five or six hundred feet from the plaintiff's dwelling. 4. That the allegations contained in the fourth paragraph of said bill are true. 5. The averments of the fifth paragraph of said bill the defendant company denies, and in this connection avers that its works are constructed after the most approved method, and with special reference to a prevention of any injury or damage to surrounding and neighboring property; and denies that from the operation of said works any injuries have resulted, do, or will result to the plaintiff. 6. That the averments contained in the sixth paragraph of said bill are not true. 7. That it is not true that there are any gases, fumes and vapors produced by the operation of the defendant's works, which are injurious to cattle grazing upon the plaintiff's land eating the products thereof; nor is it true that horses and cattle have died from grazing and eating fodder from said farm, because of any effect had thereon by the proximity of defendant's works thereto, or their operation. 8. And defendant company denies the allegations contained in the eighth paragraph of said bill. 9. It further denies the allegation contained in the ninth paragraph of said bill. 10. It further denies the allegations contained in the tenth paragraph of said bill. 11. That it is not true as averred in the eleventh paragraph of said bill, that at the time said works were being erected the plaintiff was not fully informed as to the uses to which they were to be put; but on the contrary, as defendant avers, the said plaintiff had full knowledge of the contemplated erection of said works, and was for a time in negotiation with the defendant company with a view to selling to it the whole or a portion of his said property for the purposes of said work; that during the time the said works were in process of erection, said plaintiff had daily knowledge of what was going on, saw the result of the expenditure of large sums of money made by the defendant in the putting up of said works, and has from that time until the present had a continuous experience as to the operations carried on by the defendant. It is not true that the soil and vegetation of the plaintiff's farm is or has been in anywise affected by any gases, fumes and vapors from defendant's works. 12. That the said works had been erected at an expense of about $140,000; that this expense was incurred with the knowledge of the plaintiff, and

without objection or protest upon his part; that the said works are perhaps the best constructed works of the character in the United States; that the defendant company employs in said works an average of from sixty to seventy-five men daily, who reside in the vicinity thereof, and manufactures large quantities of lead, which it supplies to the trade in the city of Pittsburg, and ships to other places; that the interference with the operation of said works would result in great loss and damage to the defendant company, and to the trade of the city of Pittsburg, and that so far from the existence and operation of said works producing any damage to the plaintiff, it is a fact that his said property is now by him rented, and has been for some time past, for a much larger sum than it was at the time said works were originally erected. 13. And the defendant. company denies that the said plaintiff has sustained any damage, or is likely to sustain any damage, by reason of the erection and operation of defendant's works, in any way, and that he has sustained, does, or will sustain any damage for which he has not a complete and adequate remedy at law.

The master, to whom the case was referred, Jacob II. Miller, Esq., found the facts as follows:

1st. The plaintiff is the owner in fee simple of a farm of 46 acres and 8 perches of land, situate near Mansfield, in Robison township, Allegheny county, with farm house and buildings thereon, on the line of the Pittsburg, Cincinnati and St. Louis Railway, at a distance of seven miles from the Union depot, in the city of Pittsburg. This farm was purchased by him on April 12, 1871, for $21,000. The plaintiff has not resided on his farm, but has leased it to farmers and croppers. 2d. That the defendant's real estate consists of nearly nine acres of land, adjoining the farm of the plaintiff. The line bounding the defendant's land upon the south is coincident with the plaintiff's northerly line, and is the center of the roadway of the railway, which separates the two tracts and is used and occupied. Both tracts are bounded on the east by Chartier's creek, and a large portion of each is creek bottom, but the western portion of both, where the buildings are located, is elevated about fifty feet above the bottom land and falls off gradually toward it. 3d. That in the spring of 1873 the defendant company commenced the erection of lead smelt.

ing works upon their land near the railroad, within seventy-five feet of the plaintiff's land and five hundred or six hundred feet from his farm house. The erection of the works occupied about seven months but new erections and changes have been since made. The buildings and ground have cost $140,000. 4th. That the works were originally constructed for the smelting of ores and the production of soft leads, silver, and whatever metals are of value in the ores received by the company, and for the refining of crude furnace lead bullion, produced from ores found in western territories, which ores contain silver and gold as well as lead. Since May, 1877, the exclusive business of defendant has been the branch last named, viz., the refining of crude furnace lead bullion and the production of merchantable lead, gold and silver. The defendant's works have a larger capacity than any other lead works in the country, viz., 14,000 to 15,000 tons of soft lead a year, and are now producing one fifth of the whole lead product of the United States. Their furnaces and other appliances are abreast of the times as to improvements and every precaution has been taken for the prevention of the escape of lead from their flues known to the most expert in the business. The amount of the lead produced and the value of the lead, silver and gold produced by the defendant since commencing operations, are as follows:

In 1873, lead, 223 tons; value $94,293.62; In 1874, lead, 395 tons; value $129,056.61; in 1875, lead, 2,641 tons; value $745,779.52; in 1876, lead, 3,694 tons; value $975,144.63; in 1877, lead, 8,934 tons; value $1,703,840.79; first six months of 1878, lead, 6,417 tons; value $1,111,772.73.

5th. That the plaintiff's land and the defendant's works are located in a farming district; but on the tract immediately westward of the defendant's land, is located the Mansfield Coal and Lime Company, whose coke ovens are near the lead works, and on the same side of the railroad. The railroad is between the ovens and the western portion of the plaintiff's farm. 6th. That prior to the time defendant's smelting operations began, the plaintiff's land was fertile and well adapted to farming and grazing. 7th. That the defendant's works emit from the chimneys and stacks thereof (in the processes of smelting ores and refuse and desilvering lead), offen

sive and poisonous fumes and vapors, which are blown upon, descend and rest upon the plaintiff's farm, and that lead is thus distributed over said farm to a distance of at least fifteen hundred feet from said works. 8th. That these lead fumes and vapors have injuriously affected and are injuriously affecting the plaintiff's farm; that they have lessened the fertility of a portion of the farm lying nearest to the lead works; that they have poisoned and are poisoning the vegetation and products of said farm, rendering the latter unfit for consump tion; that these injuries are still continuing. 9th. That horses and cattle grazing upon plaintiff's farm and eating the products thereof have died from lead poisoning, and that the lead was communicated to them through the herbage and fodder on which they fed. That the horses and cows of Jacob Wehrle, who was the tenant of the plaintiff from April 1, 1875, to April 1, 1876, and those of his son Frederick Wehrle, that died upon the plaintiff's farm, were poisoned in the manner above stated. 10th. That since April 1, 1876, the only crop cultivated upon the farm is corn, which is husked on the stalk and the fodder left on the ground; and no horses, cattle or live stock of any kind are reared or pastured on the farm. 11th. That the fumes and vapors from the defendant's works are offensive and nauseating to persons living upon the land or inhaling them. 12th. That the plaintiff's farm is greatly diminished in value by reason of the lead deposited and being deposited upon it from the defendant's works. Its rental value is also greatly depreciated. 13. That the lead works of the defendant are a nuisance to the plaintiff's farm.

Upon the whole case, law and fact, the master is of opinion that the plaintiff is entitled to the relief prayed for by the second paragraph of his prayer, and so reports.

Exceptions were filed to this report, and after argument thereon the court, STOWE, P. J., filed the following opinion:

"The defendant's interest in the maintenance of their works is such, and the public is so much concerned in the same result, that I have felt it my duty to scan, not only closely but critically, the evidence in the cause, with the purpose of escaping, if possible, from the conclusion arrived at by the master. After a very careful examination of the whole case, I am compelled to concur entirely with his findings of the facts, and

see no way of avoiding the result indicated by him, without palpably disregarding the principles established by judicial authorities and decisions, not only in England but in this country as well.

"From the first I could see no hope for defendants, except it might be in the application of the principles laid down by Chief Justice Thompson, in Richards' Appeal, 7 P. F. Smith, 105, where he says: A decree in equity is never of right, but of grace. Hence, the chancellor will consider whether he would not do a greater injury by enjoining than would result from refusing and leaving the party to his redress at the hands of a court and jury. If, in conscience, the former should appear, he will refuse to enjoin.'

"Were it not for the dangerous quality of the 'fumes' thrown out by defendant's works, which certainly affect growing vegetation, so as to make it not only unfit for food, but, when eaten, destructive of animal health and life, and for the extremely nauseous character of the effluvia emitted, and the evident uncertainty at what point that which is now shown to be merely offensive to the senses may begin to be pernicious, I could most probably have been content to refuse the injunction prayed for and have remitted the plaintiff to his action at law, to recover such damages as he might show had accrued to his real estate, by reason of injury to its productive capacity or general value for tarming purposes.

"But these are disadvantages and injuries incident to risks arising from the peculiar character of the fumes emitted, which will not admit of compensation, and the possibility, if not probability, that the health and personal safety of persons living upon plaintiff's land will sooner or later be involved, renders the case such that I am constrained to agree with the master, and conclude that a decree such as he recommends should be made."

From this decree this appeal was taken by defendant, which alleged that the court erred in sustaining the master's findings of fact. In finding that the plaintiff is not estopped from maintaining this proceeding. In deciding that an injunction can issue in this case without a previous trial at law. In deciding that the plaintiff has not an adequate remedy at law for any grievance disclosed by the evidence. In not refusing to