deciding for himself how near he may with safety drive to the edge of the precipice, and whether it be not better for him to keep as far from it as possible.

It was urged that a preliminary injunction is largely discretionary, and that that discretion should not be controlled by us. The act creating this court provides for appeals from such orders or decrees for the very purpose of reviewing that discretion and correcting error in its exercise. It is true that the restraint interposed was temporary, not determining the ultimate rights of the parties, but merely regulating their conduct until final hearing. It is also true that a preliminary injunction ought not to issue unless the right be clear, and the infringement be proven. We have spoken to this subject with no uncertain sound. Standard Elevator Co. v. Crane Elevator Co., 56 Fed. 718; American Cereal Co. v. Eli Pettijohn Cereal Co., 76 Fed. 372. Our ruling in the case at bar is well within the principle of those decisions; for here the right is clear, the infringement proven, and but thinly disguised. It will be impossible to give compensation in damages; for, from the very nature of the case, it will be wholly impracticable to ascertain the extent to which the piracy upon the complainant's right has been or may be carried, or to what extent the product of the defendant has been or may be palmed off upon the public as the product of the complainant. Complete relief can only be afforded by restraint of the infringement. Besides, the court below found nothing in the circumstances or situation of the parties to stay its hand. It issued its writ of injunction according to their rights as it determined them. It fell short in its judgment of the extent of those rights. The writ was clearly intended by the court to go to the full extent of the infringement, and was not controlled by other considerations. The defendant is not deprived of the right to market its root beer, but, at its peril, must see to it that its product is not dressed in the clothes of another. We may aptly conclude with the happy suggestion of Judge Lacombe in Grocery Co. v. Sloan (C. C.) 68 Fed. 539, 540, that, "in the period of rest and quiet which will be secured by a temporary injunction, possibly defendants may renew their strength sufficiently to be able to get further away from "- the complainant's form of bottle"the next time they try to strictly differentiate their own goods." The order or decree is reversed, and the cause remanded, with directions to the circuit court to issue its writ of injunction pursuant to the prayer, and in the terms of the bill.1

1 Accord, Montgomery v. Thompson, [1891] A. C. 217, 222; Bosworth-Smith v. Gwynnes, 122 L. T. R. 15, 20 (1920); Williams v. Mitchell, 106 Fed. 168, 172 (C. C. A., 7th, 1901); Sterling v. Medical, 112 Fed. 1000, 1002 (same); White Dental v. Mitchell, 188 Fed. 1017 (N. Y., 1911); Oneida Community v. Oneida Game Trap Co., 168 App. Div. 769 (1915); Galbraith v. Pittsburgh, 3 Pitts. 78 (1867).

In the following cases, the decree was framed so as not to prohibit the

et could make a bittering by spee
what I could mot do and
Sipil have made such an ing
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1910.

SUPREME COURT, PENNSYLVANIA,
[227 Pennsylvania State Reports, 326.]

building closed.

OPINION BY MR. JUSTICE MOSCHZISKER:
The plaintiff below, appellee here, filed a bill against the de-
fendant below, appellant here, alleging a nuisance from the noise
created by the operation of defendant's works.

The complaint averred in the bill is: "The said defendant has
so wrongfully and injuriously conducted and used the said build-
ings and machinery therein, and so wrongfully and injuriously
operated the said compressed air drills, hammers, riveting machines
and other appliances therein maintained that a noise, continuous
during said operation and unusual in quality and volume, is pro-
duced by the said defendant in the operation of said Iron Works,
"and that such operation with such distressing results to your
orator is unnecessary and unavoidable." The learned court below
found: "The noises of which complaint is made are not reasonably
endurable or bearable, and render the dwelling of complainant
during the operation of said iron works uncomfortable and unfit
for use as the residence of a reasonable and ordinary person."
The following decree was entered: "It is ordered, adjudged and
(decreed that you, Wayne Iron Works, your servants, agents and
employees do abate the nuisance complained of in said bill, and

dou are hereby enjoined and restrained from the operation of your

works by at any time making noises with air drills, power hammers,
power chippers, riveting machines or other tools or apparatus so
as to render the premises of the plaintiff described in the said bill
unfit for use and enjoyment as a residence by a reasonable and
normal person."

The defendant contends: first that the decree does not specifi-
cally point out the things that it is required to do or to refrain
from doing in order to abate the nuisance which the court found
to exist; and, second, that the evidence in the case does not justify
such a sweeping decree as the one entered.

defendant's business altogether, by the use in the injunction of such general
words as 66
to the injury of the plaintiff." Usually in these cases the defend-
ant was content with the form of the decree and did not as in Hires v.
Consumers request more specific words. Lingwood v. Stewmarket, L. R. 1 Eq.
77, 336 (1865); Walker v. Brewster, L. R. 5 Eq. 25, 34 (1867); Hall v. Byron,
L. R. 4 Ch. D. 667, 681 (1877); Ulbricht v. Eufaula Water Co., 86 Ala. 587
(1888); Sullivan v. Royer, 72 Cal. 248 (1887); McMenomy v. Baud, 87 Cal.
139 (1890); Lorenzi v. Star Market, 19 Ida. 674 (1911); Herman v. Roberts,
119 N. Y. 37 (1890); Cunningham v. Fitzgerald, 138 N. Y. 165 (1893);
Snow v. Williams, 23 Hun 468 (1879); Stevens v. Rockport Granite, 216
Mass. 486 (1914); Schaub v. Perkinson Construction, 108 Mo. App. 122
(1904).

The entry of an injunction is, in some respects, analogous to the publication of a penal statute; it is a notice that certain things must be done or not done, under a penalty to be fixed by the court: Sullivan v. Jones & Laughlin Steel Co., 222 Pa. 72. Such a decree should be as definite, clear and precise in its terms as possible, so that there may be no reason or excuse for misunderstanding or disobeying it; and when practicable it should plainly indicate to the defendant all of the acts which he is restrained from doing, without calling upon him for inferences or conclusions about which persons may well differ. In the present instance, the only definite thing that the defendant is ordered to do is "to abate the nuisance complained of in said bill." As the evidence does not show any improper or negligent operation of the machinery, and as the defendant's conclusion as to what constitutes "a reasonable and normal person" may well differ from that of the plaintiff, it would seem that the only safe way to comply with the decree would be to entirely stop the running of its machinery. Where the facts and equities call for it, a chancellor is required to give relief by injunction; but such injunction should never go beyond the requirements of the particular case; and under no circumstances should a decree be entered the apparent practical effect of which will be to close an industrial plant, if it is possible to frame another form of decree which will give such relief as the plaintiff is entitled to. . . . An important question is, Can the noise by any reasonable means be so moderated as to accord with the degree of quietness the plaintiff has a right to enjoy; and if it can, by what means?

[The learned judge here reviews the testimony. ED.] We find no manifest error in any of the findings of fact made by the court below; but in addition thereto, the testimony suggests and is sufficient to sustain the further finding that the disturbance of the standard of comfort normally prevailing in the neighborhood of the plaintiff's residence, and the consequent annoyance to the plaintiff, are caused by the defendant's permitting the use of tools and apparatus of a noisy character on its premises outside of its buildings; by their use inside of certain of its buildings with the windows and doors open; and at times by the use of such tools and apparatus until late in the evenings.

On this finding, a definite decree can be entered enjoining the defendant from operating tools, machines or apparatus of a noisy character between certain hours, and requiring it to carry on all such operations on the inside of buildings with windows securely closed and with doors shut. This decree will probably afford the relief required. At least such a measure of relief should be first tried before the entry of a decree that may mean the closing of the defendant's works, the ruin of a prosperous business, and the loss of employment to many men.

The twenty-second assignment of error, which goes to the form

of the decree, is sustained, and the decree entered by the court below is modified; and it is now adjudged, ordered and decreed that the Wayne Iron Works, its servants, agents and employees are restrained from working its plant in such a manner as to create the nuisance complained of, and to that end they are enjoined from operating drills, power hammers, power chippers, riveting machines or other tools, machines or apparatus of a noisy character between the hours of 7 P.M. and 7 A.M.; and from operating such tools, machines and apparatus of a noisy character at any time unless on the inside of buildings with all windows securely closed with double sash, and with the doors shut. .

1

1 Accord, Hackett v. Baiss, L. R. 20 Eq. 494, 499 (1875); Parker v. First Avenue Hotel, L. R. 24 Ch. D. 282, 285 (1883, C. A.); but see English cases in 232n.; International News Service v. A. P., supra, 137, 139; Shredded Wheat v. Cornell, supra, 120; Coca-cola v. Gay-Ola, 211 Fed. 942 (C. C. A., 6th, 1914); Singer v. James, 130 Md. 382, 387 (1917); Oxypathor v. de Cordero, 164 App. Div. 962 (1914); cases in Note on Scope of Injunctions and footnotes. In copyright cases, if it is possible to eliminate the infringing portion of the defendant's publication, the injunction will be framed so as not to prohibit the rest. Kelly v. Morris, L. R. 1 Eq. 697, 703 (1866); Social Register v. Murphy, 128 Fed. 116 (R. I., 1904). Other cases are collected in 5 Pom. §§ 1994, 1996.

Decrees directing remedial devices or suspending the operation of the injunction so as to allow opportunity for installing or testing them: Shelfer v. London Electric, [1895] 2 Ch. 388 (C. A.); Stollmeyer v. Trinidad Lake Petroleum Co., [1918] A. C. 485, 497 (J. C.); Stollmeyer Petroleum Development Co., [1918] A. C. 498, 500 (J. C.); Arizona Copper Co. v. Gillespie, 12 Ariz. 190, 206 (1909), affd. 230 U. S. 46, 54 (1913); Georgia v. Tenn. Copper Co., 206 U. S. 230, 239 (1907), 237 U. S. 474, 678 (1915); Anderson v. American Smelting Co., 265 Fed. 928 (Ut., 1919); English v. Progress Electric, 95 Ala. 259, 266 (1891); Daniels v. Keokuk, 91 Ia. 549, 551 (1883); Babcock v. N. J. Stock Yard Co., 20 N. J. Eq. 296, 298 (1869); McCarty v. Natural Carbonic Gas, 189 N. Y. 40, 50 (1907); York v. Davidson, 39 Ore. 81 (1901); Winchell v. Waukesha, 110 Wis. 101, 111 (1901). Cf. Galbraith v. Oliver, 3 Pitts. 78, 85 (1867); Grand Rapids v. Weiden, 97 Mich. 82 (1893).

In La Follette v. La Follette Water, 252 Fed. 762, 772 (C. C. A., 5th, 1918), Sanford, J., imposed on the plaintiff in a specific performance suit certain equitable conditions, including the possible installation of remedial devices; see 32 Harv. L. Rev. 439; 33 ib. 436.

Interesting cases showing what conduct by a defendant amounts to contempt of a flexible injunction: Salton Sea Cases, 172 Fed. 820 (C. C. A., 9th, 1909); Auto Acetylene v. Prest-O-Lite, 276 Fed. 534 (C. C. A., 6th, 1921); see 5 Pom. § 2008; L. R. A. 1915 F, 945.

Additional cases on flexible injunctions are: Earl of Ripon v. Hobart, Coop. t. Brougham 333 (1834); Great Central v. Doncaster, 118 L. T. R. 91 (1917); Solomon v. Hertz, 40 N. J. Eq. 400, 402 (Ch., 1885); Tucker v. Mack, 61 App. Div. 521, 528 (1901); Miller v. Edison, 39 Misc. 664 (1901); 5 Pom. § 1938, n. 82.

See the valuable note by E. N. Durfee," Nebulous Injunctions," 19 Mich. L. Rev. 83; also 5 Pom. §§ 1938, n. 82, 1948, 1969; F. W. Stevens, Proper Use of the Writ of Injunction - from the Standpoint of Legal History." 8 Colum. L. Rev. 560.

PROBLEM CASES:

The trial court found that a dam, which set back the water of a stream upon the plaintiff's lands and mill, was erected 15 inches higher than the

NOTE ON THE SCOPE OF INJUNCTIONS

66

LAURIE V. LAURIE, 9 Paige 234 (1841). An ex parte injunction in a separation suit, restraining the defendant from "annoying, following," etc. his wife or children, was modified on application for dissolution and cross-application for attachment of the husband for contempt for annoying his wife by a letter. WALWORTH, C.: 'As the defendant is bound to obey the process of the court at his peril, the language of the injunction should in all cases be so clear and explicit that an unlearned man can understand its meaning, without the necessity of employing counsel to advise him what he has a right to do to save him from subjecting himself to punishment for a breach of injunction. And the language of the writ should at the same time be so restricted as not to deprive him of any rights which the case made by the bill does not require that he should be restrained from exercising." 1

HOLMES, J., SWIFT v. U. S., 196 U. S. 375, 401 (1905): "The general words of the injunction or by any other method or device, the purpose and effect of which is to restrain commerce as aforesaid,' should be stricken out. The defendants ought to be informed, as accurately as the case permits, what they are forbidden to do.2 Specific devices are men

defendant had a right to build it. What decree should be given? Rothery v. N. Y. Rubber, 90 N. Y. 30 (1882).

In a suit to enjoin asphalt works, a decree was entered declaring the works, as operated, a nuisance, and reciting that it satisfactorily appeared that by the use of certain appliances the defendant could reduce the fumes and confine them to its own premises; therefore, it was ordered to adopt several specified remedial devices, and was restrained from permitting fumes to escape "in such quantities as to materially injure the health of said complainants or to in any way interfere with the comfortable enjoyment of their homes." The defendant complied with the specific directions, but the nuisance continued. Motion that the defendant be punished for contempt. Northwood v. Barber, 126 Mich. 284 (1901).

In his defense to a nuisance bill, the defendant contended that the noise complained of was an unavoidable incident of the operation of his planingmill; that consequently, the injury to the plaintiff was not a nuisance because it was outweighed by the usefulness of the defendant's business. The trial judge found there was a nuisance. Is the defendant estopped by his contention to oppose an injunction prohibiting further operation of his mill; or may he have the decree framed so as to allow him to continue operating if he will do so without injuring the plaintiff? Chamberlain v. Douglas, 24 App. Div. 582 (1898). Accord, Anderson v. American Smelting, 265 Fed. 928 (Ut., 1919); but see Judson v. Los Angeles Suburban Gas, 157 Cal. 168, 173 (1910).

In cases like American Waltham Watch v. U. S. Watch, supra, 112, should the court prescribe the exact form of words which the defendant must use to distinguish his trade name from the plaintiff's? Waterman v. Modern Pen, 235 U. S. 88 (1914); 16 Harv. L. Rev. 278n.

1 See Robinson v. Clapp, 65 Conn. 365 (1895); Moat v. Holbein, 2 Edw. Ch. 188 (1834); Lyon v. Botchford, 26 Hun 57 (1881). An injunction compelling the defendant to resort to the bill on file in the records of the case to understand what the injunction means is considered objectionable in Sullivan v. Webb, 4 Paige 444 (1834); but cf. Goyette v. Watson, 140 N. E. 285, 291 (Mass., 1923); Swift v. U. S., 196 U. S. 375, 401 (1905).

2 Accord, Sweet v. Bromley, 154 Fed. 754 (Pa., 1907), copyright.