(— Mich. —, 184 N. W. 404.) in a strictly residential district of a municipal corporation, where the disease is declared by statute to be communicable. [See note on this question beginning on page 122.] Estoppel against enjoining hospital -permitting expenditures. 2. The owners of neighboring property are not estopped by permitting one to expend money in fitting up a tuber culosis hospital, to apply for an injunction against his conducting the institution as such, if they were assured by him that the institution was not intended for such use. APPEAL by defendant from a decree of the Circuit Court for Kalamazoo County in Chancery (Barton, J.) in favor of plaintiffs in a suit brought to enjoin defendant from conducting a sanatorium for the treatment of tuberculosis in a residential district of a city. Affirmed. The facts are stated in the opinion of the court. Mr. Marvin J. Schaberg, for appellees: Plaintiffs are entitled to the relief prayed for. Barth V. Christian Psychopathic Hospital Asso. 196 Mich. 642, 163 N. W. 62; 29 Cyc. 1175; Joyce, Nuisances, 52; Saier v. Joy, 198 Mich. 295, L.R.A. 1918A, 825, 164 N. W. 507; Birchard v. Board of Health, 204 Mich. 284, 4 A.L.R. 990, 169 N. W. 901; Everett v. Paschall, 61 Wash. 47, 31 L.R.A. (N.S.) 827, 111 Pac. 879, Ann. Cas. 1912B, 1128; Stotler v. Rochelle, 83 Kan. 86, 29 L.R.A. (N.S.) 49, 109 Pac. 788; Deaconess Home & Hospital v. Bontjes, 207 Ill. 553, 64 L.R.A. 215, 69 N. E. 748. Fellows, J., delivered the opinion of the court: Defendant, a physician, is conducting a tuberculosis sanatorium in what is called the "Inkster homestead" in the city of Kalamazoo. The property is part of an addition known as "Inkster park addition." Plaintiffs, thirteen in number, are residents of the vicinity, and were such prior to the establishment of the sanatorium, the home of one being within 70 feet of the sanatorium, of two others less than 150 feet, and of the others being of varying distances. The oral testimony and the photographs introduced in evidence establish beyond doubt that the locality is a strictly residential district, although doubtless not as thickly settled as some of the other parts of Kalamazoo. The relief sought and granted by the trial court was injunctive, restraining defendant from conducting a sanatorium for the treatment of tuberculosis in this residential district. Unless these plaintiffs have lost their rights by laches, we are persuaded that they are entitled to the relief prayed under the former holdings of this court. Barth v. Christian Psychopathic Hospital Asso. 196 Mich. 642, 163 N. W. 62; Saier v. Joy, 198 Mich. 295, L.R.A. 1918A, 825, 164 N. W. 507; Birchard v. Board of Health, 204 Mich. 284, 4 A.L.R. 990, 169 N. W. 901. In the Barth Case an injunction was decreed restraining the erection and maintenance of a psychopathic hospital in a strictly residential district. In the Saier Case a like decree was entered against the maintenance of an undertaking establishment, and in the Birchard Case a similar decree was entered against the maintenance of a detention hospital for infectious diseases. In the first of these cases the trial judge dismissed the bill without taking the testimony; but in the others the testimony was quite persuasive, as it is in the instant case, that the institution, if properly. conducted, would cause no actual danger to near-by residents, that there was little or no danger of communicating disease such a distance as intervened between the plaintiffs' residences and the defendant's institution, but, as in those cases, the fear of the disease being communicated is present. In each of these cases we recognized the claim that the institutions were not nuisances per se, but in each of these cases we held that they might become nuisances as to private individuals by their location in strictly residential districts, and in the Birchard Case, referring to the earlier cases, we. said: "We held in these cases that, while the institutions involved were not nuisances per se, they became such by reason of their location in a residential district. We recognized that there might be no actual danger if properly conducted, but that their maintenance in close proximity to the home would create such dread and fear in the mind of the normal person as would destroy the comfort, the well-being, and the property rights of the plaintiffs,— depressing the mind and lowering the vitality of the normal person, rendering one more susceptible to disease, and reducing the value of the property so situated; and in each of the cases this court decreed injunctive relief." There is testimony in the record that property in this locality has increased in value, and one of defendant's witnesses, who is interested in the sale of lots in this addition, expresses the view that the establishment of the sanatorium has materially increased the value of surrounding property, but the undisputed testimony establishes that housing conditions in the city were abnormal at the time the case was heard, and that improved real estate commanded exceedingly high prices. The weight of the testimony clearly establishes that property values in this locality are at least 25 per cent lower with the sanatorium there than they would be without it. The maintenance of the sanatorium would cause the plaintiffs a distinct, definite financial loss. The record discloses that in this state tuberculosis stands at the head of diseases in the toll it annually collects. The record likewise discloses the herculean efforts of the medical profession and the anti-tu berculosis societies to alleviate this condition. Circulars have been sent out, advice has been given, preventive measures have been advocated and adopted, and much has been accomplished. The public has been advised of its ravages and has a well-grounded fear of its effect. It is a communicable disease as matter of fact, and is so declared to be by § 5099, Comp. Laws 1915. The maintenance of a hospital for the treatment of this communicable disease in a strictly residential district cannot fail to de against prive residents of Injunctionnear-by homes of maintenance of the comfort, well- hospital. being, and enjoy tuberculosis ment of their homes to which they are entitled, and this, coupled with their financial loss, justifies an appeal to a court of equity for relief. Upon principle the instant case is controlled by our former decisions above cited, and we need not consider the sustaining authorities from other states, some of which are cited in the opinion in the Birchard Case. In the brief of defendant's counsel and upon the oral argument much stress was laid upon the fact that this proceeding was not launched until something like a year after the defendant had commenced the operation of the hospital, and the doctrine of laches is invoked to defeat the relief. Defendant claims to have invested considerable money in remodeling, repairing, and fitting the house for use for a tuberculosis hospital, and claims to have obligated himself for the payment of a very considerable additional sum, and he insists that all this was done with the full knowledge of the plaintiffs and their attorney that the premises were to be used for a tuberculosis hospital, and that it is therefore unconscionable and inequitable to now prevent such use of the property by injunction. This claim is met by the plaintiffs with testimony tending to show that not only were they without knowledge that the premises were to be used (— Mich. —, 184 N. W. 404.) and were being used for a tuberculosis hospital, but that defendant specifically assured some of them and their attorney that he would not use the premises as a tuberculosis hospital, and and that it was but a few days before this bill was filed that they had any definite proof that it was so used. Upon this disputed question of fact the trial judge made the following finding: "The court finds as a fact that the doctor, when he made the investment,-bought this property, had notice of the fact that it was in a residential district, that he made the investment with his eyes open to the fact, and that the institution he was about to establish was established as a tubercular hospital for the treatment of tubercular patients would be a detriment to the community. He gave the residents to understand that it was not what might technically be called a tubercular institution; and that impression remained until he made the formal statement February 24, 1920, at which time it became apparent that he could no longer dodge the issue that such was the purpose of the institution." A reading of the somewhat conflicting testimony in this record is convincing that the trial judge, who heard and saw the witnesses, correctly disposed of this question of fact. We are satisfied that at the very inception of defendant's project he was informed by plaintiff's attorney that, if he intended to maintain a tuberculosis hospital, plaintiffs would apply for an injunction, and that he assured the attorney he would not conduct a tuberculosis hospital; one plaintiff he assured he would treat only cases of slight chest ailments; to another he said he should not conduct a tuberculosis sanatorium; and in a carefully worded announcement in the press he gave the public and plaintiffs to understand that the institution would not be a tuberculosis hospital as such an institution is generally understood to be. On February 24, 1920, he made application to the city commission for a sewer on the street, and therein stated that he was conducting a tuberculosis sanatorium. This was the first definite, positive proof plaintiffs had of the character of the institution. Short ly thereafter this Estoppelagainst enjoinbill was filed. Un- ing hospitalpermitting der these circum- expenditures. stances defendant cannot invoke the doctrine of an equitable estoppel. The decree will be affirmed, with costs of this court to plaintiffs. NOTE. For pesthouse or contagious-diseasehospital as a nuisance, see annotation following Cook v. FALL RIVER, post, 122. (- Mass. - 131 N. E. 346.) Injunction against tuberculosis hospital. 1. Injunction will not lie against the construction by a municipal corporation under legislative command of a tuberculosis hospital in the vicinity of residences because it will affect the comfortable enjoyment of the neighboring property and may depreciate its market value, where it is found that there is no valid reason to fear contagion if the hospital is well conducted. [See note on this question beginning on page 122.] APPEAL by plaintiffs from a decree of the Superior Court for Bristol County (Thayer, J.) confirming the report of a master, and dismissing a bill filed to enjoin the erection of a tuberculosis hospital as a nuisance. Affirmed. The facts are stated in the opinion of the court. The facts found by the master entitle the plaintiffs to a decree. Everett v. Paschall, 61 Wash. 47, 31 L.R.A. (N.S.) 827, 111 Pac. 879, Ann. Cas. 1912B, 1128; Cherry v. Williams, 147 N. C. 452, 125 Am. St. Rep. 566, 61 S. E. 267, 15 Ann. Cas. 715; Grover v. Zook, 44 Wash. 494, 7 L.R.A.(N.S.) 582, 120 Am. St. Rep. 1012, 87 Pac. 638, 12 Ann. Cas. 192. Injury to comfortable enjoyment or beneficial use of property, and not depreciation in value, is the real test. Stotler v. Rochelle, 83 Kan. 86, 29 L.R.A. (N.S.) 49, 109 Pac. 788; Baltimore v. Fairfield Improv. Co. 87 Md. 352, 40 L.R.A. 494, 67 Am. St. Rep. 344, 39 Atl. 1081; Walker v. Brewster, L. R. 5 Eq. 25, 37 L. J. Ch. N. S. 33, 17 L. T. N. S. 135, 16 Week. Rep. 59; Beisel v. Crosby, 104 Neb. 643, 178 N. W. 272; Densmore v. Evergreen Camp, 61 Wash. 230, 31 L.R.A. (N.S.) 608, 112 Pac. 255, Ann. Cas. 1912B, 1206; Goodrich v. Starrett, 108 Wash. 437, 184 Pac. 220; Giles v. Rawlings, 148 Ga. 575, 97 S. E. 521; Davis v. Sawyer, 133 Mass. 289, 43 Am. Rep. 519; Stevens v. Rockport Granite Co. 216 Mass. 486, 104 N. E. 371, Ann. Cas. 1915B, 1054; Manning v. Bruce, 186 Mass. 282, 71 N. E. 537. Even if the board had power to approve the site, its approval is not conclusive against the plaintiffs. Metropolitan Asylum Dist. v. Hill, L. R. 6 App. Cas. 193, 50 L. J. Q. B. N. S. 353, 44 L. T. N. S. 653, 29 Week. Rep. 617, 22 Eng. Rul. Cas. 80. The danger to the health of the plaintiffs and their families is also an adequate reason for enjoining the erection of the hospital building. Board of Health v. Tupper, 210 Mass. 378, 96 N. E. 1096. Mr. David R. Radovsky, for respondent: In fixing on the location of the hospital, the trustees were exercising the discretion which the legislature required them to exercise as public officers. Their decision on the question, being quasi judicial or quasi legislative, was final, and could not be reviewed by the court. Barry v. Smith, 191 Mass. 78, 5 L.R.A. (N.S.) 1028, 77 N. E. 1099, 6 Ann. Cas. 817; High, Inj. 4th ed. § 1240; Manning v. Bruce, 186 Mass. 282, 71 N. E. 537. Depreciation in the value of land is not considered as ground for an injunction. Barry v. Smith, 191 Mass. 89, 5 L.R.A. (N.S.) 1028, 77 N. E. 1099, 6 Ann. Cas. 817. One cannot assume in advance that a hospital will be a nuisance. Manning v. Bruce, supra. The determination of witness Borden's qualification as an expert was discretionary with the master. 22 C. J. 526, § 610; Jordan v. Adams Gaslight Co. 231 Mass. 186, 120 N. E. 654. De Courcy, J., delivered the opinion of the court: This is a bill in equity to enjoin the erection of a tuberculosis hospital on the ground that it will constitute a nuisance. The case was sent to a master, and he found the following salient facts: By virtue of Stat. 1912, chap. 151, it became the duty of the city of Fall River to establish and maintain within its limits a hospital for persons having (Mass. 131 N. E. 346.) tuberculosis; and it was subject to a penalty of not more than $500 for each refusal or neglect to do so when requested by the state board of health. The city had been using the Bay street hospital for tuberculosis patients since 1910. The state board of health, and its successor, the state department of health, disapproved of this building as a permanent structure on account of its inadequacy as to size, location, and facilities; from time to time requested the city to erect and maintain a suitable hospital for the care and treatment of tuberculosis patients; and on March 25, 1915, threatened to take action through the attorney general if the city should fail to do so by the 1st of September. location of the required hospital excited a great deal of public attention, and engaged the active interests of representatives of various organizations of the city, in addition to the board of health, and the board of trustees of hospitals for the city of Fall River, established under Stat. 1913, chap. 299. The board of hospital trustees called in three eminent experts to advise them as to the proper site; and after viewing various locations, these unanimously reported that the Highland site (the one in question) was the best. This location was approvèd also by the local board of health and the state department of health. The The locus is portion of a 40-acre tract owned by the city, and known as the Poor Farm land. Here are maintained the City General Hospital, built in 1895, and a temporary hospital for contagious diseases. Tuberculosis patients were treated there in shacks and tents until 1910. In February, 1920, the city turned over to the board of hospital trustees approximately 15 acres of this tract. The trustees are having plans prepared for the erection of a tuberculosis hospital for the accommodation of from 150 to 200 patients, at an estimated cost of $400,000 to $450,000. The plaintiffs reside in the Highland district, but the land of only two of them is immediately adjacent to the hospital location. They are strongly opposed to having in the vicinity of their homes a hospital which will bring together for treatment many patients who are suffering from this infectious disease, because it will affect comfortable enjoyment of their property, and may depreciate its market value. The master finds, however, that there is very little danger of infection, provided the hospital is well managed, and that there will be no substantial depreciation of land values after the hospital has been in existence for a time. Practically the same conditions prevail as to all the sites considered, and the local health authorities consider this site more suitable from a public health point of view than any other that is available. The controlling fact is that the master is "unable to find that the erection and maintenance of a well equipped and controlled tuberculosis municipal hospital hospital will inevitably create a nuisance." He finds: "Experience has demonstrated that there is no real danger from a well-conducted hospital or sanatorium and there is no valid reason for fear regard to it. Whatever danger of infection there may be will be no greater to the neighborhood in the Highland section than there would be wherever said hospital would be located, and, if there is any danger to be expected from patients traversing the streets in traveling to and from the hospital, that danger would be the same wherever the hospital would be located." in On these facts the judge could not enjoin the defendant without virtually nullifying the statute which requires the city to maintain a tuberculosis hospital within its limits, as the objections raised by these petitioners apply with at least equal force to every other available site. Hospitals for contagious diseases must be established and maintained for the protection of the general public; and it is not to be assumed in advance that such a hospital, well |