delivered the opinion of the court.

The plaintiffs, Martin, Young and wife, and Thoms, obtained an injunction inhibiting the defendant from baking in an oven built' in a wooden house adjacent to those of the plaintiffs, on an allegation that the bake-house and oven were in such bad condition and so contiguous and near to the other wooden buildings, and being built of combustible materials, fire could not be made in the oven without imminent danger of a conflagration.

The defendant, denied the allegations; prayed for the dissolution of the injunction, and claimed damages in recon-vention.

The case was tried by a jury who returned a verdict for the defendant, and assessed his damages under the plea in *209reconvention, in the sum of twelve hundred dollars. The injunction was dissolved, and the plaintiff Thoms, having withdrawn from the suit, judgment was rendered against the others in conformity with the verdict, and they appealed.

The appellants urged, that in consequence of the danger resulting from the proximity of the bakery to their buildings and its ill and dangerous construction, they had a right to the relief which they sought; and they showed that one of them had not been able to effect the insurance of Bis house and goods without paying an excessive premium. The agent of the insurance office deposed, that he had required a premium of one half of one per cent, above that which is taken for the insurance of buildings, constructed of the same materials as those of the plaintiffs, which are considered as ordinary risks from their situation ; not only on account of the vicinity of the bakery, but also in consequence of the houses being more crowded together, in that part of the town than elsewhere. It was shown that the defendant applied to the municipal authorities of the place, to examine his bakery, and designate any alteration which they might deem proper; and it does not appear that his application was ever acted on. The remainder of the evidence is desultory, and in some degree contradictory. The question of fact was peculiarly the subject for the consideration of a jury, and the assessment of damages still more so. A close attention to the evidence has led us to the conclusion that their verdict ought not to be disturbed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.