
18 F.2d 736 (1927)
SMITH
v.
STASO MILLING CO.
No. 238.
Circuit Court of Appeals, Second Circuit.
April 4, 1927.
*737 J. B. McCormick, of Granville, N. Y. (M. C. Webber, of Rutland, Vt., of counsel), for appellant.
W. S. Fenton, of Rutland, Vt., for appellee.
Before MANTON, HAND, and SWAN, Circuit Judges.
HAND, Circuit Judge (after stating the facts as above).
As this case concerns the enjoyment of land in the state of Vermont, and depends upon the relative interests of two landowners, we are to decide it in accordance with the common law of that state, so far as it is disclosed by the decisions of its highest court. Buchser v. Buchser, 231 U. S. 157, 34 S. Ct. 46, 58 L. Ed. 166. So far as we can find, however, the Vermont decisions are not different, as respects the rights of riparians, from the general law. The defendant, while not using the brook directly, has created in its neighborhood deposits of sludge which were not there in a state of nature. When in ordinary course this is carried into the brook through the settling beds, it is the equivalent of directly defiling the stream itself, becomes a wrong, and subjects the defendant to some form of action, either at law, in equity, or both. Canfield v. Andrew, 54 Vt. 1, 41 Am. Rep. 828; Arizona Copper Co. v. Gillespie, 230 U. S. 46, 33 S. Ct. 1004, 57 L. Ed. 1384; Montana Co. v. Gehring (C. C. A. 9) 75 F. 384; Throop v. Harpers Ferry Paper Co. (C. C. A. 4) 142 F. 690; Strobel v. Kerr Salt Co., 164 N. Y. 303, 58 N. E. 142, 51 L. R. A. 687, 79 Am. St. Rep. 643; Parker v. American Woolen Co., 195 Mass. 591, 81 N. E. 468, 10 L. R. A. (N. S.) 584. That the injury here done is not so trivial that the law will ignore it, is too apparent for discussion.
The defendant, not arguing that the facts justify no relief, insists that no injunction should go, because of the disastrous effect upon his crushing mill, which must stop its operation if enjoined. We are not satisfied that this must be the consequence, but we are content so to assume. The plaintiff argues that those cases in which such considerations have prevailed, do not represent the law of Vermont, which has never balanced the comparative hardships of the continued wrong and the injunction, when the plaintiff's right is substantial and clear. *738 While we agree that with the possible exception of Ottaquechee Woolen Co. v. Newton, 57 Vt. 451, no decision of that state has actually turned upon the doctrine, it appears to us to have had so much recognition in the decisions of its highest court as to be certainly a part of its jurisprudence, at least until we are authoritatively advised to the contrary. In Canfield v. Andrew, 54 Vt. 1, 41 Am. Rep. 828, while an injunction went, the mandate reserved to the defendant the right to throw sawdust into the stream so far as was absolutely necessary to the operation of its mill. Perhaps this was no more than an apportionment of use between riparian owners, but we are disposed to think not. Certainly the whole discussion in Town of Bristol v. Palmer, 83 Vt. 54, 74 A. 332, 31 L. R. A. (N. S.) 881, would have been irrelevant had the language of Ottaquechee Woolen Co. v. Newton been regarded as obiter. The same is true of Royce v. Carpenter, 80 Vt. 37, 66 A. 888, and Doty v. Village of Johnson, 84 Vt. 15, 77 A. 866, although the recognition was less explicit. The other Vermont cases, on which the plaintiff relies do not seem to us to present the question.
In other jurisdictions the law is in great confusion, and it would serve no purpose here to attempt an exhaustive catalogue of the cases. Arizona Copper Co. v. Gillespie, 230 U. S. 46, 33 S. Ct. 1004, 57 L. Ed. 1384, appears to recognize the doctrine though it did not apply it. In the Eighth and Ninth Circuits, taking the later decisions with the earlier, we believe that the balance of convenience is a determining factor. Mountain Copper Co. v. U. S. (C. C. A. 9) 142 F. 625; Bliss v. Washoe Copper Co. (C. C. A. 9) 186 F. 789; McCarthy v. Bunker Hill, etc., Co. (C. C. A. 9) 164 F. 927; Sussex Land & Live Stock Co. v. Midwest Ref'g Co. (C. C. A.) 294 F. 597, 34 A. L. R. 249. The last case seems to us to qualify, American Smelting & Refining Co. v. Godfrey (C. C. A. 8) 158 F. 225, 14 Ann. Cas. 8. In New York and Pennsylvania probably the rule is otherwise. Strobel v. Kerr Salt Co., 164 N. Y. 303, 58 N. E. 142, 51 L. R. A. 687, 79 Am. St. Rep. 643; Whalen v. Union Bag & Paper Co., 208 N. Y. 1, 101 N. E. 805; Sullivan v. Jones & Laughlin Steel Co., 208 Pa. 540, 57 A. 1065, 66 L. R. A. 712. Massachusetts seems, perhaps a little doubtfully, to be with New York and Pennsylvania. Parker v. American Woolen Co., 195 Mass. 591, 602, 603, 81 N. E. 468, 10 L. R. A. (N. S.) 584.
Assuming that the doctrine is not fixed in the law of Vermont, we think that it is as matter of principle a reasonable one. The very right on which the injured party stands in such cases is a quantitative compromise between two conflicting interests. What may be an entirely tolerable adjustment, when the result is only to award damages for the injury done, may become no better than a means of extortion if the result is absolutely to curtail the defendant's enjoyment of his land. Even though the defendant has no power to condemn, at times it may be proper to require of him no more than to make good the whole injury once and for all. New York City v. Pine, 185 U. S. 93, 22 S. Ct. 592, 46 L. Ed. 820. If the writ went as of course, we should have no option. Notoriously it does not; it goes ex debito justitiæ, and is discretionary if any is. To say that whenever an injured party can show that he could recover damages, he has only in addition to prove that the tort will be repeated, appears to us to ignore the substance of the situation in the interest of an apocryphal consistency. Where we are not bound by the local law, we decline to adopt so rigid a canon.
Nevertheless, so far as concerns the pollution of the stream, we think that the injury is so substantial and the wrong so deliberate, that we ought to impose upon the defendant the peril of any failure successfully to avoid it. The last was a determining consideration in Attorney General v. Algonquin Club, 153 Mass. 447, 27 N. E. 2, 11 L. R. A. 500, a case cited with approval in Bristol v. Palmer, 83 Vt. 54, 74 A. 332, 31 L. R. A. (N. S.) 881. In the case at bar not only did the defendant have the most explicit warning from the plaintiff, but it gave an equally explicit assurance that it could avoid defiling the brook. It has several times repeated that assurance after occasional overflows. If the plaintiff had filed his bill before the mill was built, the balance of convenience would have been different, and we should not have hesitated to stop what as yet remained only a project. Whether the assurances in fact determined his inaction we need not say; he has shown himself pertinacious, though forbearing, and the chances are that they did. Even if not, these preliminary negotiations seem to us enough absolutely to impose upon the defendant the execution of what it promised. As respects the pollution of the stream, we therefore think that the injunction should remain absolute, and that the defendant must find some way to avoid further injury, or make its peace with the plaintiff as best it can.
As regards the dust the facts are different. True, it is equally a tort so to defile *739 the air. McCarthy v. Natural Carbonic Gas Co., 189 N. Y. 40, 81 N. E. 549, 12 Ann. Cas. 840, 13 L. R. A. (N. S.) 465; Ross v. Butler, 19 N. J. Eq. 294, 97 Am. Dec. 654. But the injury is less oppressive, and neither the plaintiff's original protest, nor the defendant's promise, covered it. We are not prepared in such a situation to say that, if the defendant cannot by the best known methods arrest all the dust which it emits, it must shut down its mill. The record shows that it has installed arresters which are designed to stop all but one per cent. of the dust, and apparently do so. Yet that which escapes is still enough to affect the plaintiff's enjoyment, and the record does not show beyond question that the defendant cannot prevent it. The best disposition of the case is to affirm the injunction as it stands, but to give leave to the defendant to apply at the foot of the decree for relief upon showing there are no better arresters extant, that it operates those it has at maximum efficiency, that it is therefore impossible further to reduce the dust, and that if the injunction continues it has no alternative but to stop operation. If that be proved to the satisfaction of the District Judge the injunction should be modified so as merely to limit the dust to that which will escape the arresters now in use.
The cases are not many which touch upon the injury done by blasting where no trespass is involved by throwing dirt and stones upon the adjoining premises, and we find nothing in the Vermont reports on the subject. The situation is again one where conflicting interests must be compromised. Booth v. R., W. & O. T. R. Co., 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552; Brede v. Minn. Crushed Stone Co., 143 Minn. 374, 173 N. W. 805, 6 A. L. R. 1092; King v. American Rock Crusher Co., 119 Kan. 618, 240 P. 394. The decree, as it is, forbids any jarring or shaking of the house; it is too broad. It should be modified to forbids any jarring or shaking of the house; it is too broad. It should be modified to forbid all blasting at night while the house is occupied, and at all times with such heavy charges as break windows, or unreasonably jar the house. Unfortunately the subject-matter does not admit of more definite regulation in advance.
There remains only the question of damages. We cannot accept the estimate of the District Judge as to the value of the plaintiff's premises, which rests only upon his own appraisal, contradicted by the defendant's witnesses, who were surely in a more impartial position. A country residence, on which so much is spent to suit the owner's fancy, cannot be said to have a value equal to its cost. Nor is it fair to take the price which it might bring from a purchaser whom it might chance to please. Its value is what it will fetch, and, while any appraisal is at best scarcely more than a guess, we think that $15,000 is upon this record the most that we can give to it. The damages are even more troublesome to fix than the value. We must take it that the operation of the mill has prevented the plaintiff from leasing his property as a residence, and converted its value into merely agricultural land, but we have no right to say that he would have been able to lease it, had the mill been absent. On the other hand the injury went on for seven years down to the time of the last amendment. It appears to us that an award of five hundred dollars a year is as much as the evidence will warrant. The damages are therefore fixed at thirty-five hundred dollars.
The defendant should bear the costs in both courts. The decree is modified as indicated above, and the cause remanded with instructions to proceed in accordance with the foregoing opinion.
