DISCUSSION.

We intentionally found the facts, fully, from the evidence submitted, because this course, in our view, will relieve us from any extended discussion of the law applicable to the case.

That the defendant may, in the absence of any restriction in her title, add to and extend her building, so as to cover her ground to the street line, can not well be gainsaid.

Her act may interfere with the harmony that prevailed in the location of the buildings back of the street line. She may have consulted her own interests and not the good of her neighbor in coming out on the street line. The law, however, will not undertake to correct a mere breach of courtesy by a neighboring lot owner.

We can not restrain and close a butcher shop located in a village, so long as the business is properly conducted. It is a legitimate occupation, and a necessary one for the convenience and accommodation of a large and closely built up settlement.

There is nothing special in the character, location or formation of the community, nor in the situation and occupancy of the buildings that demands the elimination of this proposed butcher shop. There is nothing in the subdivision of the farm tract or in restrictions found in the deed from the grantor that limited the property, exclusively, to residential uses. The restriction by naming certain manufactories and businesses that give forth bad odors and discomfort to the neighboring residents, makes it evident that it was not intended by the grantor to restrain other occupations and businesses that do not so offend. The evidence, as we found, does not show that a butcher shop, if properly conducted, gives out noisome or discomforting smells.

It is true that a man is entitled to the comfortable enjoyment of his dwelling house. The test laid down in Ladies Decorative Art Club's Appeal, 22 W. N. C. 75 by Judge Thayer, and approved by the Supreme Court, shows that it is not every noise or bad odor that can be enjoined. "If the neighbor make a noise (or cause odors) so as to interfere with the ordinary use and enjoyment of another's dwelling house, so as to cause serious annoy

ance and disturbance, the occupier of the dwelling house is entitled to be protected from it."

Surely there is no evidence that the plaintiffs' dwellings will suffer "serious annoyances and disturbances" if the butcher shop is properly conducted.

The location and establishment of a particular business may render a community less desirable for residential purposes, but unless the discomfort or annoyance is of the character and extent above described the occupants of the dwelling have no cause of action. "The rule is well established, that a loss in the selling or rental value of real estate, by reason of the establishment of a lawful but undesirable business, in the vicinity, does not give a cause of action. A licensed hotel or a livery stable, a saloon or a meat market and many other kinds of business are calculated to affect the desirability of a neighborhood as a place of residence, and consequently to depreciate the value of adjoining property, but the owners of such property are without legal remedy in their loss." Keiser vs. Gas Co., 143 Pa. 290; Robb vs. Carnegie, 145 Pa., 342.

True, whether a certain business can be carried on, at a particular locality, must depend upon the surroundings. Ordinarily we must submit to the slight discomforts which may flow from the occupations which are the natural and usual accompaniments of the community in which we reside and which follow us to accommodate our wants.

We repeat, however, that the discomforts, if any, from this butcher shop, will be so slight,-according to the evidence, if the business is properly conducted, that equity will not interfere to destroy a valuable property right of the defendant.

The carts and trucks that stop to receive the waste from the butcher shop, may give out discomforting odors, but the remedy should come from the proprietor of the teams, without imposing any penalty upon the butcher shop which may be entirely free from all responsibility for the discomforting odors that come from the truck.

And now, January 22nd, A. D. 1916, after hearing and due consideration of the evidence and argument of counsel, it is ordered, adjudged and decreed that the

foregoing findings of facts and conclusions of law be filed in the office of the Prothonotary who will enter a decree nisi, accordingly, that the bill be dismissed, at the costs of the plaintiffs; and if no exceptions are filed, within the time required by the equity rules, the said Prothonotary will enter a final decree as of course.

JOE BUCCI vs. JIMMIE PAVONE.

Equity-Injunction-Agreement of Vendor not to Engage in Same Business as Vendee.

Defendant sold a building in which he conducted a bakery, together with its contents and the good will of the business. He agreed in writing with his vendee not to open or start a bakery in the vicinity of the property sold while his vendee operated the bakery purchased from him. Afterwards a bakery was opened near the one operated by the defendant's vendee and at this new bakery defendant was employed in taking orders and making sales and deliveries. Defendant leased to the apparent proprietor of the new bakery the building in which it was carried on. The proprietor of the new bakery boarded with the defendant. Trade was diverted from the old bakery to the new.

The Court awarded a preliminary injunction, which, on motion to continue, was perpetual.

Bill in equity for injunction. C. P. Dauphin County, No. 547, Equity Docket.

Wm. H. Earnest and Geo. L. Reed, for Plaintiff. Arthur H. Hull, Gabriel H. Moyer and W. Justin Carter, for Defendant.

McCarrell, J., January 27, 1916. On August 20, 1913, the plaintiff purchased a building constructed for the purpose of carrying on the bakery business, together with its contents, from the defendant for the sum of $1,450. The tangible property was valued at $600 and the business and good will at $850. At the time this purchase was made and the money paid, the defendant agreed in writing that he would not open or start a bake shop at the quarry property of W. T. Bradley, near the town of Palmyra, as long as plaintiff operated the bakery purchased by him from the defendant. About eighteen months thereafter, or late in the year 1914 or early in 1915, a bakery or bake shop was established within a

short distance of the plaintiff's bakery and at this new bakery the defendant Pavone was employed in taking orders and making sales and delivery of bread. The wagons were marked with the name of Carmine deMichelle, who claimed that the business belonged to him. He leased from the defendant Pavone a room in a building owned by Pavone, together with ground outside the building on which the bake shop was established. He also boarded with Pavone, the defendant, who knew the purpose for which Michelle procured the lease. Michelle testified that he alone furnished the money with which to construct and equip the bakery and procure the necessary outfit for conducting the business, that he never before had been at or near the Bradley Quarry, and that he came a short time before the bakery was established from New York. This was contradicted by a number of witnesses, who testified that Michelle had been employed at Pavone's bakery some time prior to the sale of the old bakery to Bucci, that he knew Pavone well, and was a practical baker. He leased the room from Pavone, the defendant, and established the bakery on ground which was leased from the defendant. Although Pavone, the defendant, and Michelle, the alleged owner of the new bakery, both testified that Pavone had no interest in the bakery or the business carried on thereat, we are not satisfied that this is the exact truth. That the parties were acquainted for a considerable time prior to the starting of the bakery seems to be clearly established. That Michelle boards with Pavone and obtained the ground on which to construct the bakery by lease from Pavone, and that Pavone was employed by Michelle to drive his delivery wagon as soon as the bakery was ready for operation, along with the other facts in the case, indicate that Pavone has some interest in the business established and being carried on by Michelle, and that Pavone's conduct in being employed by Michelle in the bakery business as driver of the sales and delivery wagon is a violation of the spirit if not the letter of the agreement between the plaintiff and defendant. He is procuring some of the plaintiff's customers and is diverting the trade from his bakery. He received from plaintiff $850 for this trade and good will, and to permit him to continue this conduct would be a violation of the agree

ment and against equity and good conscience. We are of opinion therefore that the preliminary injunction should be continued and an order to that effect may be drawn and presented for signature. If the parties do not desire to take further testimony and wish the hearing on the motion to continue the preliminary injunction to be regarded as the final hearing of the case, a decree may now be prepared making the preliminary injunction perpetual at the cost of the defendant.

M'PHERSON vs. M'PHERSON.

Divorce-Trial by Jury-Public Morals-Act of April 20, 1911, P. L. 71-Constitutional Law.

A trial by jury will not be allowed in a divorce case, where the libel charges adultery, and where it appears that the parties have two minor children, and the offense is charged to have been committed in the presence of several witnesses. Such a trial would tend to the

injury of public morals.

The Act of April 20, 1911, P. L. 71, is constitutional.

In the Court of Common Pleas of Lehigh County. John MacPherson vs. Lulu MacPherson. Divorce. No. 29 June Term, 1915. Petition by respondent for jury trial.

M. P. Schantz, Frank Jacobs, for Libellant.

A. G. Dewalt, James M. Breslin, for Respondent, petitioning.

Groman, P. J., Feb. 21, 1916: The respondent in the above proceeding in divorce on June 7th, 1915, presented her petition praying for a rule on the libellant to show cause why the issues of fact involved in the proceeding should not be submitted to a jury. The libel charges adultery. From the petition and answer filed it appears the parties to this proceeding have two children—a daughter thirteen years of age, and a son fifteen years of age; it also appears that the alleged act or acts of adultery were committed in a Philadelphia hotel in the presence of several witnesses. We have nothing before us but the proceedings herein, and, therefore, we conclude for the purpose of determining this rule that the libellant can substantiate the allegations by competent testimony.