and his family will be greatly inconvenienced and irreparably injured, and their comfortable enjoyment of the said property will be greatly hindered, disturbed, essentially interfered with, and prevented by reason of the dust, dirt, noise, smoke, and vapors; and the said property will be rendered, by reason of the said dust, dirt, noise, smoke, and vapors, and by constant danger from fire, uninhabitable and greatly depreciated in value. The complaint also charges that in addition to the personal discomfort, annoyance, and depreciation in value of his property the plaintiff, as a citizen and resident taxpayer of Jeffersonville, will with his family be permanently deprived of the right to use and drive over said part of the wharf occupied by the barrier and obstruction to be erected by the defendant, which right he now has, in common with the general public, and which he has never surrendered to any one, and the plaintiff says that the erection and maintenance of said log way and platform by the defendant will greatly, irreparably, and permanently injure his said real estate, and that he cannot be compensated therefor in damages. The complaint does not show that the appellant will suffer injury as a taxpayer of the city on account of the proposed construction of the log way complained of. It is not made to appear that his taxation will be increased either directly or indirectly. Neither does it show a right of action in his favor on account of the deprivation of the right which he, in common with the general public, has to use and drive over that part of the wharf occupied by the obstruction. McCowan v. Whitesides, 31 Ind. 235; Cummins v. City of Seymour, 79 Ind. 491-501; Matlock v. Hawkins, 92 Ind. 225; Dwenger v. Railway Co., 98 Ind. 153; Railway Co. v. Bissell, 108 Ind. 113, 9 N. E. Rep. 144.

Whether, if the common council had granted the appellee the right to obstruct the wharf, an action could have been maintained by a citizen suing in behalf of himself and others, although discussed in the briefs of counsel, is not before us for decision. The appellant insists that the common councils of cities have not the same exclusive jurisdiction of public wharves that they have of the streets and alleys, and therefore no right to grant the public wharves for the permanent use of private citizens. The distinction, if it exists, is not material in this case. While the statute (Rev. St. 1881, § 3161) purports to grant the common council exclusive power over the streets, highways, alleys, and bridges within such city, it must be understood that this power can only be exercised for the use and benefit of the public. Streets, alleys, and highways are held in trust for the public for public purposes and no other. A common council has no power or authority to authorize the permanent possession of a public highway, street, or alley for private purposes. State v. Berdetta, 73 Ind. 185; Sims v. City of Frankfort, 79 Ind. 446; Elliott, Roads & S. 490. In Pettis v. Johnson, 56 Ind. 139, it was held that the city of Indianapolis had no power tɔ authorize a property owner to put up an iron stairway in an alley, al

though the grant was founded upon a valuable consideration, and in pursuance of a contract by which the city acquired the use of the rooms to which the stairway led, for its council chamber and various city offices. The erection of a structure of the character and permanency described in the complaint, for purely private purposes, upon or across the public streets, alleys, highways, or wharves of a city, is unlawful, and such as the common council cannot authorize and should not tolerate. Where a street or other public way is used for public purposes, such as for street railways or other improved methods of travel, the common councils have authority to permit permanent obstructions to be placed on the streets; but they have no such power when the purpose is strictly private, and the public in no manner served. This distinction is illustrated by the case of Mikesell v. Durkee, 34 Kan. 509, 9 Pac. Rep. 278, where the appellees were, by the permission of the city, about to construct a railroad upon a street of the city, not for the use of the public, but to transport grain to and from their elevator to a railroad. It was held that the city had no right to grant such permission, and that an abutting lot owner, whose property would be injured, might perpetually enjoin the construction. We have stated that, in so far as the appellant has or is about to suffer injuries in common with the general public, he has no right of action. It is the province of the public authorities to procure redress for public wrongs, but when an individual suffers a special injury, the law affords him redress upon his own application. In the late case of Bank v. Sarlls, (Ind. Sup.) 28 N. E. Rep. 434, it was said: "It is only when the injury is general and public in its effects, and no private rights are violated in contradistinction to the

rights of the rest of the public, that individuals are precluded from bringing pri. vate suits for the violation of their individual rights." The mere fact that the injury is greater in degree to a particular individual than to others will not entitle him to relief. McCowan v. Whitesides, supra; Dwenger v Railway Co., supra; Railway Co. v. Bissell, supra; Sohn v. Camberu, 106 Ind. 302, 6 N. E. Rep. 813; Railway Co. v. Eberle, 110 Ind. 542, 11 N. E. Rep. 467; Fossion v. Landry, 123 Ind. 136, 24 N. E. Rep. 96; Railway Co. v. Eisert, 127 Ind. 156, 26 N. E. Rep. 759; Elliott, Roads & S. 500. It is not necessary to a right of action by the owner of a dwelling house that the property itself will be injured; but if its comfortable enjoyment will be essentially interfered with by dust, smoke, and offensive odors, relief by injunction will be awarded. Owen v. Phillips, 73 Ind. 284. We are satisfied that the complaint charges an injury to the plaintiff, distinct from that of the general public. The injury to the use and enjoyment of his dwelling house, and its consequent depreciation in value, which is charged in the complaint and admitted by the demurrer, is a personal and not a public injury. The fact that the obstruction and use of the public wharf and the use of the engine and machinery is for the

for a public wrong if he suffers an injury peculiar to himself, and not sustained by the public in general. 3 Bl. Comm. p. 219; Powell v. Bunger, 91 Ind. 64; Ross V. Thompson, 78 Ind. 90; Cummins v. City of Seymour, 79 Ind. 491; McCowan v. Whitesides, 31 Ind. 235; Fossion v. Landry, 123 Ind. 136, 24 N. E. Rep. 96; Bank v. Sarils, (Ind. Sup.) 28 N. E. Rep. 434; and Adams v. Car Co., 31 N. E. Rep. 57, (at this term.)

The sufficiency of the complaint, as it would be when tested by demurrer, is not involved here. It is a mere temporary injunction. To authorize the court to grant such relief, it was not necessary that a case should be made that would entitle the appellee to relief, at all events at the hearing. In such cases, it is sufficient if the court finds upon the pleadings and evidence a case which makes the transaction a proper subject for investigation in a court of equity. Spicer v. Hoop, 51 Ind. 365. In our opinion the court did not err in granting the temporary injunction in this case. Judgment affirmed.

GREENFIELD GAS Co. v. PEOPLE'S GAS Co. et al. (Supreme Court of Indiana. April 30, 1892.) Appeal from circuit court, Hancock county; W. E. NIBLACK, Judge pro tem.

Suit by the Greenfield Gas Company against the People's Gas Company and others for an injunction. Demurrer to the bill was sustained. Plaintiff appeals. Reversed.

David S. Gooding, for appellant. Jas. A. New and Offutt & Black, for appellees.

COFFEY, J. The only question discussed by counsel for the appellants in this case relates to the right of the appellees to explode nitroglycerin in their gas well for the purpose of increasing the flow of gas. The question presented is the same as that which arose in the first cause alleged for an injunction in the case of Gas Co. v. Tyner, 31 N. E. Rep. 59; and upon the authority of that case the judgment in this case is affirmed.

TYNER V. PEOPLE'S GAS Co.

(Supreme Court of Indiana. April 30, 1892.) INJUNCTION "SHOOTING" GAS WELL WITH NITROGLYCERIN PRIVATE NUISANCE.

A complaint for an injunction to restrain defendant from "shooting" a gas well on his land adjoining the land of plaintiff, and within 200 feet of the residence of himself and family, with nitroglycerin, which alleges that by shooting the well, and by the accumulation of a large amount of nitroglycerin for that purpose, plaintiff's dwelling and the lives of himself and family will be endangered, if the facts stated are true, shows a private nuisance, and alleges facts sufficient to warrant the granting of an injunction.

Appeal from circuit court, Hancock county; W. H. MARTIN, Judge.

Suit by Elbert Tyner against the People's Gas Company. A demurrer to the complaint was sustained, and plaintiff appeals. Reversed.

David S. Gooding, for appellant. Jas. A. New and Offutt & Black, for appellee.

COFFEY, J. The complaint in this case consisted of three paragraphs. The appellant withdrew the second paragraph, and the court sustained a demurrer to the first and third. The appellant refusing to amend, the appellees had judgment. The

assignment of error calls in question the ruling of the court in sustaining the demurrer to the first and third paragraphs of the complaint. The first paragraph alleges, in brief, that the appellant and appellees are the owners of adjoining city lots in the city of Greenfield, Ind., situate near the center of the city; that the family residence of the appellant, in which he and his family reside, is located on the lots so owned by him; that the appellees, regardless of the rights of the appellant, and of the safety, peace, comfort, and lives of himself and family, without his consent and over his objection, have dug and constructed a natural gas well to the depth of about 1,000 feet, 200 feet distant from appellant's said residence, and within 43 feet of the appellant's lots; that ap. pellees threaten and are about to "shoot" said well, and will do so unless restrained therefrom; that for this purpose they have unlawfully brought into the city of Greenfield a large quantity of nitroglycerin or other nitro explosive compound, and have permitted the same to remain within 200 feet of appellant's said resi dence for three hours at a time, in the midst of and surrounded by a large number of people; that they threaten to "shoot" said well with their said nitroglycerin, and will do so unless restrained and enjoined therefrom; that nitroglycerin is highly explosive, and is very dangerous to life and property, and is liable to explode under any and all circumstances; that an explosion of 60 or 100 quarts thereof at any given place on the surface of the earth could and probably would destroy life and property anywhere within 500 yards of such explosive; that the hand. ling or storing thereof in or about the appellees' gas well will endanger the lives of the appellant and his family, as well as his property; and that the explosion thereof within the well will greatly injure the property of the appellant, both above and below the surface of the earth, and endanger the life of himself and family. The third paragraph alleges, substantially, that under the land of the appellant described in the first paragraph of the complaint, at a depth of 900 or 1,000 feet, are many valuable stones and rocks, among others the rock known as "Trenton Rock," containing great quantities of nat ural gas, of the value of $4,000; that said natural gas, prior to April, 1889, was imbedded, contained, held, and securely kept in said Trenton rock; that on the 19th day of August, 1889, the appellees unlaw. fully and maliciously dug and constructed a natural gas well to the depth of 1,000 feet, within 25 feet of appellant's lots, and on the ➖➖➖ day of September, 1889, unlawfully and maliciously intending to injure and damage the appellant and his property, unlawfully, wantonly, and maliciously performed the act of "shooting" their gas well, to the great damage of the appellant; that the appellees, at the time they sunk their well, intended by means thereof to draw and cause to flow large quantities of natural gas from appellant's said Trenton rock into their well, and that large quantities of said gas did flow into their said well from August until De

cember, 1989; that in September of that year appellees unlawfully and maliciously, and over appellant's objection, with the intent to obtain and convert to their own use a larger flow of appellant's gas, and to cause the same to flow into their well, and thereby enable them to sell the same to their customers, did "shoot" their said well, and thereby opened the crevices and fissures in said Trenton rock for a distance of 200 feet in all directions from their well, and thereby caused a large quantity of appellant's gas to escape from said rock and flow into said well continuously ever since, by means of which they have possessed themselves of appellant's gas, and sold the same to their customers, to appellant's damage in the sum of $2,000; that the appellees threaten to continue to extract from appellant's land the gas thereunder, and convert the same to their own use, to the irreparable damage of the appellant, and for which the law affords no adequate remedy in damages.

We regret that we have not been furnished a brief by the appellees in this case, and that we are unadvised by them of the ground upon which the circuit court made its rulings. In our opinion the court erred in sustaining a demurrer to the first paragraph of the complaint. It is true that many allegations are found therein which might have been omitted, but still the distinct allegations are there, that by shooting appellees' well, and the accumulation of nitroglycerin for that purpose, the appellant's dwelling, and the lives of himself and family, will be endangered. This is admitted by the demurrer, and if such is the fact the appellees should be enjoined from shooting their well. One of the well-known exceptions to the rule that the owner may use his property as he thinks best is that he must so use it as to cause no unnecessary injury to others. "A private nuisance of the sort which is redressed at the suit of the party is any. thing done on one's premises or elsewhere, or put into circulation, or omitted to be none, contrary to a legal duty, wherefrom, through the separate action of nature or of the common course of events, an injury follows to or directly menaces another. Amer. & Eng. Enc. Law, tit. "Nuisance;" Bish. Noncont. Law, § 411. It is settled by our own decisions that the erection or maintaining of anything that is injuri ous to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, constitutes a private nuisance. Railway Co. v. Simon, 40 Ind. 278; Haag v. Board, 60 Ind. 511; Owen v. Phillips, 73 Ind. 281; Williamson v. Yingling, 93 Ind. 42. To live in constant apprehension of death from the explosion of nitroglycerin is certainly an interference with the comfortable enjoyment of life. Injunction is the proper remedy for an injury of this kind. Smith v. Fitzgerald, 24 Ind. 316; Reichert v. Geers, 98 Ind. 73.

We do not think the court erred in sustaining a demurrer to the third paragraph of the complaint. The use of the words "unlawfully," "maliciously," and "wantonly" add no force to the complaint. In

construing the complaint, and in determining the rights of the parties thereunder, we will look to the nature of the acts alleged; and, if such acts are lawful within themselves, such epithets cannot make them unlawful. That the appellees had the right to explode nitroglycerin in their well for the purpose of increasing the flow of gas was settled by the case of Gas Co. v. Tyner, 31 N. E. Rep. 59. The question needs no further elaboration here. Judg ment reversed, with directions to overrule the demurrer to the first paragraph of the complaint.

2. The fact that the judgment debtor's grantee had destroyed his deed was immaterial, as a creditor cannot take advantage of the statute of frauds to avoid a sale by his debtor.

3. Nor did it matter that it was the purpose of the debtor to defraud his creditors, if his grantee did not participate therein.

Appeal from circuit court, Vanderburgh county.

Action to recover land. From a judgment in favor of Charles H. Findley, the Old National Bank of Evansville, Ind., appeals. Affirmed.

John E. Iglehart and Edwin Taylor, for appellant. Jas. S. Walker, for appellee.

ELLIOTT, C. J. Both parties claim title to the land which is here the subject of controversy, through John McDonald. The claim of the appellant rests upon a sheriff's sale made on a judgment rendered on the 26th day of February, 1886, against McDonald and others. The appellee claims title directly through a conveyance executed to him by Elizabeth Seifert, and she claimed through deeds executed to her by McDonald and by John Woolley. Woolley asserted title through a deed executed to him by McDonald on the 19th day of October, 1885, but which was destroyed. To supply the place of the deed executed to Woolley, McDonald executed another deed on the 28th day of May, 1886, wherein it was recited that a deed was executed to McDonald on the 19th day of October, 1885, and that it had been lost or destroyed. Woolley testified that he bought the land from McDonald, and received a deed, and that it was five or six months before he conveyed the land to Mrs. Seifert. He also testified that he gave her the deed executed to him by McDonald. McDonald's testimony was substantially the same as that of Woolley upon the points stated, but he fixed the date of the deed to Woolley as the 19th day of October, 1885. Donald further testified that when the sale was made to Mrs. Seifert the deed to Woolley had not been recorded; that the interested parties brought it to him, aud

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