not entitle the owner to continue it in the same place after houses have been built and roads laid out in the neighborhood, to the occupants of which, and travelers upon which, it is a nuisance. As the city extends, such nuisances should be removed to the vacant grounds beyond the immediate neighborhood of the residences of the citizens..... It certainly ought to be a much clearer case, however, to justify a court of equity in stretching forth the strong arm of injunction to compel a man to remove an establishment in which he has invested his capital, and been carrying on business for a long period of time, than in the case of one who comes into a neighborhood proposing to establish [562]*562such a business for the first time, and who is met at the threshold of his enterprise by a remonstrance and notice that if he persists in his purpose application will be made to a court of equity to prevent him.” We may supplement these well-considered remarks by saying that they apply with especial force to a case where the property alleged to be a nuisance cannot be removed, and a decree to abate it means its destruction. In such cases a court of equity should move slowly, and decline to act upon conflicting evidence.
We do not question the power of a court of equity to restrain and abate public nuisances. This is settled by a line of decisions. But the authorities uniformly limit the jurisdiction to cases where the right has first been established at law, or is conceded. It was never intended, and I do not know of a case in the books where a chancellor has usurped the functions of a jury, and attempted to decide disputed questions of fact, and pass upon conflicting evidence in such cases. The learned master below held that “ the right at law need not be first established,” and cites in support of his ruling Commonwealth v. Rush, 14 Pa. 186, and Bunnell’s App., 69 Pa. 59.
It requires but a glance at those cases to see that they are not authority for such position. In Commonwealth v. Rush the aid of equity was invoked to restrain the erection of a dwelling-house upon a public square of the city, and the facts were admitted by the pleadings. There was no disputed question of fact. Such an erection was a nuisance per se. The learned judge who heard the case below, in Commonwealth v. Rush, delivered an elaborate opinion, in which he discusses this subject, and cites numerous authorities, after which he said: “ The principle, then, appears to be that where the bill is filed by the attorney general, and the right is clear, and the threatened injury irreparable, an injunction will be awarded, although the right has not been established at law. And that this is in accordance with the fifth clause of the act of assembly, above referred to, giving equity jurisdiction to this court, is clearly stated in the case of Hagner v. Heyberger, 7 W. & S. 107, by Mr. Justice Sekg-eajstt, who says: ‘ The object of this clause was to provide adequate redress in cases where, although an action at law was maintainable, yet the injury might be irreparable, and it was necessary to justice to step in and prevent [563]*563its being committed by a summary process. Thus, if there were sufficient ground to believe, in consequence of threats or otherwise, that an individual was about committing waste in timber, etc., or that a corporation was grossly abusing its privileges, or that a public officer was destroying, or about to destroy, public boobs,.....or, in short, any act was doing, or likely to be done, for which damages could not, perhaps, compensate, and the legal redress might be too tardy and inefficient, which was in the nature of misfeasance, nuisance,- waste, spoil, or destruction of property, and the act was contrary to law, and injurious to the community or individuals, a summary remedy is given, by the strong arm of an injunction, to stop it, or prevent its being done.’ ” I have quoted this extract from the opinion of the court below in Commonwealth v. Rush because the case was affirmed here upon said opinion, and it thus became in a measure the opinion of this court. It promulgates a doctrine which no one denies, that where the right is clear a court of equity may, in extreme cases, where irreparable injury is threatened or being done, and prompt action is necessary to avert it, interpose by an injunction. But such vigorous and speedy remedy can hardly be held to apply to a mill-dam which has been in existence for over half a century.
In Bunnell’s Appeal, the syllabus, which correctly indicates the point decided, is as follows: “ A road was laid out in 1820 through Bunnell’s land. In 1868 he erected a ‘ stone row ’ across what was alleged to be the road. In a proceeding in equity to restrain him from maintaining the erection, etc., alleging it to be a public nuisance and a special injury to the plaintiff, the evidence was conflicting as to whether the road had been opened by the supervisor, where it had been opened, and that the route of the road had been frequently changed, etc. Held, that the proceeding in equity could not be maintained, (1) because of the uncertainty of the location of the road; (2) that there was a full remedy at law; (3) that the injury was not permanent and irreparable.” In that case it was said by Mr. Justice Agnew that “ the mere fact that there is a remedy at law by indictment or action will not alone prevent the exercise of the power [equity], but it is a reason why the jurisdiction of chancery should be confined to cases of a very plain character, where the injury is irreparable, and cannot await the slow progress of the legal redress.”
[564]*564No one doubts the jurisdiction of a court of equity in tbe case of a nuisance per se, sucb as a bone-boiling establishment, a swine-yard, or pig-sty, or other similar establishment. So with obstructions to public highways. But, as before observed, this mill-dam is not a nuisance per se. Whether it is a nuisance at all depends upon the testimony, and that is conflicting. This is especially so as regards the matter of the health of the city. Two physicians of repute, who reside in and practice in New Castle, testify that the dam has not increased the sickness of the city, and that it is as healthy in the vicinity of the dam as in other parts of the city. The city has been slow in finding out that it is a nuisance; and, after waiting all these years, it cannot be said with truth that there is any such urgency as demands the severe and summary remedy by injunction, until the character of the alleged nuisance has been passed upon by a jury. It is an easy and short way for the city to get rid of the dam. It involves no compensation to the owner, and imposes no burden upon it. The testimony leaves no doubt but that many of the citizens of New Castle are anxious to have the dam removed. One of them testifies that it would benefit'his property .to the amount of $2,000. Others have doubtless testified under the bias which self-interest creates.
We think that, under all the circumstances of this case, the defendants are entitled to a trial by jury before them property shall be condemned as a nuisance, and destroyed. The city may, if it sees proper, proceed against the defendants by an indictment, or by a suit at common law. When .the right is thus settled, then, and not till then, will jurisdiction attach in ’equity. Non constat that the defendants, after a verdict, should one be rendered against them, will subject themselves to the expense of a bill, but will voluntarily abate the nuisance. If we sustain this bill, I can hardly imagine a case in which we could deny the jurisdiction, no matter how disputed the facts may be, or contradictory the testimony. Heretofore the jurisdiction of equity has been confined to nuisances per se, or when, the right is clear, or has been settled by the verdict of a jury. We think it better to adhere to the beaten track.
The decree is reversed, and the bill dismissed, at the cost of the appellees, but without prejudice to their right to proceed by indictment or ■ suit at common law.