the rear of the complainant's house and in it constructed the hopper complained of. The Chicago and Milwaukee railroad runs in a north-easterly direction a few feet west of defendant's premises at the north-west corner and about seventy-five feet from complainant's lot. A switch track runs from the railroad into defendant's yard for the purpose of unloading. The part of the coal yard west of the complainant's lot is used for storing soft coal and that part north of the alley for storing and handling hard coal. The soft coal is loaded in wagons by hand but the hard coal is handled through the hopper. When cars are switched into the yard, an automatic shovel, holding in the neighborhood of five thousand pounds, takes the coal off the car and deposits it in a pit, and from the pit a conveyor carries the coal up and dumps it into the hopper. The total capacity of the hopper is six hundred and fifty to seven hundred tons of coal, and it is divided into eight bins, with eight spouts for loading coal from the bins into the wagons of customers. Before the bill was filed the complainant had a fence on a line with the west wall of his building, extending from the north-west corner of the building to the alley, and the defendant had a fence alongside and a few inches west of the complainant's fence. The defendant piled large quantities of soft coal against its own fence, which pushed down the fence and also the fence of complainant, allowing the coal to run on complainant's lot. Defendant also piled soft coal to a height of twelve feet or more against the west wall of the complainant's building, except at the windows, which pushed the wall slightly out of line and the coal was six inches on complainant's lot. The coal was removed three days after the bill was filed and defendant put up a fence on its line.

The controverted question of fact was whether the hopper caused coal dust and dirt to be deposited on complainant's premises, permeating his building, causing damage and physical discomfort. The evidence for complainant on

that subject was, that when the hopper was in operation it filled the house with small, fine black coal dust, which gathered on everything in the barber shop, living apartments and tenements; that the barber shop and the glass cases were filled and covered with coal dust and could not be kept clean, and tenants would not remain on account of such coal dust, and that wherever one walked about the premises, or on the porch, the foot-prints could be seen in the coal dust. Tenants testified that it was impossible to have a home there, and one said that he would not have stayed a month if it had not been for circumstances that compelled him to do so. The evidence for the defendant was that there was practically no dust on the premises, and that such dust as there was came from manufacturing concerns, of which there were a number in the neighborhood and which emitted from their chimneys dense black smoke. We are satisfied that the conclusion of fact by the superior court was correct. Undoubtedly there was smoke in the atmosphere, but coal dust is clearly distinguishable both from smoke and from the soot which is deposited to some extent from it. There is nothing to cast doubt upon the credibility of complainant's witnesses, and it is quite clear that they did not mistake smoke and soot for the fine, black coal dust which came from the hopper, in which their tracks were plainly visible.

It is contended that the court erred in ruling on the admission of testimony, and the first ruling complained of was made when the defendant had Henry Pottgether, the owner of the premises where the coal yard was, on the stand as a witness. He lived west of the coal yard, and was asked what the conditions were with reference to dust and dirt in his house. The court sustained an objection and the defendant excepted. The witness testified that he had been in the complainant's house; that he did not notice any coal dust and dirt in or about the place; that the complainant and his wife had invited him at different times into

their house and he had been in the barber shop and the living rooms, and that they were clean and there was no coal dust. The inquiry was about the conditions in the complainant's house, and if evidence as to the conditions. in the neighborhood would have had any bearing on that question, this witness gave direct evidence of the condition of the complainant's house, and it was not error to exclude evidence that the witness' house also was not affected. Evidence only remotely bearing on the issue would have added nothing to the weight of the witness' testimony.

The other point made is, that the court erred is not permitting the president and general manager of the defendant to state the expense of constructing the hopper. It is insisted that the evidence was competent to show that great injury would result to the defendant by an injunction in proportion to the damage caused to the complainant by the operation of the hopper. If the existence of a private right and the violation of it are clear, it is no defense to show that a party has been to great expense in preparing to violate the right. The law does not undertake to estimate the difference between the loss that would be sustained by the party owning the thing complained of and the damage to the injured party, nor to grant or withhold relief on such a basis. (21 Am. & Eng. Ency. of Law,—2d ed.— 690.) Counsel claims that there is such a rule, and for the purpose of sustaining his claim takes from the decision in Cleveland v. Martin, 218 Ill. 73, the language there quoted from Lloyd v. Catlin Coal Co. 210 Ill. 460, and says it establishes the rule that a court, in the exercise of sound discretion, should refuse an injunction where the defendant's damages and injuries will be greater by granting the writ than the complainant's benefit from granting it or greater than the complainant's damages by the refusing of it. The result which counsel seeks for is only accomplished by separating the statement from its context and from the facts. of each case. In the first case the opinion stated that it

was uncertain what per cent of the coal could be removed; that it depended upon local conditions as the work progressed; that serious injustice might be done by the court fixing the amount of coal to be left, and that in such a case the rule stated was to be applied. In the second case, where the language was quoted, it was said that the complainant's right to an injunction was not clear but involved in doubt; that the injury alleged to be a consequence of a breach of the contract was remote, problematic and speculative, and, in fact, not at all probable. In such a case it was clearly the duty of the court to consider the consequences of an injunction. In neither case was there any intimation that any such rule of law could be applied where the right is specific and clear, the wrong undoubted and the consequence reasonably certain.

The conditions under which a court of equity will intervene by injunction to prevent a nuisance are well settled, and the rules were clearly and fully stated by Mr. Justice Scholfield in the case of Wahle v. Reinbach, 76 Ill. 322. A repetition of them here would not be profitable and is not necessary. The business of the defendant is a necessary one and it is not a nuisance per se, but if a business is offensive to such a degree as to materially interfere with ordinary physical comfort, measured, not by the standard of persons. of delicate sensibilities and fastidious habits, but by the habits and feelings of ordinary people, and the damages are of a nature which cannot be adequately compensated for in an action at law, a court of equity will grant an injunction. In such a case the court will not balance public benefits or public inconvenience against the individual right. (Seacord v. People, 121 Ill. 623.) The question whether the operation of the hopper was a nuisance might have been determined in an action at law, as was done in the case of Wylie v. Elwood, 134 Ill. 281, and that should be done in any case where the legal right and the injury are not clearly established. (Nelson v. Milligan, 151 Ill. 462.) But where

the legal right of a complainant is clearly established and the unreasonable and unlawful use by the defendant of its property to the injury of the complainant is also clearly proved, it is not necessary that the question should first be determined in a suit at law. We agree with the conclusion of the Appellate Court. The decree as directed by that court only restrained the defendant from operating its plant as it has been operated, or in such manner as to substantially and materially interfere with the ordinary comfort of physical existence in the building and premises of complainant. The judgment of the Appellate Court is affirmed.

Judgment affirmed.

E. E. LAUGHNER et al. Appellants, vs. A. R. SMITH,

Appellee.

Opinion filed February 20, 1908.

SPECIFIC PERFORMANCE-party having option on land for speculative purposes must act promptly. Parties having an option to buy land "upon the completion" of an oil well being sunk by them on adjacent land, and who accept the option as soon as the test well has begun to flow freely, must complete their contract within the time fixed therein or within such additional time as is extended by the land owner, and they cannot delay until oil has been found upon such land by other parties and then enforce the contract, upon the theory that the test well was not "completed," so as to require them to act on the option, until it was connected with a tank and pipe line.

DUNN, J., dissenting.

APPEAL from the Circuit Court of Crawford county; the Hon. J. R. CREIGHTON, Judge, presiding.

H. G. MORRIS, for appellants.

CALLAHAN, JONES & LOWE, for appellee.