caused by something outside of his military service, and which might have occurred in the same way if he had not been in military service, then the service he was engaged in was not the occasion of his death.

Engagement in military service means to expose to dangers which were not incident to civil life. But, as is well known, the danger in civil life was just as great as in military service in respect to the disease called the "flu.'

The insured in this case did not come to his death by reason of his induction into military service. Under the terms of the policy to engage in military service means to be exposed to dangers and perils of life not incident to civil life, and if the death of the insured was not occasioned or caused by such military service the company would be liable for the full amount of the policy.

Therefore, it is my opinion that the provision in the policy, so far as it makes such policy void upon entering into military or raval service, would tend to hinder and deter volunteer service and would be against public policy. It may be noted as a fact that it would have been impossible to have raised a volunteer army to have met the needs of the late war, and how far the elements of insurance policies might have deterred men from volunteering would be hard to tell.

The policy of insurance was not based upon the exposure of the insured in military service, and the company would have the right to defend if the engagement in military service was the occasion or cause of the death of the insured. It would, in that case, be a complete defense to an action on the policy, except as to the repayment of premiums already paid. In this case the drafting into the military service and the entering of such service, as shown by the agreed statement of facts, was not the occasion or cause of the death of the insured. Therefore, the company is liable to the plaintiff for the full amount of the face of the policy, and a judgment may be entered accordingly.

1920.]

Olpp v. Railway.

NUISANCE CREATED BY A SMOKING ROUNDHOUSE.

Common Pleas Court of Franklin County.

THEODORE OLPP V. THE HOCKING VALLEY RAILWAY CO. ET AL.

Decided, January Term, 1920.

Nuisance-Illumination of the Subject Needed in Ohio-Earlier and Modern Practice with Reference to-Permanent or Continuing Nuisances-Petition for an Injunction Must Disclose Inadequacy of Legal Remedy-When Concurrent Jurisdiction is ConferredLaches and the Balancing of Injury-Application of Principles to the Case in Hand.

1. Equal and correlative rights are possessed by all doing business or residing in the same vicinity, except that each is responsible for injury which he may cause to another. When one builds a structure and uses and maintains it in such way as to make it a nuisance to others, the law imposes the imperative duty upon the one responsible to remove the cause of injury without unreasonable delay, if it be within his power by the exercise of skill and labor so to do.

2. The appropriate remedy being dependent upon the nature and kind of nuisance, whether continuing or permanent,-in the common law sense, it is essential that plaintiff's petition shall allege sufficient facts to disclose the particular kind complained of. A court must be advised whether a nuisance is temporary or permanent as a prerequisite to the determination of the adequacy of the remedy at law. When upon objection made at the opening of trial it is made to appear from the petition and by statements of counsel that the cause is not founded upon a definite theory, the court may thereupon conclude as upon demurrer that the petition is insufficient for want of facts to show definite theory and because of failure to disclose whether the nuisance complained of is continuing or permanent.

3. Not only is it essential that a plaintiff seeking equitable relief shall state sufficient facts in the petition to show a definite theory concerning the kind of nuisance complained of, but it is also essential that the petition shall state sufficient facts to show the inadequacy of the remedy at law.

4. As resort may be had to equity only in cases of continuing nuisance to avoid a multiplicity of actions, or in any case of nuisance where

the remedy at law is shown to be inadequate, it is essential that the petition shall fully state the ultimate facts relied upon to adequately disclose the nature and theory of the cause of action. 5. The legal test of distinction between a continuing and permanent nuisance is whether the cause therefor may be removed and the same can be thereby abated by skill and labor by the one whose duty it is to do so. If it can not be so abated, and it will probably continue indefinitely unless changed by the hand of man, it is to be regarded as permanent. If the cause can be removed and the nuisance thereby be abated, the nuisance is continuing.

6. If the nuisance be permanent, the plaintiff is entitled to recover at once and in one action all the damage, both present and future, which he may sustain. The measure of damage for injury to land by permanent nuisance is loss of market value before and after the injury; for continuing nuisance injuring land the measure of damage is loss of rental value before and after injury.

7. A test of the inadequacy of legal remedy is whether there is a definite, settled rule of assessment or allowance of pecuniary award which is the rule when the nuisance affects only the personal right of comfort, convenience or health.

8. When the nuisance affects both personal and property right, the law fixes a certain definite standard or measure of damage for the property right; but for injury to personal right there is no definite standard of pecuniary award; quaere: whether, if only the right of comfort is injured, but the inconvenience is shown to be of such character and extent as in fact to affect the sale or rental value of the realty, the measure of damages is loss of rental or market value before and after the nuisance, and the adequacy of legal remedy to be determined accordingly.

Webber, McCoy & Jones, for plaintiff.
Wilson & Rector, for defendant.

KINKEAD, J.

This is an action to enjoin the defendant from maintaining and operating its recently constructed roundhouse in such manner that the engines daily housed therein emit large quantities of smoke therefrom which is carried by the wind in and upon plaintiff's premises. The roundhouse is located in the factory district in the southeastern part of Columbus. The roundhouse cares for 80 or 90 engines per day, and the smoke is emitted from the engines, and not from a general stack.

Plaintiff owns a fifteen acre tract of land which he has operated as a garden truck farm, and upon which he maintains and operates hothouses. The roundhouse was erected long after plaintiff acquired his farm. Plaintiff's house and home is located on the farm, the roundhouse having been constructed in such close proximity thereto that the smoke comes into the home of plaintiff rendering its occupancy inconvenient and uncomfortable.

1. Defendant's Claim in Opening Statement That Plaintiff's Remedy at Law is Adequate.

Defendant objected to proceeding to trial on the ground that plaintiff filed an action at law on the same day that this action was commenced wherein he asks recovery of $10,000 damages. That action is still pending.

Defendant claims that the action at law constitutes a complete and adequate remedy at law.

Counsel for defendant contends that the mere filing of the action for damages is enough to warrant the court in refusing to interfere by the extraordinary remedy of injunction in the operation of the road. It was admitted that the evidence would undoubtedly show that smoke and soot was emitted, and that the wind carried it over plaintiff's premises when the wind was from the east. It was contended that it had not caused plaintiff to cease the green house business, but had probably caused him some inconvenience in living in the house where he resides.

It was contended that the injury that would be done to defendant by injunction would be irreparable, and would be far in excess of any injury which might come to plaintiff by the operation of the roundhouse.

Defendant's counsel invoked the doctrine of comparative or balancing injury which is applied in equity when the nuisance sought to be enjoined may affect the general public to a large extent.

Defendant's counsel contended that there could be no doubt that upon the merc statement of counsel that any damage whatever suffered by plaintiff may be compensated by

an action at law, and cited the case of Goodall v. Crofton, 33 0. S., 271, to the effect that injunction should not be granted unless a clear case of nuisance and irreparable injury be made out; that where a party complaining of a nuisance has an adequate remedy in an action for damages, he must establish his right to relief at law, before equity will interfere by injunction. So it was insisted by defendant's counsel that the court should not proceed with the trial of this case; that at the very most if the court should not dismiss the action it should not be heard until the action at law already filed has been tried and the result thereof determined, all of which would be a guide to the equity side of the court in determining what, if any, relief by way of injunction should be allowed.

It was insisted in argument that whatever damages would be allowed, would be infinitesimal, and that the court would not be justified in stopping the operation of the roundhouse and the railroad because of the character of injury to plaintiff which might be disclosed by the evidence. (Some decisions have made the smallness of the damages, the basis of inadequacy of the remedy at law-while if trifling, it may be otherwise.)

Counsel for defendant contended that nothing more in the shape of a record or statement was needed than that presented to the court by the pleadings and statements of counsel, which should warrant the court in holding that it should not proceed on the equity side until there has been an injury of damages before a jury, and thus to find out what the result in the law. case might be.

Counsel for plaintiff, however, earnestly insisted that plaintiff had the clear right to proceed at once in the equity case, which, as contended, was the only way the court could determine the rights of the parties.

This disclosed the matter submitted to the court.

2. The Answer.

Defendant contends that plaintiff has "a perfectly adequate remedy at law." The answer avers that long prior to 1916,