tanks, and in less than four hours thereafter, and before decomposition can set in, converted into an article of commerce. The process is by evaporation, and is claimed to be inoffensive and not injurious to health. The stock-yard and abattoir are to be paved with Belgian pavement, and the abattoir or slaughter-house is, in addition, to have a covering of asphalt, which will render the premises impervious to water, and thus prevent the ground from being permeated with offensive matter, and free from all noxious exhalation.

This direct affirmation, and as direct a denial, and the accompanying affidavits, present squarely the question of nuisance, accompanied with injury and damage to the complainants, and of injury to the public, prejudicial to comfort or to health. No one at this day, as was remarked in the comparatively late case of Rhodes vs. Dunbar, 7 P. F. S. 275, will, for a moment, doubt that we are invested with ample power to prevent the erection of any structure intended for a purpose which will be a nuisance per se. This power has been styled a kingly prerogative, but it is a prerogative which few kings in our day possess, and which no one who does not possess it would dare to assume. It ought, in every case, to be exercised by those on whom the law imposes the duty, only when a case is made out beyond all reasonable question or doubt, and even then it is of grace and not of right. There must be most careful consideration, so as to rightly determine whether, upon the whole case as presented, one exercising equity jurisdiction ought to stretch forth the hand of repressive and preventive authority. Before he can, in justice to himself, as well as to the parties litigant, control and restrain the exercise of one of the clearest and most sacred rights of a citizen, the use of his own property, he must be satisfied that the welfare of the individual suitor, or that of the public, outweighs the disadvantages which will result from an injunction. The burden rests upon the plaintiff, and he must make the way clear and the path straight before he can properly ask the exercise of this high chancery power in his behalf; to doubt, is to refuse the application. In Sparhawk vs. The Union Passenger Railway, 4 P. F. Smith, 421, the court say, a plaintiff has no case if his equity is doubtful; a doubtful equity would be an anomaly.

In this case plaintiffs claim that they start with the prima facies in their favor; that defendants admit that they intend to found an institution which in law constitutes a nuisance per se, and that the burden of proof to the contrary is shifted upon the defendants, and that they must show beyond doubt, if they would avoid an injunction, that their proposed stock-yard and abattoir will be so conducted as not to be a nuisance. In support of this conclusion several authorities are cited. Judge Sergeant's charge to the jury in the case of Commonwealth vs. Van Sickle, 7 Penna. L. J. 82, in which he states the general principle that persons owning city lots-and he might have added owning property almost anywhere-are entitled by right to healthy air, and the use of public highways, unimpaired by any adjacent nuisance. The statement by Mr. Justice Read, at Nisi Prius, in Rhodes vs. Dunbar, 7 P. F. Smith, that a swine-yard, a pig-sty, or pig-boarding-house (Van Sickle's case), a slaughter-house, have all been declared nuisances. To the same point are Catlin vs. Valentine, 9 Paige, 575, decided by Chancellor Walworth; Brady vs. Weeks, 3 Barbour, S. C. R. 157;

Smith vs. Cummings, 2 Parsons, 92. To these may be added the many cases in which the same principles have been applied and enforced in the Common Pleas and Quarter Sessions of this county for the past twenty-five years and upwards. Conceding the correctness of the doctrine of which the plaintiffs claim the benefit, yet it cannot be denied, that each case, as it has arisen, has been, and all future cases must be, decided upon their several specialties. If you establish the fact of the existence of a pig sty, or slaughter-house, or bone-boiling establishment, the presumption that they are maintained as such places are known to exist follows, and the law says, judging by all past experience, every such place is per se a nuisance. But this does not conclude a defendant from showing that in his particular case he has departed from that which is customary, and keeps his pig-sty or slaughter-house in such a cleanly condition that it offends not against the comfort or health of any one. If this can be made to appear, no indictment can be supported, or injunction go out against him; not even though he set up his cause of complaint in the very heart of the city, and upon its best improved and most fashionable highway. This is not a question of mere good taste or consideration for preference of others, or of pecuniary advantage to the defendants. It is strictly a question for legal and equitable adjustment, and upon this basis alone we are to decide the case before us.

The question as it stands now, upon the war of affidavits, which has been so vigorously waged, has brought it to the practical issue, of nuisance or no nuisance-private as well as public. Plaintiffs allege that they will sustain a special grievance arising out of a common injury, which, in the depreciation of the value of their property, and injury to their comfort and health, will press more upon them than it will upon others, who will not be so immediately within the influence of it. The correctness of this principle cannot, we think, at this day, be successfully questioned in Pennsylvania; nor is it denied by the defendants, who say, that while a private citizen may, in this Commonwealth, sue or come into a court of equity to ask for an injunction against a nuisance, which causes him damage alone, or beyond the rest of the community, yet where he suffers in common with others, the attorney-general is the proper party to interfere. The defendants do, however, object to the joinder of plaintiffs, having distinct interests as owners of separate and distinct property; it is argued that the injury to each one being several and joint, they cannot join themselves together. This view seems to have been supported in the case of Hudson vs. Middison, 12 Simons, 418; and in Sparhawk vs. The Union Passenger Railway Company, Judge Strong remarks, it may be there is a formal error in the joinder of parties having distinct interests; if there is, it is remediable by amendment. This reply is as appropriate in this case as it was in the one last cited; but numberless cases can be found, we doubt not, of which Rhodes vs. Dunbar is one, which have gone to final judgment, where parties, plaintiffs in the same suit, have stood in shoes each somewhat different from the other. The error at most is but formal and technical, and if the case on final hearing should be found to be with the complainants, the bill as to all of them could be dismissed, except as to one, and judgment given in his favor.

We do not propose to pause or turn the plaintiffs out of court at this stage of the cause on this ground, but to look rather to its merits, and upon these to rest our decision.

The allegations upon which plaintiffs found their case are supported by a most formidable array of authority. Much of it comes from those who are among the most eminent of our citizens, especially that which emanates from the medical profession, professors of medical colleges, surgeons and physicians of many of our charitable, curative, and surgical institutions. To this is to be added the statements and testimony of scientists and sanitarians, as well as that which is non-professional, from this city and from the cities of Chicago, Boston, and Providence. Great industry and skill have been displayed by those who have addressed themselves to the work of preventing that which they fear and believe will be a nuisance. If their fears are well founded, and can be shown to be almost or altogether certain to be realized, the way is clear and the path of duty plain; but it is not to mere fears and anticipation of coming evil to which courts must look, and by which they are to be guided, but to the facts which have been proved, and upon which their fears are grounded. In 3 Atkyns, 750, Lord Hardwicke refused to enjoin against the erection of a house to innoculate for the small-pox, and held that bills to restrain nuisances must extend only to such as are nuisances at law, and that the fears of mankind, though they be reasonable, will not

create a nuisance.

Thompson, chief justice, recognized the authority of this case in Rhodes vs. Dunbar, and in support of this principle cited Carpenter vs. Cummings, 2 Philada. Rep. 74, in which the court denied an injunction against maintaining a steam boiler under the pavement of a public street. The complainants rested their case on the fear that the boiler might explode and destroy their property and lives.

Rhodes vs. Dunbar was finally decided by a majority of the court upon this ground, dissolving the special injunction which had been granted at Nisi Prius against the re-erection of a planing mill on Twenty-first street, near Chestnut, which had been destroyed by fire. But in Wier's Appeal, 24 P. F. Smith, 230, an injunction was granted by a majority of the judges against the erection of a powder-house near the property of complainants, to prevent irreparable damage. This decision is rested part on legislation making the storage of gunpowder in certain localities unlawful, and on the character of the risk which results from the storage of gunpowder, nitro-glycerine, and other chemicals of a highly explosive nature, it being impossible to guard against the consequences, or set bounds to the injury to property and life which may result from explosion. It is the exception which is recognized in Rhodes vs. Dunbar, and may be regarded as the exception which proves the rule. But even more; the plaintiffs are required to show that they will sustain both injury and damage; the injury must be irreparable, and so great, or of such a nature, as to be incapable of compensation in damages: Hilliard on Injunction, 324; Campbell vs. Scott, 11 Simons, 39. It is, therefore, essential to ascertain just what is proved by the affidavits of the complainants. In a case of this character, plaintiffs cannot be required to do more than establish the correctness of inferences or opinions, based on that of which they have been informed, and believe,

or which the defendants confess they are about to do; but if any part of plaintiff's case has been shown to have no foundation in fact, or has been fully answered by the proofs against the motion for the injunction, then all such inferences and opinions must be set aside. We propose to try and ascertain how the question stands upon its several grounds of objection made by plaintiffs, tested by affidavits in the cause. We take up first the alleged pollution of the Schuylkill, and the consequences, which, it is asserted, must necessarily flow from it. Upon the sworn statements contained in the letter of Dr. J. H. Rauch, to John Sellers, Jr., of November 27, 1874, the greatest reliance is placed. Dr. Rauch is a gentleman of the highest attainments as a sanitarian, who has given to the subject of this proposed cattle-yard and abattoir very careful investigation. He says the most important objection, from a sanitary standpoint, will be the necessary drainage of refuse matter into the Schuylkill river. 15,000 pounds of organic decomposable material will daily enter into the river from this source. It is upon this and other sworn statements of Dr. Rauch, that much of the case of the plaintiffs depends. Quite a number of the affiants in support of the motion express an opinion that the proposed abattoir will, from this cause, be a nuisance, upon the strength of what Dr. Rauch has said. Upon the special point of the pollution of the river from the drainage of 15,000 pounds of animal refuse into it per day, there is the most direct and specific contradiction by the defendants. John R. McPherson, one of the defendants, says, more live stock is slaughtered daily in the abattoir in Jersey City than is required for the entire daily consumption in Philadelphia, and I do not hesitate to say, that the blood from the animals so slaughtered, is so carefully collected that the entire daily loss by washing the floors and other causes will not amount to a barrel of forty gallons daily. The value of the blood is so fixed and determined, that we would, with as much propriety, throw away the meat as the blood. He further says, we propose to adopt the same system in the establishment on the Schuylkill as that now in operation at Jersey City. The affidavit of Dr. John J. Craven, of Jersey City, a physician and surgeon, as well as a practical chemist, treats in a very intelligent manner of the condition and mode of carrying on the abattoir at Harsimus Cove, and of the results which will follow from conducting the stock-yards and abattoir on the Schuylkill in the way in which the Harsimus Cove or Jersey City establishment is managed. Of the objec tion that a nuisance will arise from the drainage into the Schuylkill, he says there will be no drainage from the storage pens; the accumulation of deleterious matter in the storage of live stock is carefully guarded against, the floors are kept dry and clean, and free from absorbent matter. These statements of Dr. Craven are sustained by the affidavit of Joseph J. Martin. This covers the question of drainage into the Schuylkill of blood and offal, and also of objectionable matter from the stock-yards, and answers that which the plain:iffs and their witnesses have said upon this point of objection. These statements are based upon that which is sworn to be the result of the experiment at Harsimus Cove, and one such practical demonstration is of more value than all mere speculation. And when this is considered in connection with the proof of the amount of water which every day is added to the volume

of water between South street and Callowhill street bridge, by the rise of the tide, it will be seen how groundless are all fears of infection of the river. Mr. Shedaker, one of the surveyors and regulators of the city, testifies that it amounts at each tide to 129,000,000 gallons, or 258,000,000 in each twenty-four hours. To this is to be added the fact, which appears by the affidavit of Dr. Charles M. Cresson, of this city, that there is an average daily flow from the pool of the dam of 500,000,000 gallons, and in very dry weather of 300,000,000. From all this, it is easy to comprehend not only how infinitesimal must be the injury to the stream, but how effectual, as Dr. Cresson remarks, must be the expulsion of sewerage below the dam; an average of three times as much water as is necessary to raise that portion of the river between South and Vine streets, from low to high tide, flowing into it from above, thereby causing a uniform downward ground current, and thus preventing any deposit of solid sewerage up stream. One of the great advantages which is claimed will result from the establishment of the abattoir, will be the improvement in the purity of the water of the Schuylkill; the slaughter-houses in which almost all of the meat of animals consumed in Philadelphia are killed and dressed for market, are scattered through the various districts, which are embraced within the corporate limits of the city; many of these slaughter-houses drain into the Schuylkill, and are a source of great impurity to the water. The effect which will be produced by the establishment proposed by the defendants, it is contended, will be to absorb the general business of slaughtering animals in Philadelphia; the cattle will be conveniently concentrated, and the slaughtering will be done at a saving of money to the trade. The affidavits furnished by the defendants state that such will be the result, and the allegation upon this point of gain in the purity of the water supply, shown by Dr. Cresson, will serve to illustrate this assertion. He states that which is well known to every one, that under the present system of private slaughtering, no care is taken to convert offil into profitable commodity, or to free slaughter-houses from decaying and offensive material. In the spring of 1872 he made an examination of two small creeks emptying into the pool of Fairmount dam, one upon the eastern and one on the western shore. The result was a discovery of sixteen slaughter-houses, besides other nuisances, located on these streams; from nine of these slaughter-houses were reported the killing of 598 animals each week. Referring to the statement of Dr. Rauch, that there would be an influx of 15,000 pounds of sewerage of animal matter daily into the river from the proposed abattoir, he adds, we shall even at such a cost benefit ourselves greatly, because we are now daily receiving from slaughter-houses above the dam at least an equal, and occasionally two-fold that amount-30,000 pounds. The removal of these slaughter-houses from this location will improve the supply of drinking water by diminishing the amount of sewerage. With regard to the anticipated drainage of deleterious substances into the river from the stock-yard and abattoir, there is a paragraph in the affidavit of Dr. Craven, which, of itself, may be regarded as an answer to all that has been said by Dr. Rauch, in his affidavit on behalf of the plaintiffs, upon this point. He says, with regard to drainage generally from slaughter-houses, there is no reason why it should be permitted to taint