#### Thomas Farrell et al., Plaintiffs, *v.*The New York Steam Co., Defendant.

(Supreme Court, New York Special Term,

June, 1898.)

Nuisance — Operation, of the plant of a steam company.

Proof that, when the wind1 is in a certain quarter, cinders and soot, from the smokestack of the building of a steam company fail upon’ the premises of a neighboring owner, that the occupants of these premises are somewhat disturbed by noises made by the iron shutters of the furnace of the steam company and by the unloading of its coal,' that foul odors are produced to some extent by the steam company’s pouring water "on heated ashes, and that more or less heat comes from its boilers, does not sufficiently indicate that the steam comp'any is maintaining a nuisance, nor entitle the neighboring owner to maintain an action for an injunction restraining the steam company from carrying on a business,in itself lawful.

Action for a permanent injunction to restrain operation of a steam plant.

Epstein Brothers (Otto Irving Wise, of counsel), for plaintiffs.

James W. Hawes, for defendant.

Truax, J.

The evidence shows that when the wind is in the east some cinders and soot from the smoke-stacks of the building belonging to the defendant fall upon plaintiff’s premises; that occasionally the occupants of said premises are somewhat disturbed by noises made by the iron shntters of the furnace on defendant’s premises, and by the unloading of coal belonging to defendant; that foul odors .Are to a greater or less extent produced by the defendant’s pouring, water on heated ashes; and that more or less heat comes from the boilers belonging to and used by. the defendant; But the evidence does not show that any of the above-mentioned things was caused by the negligence of the defendant, or that taken altogether -they amount to a nuisance or materially lessen plaintiff’s beneficial en- . joyment of his property. In the respects above mentioned this case is unlike Cogswell v. Railroad. Co., 103 N. Y. 10; Bohan v. Gas Light Co., 122 id. 18; and Baltimore & Potomac. R. R. *727Co. v. Fifth Bap. Church, 108 U. S. 317, in which cases it was held that the acts complained of were nuisances. The defendant is engaged in a lawful business. In the language of the Court of Appeals in Booth v. Railroad Co., 140 N. Y. 280, while, the protection of property is one of the great, reasons for government, it is the equal protection to all that the law seeks to procure. The rule governing the rights of adjacent landowners in the use of their property seeks an adjustment of conflicting interests through a reconciliation by compromise, each surrendering something of his absolute freedom in order that both may live. To prevent the defendant from using its lot as it is using it, at the instance of the plaintiff, would not be a compromise between existing rights, but an extinguishment of the rights of the defendant for the benefit of the plaintiff. This sacrifice the law does not exact. I have said that the evidence does not show that the acts of the defendant have materially lessened plaintiff’s enjoyment of his property. By this I mean those acts of the defendant of which the plaintiff has the legal right to complain. Some of the witnesses said they did not like the looks of the building erected by the defendant, and that for that reason, as much as for any other reason, they were going to leave the neighborhood. But that plaintiff’s tenants or others do not like the looks of defendant’s building does not furnish a legal ground of complaint against the defendant. The neighborhood in which plaintiff’s house is situate has changed in the last few years; but this change was not caused by the erection and use of defendant’s building. In fact, such change began long before defendant’s building was commenced. It may be that plaintiff’s property-does not fetch as much rent now as it did a few years ago; but the eyidence does not show how-much of this loss of rent was occasioned by the defendant, and how much of it is due to facts and. circumstances for which the defendant is not legally responsible. For the reasons above stated, I am of the opinion that the complaint should be dismissed. But it should be dismissed, without costs. Let judgment be entered dismissing the-complaint, without costs.

Complaint dismissed, without costs.