#### Eliza McKeon, plaintiff and respondent, *vs.*William S. See, defendant and appellant.

1. Upon the trial of a cause by the court without a jury, the proper place for inserting the findings of the court upon matters pertinent to the issues, but not contained in its “ *decision,”*is in the “ *case "*prepared for hearing the appeal.

2. It is not error for the court to omit to state in its decision under the 267th section of the Code of Procedure even facts material to the issue, any more than for a jury to do so in its verdict; the presumption of law being that its findings on such facts are favorable to the successful party, as every thing necessary to sustain a verdict will be intended.

3. Under the 268th section of the Code, giving an appellant a right to have inserted in his “ *case ”*a brief specification of the facts found by the court, and its conclusions of law thereon, he has a right to require any pertinent facts to be passed upon by the court in the settlement of such case, and his redress, if any, for a refusal, must be by appeal from such settlement.

4. Until after a “ *decision*” by the court, it cannot be known what facts it may consider material to state, and no exception can be taken to an omission to find upon any previously requested to be found, or a refusal to find others, since neither party is then present in court for the purpose of taking such exception when the decision is made.

6. The 268th section of the Code alone provides for taking exceptions *after*the decision is made, and they must be written and filed, not taken orally.

*4506. An objection, taken on the trial of an action, once begun that it should have been tried by a jury, should be overruled. After the trial has commenced is not a proper time for determining whether there should be a jury trial, when there are several issues, some of which are clearly triable without a jury. If a party wishes to secure his right of trial of any of the issues by a jury, he should make his application before hand, so that, such right may be separately passed upon, before the trial. If he waits until the trial is entered upon, before applying for a jury trial, this will be a waiver.

7. The lawful character of the results of an occupation, trade or mechanical art, or the care with which it is carried on, will not prevent a right of action by those whose enjoyment of life and property is disturbed by the mode or means of conducting such occupation, trade or mechanical art.

8. The right of jarring a neighbor’s house by the motion of a steam engine upon one’s own premises, cannot depend at all upon the utility and lawfulness of the purpose for which such motion is employed, or of its final results. The intermediate injury, before such results are obtained, wrought upon anothers’ property or enjoyment of life makes such employment unlawful.

9. A nuisance may consist in the application of steam as a motive power to an engine already upon the defendant’s own premises, and using the same for sawing and- cutting stone and marble by means of machinery, thereby producing a vibration and shaking of the plaintiff’s buildings and injury thereto, and causing an offensive noise, interfering with the quiet use of such buildings, alarming the tenants and diminishing the rent.

10. An injunction may be granted, in such a case, notwithstanding the plaintiff has a remedy, as respects future injuries, by an action for damages.

11. Although certain occupations, trades or manufactures may become a nuisance in a populous city, which would not be so in the country, or among a scattered population, there is no principle which outlaws premises on which a nuisance exists, so as to prevent their owner from being protected against nuisances on other premises.

12. The only damages, besides those for an injury to his buildings, which the plaintiff is entitled to recover, in an action against an adjoining owner for a nuisance upon the premises of the latter, are those for a depreciation of the rent and loss of tsnants.caused by such nuisance, previous to the commencement of the action.

13. Where, in such an action, there is enough evidence of loss of rent, &e. to have authorized the court at special term to. render a conditional judgment for damages to be assessed by a referee, but it omitted to do so, the appellate court under its general power to modify a judgment or order, in any respect mentioned in the notice of appeal, as well as to reverse or affirm it, may do what the special term might and should have done, viz: send the matter to a referee, to assess the plaintiff’s damages, and modify the judgment so as to render it conditional, for the damages assessed, upon the confirmation qf the referee’s report.

(Before Robertson, Ch. J., and Monebl and Garvin, JJ.)

Heard May 7, 1866;

decided May 6, 1837.

*451This action was begun on the 14th of May, 1863, and its object was twofold. 1. To recover damages for injury to certain buildings of the plaintiff, caused previously by the propulsion by steam of certain machinery by the defendant upon premises adjoining those of the plaintiff, and the effect of the motion and noise of such machinery upon the facility of letting the -plaintiff’s buildings and the amount of their rents; and 2. To restrain the defendant from employing such machinery, in any business requiring the application of steam thereto to produce motion, and generally from propelling it by steam. The complaint after setting forth the ownership by the parties of the two contiguous premises, and .the nature of the business on each and the occupation of the lower part of the plaintiff’s buildings for shops and the upper part for dwellings, alleged that the defendant used his premises for sawing and cutting stone and marble by means of machinery upon them propelled by steam, causing an offensive noise which interfered with the enjoyment and value of the plaintiff’s premises, and producing a constant vibration and shaking of the buildings thereon so as to overturn furniture therein and generally interfere with their quiet use. It also averred that the movement of such machinery disturbed the night’s rest of persons occupying the plaintiff’s buildings, and so alarmed them by such vibration and shaking as to induce them to quit such buildings, for which they refused to pay any rent. It further set up a diminution of the rent of such buildings of the plaintiff, and their facility of being let, as well as injury to the walls, ceilings and plastering of such, buildings by such acts of the defendant, and demanded as relief, damages and an injunction order.

The answer, after controverting all the allegations of the complaint as to the effect of the motion of the defendant’s engine upon the plaintiff’s building, set up as a defense, that the defendant’s building was erected by him twelve years before the commencement of the action, which was before the plaintiff acquired title to her premises. That his business' was highly useful to the public, his motive power, a steam engine below the level of the street • the saws used by him of the *452usual kind, and more than thirty feet from the plaintiff’s premises, his own wall a foot thick and erected in the most substantial manner; his business carried on in a careful and proper way, with no undue noise and with as little disturbance as could arise from its legitimate prosecution, it not being a common or private nuisance, and conducted with the plaintiff’s assent and permission.

On the trial the defendant’s counsel demanded a trial by jury, which was refused and an exception was taken to such refusal. A motion to dismiss the complaint for insufficiency was also refused, and an exception taken to such refusal. After the testimony was closed a similar motion was made upon seven grounds. (1.) The want of a jury trial. (2.) The non-erection of the steam engine and machinery by the defendant. (3.) The want of a request to the defendant to cease using the engine, (4.) The absence of any injury to the reversion. (5.) The non-possession of the premises by the defendant, (6.) The lawfulness of the defendant’s occupation and his mode of exercising it. (7.) Ueneral defect of evidence of any cause of action. Such motion was again refused, and an exception taken.

In the decision of the court after the trial, the following were found as facts; (1.) The ownership by both parties of the premises described in the pleadings, and the receipt by them severally of their respective rents. (2.) The use of the defendant’s premises as a marble factory,' containing machinery for such manufacture propelled by steam. (3.) The jarring and shakingof the plaintiff’s buildings so as to injure them by such engine when so propelled. (4.) Damages sustained by the plaintiff thereby to a certain amount, ($967). The learned judge before whom the action was tried, concluded as matter of law in such decision : (1.) That the plaintiff was entitled to judgment against the defendant. (2.) That the latter should be perpetually restrained from carrying on in his building any business by means of machinery propelled by steam, and adjudged that the plaintiff should recover such damages, and her costs.

*453The case contained numerous requests made at some time, (but when, did not appear,) by the defendant’s counsel to the court to find certain facts and draw certain conclusions of law in his decision, and exceptions to refusals to find any of them, which requests and exceptions are placed after the decision. It also contained a number of exceptions to the decision of the court, its findings and conclusions, but when and how taken did not appear. The opinion of the court contains other facts not stated herein, and renders it unnecessary to set out those so. requested to be inserted in the decision.

A judgment was entered in conformity with such decision, from every part of which the defendant appealed.

*8. 8. Harris,*for the appellant.

I. To maintain this action, it was necessary for the plaintiff to establish that the working pf the defendant’s machinery occasioned an injury to her, in respect to her premises. This *injury*must be a legal injury, *i. e.,*a damage occasioned by the defendant’s use of his property in an unwarranted or unlawful manner resulting in a loss to the plaintiff, for which she was not chargeable. It cannot be claimed that the manufacture of Italian marble into ornaments, &c. is a nuisance *per se.*It is not a business that is offensive to the senses, or injurious to health, nor would it necessarily work a discomfort to any one. The learned justice, who tried this cause, did not hold that the working of the defendant’s machinery is a nuisance *per se,*and this is so clear that it requires no further discussion.

II. Does the evidence show that the defendant’s machinery is *in fact*a nuisance P Clearly not.

1. The defendant’s business is carried on in a *proper*locality. It is in a part of the city given up to trades of various sorts, any, or all of which would be more objectionable than the defendant's. The defendant’s buildings is bounded by three streets, affording large open spaces on three sides, and is surrounded by a neighborhood having a blacksmith shop, a slaughter house, a rag shop, a grist mill and turning mill, coal *454yard, butcher’s store, and tenement houses ; to say nothing of the cheap drinking resorts in the neighborhood. The defendant’s building is north of the plaintiff’s property, and immediately south of the plaintiff’s premises are the grist mill and turning mill—a boiler, belonging to the turning mill, being next to plaintiff’s property. The evidence shows the plaintiff’s property to have been second class tenement houses, occupied for twelve or fifteen years before the commencement of this action by laboring men, *“*a rough class,” as is remarked by one of the plaintiff’s witnesses. At the time this suit was commenced the evidence is that the plaintiff’s houses were in a very dilapidated condition, much in need of repair.

2. The defendant’s machinery has been worked and his business conducted in a *lawful and proper manner.*

3. The defendant’s machinery did not occasion any injury to the plaintiff for which the defendant is responsible. .

The rule is well established, that an action connot be maintained for the reasonable use of a person’s right, although exercised so as to occasion annoyance or inconvenience to another. *(Broom’s Maxims, p.*280, *(marginal,) and the English cases there cited.)*Broom says, the general maxim applies, *gui jure suo uiitur neminem fcedit.*Our own courts hold the maxim *sic utere tuo ut alienum non loedas,*not to be of universal application, but that the true rule is that a man who exercises *proper care and shill*may do what he will with his own property. *(Radcliff’s ex’rs*v. *The Mayor,*4 *Comst.*195, 200, *and various cases there cited. Pickard*v. *Collins,*23 *Barb.*444.) These cases hold and the result of the various decisions is, that if a man’s trade is lawful, carried on in a fit locality, and conducted skillfully, and without negligence, any indirect or consequential injury to another is *damnum absque injuria. (See Comyn’s Digest, p.*294, *title action on case for a nuisance, C. Williams*v. *N. Y. Central Railroad,*18 *Barb.*247; *Hentz*v. *Long Island Railroad Co.,*13 *id.*646; *Pichard*v. *Collins,*23 *id.*444, 457; *Hale*v. *Barlow,*4 *C. B. N. S.*334.)

*455III. Not only does the evidence show that the place and manner of carrying on the defendant’s business is unexceptionable and that it was a benefit to the plaintiff, but fails to show any injury to the plaintiff from May 1, 1863, to the conversion of the tenements into a factory, or to the trial of this action.

There are other reasons also why the plaintiff should not have recovered.

1. It does not appear that the plaintiff has ever occupied her tenements personally ; any annoyance from the defendant’s machinery must be complained of by the tenants ; the plaintiff can only claim for injury to the reversion. No such injury was proved. *(White*v. *Cohen,*19 *Eng. Law and Eq.*146. *Mumford*v. *Oxford,*36 *id.*580. *Simpson*v. *Savage,*37 *id.*374. *Squier*v. *Gould,*14 *Wend.*159.) No case can be found holding that a trade which is not a nuisance *per se,*can be made a nuisance by proof of mere loss of rent to the complainant ; cases that allow the diminution in the value of property to be shown are all instances of nuisances *per se,*and such diminution relates only to the question of damages. If, however, the trade is lawful in itself, like that of the defendant’s, evidence that the complainant’s property is worth less, is not proof that the trade is' a nuisance, and loss of rent is still less proof of that fact. Thus it was held in *Mumford*v. *Oxford,*(36 *Eng. Law and Eq.*580,) that the owner of a house could not maintain an action for the noise made by the defendant’s hammering in adjoining premises, during the tenancy, although less rent was paid by the tenant in consequence of such noise. And in *Simpson*v. *Savage,*(37 *Eng. Law and Eq.*374,) held that making fires and causing smoke to issue from a chimney, (being not of itself a nuisance, but only the use made of it) is no ground of action by a reversioner of adjoining premises, although his tenants give notice to quit in consequence, and the premises were to sell for less, if the nuisance were continued.

2. A diminution in the value of the plaintiff’s rent does not of itself constitute a ground of action against the defendant. *(Story’s Eq. Jur.§*954, *a, Redfield’s ed. Bruce v. President of Delaware and H. Canal Co.,*19 *Barb.*378.) If the defend*456ant’s business were *per se,*a nuisance, it might be otherwise, but the simple loss of rent does not make the defendant’s business unlawful or a nuisance. The business of the defendant being a lawful and useful trade, and carried on in a safe and judicious manner, avoiding as far as possible any injury to the plaintiff in the manner of working his machinery, and such injury not consisting in any damage to the reversion, but loss of rent from tenants who alone are subject to the personal annoyance, (if any there was,) there is no ground of action against the defendant. The loss of rent, (if any,) is consequential, and a mere incident. So would be the loss of rent by the owner of a house in Fifth avenue, adjoining a tailor’s establishment. (2 *Story Eq.*§ 925, *and cases cited. White v. Cohen,*19 *Eng. Law and Eq.*146. 9 *id.*104. *Simpson*v. *Savage,*37 *id.*374. *Squire*v. *Campbell,*1 *Mylne & Craig,*459. *Baxter*v. *Taylor,*4 *Barn. & Ad.*72. *Tucker*v. *Newman,*11 *Ad. & Ellis,*40.) Diminution in the value of property is never a ground for an injunction, unless the injury is irreparable. *(Story’s Eq. Jur.*§ 925, *and cases cited.)*

IY. If all .the propositions before discussed were laid out of view, still the judgment must be reversed.

1. The most that the plaintiff could be entitled to upon her own showing would be damages in an action on the case. The evidence is that about two years before the trial of this action, the plaintiff converted her tenement houses into a factory for manufacturing purposes. The plaintiff, by her own act, has thus deprived herself of any right to a perpetual injunction. There is not a word of evidence, nor is there any pretense, that the defendant’s machinery or business is an injury to the plaintiff’s property used as a factory. All the evidence of the plaintiff was directed to the question, whether the defendant’s mill was an injury to the plaintiff’s tenement houses, and the only judgment given is as to the alleged depreciation of the rental of the same.

. The interference of courts of equity, by way of injunction, is, as Story says, *“*undoubtedly founded upon the ground of restraining irreparable mischief or of suppressing oppressive *457and interminable litigation, or of preventing multiplicity of suits.” It is not every case which will furnish a right of action against a party for a nuisance, which will justify the interposition of courts of equity to redress the injury or to remove the annoyance, but there must be such an injury as from its nature *is not susceptible of being adequately compensated'by damages at law, or such as from its continuance or permanent mischief must occasion a continually recurring grievance, which cannot be otherwise prevented*but by an injunction. (2 *Story’s Eq. Jur. p.*238, §§ 925-927.) The damage must be irreparable, to authorize equity to interfere by injunction. *(Jordan*v. *Woodward,*38 *Maine R.*424. *Earl Ripon*v. *Hobart,*3 *Myl. & Cre.*169. *Hilliard on Inj.*270.)

(a.) In *Quackenbush*v. *Van Riper,*(2 *Green’s Ch. N. J.*350,) the court say that equity will not interfere by injunction when the injury does not appear to be irreparable and destructive to the estate, and when the ordinary legal remedies at law afford an adequate remedy. The same is decided in *Van Winkle*v. *Curtis,*(2 *Green Ch.*422.) In *Thompson*v. *Matthews,*(2 *Ed. Ch.*212,) the court says : When damages can be ascertained, without difficulty, by a compensation in money, the injury is not irreparable, within the rule that courts can interfere by injunction. *(Van Bergen*v. *Van Bergen,*3 *John. Ch.*287.) Lord Eldon says, in *The Attorney General*v. *Nichol,*(16 *Vesey,*338,) that there are private nuisances which would support an action on the case, but which would not support an injunction. The injury must be special and material, and incapable of compensation in damages. The same doctrine is held in *Milhau*v. *Sharp,*(28 *Barb.*228.) It is true that courts of equity have concurrent jurisdiction with courts of law in cases of private nuisance, but it is not every case that will authorize the exercise of the jurisdiction. The jurisdiction in equity will be exercised only in a case of strong and imperious necessity. • *(Fisk*v. *Wilber,*7 *Barb.*395.) The jurisdiction is said to be of recent origin, and always exercised *with great caution. (Simpson*v. *Justice,*8 *Iredell Eq.*115. *Story’s Eq.*§ 925 *to*930, *Redfield’s**458*ed. Olmsted*v. *Loomis,*6 *Barb.*160, *Earl Ripon*v. *Hobart,*3 *Mylne & Keen,*169, *per Lord Brougham.)*

*(b.)*An injunction is a preventive remedy. If the injury is already done, the writ can have no operation, for it cannot be applied, correctively, so as to remove it. The writ is not used for the purpose of punishment, or to compel persons to do right, but simply to prevent them from doing wrong. It cannot compensate the plaintiff for any pretended past injury, and, as to the future, there' is no injury. *(Atty Gen.*v. *N. J. R. R. Co.,*2 *Green Ch. 141*)*It must appear at the time a perpetual injunction is granted, that the plaintiff is entitled to it.

(c.) If the defendant had, by his act, changed the status of things, the plaintiff might still be entitled to her relief, but the *plaintiff herself, by her own act,*has converted her tenement houses into a factory. The injury, therefore, of the defendant’s mill to the plaintiff’s property as tenement houses, is not continuous, or constantly recurring. Nor is it irreparable, for until the plaintiff, by her act, made a factory of her houses, she could recover in damages compensation for all the injury she had received.

*(d.) ■*Equity will not interfere, if damages will compensate for the injury; nor if' the .evidence is *conflicting,*or the injury is *doubtful, eventual*or *contingent. (Gray*v. *Ohio,*1 *Grant Cases,*412. *Laughlin*v. *President,*6 *Ind.*223. *Butler*v. *Rogers,*1 *Stockt.*487. *Storg’s Eq. Jur.*§ 959, *a, Redfield’s ed. Earl Ripon*v. *Hobart,*3 *Mylne & Keen,.*169.) See recent decision of *Penn. Canal Co.*v. *Del. and Hud. Canal Co.,*(31 *N. Y. Rep.*91-99.)

(e.) The result is: (1.) The plaintiff’s pretended injury is not irreparable, but is capable of being compensated in damages. (2.) Nor continuous, having ceased long before the trial of this action by the plaintiff’s own act. (3.) The injunction could not be granted as'a punishment for past injury.

Y. There is another rule, also, that must not be overlooked : The plaintiff asking equitable relief must be free from fault, or it will be denied; or, if the plaintiff has acquiesced in the injury, equitable relief will not he granted. *(Harrison*v. *459*Newton,*9 *Leg. Obs.*347. *Saunders*v. *Smith,*3 *Mylne & Cr.*711. *Lewis*v. *Chapman,*3 *Beavan,*733.)

The evidence in this case is, that no objection was ever made by the plaintiff, or her grantors, to the erection or carrying on of the defendant’s business until this suit was commenced, which was nine years after the defendant erected his factory, and worked it as he was doing when this action was brought.

The defendant had a lease of these very tenement houses from the plaintiff, for ten years next preceding the commencement of this action. It looks as if it were because the defendant did not re-let the houses for a further term, that the plaintiff complained of the pretended injury, or some other disagreement.

The lease by the plaintiff to the defendant of her tenements, which expired on the 1st day of May, 1863, was a *continuing license*during its existence, which estops the plaintiff from saying that the defendant’s business or machinery was an injury to her. The acquiescence of the plaintiff in the carrying on of the defendant’s business from 1846, when the defendant commenced it, and permitting the defendant to erect his mill, and expend large sums of money in establishing his business without objection, and acquiescing in the carrying on of the same until May, 1863, (in all, seventeen years,) without objection, estops the plaintiff from alleging that such business or machinery is an injury to her. Upon the faith of the plaintiff’s acquiescence, the defendant not only built the mill, but put in the machinery, requiring large outlays, and established a trade and good will, which is exceedingly valuable. *(Sprague*v. *Steele,*1 *Rhode Island Rep.*247, *and cases cited. Williams*v. *Earl of Jersey,*1 *Craig & Phillips,*91. *Story’s Eq. Jur.*§ 959, *a.)*These cases establish, that acquiescence estops the plaintiff from asserting that to be an injury which has been permitted and sanctioned for a long period, and that an injunction is not granted when it is *oppressive, inequitable,*or *contrary to the real justice of the case. (Story’s Eq.*Jur.959, *a.)*

The general rule is applicable, that a party who' stands silently by and sees an injurious or unwarrantable act done, affecting his property or rights, and does not protest against *460it, is regarded as acquiescing in the propriety of such act. The rule is- peculiarly just in this case, as the defendant’s business had been carried on, at the same place, before the erection of the defendant’s building.

VI. Another error is in the allowance of damages estimated to the trial of the action. The rule is, that the plaintiff’s recovery, in an action for damages for a nuisance, is limited to the commencement of the action. *(Blunt*v. *McCormick,*3 *Benio,*283. *Beckwith*v. *Griswold,*29 *Barb.*291, *and*cases *cited. Troy*v. *Ch. R. R. Co.,*3 Foster, 83. *Thayer*v. *Brooks,*17 *Ohio,*489. *Duncan*v. *Marckley,*1 *Harper,*276. 16 *Q. B. 586.)*Were the general rule otherwise, the plaintiff could not recover, in, this case, after her tenements were converted into a factory.

VII. If the proposition that the only relief the plaintiff was-entitled to, if any, was in damages, is correct, then it follows that the action should have been tried before a jury, and it was error to refuse the defendant a jury trial.

Before the Code, a person injured by a nuisance had a writ of nuisance, under the Revised Statutes, (2 *B. S.*333,) or could bring an action on the case. *(Brown*v. Woodworth, *5 Barb. 553.)*If the defendant’s trade was a nuisance, *per se,*the plaintiff could file a bill in equity. When the fact of nuisance depended upon extraneous facts and circumstances, no equitable relief was given, until it was determined that, in view of all the facts, the trade complained of was a nuisance. For this purpose, a feigned issue was awarded. *(The Mohawk Bridge Co.*v. *The Utica and Schenectady R. R. Co., 6*Paige, *563.)*Equity only interfered to prevent the erection of a nuisance. After its erection, the party complaining sought his relief in an action on the case for damages, or by writ of nuisance. (El*lsworth*v. *Putnam,*16 *Barb. 565.)*The chancellor expressly says, in the *Mohawk Bridge case, (supra,)*that the rule is, to refuse to interfere, when the question of nuisance depends upon extraneous facts and circumstances, and the noxious thing is not of itself necessarily a nuisance. *(See Saltus*v. Genin, 3 *Bosw.*264; *Fire Department*v. Harrison, *4612 *Hilt.*455.) A bill to restrain a nuisance, and also asking damages, is multifarious. *(Murray*v. *Hay,*1 *Barb. Ch.*59.) When the. complaint is for legal and equitable relief, the cause should go to the circuit or trial term, and the claim for damages be tried before a jury, when the judge holding the trial term could grant the equitable relief, if the plaintiff was entitled to any. It is so held in *New York Ice Co.*v. *North Western Insurance Co.,*(31 *Barb.*72, 73,) and in the recent case of *Genet*v. *Howland,*(30 *How.*360.) The case of *Phillips*v. *Gorham,*(17 *N. Y. Rep.*275,) holds that when one ground of claim is triable by jury, and the other by the court, such cases may be tried by a jury. *(See Bell*v. *Ohio,*25 *Penn. Rep.*161.) It has been repeatedly held that article 1, section 2, of the constitution, "applies to trials of issues of fact in civil cases ; and that the usage which has heretofore prevailed must prevail and define its application. ( *Wood*v. *City of Brooklyn,*14 *Barb.*432. *Livingston*v. *Mayor of New York,*8 *Wend.*102.) The cases all agree, that it is for a jury to decide, whether the thing complained of is a nuisance. *(Kirkham*v. *Handy,*11 *Humph.*406. 1 *Grant,*412.) And this has been the uniform usage in this state. *(Rogers*v. *Barker,*31 *Barb.*447.)

VIII. The several requests of the defendant, that the learned justice should find certain facts and conclusions of law should have been granted. Most, if not all, of the facts which the justice was desired to find, were material, particularly the facts relating to the coversion of the tenements into a .factory. Such facts bear directly upon the right of the plaintiff to an injunction, as well as to the amount of damages. The other requests relate to facts, not specifically found in the decision and findings of the justice, and are important in determining the various questions in the case before discussed.

IX. The motion of the defendant to dismiss the complaint should have been granted upon the grounds stated on the motion and before discussed.

X. The judgment cannot be modified, but must be reversed. This is not a case where the error consists merely in arriving *462at erroneous results from the facts found. The error is, 1. In holding as a fact that the defendant’s machinery was a nuisance at any time. 2. If it were a nuisance, in holding as a fact, that it continued beyond the time when the plaintiff’s tenements were converted into a factory. 3. A modification of the judgment, upon the theory that the defendant was liable to the time of the commencement of the action, or to the time of the conversion of the tenements into a factory, would require a denial of an injunction, and a new assessment of damages, that is, a new judgment, simply for such injury as was sustained to the time of the commencement of this action.

*Jolm E. Burrill,*for the respondent.

I. The action was properly tried by the court. It was not one of the actions mentioned in section 253 of the Code, and as the defendant did not avail himself of the right to have issues framed for submission to the jury, he .has no ground of complaint. *(See*§§ 253, 254,72 ; *Rule*33 *of Supreme Court; 4 Bosw.*657; 24 *N. Y. Rep.*40.)

II. The present action does not come within the 454th section of the Code, and is not affected by the provisions of that section or of the Revised Statutes relating to writs of nuisance.

III. The findings of the court, at special term, are fully sustained' by the evidence.

IY. If the evidence was conflicting, still it was sufficient to warrant the findings of the court, and such findings are, therefore, conclusive.

Y. The findings of the court in respect to the amount of damages will not be disturbed. In estimating the damage, the court adopted the lowest estimate of the witnesses. The finding is conclusive, there being evidence to warrant it. The exception taken to the finding, in this respect, is too general. *(McMahon*v. *N. Y. and Erie R. R. Co.,*20 *N. Y. Rep.*463.) In estimating the damage, it was proper to include loss up to the time of the judgment.

YI. The defendant’s mill and factory interfered with the plaintiff in the use and enjoyment of her property, and pre*463judicially affected its value, and thereby became a nuisance, for which the plaintiff was entitled to recover. *(Fish*v. *Dodge,*4 *Benio,*315. *Brill*v. *Flagler,*23 *Wend.*356. *Baptist Church*v. *Schenectady and Troy R. R. Co., 5 Barb.*79. *Dennis*v. *Eckhardt,*2 *Am. Law Reg. N. S.*166.)

VII. The fact that the business is a lawful business, and is conducted with all the care and skill possible to be exercised, and in a neighborhood occupied by mechanics and working people, constitutes no excuse or justification. *(Same cases.*5 *Am. Law Reg. N. S.*104.)

VIII. Even had it been shown that the plaintiff allowed the defendant to build and use the mill, without objection on her part, this would not have affected her cause of action. *(Elliotson*v. *Fealham,*2 *Bing. N. C.*134. 34 *Barb.*485. *Bliss*v. *Hall, 4 Bing.*183.) But it appears that the mill was erected before she purchased her premises, and that at the time of such purchase, it was under a lease to the defendant, which expired in May, 1863, and the action was commenced immediately after.

TV, The plaintiff was not restricted to a recovery of damages, but on the facts found was, in addition to such damages, entitled to the injunction awarded by the judgment. The right to grant such an injunction is too well established to admit discussion. (28 *How. Pr.*238, *per Barbour, J.*2 *Am. Law Reg. N. S.*166.)

By the Court,

Robertson", Ch. J.

Upon a trial of a cause by a court without a jury, the proper place for inserting the findings of the court upon matters pertinent to the issues, but not contained in its “ *decision,”*is in the “ *case,”*prepared for hearing the appeal. It is not erroneous for the court to omit to state, in its decision under the 267th section of the Code, even facts material to the issue, any more than for a jury in its verdict, the presumption of law being, that its findings on such facts are favorable to the successful party, as every thing will be intended necessary to sustain the verdict. *(Higgins*v. *Moore,*6 *Bosw.*344.) The 268th section gives an appel*464lant a right to have inserted in his *“case’’*a brief specification of the facts found by the court, and its conclusions of law thereon. ' He has therefore a right to require any pertinent facts to be passed upon by the court in the settlement of such case, and his redress, if any, for a refusal must be by appeal from such settlement. Until after a “ *decision”*by the court, it cannot be divined what facts it may consider material to state, and no exception can be taken to a refusal to find any others, since neither party is then in court for the purpose of taking such exceptions. The 268th section alone provides for taking exceptions *after*the decision is made, and they must be written and filed, not taken orally; consequently it is unnecessary to consider any (of what are termed) exceptions to refusals to find according to certain requests, which appear in the case before us, without stating when or where such requests were made.

The objection taken on the trial of this action that it should have been tried by a jury was properly overruled. After the trial has commenced, is not a proper time for determining whether there should be a jury trial, when there are several issues some of which are clearly triable without a jury. The legislature have the power of prescribing in what way a trial by jury may be waived *(Const, art.*1, § 2,) and may make acts of omission so well as a disclaimer evidence of such waiver. The has provided a mode of determining, whether the whole issues Code or any question of fact are to be tried by a jury, upon a distinct application (§ 254,) which must be made within eighteen days after issue joined) (33d *Gen. Court Rule.)*It is very evident, that two issues cannot well be tried together, one by a court and one by a jury. To lose the whole benefit of a trial, because the court may have erroneously determined that a jury was not necessary, would be manifestly unjust. If a party wishes to secure his right of trial of any of the issues by a jury, he should make his application before hand, so that such right may be separately passed upon before the trial, and the question may be settled, if necessary, by appeal, as a refusal to grant the application would probably be, if a mat*465ter of strict right, the subject of an appeal. But to wait until the trial is entered upon before making an application for a jury trial, is a waiver. It is settled that where a common law cause of action is joined with an equitable one and the trial of the latter has been entered upon, but there is a failure of evidence to sustain it, the court must still proceed with the trial of the former, even without a jury. (N. *Y. Ice*Co. v. N. *Western Ins. Co.,*23 N. *Y. Rep.*357. *Barlow*v. *Scott,*24 *id.*40.) This can only be upon the principle, that as one of the issues was triable without a jury, the entering upon its trial without a previous application under section 254 was a waiver of a jury, there being no provision in the Code for two trials of issues in an action, at the mere election" of the party, without the sanction of the court. The denial of a jury to try one of the issues in this case was therefore not error.

For the purposes of this appeal we are bound to assume, that it was established on the trial, that the facility of letting the plaintiff’s premises had been diminished, their rent depreciated and the buildings injured by the noise and jar created by the motion of the defendant’s engine, as there was considerable evidence to that effect. And although the evidence may have been conflicting, it was not so preponderating to the contrary, as to justify us in overturning the findings of the court on those points. *(Cohen*v. *Dupont,*1 *Sandf.*260.) It may also be assumed, for the purpose of testing the plaintiff’s right to relief, that the defendant’s business was lawful and publicly beneficial, and conducted with every reasonable precaution, as to the character of his building and machinery and mode of using them, to prevent unnecessary injury to the plaintiff. This presents the naked question, whether the lawful character of the results of an occupation, trade or mechanical art, or the care with which it is carried on, can prevent any right of action by those, whose enjoyment of life and property is disturbed, by the mode or means of conducting such occupation, trade or mechanical art. It is true, an indictment for a nuisance will not lie for conducting an occupa*466tion, which is only disagreeable and unpleasant to others, although it would, if it were prejudicial to the enjoyment of life and property. *(Front’s case,*4 *City Hall Rec.*87.) An action lies, however, for the commission of acts by which the enjoyment of life and property has been seriously impaired. *(Fish*v. *Hodge,*4 *Denio,*311. *Catlin*v. *Valentine,*9 *Paige,*575.) In one case *(Fish*v. *Dodge, ubi sup.)*the noise of manufacturing steam boilers has been held to be so. In another *(Soldan*v. *De Held,*2 *Sim. N. S.*133,) the ringing of bells. In a third, the holding a banner inscribed “Beware of mock auctions ” in front of an auctioneer’s shop, *(Gilbert*v. *Mickle,*4 *Sandf. Ch.*357;) and lastly the disturbance of the rest and comfort of a family by the constant barking and howling of a dog. *(Brill*v. *Flagler,*23 *Wend.*354.) Grasworks, producing special injury, are also a nuisance. *(Carhart*v. *Auburn Gaslight Co.,*22 *Barb.*297.) The general principle is also sustained in the recent cases of *Dennis*v. *Eckhardt,*(2 *Am. L. Reg. N. S.*167,) and *St. Helen’s Smelting Co.*v. *Tipping, (5 id.*104.)

Mere noise perhaps, unless unusual, ill-timed or deafening, may not be such a nuisance, as to authorize an indictment or an action therefor, even when it interferes with another person’s avocations or pursuits. Thus the hum, bustle and voices of a school, which disturbed the studies of a professor in the neighborhood, (Comyn’s *Dig. tit. action on the case C.*294,) or the passage of railway trains near a church, *(First Baptist Church*v. *Utica and S. R. R. Co.,*6 *Barb.*313,) were held not-to entitle such professor, or the congregation worshipping in such church to special protection. The law could not undertake to lay down a distinction between different useful occupations, or the relative merits of the school and the occupation of the professor, or of the worship of the congregation and the railway, but whenever the senses and comfort of every human being, whatever his occupation or pursuits, are assailed by such means as bells ringing, steamboilers hammered, and dogs howling, there is no such competition. This case, however, presents something more palpable than discomfort by noise. *467The right of jarring a neighbor’s house by the motion of a steam engine upon one's own premises, cannot depend at all, upon the utility and lawfulness of the purpose for which such motion is employed, or of its final results. The intermediate injury, before such results are obtained, wrought upon another’s property or enjoyment of life, makes such employment unlawful. There is a distinction which may be easily conceived although not always as easily defined, between acts, which may be done on one’s own premises, although to the injury of adjoining premises or their appurtenances, without responsibility therefor, and those which may not. A neighbor’s light may be obscured by a wall built upon one’s land, without such responsibility, because the right so to build is part of the elements of ownership; *(Mahan*v. *Brown,*13 *Wend.*91; *Parker*v. *Toole,*19 *id.*309; *Pickard*v. *Collins,*23 *Barb.*444.) Burning one’s own fallow land is a legal mode of using it, and a neighbor is bound to protect himself against the spreading of a fire kindled for the purpose; *(Clark*v. *Foot, 8 John.*421; *Stuart*v. *Hawley,*22 *Barb.*619; *Bennet*v. *Scutt,*18 *Barb.*347.) An injury to a neighbor’s *house,*by excavating on on.e’s own soil is not actionable, *(Pauton*v. *Holland,*17 *John.*292,) although if it affected the *natural soil*it would be. *(Farrand*v. *Marshall,*21 *Barb.*409.) But, even without malicious intent, burning brick even on one’s own land; (*Walter*v. *Lefe,*4 *De G.& S.*315.) Creating assemblages of people on a sheet of water, the right of fishing and sporting in which was reserved to others; *(Bostock*v. *N. Staffordshire R. W. Co.,*21 *Law Journ. N. S.*2 *B.*384;) making the ordinary use of a building offensive and injurious to’ a neighbor; *(Pickard*v. *Collins, ubi sup.)*Throwing dirt . and stones on the premises of another, by blasting rocks on one’s own, *(Hay*v. *Cohoes Co.,*2 *N. Y. Rep.*159;) overflowing a neighbor’s premises by collecting rain too near them on one’s own, *(Bellows*v. *Sackett,*15 *Barb.*96;) permitting a stranger to disturb the soil on one’s own premises, so as to allow it to descend upon a neighbors, *(Gardner*v. *Heartt,*2 *Barb.*165;) are all acts for injury by which to a neighbor *468an action by the latter will' lie. Other cases are to be found collected and classified in the case- of *Radcliffe*v. *Mayor of Brooklyn,*(4 *N. Y. Rep.*195.)

But in fact in the case before us, the nuisance did not consist, either of the mode of using the defendant’s premises, or of any thing upon them, but in the application of steam as a motive power to an .engine already there ; which, while quiescent, was harmless and was only rendered an agent of mischief by the motion communicated to it by such application. Perhaps, as the court might not be able judicially to know, that the motion of a steam engine would necessarily produce injury to adjoining buildings, under the former system of divided jurisdictions of courts and insufficient power in any one alone to do complete justice, a trial at law might have been necessary before even a preliminary injunction, *(Phenix*v. *Commissioners of Emigration,*12 *How. Pr.*1;) or a feigned issue before a final one. *(Mohawk Bridge Co.*v. *Utica R. R. Co.,*6 *Paige,*563.) But the union of all jurisdictions in one court, and its power to try every question of fact by a jury, avoiding such embarrassing questions as those raised in *Blunt*v. *Hay,*(4 *Sandf. Ch.*362,) enable the rights of every, one to be disposed of at one time; *(N. Y. Ice Co.*v. *N. Western Ins. Co., ubi sup.; Genet*v. *Howland,*30 *How.*360 ;) and do away with the necessity of going through two courts in order to prevent an evil or redress a wrong. The Code, moreover, renders an appeal to a preliminary action, to establish the character of the defendant’s acts as constituting a nuisance, unnecessary even to obtain a preliminary injunction or order, for it permits it in all cases where such acts if *committed*or *continued*during the litigation would produce injury, (§ 219, *subd.*1,) without regard either to the amount or character of such injury.

It is said, however, that no injunction ought to be granted,, because every injury done by the motion of the defendant’s engine to the plaintiff’s property, is susceptible of pecuniary compensation. Of course for the past, she seeks indemnity in this action by pecuniary damages ; but even if she could be *469compensated by money, for the daily wrong to be done hereafter by the motion of the defendant’s machinery, she is not bound td submit to such a series of wrongs. The suppression of c< oppressive and interminable litigation,” and the prevention of “ multiplicity of suits,” equally with protection against *“*irreparable mischief,” form grounds of equitable interference. (2 *Story's Eq. Jurisp.*238, §§ 925, 927.) It would be strange, if not intolerable, that justice,' though it prevents the commission of threatened crime, by exacting security against it, without waiting for its commission to punish it, should leave individuals exposed to the repetition of private intended wrongs, with no remedy but repeated actions for damages. If the allegations in the complaint in this case were well founded, there can be no doubt that unless the plaintiff should submit to the intended injury without complaint, the litigation could only terminate, when the engine ceased to be propelled by steam, a result which it was proposed to accomplish, and sooner less expensively and litigiously by an injunction order.

I do not understand, that the defendant seriously sets up the character of the neighboring houses, to show that by the endurance by others, of a like injury with that of the plaintiff, from the nuisance complained of, the only remedy was by indictment or. a *joint*action, as is supposed to be the rule of law laid down in *Dougherty*v. Bunting, (1 *Sandf.*1,) and *Lansing*v. Smith, (8 Cowen, 146,) although the rule as laid down in the latter case, was disputed by the late learned chancellor of this state, ( 4 *Wend.*9,) and is directly in conflict with *Myers*v. *Malcolm,*(6 *Hill,*292.) Such joint injury, however, could not take away the preventive jurisdiction of equity. *(Corning*v. *Lowerre,*6 *John. Ch.*439. *City of Georgetown*v. *Alexandria Canad Co.,*12 *Peters,*91.)

The defendant, however, undertook substantially to show that the whole vicinity was of such inferior character—such a nest of nuisances, that one more or less could not affect it; and that even the plaintiff herself, before she had sustained any injury from the defendant’s acts, had converted her own *470premises into one. Certain occupations, trades or manufactures may become a nuisance in a populous city, which would not be so in the country, or among a scattered'population. Rut I know of no principle which outlaws premises on which a nuisance exists, so as to prevent the owner from being protected against other nuisances on other premises ; nor do I see how a balance could well be struck between the amount of mutual injuries done by them. Rut the evidence offered did not come up to showing that the kind of houses of which such neighborhood was composed, or the occupations carried on in them, were nuisances. They cannot, therefore, be judicially known to be such. At all events, the annoyances arising from them, were not of the same kind, or addressed to the same sense, as that caused by the defendant. So too, there is no evidence into what kind of factory, the plaintiff converted her buildings. The only acquiescence on her part in the application by the defendant of steam to his engine, consisted in not bringing an action. This would at most limit her right of action to damages for six years. In fact, she had no right of actual possession to her own premises, until a fortnight before the commencement of this action.

The only damages, however, which the plaintiff was entitled to recover, besides those for injury to the building, were those for a, depreciation of rent and loss of tenants, caused within a fortnight, between the 1st of May, 1863, and the commencement of this action, (May 14, 1863.) She was not entitled to recover for loss of rent before the former date, unless express malice was charged and proved, *(Aldridge*v. *Stuyvesant,*1 *Hall, S. C.*210,) because the tenants were not absolved from paying it. She was not entitled to recover it to the time of trial, upon the ground that the defendant’s unlawful acts only then ceased. In an action, where no injunction should be asked for, she could not recover them, unless the defendant’s acts, committed before the commencement of such action, caused a loss .of rent after it, and the only equitable,relief asked for was such injunction. It did not appear that she let her buildings beyond a year after the 1st of May, 1863, and *471she could only recover for a diminution of that year’s rent by the apprehension by tenants of the continuance of the defendant’s injurious acts. For any damages for injuries caused by such acts since the commencement of this action, being entirely a cause of .action at law, her right of action therefor still remains, and she could not acquire a right to larger damages by joining such a cause of action with an equitable one. By obtaining a preliminary injunction, she could have stopped such acts, although she would thereby lose her right of action therefor. But she cannot recover them in this action by failing to apply for it in time. The evidence, even of any continued working of his engine by the defendant after the commencement of this action is very slight (if any) and only by implication.

Some of the witnesses who examined the plaintiff’s building in 1864 speak, indeed, of injuries caused by the vibration of it by the motion of the defendant’s engine, but do not state when they occurred, while some speak only of the effect two years before the trial. But there is no certain evidence of the specific effect of such disturbance upon the rent of the houses after the 1st of May, 1863. Only three witnesses were examined as to the amount of the plaintiff’s damages, (Gilchrist, *Springsteen*and *McGuire;)*one (Gilchrist) made the depreciation in yearly value of each of the plaintiff’s two houses by the motion of the defendant’s machinery $400 or *$500;*another (,Springsteen) made it between $175 and $200, and the third (McGuire) estimated it at between $250 and $300. This would not warrant the finding as to damages, unless a loss of rent to the time of trial was allowed, and this appears to have been the view of the court in awarding them, but which, as I have shown, is erroneous. Such a view could only be sustained by considering the mere existence of the engine as constituting the essence of the nuisance, and the creation of its motion by the application of steam as such a natural mode of such existence, that the working of it by successive supplies of fuel and water, although intermittent, formed a continuous nuisance, indivisible by intervals of rest, and pro*472ducing constant injury down to the time of the trial. This is evidently erroneous, as the proper mode of abating the nuisance would be simply to do what was done in this case, prohibit any application of steam to such engine to cause it to move, which is a negative remedy only. The injurious acts, therefore, however frequently repeated, and with whatever short intervals of rest, were a succession of new and voluntary ones, not the natural or necessary consequences of each other, or so united as to be incapable of division in thought or act. The damages awarded to the plaintiff were, therefore, excessive.

The difficulty remains, what judgment ought to be rendered. I cannot find any data in the evidence upon which to reduce the damages, except to a nominal sum. It is not established that a year’s rent was lost, and the rate of depreciation of rent differed so widely in the estimate of the only three witnesses examined, varying from $500 to $150, that it would not be proper for us, sitting at general term, to undertake to pronounce upon it. There was enough evidence of loss of rent and other material issues in the action to have authorized the court at special term to have rendered a conditional judgment for damages to be assessed by a referee. The Code authorizes every apjoellate court to modify a judgment or order in any respect mentioned in the notice of appeal, as well as to reverse or affirm it. (§ 330.) They are only entitled to grant a new trial when “necessary and proper.” Anew trial would not be necessary or proper in this case, if it' can be avoided. And I can see no objection to this court now doing what the court at special term might and should have done, to wit, send the matter to a referee to assess the plaintiff’s damages, and modifying the judgment so as to render it conditional for the damages assessed, upon the confirmation of the referee’s report.

But as it is evident in this case that the plaintiff could only recover damages for the very short period between the termination of her tenants’ possession and the commencement of this action, the plaintiff may, perhaps, prefer to abandon the prosecution of such a reference, rather than incur the expense of conducting it. If so, and she file a consent to that effect, *473the judgment may be modified by striking out the award of damages therein without prejudice to her right to bring an action for damages, if she is advised to do so.

In reference to the effect upon the injunction of thus dropping the part of the action relating to damages, I think there was ample evidence in the case of *actual, past substantial*damage, however comparatively small, and, therefore, any consideration of prospéctive damages may he laid out of view. I have already disposed of the question of the necessity of a recovery of damages by action before granting an injunction, and I, therefore, do not consider that the right to an injunction would he interfered with by an abandonment of the part of the action relating to damages.

But I think that the injunction prohibiting absolutely the use of steam in the defendant's building went too far. It does not appear that the injurious effects of it may not he remedied by some change in the machinery, or diminution of speed, or the pressure of steam, and the injunction order should be confined to preventing an improper use, *(Lingwood*v. *Stowmarhet Co.,*1 *Eq. Ca. L. R.*79, 336. *Crump*v. *Lambert,*3 *id.*409,) and such qualification must be inserted in the judgment.

• The judgment must he modified accordingly, with no costs to either party, on the appeal.