The granting or continuing an injunction until the hearing is matter of discretion, and will not be interfered with by this Court, especially if the answer be unsatisfactory, evasive, or improbable. (2 Johns. Ch. 204; Der. Eq. 429; 1 Barb. Ch. Pr. 640, and cases cited; 3 Danl. Ch. Pr. 291, etc., Harrisburg ed.)
The answer does not deny that the boiler and machinery is to be erected within the building: it denies only that the furnace is to be so erected; and the boiler may be within, while the furnace is without. The answer in this is evasive.
The explosion of a boiler is not owing to the pressure of steam, but to its decompositioninto its component gases, and the explosive character of hydrogen, which the strength of no boiler can resist. Would a powder-magazine be a nuisance in an auction store? If so, so would be a steam-engine. (Bouvier's Law Dic., Nuisance.) A man for gain may risk a nuisance in his own case, but has no right to impose this risk on another. A nuisance is that which produces annoyance, whether by injury or damage. (See also Pr. Act of 1851, sec. 249.) A blacksmith shop may not be, per se, a nuisance in a country village, but would be in Montgomery Street, etc. Ringing bells on Sunday has been held a nuisance (First Baptist Church v. Schenectady R. R. Co., 5 Barb. 79); so a coal-yard (8 Paige, 351); a manufactory of steam-engine boilers, if the noise annoys a neighbor. (Fisk v. Dodge, 4 Denio, 311.) The answer that a steam-engine will not be dangerous, and that the grist-mill will not make any noise, is absurd.
The Practice Act does not require a judgment as the basis of an injunction, but allows the writ to issue " upon the facts of the complaint ." The cases in which Chancery has required the previous verdict of a jury are those in which the plaintiff's right to the locus in quo was denied.
JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court.
OPINION
HEYDENFELDT, Judge
It is well settled that to entitle a party to an injunction in a case of nuisance, the injury to be sustained must be such as cannot be adequately compensated by damages, or it must be irremediable, or lead to irremediable mischief.
Such is not the case presented by the allegations of the complainant's bill. It does not show a sufficient probability of mischief to require the restraining power of the Court, or at least until the question of nuisance or not is determined by a jury, and even then the remedy at common law is ample.
Let the injunction be dissolved, with costs.