Appeal, No. 70, March T., 1962, from decree of Court of Common Pleas of Somerset County, No. 6 Equity Docket, 1959, in case of J. E. Herring, trading and doing business as J. E. Herring Motor Company, v. H. W. Walker Company, Inc. Decree vacated.
Archibald M. Matthews, for appellant.
Charles H. Coffroth, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. JUSTICE MUSMANNO
J. E. Herring, trading and doing business as the J. E. Herring Motor Company, in Somerset, is engaged in the automobile sales and service business, his premises adjoining the establishment of the H. W. Walker, Inc., a corporation, which is engaged in the industry of producing condensed milk, powdered milk, ice cream and related dairy products to the extent of three million pounds per year.
As a result of the defendant company's processes a quantity of its evaporated products escapes into the open air and falls where it will, depending mostly on wind currents and other atmospheric conditions. J. E. Herring complains that most of it comes to rest on his premises and that it does considerable damage to his property and particularly the automobiles he has for sale and which are on display outside his building. He complains also that the defendant uses machinery which is operated by steam through the consumption of bituminous coal and that in consequence clouds of smoke emerge from the stacks above the boilers and that this smoke, carrying ash, soot and other deleterious substances, finds an affinity with his automobiles, to the mechanical and over-all detriment of the vehicles.
Accordingly he filed a complaint in equity in the Court of Common Pleas of Somerset County asking that the court enjoin the defendant company from discharging its vaporous and other wastes on to his premises and his automobiles. The defendant answered and the cause came on for a hearing.
After the taking of testimony the chancellor reached a finding that only a small quantity of the milk powder residue issued from the defendant company's operations and that the "defendant has taken such steps as are currently known to the industry to prevent as much escape thereof as possible." He ordered, however, a further hearing on the problem of smoke, soot and ash. After this second hearing, the court affirmed its original finding on the milk powder and refused an injunction on the smoke, soot and ash. It said: "The defendant has expended comparatively large sums of money in the procuring of the best mechanical devices under the advice of professional engineering services in an attempt to reduce the exhaust fallout and deposit of smoke, soot, fly ash and powdered milk on adjoining properties, particularly that of plaintiff, and, in those endeavors defendant has reduced the deposit of those substances to a practical minimum.
"The deposit of smoke, soot, fly ash and powdered milk from defendant's processing plant upon the plaintiff's property and his personal property thereon is to the plaintiff an annoyance which annoyance is damnum absque injuria."
We are not satisfied that the record supports these findings. The testimony in fact would show rather clearly that (1) the discharge of smoke, soot, fly ash and powdered milk from the defendant's plant is considerable, not negligible; (2) that this fallout causes not just annoyance but a serious and substantial interference with the ...