St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1895-01-06
ENJOINED THE SMOKE
Judge Kelly Files a Decision
Affecting the Smoke
Nuisance
~
AND ASSESSES DAMAGES
In the Old Case Of Jared
How Against Henry
Hale.
MEN IN CROWDED CENTERs.
80 >gE5
Says the Judge, Should Not
Be Too Fastidi-


Judge Kelly yesterday filed decision
that Is of considerable importance,
inasmuch as it establishes the prece-
dent of allowing damages to those af-
fected directly by the smoke nuisance
and .abating the same by injunction.
The decision is in an injunction and
damage suit brought by Jared How
against the executors of Henry Hale.
deceased. How occupies offices on the
fifth floor of the GilfiIlan block imme-
mediately opposite and about $50 feet
away from the Hale building, the top of
the smokestack to which is on level
with plaintiffs windows. In the sum-
mer the wind often carried the smoke
through the windows into plaintiffs
offices. doing damage and creating a
nuisance. In granting the injunction
and assessing the damages at $50 Judge
Kelly says:
"True, many other smoke stacks, as
also the frequent passing of locomo.
tives, made this section of the city at
that tims very smoky and dlsagreeable.
1t is also true that men and women who
live and do business in crowdedseenters
devoted to manufacture and the like.
where necessarily the air becomes pol
luted to a great degree with SCOT and
smoke. must not be over nice and faS-
tidious in their objections. But here is
a positive invasion of plaintiffs prem
Uses which no man has the legal right to
commit. and no man living modestly
aud modelling his tastes according to
plain, sober and simple notions among
the American people ought to be re-
quired to suffer. The amount of damage
assessed is small, because no great stress
was laid ON that branch of the case, land
because the principle involved is Of
more Importance than the damage in
money, and because it is very dif1icults
to assess such damage In money.
"Of course, | have considered the
possible effect of this decision. While
do not agree with the counsel for the
defendant that 1t will in any wise work
disaster to the material interests of the
city, hope 1t will tend to make persons
operating similar plants more consider
ate of the rights of their neghborS.
If it were true that the So-called smoke
nuisance is a remeGileSS evil to be
silently and prayerfully endured by all
who by necessity or choice make their
homes in the city, | would hesitate be-
fore | granted the remedy by injunc-s
ton.
"But the testimony in this case estab-
fishes the fact that the smokestack in
controversy may be safely raised TWEEN
ty-hve feet feet or more, and that if it
be so raised the smoke discharged from
it will sweep over the building where
plaintiffs offices are situated.
Then again, the employment of
skilled persons to manage the furnace,
the use of-better grades Of fuel, the
application of devices 70 consume and
prevent smoke-al or any of these, II
fairly and honestly applied, will, i'll my
Judgment, go far to minimize II not
totally remove the evil.
each case must depend on its own
peculiar facts. Every case of mere dis
comfort will not be remedied by injunc-
ton. The injury must be substantial
and real and irreparable i'll its nature,
or liable to continued recurrence.
The case at bar is such. | ground this
decision upon the common law and the
statute of this state, section "a, chapter
rs, General Statutes.
"Anything which is injurious to
health, or indecent, orsotfensive to the
senses, or all obstruction to the free use
of property, so as to interfere with the
comfortable enjoyment of life and prop
erty, is a nuisance, and the subject of
an action. Such action may be brought
by any person whose property is injur
riously affected, or whose personal Gu
joymant is ieSSened by the nuisance;
and, by the Judgment, the nuisance
may be enjoincd or abated, as well as
damages recovered
IF, in deed. since this suit was COM
menced, or since the trial, defendants
have taken steps by using devices to
consume the smoke, or by elevating the
top of the smoke stack so as to clear ada
Joining buildings. and thus remove the
nuisance complained OF, the injunc-
tional order cannot affect them serious
~. 1t can affect them in no event un.
less the nuisance is renewed"