Opinion
June Term, 1826.
Where a thing already exists which is alleged to be a nuisance, it may be a question whether this Court will interfere by injunction before a trial at law establishing the fact of nuisance; but where the object of the bill is to prevent the erection of that which will be productive of injury, serious and irreparable, if erected, this Court will pass upon the question, and interpose its authority to avert the threatened injury, for the matter cannot be tried at law, and should this Court refuse its aid, there would be no remedy.
FROM EDGECOMBE. The complainants in their bill set forth that the defendant intended to erect a mill and dam on a small stream in the vicinity of the town of Tarborough, and at a short distance from the public academy of that place; that a mill, now destroyed, had formerly been erected near the place at which it was understood defendant intended to build his, during the existence of which the health of the inhabitants of the town had materially suffered; and alleged that if defendant should be permitted to carry his intention into execution great and irreparable mischief would ensue, as the noxious vapors arising from the pond would materially affect the salubrity of the town and tend to the entire destruction of the academy. In conclusion, it sought (385) the preventive aid of the court, and, therefore, prayed a writ of injunction.
Mordecai and Seawell in support of the motion.
Gaston for complainants.
The answer admitted the intention charged in the bill to erect a dam and mill in the vicinity of the town, and at a short distance from the academy; but denied that the injurious consequences which were apprehended would be the necessary result of such erection.
Upon the coming in of the answer, a motion was made to dissolve the injunction. The court refused the motion, but retained the injunction until hearing; and the cause, having been set for hearing, was removed into this Court, it was now moved to dismiss the bill.
After argument, upon the suggestion of the Court, the Attorney-General was made a party complainant, curia adv. vult.
Two inquiries are presented by the argument in this case. The first relates to the power of the Court to interpose the preventive remedy of an injunction; the other, whether it is proper to exercise the power under the evidence and circumstances of (391) this case.
It is manifest that without some jurisdiction competent to prevent a threatened evil of the sort complained of, there would be a great defect of justice in this State; for when the injury, if done, cannot be repaired in damages, it is essential to the protection of right that this Court, whose process is alone adequate to the occasion, should interpose its summary remedy to compel persons so to use their own property as not to injure that of others. It has accordingly been long settled as a principle of the Court that in cases where irreparable mischief may be done, as of waste, or in a plain case of nuisance, an injunction will be immediately granted. Where there is a clear right to the enjoyment of the subject in question, and an injurious interruption of that right which in equity ought to be prevented, this Court will not withhold its aid; and this rule is abundantly established by the authorities. 1 Vern., 120, 127, 275; 2 Ves., 414; 2 Atkyns, 391, and many others.
It appears to me that the evidence in this case approaches as nearly to ascertain the certainty of the apprehended evil, if not prevented, as can be expected from the nature of the subject. There was formerly a mill-pond nearly in the situation where the defendant proposes to establish his, and during the whole time of its being kept up the whole community, particularly the younger part of it, were subject to destructive autumnal diseases. Soon after the milldam was broken and the pond emptied, a visible improvement took place in the healthfulness of the place; children were raised to maturity, the population increased, and a seminary of learning was erected within what was before the sphere of pestilential influence. Of these facts it is impossible to doubt after reading the depositions. Is it not to be expected that the same causes, if put into operation, will produce the same effect? Nor is the probability of this lessened by the proposed alteration in the site of the pond, its size, and the situation of the mill. The utmost allowance that can be made on this point is that it may not render the town quite so unhealthful; but if the Court sees that not merely in the fears of the inhabitants, (392) but a moral certainty exists that if this work is suffered to proceed, the health of this community will again be put in jeopardy, it is its bounden duty to interpose. Indeed, it is impossible to shut our eyes to the fact that in this climate a collection of stagnant water in the neighborhood of a town will render the inhabitants unhealthy; and however different theories may be pressed into the service of accounting for it, or plans proposed to mitigate the evil, the painful conviction forces itself upon us that the effect invariably follows the cause, and no antidote is yet discovered.
Under this observation and experience, a court might be satisfied with much less evidence than has been adduced in this case. I am of opinion that the injunction ought to be made perpetual.
This is not a case where it is necessary to controvert the question whether this Court will interfere by injunction or not, before a trial at law is had, declaring that to be a nuisance or not which in the bill is set forth to be one. No such question in this case can be tried at law. No nuisance exists — the object of the bill is to enjoin the defendant from creating one; and it does appear to me that it is a proper case for this Court's interference.
The nuisance which it is apprehended will arise from the erection of the mill does not appear to me to be a phantom, created by the fears of the witnesses, but a reality bottomed upon past experience. It is not likely that the effects of ponded water would be less deleterious now than formerly; the same causes produce the same effects. I think the injunction ought to be made perpetual, with costs.
HENDERSON, J., was of the same opinion, so the injunction was made perpetual.
Cited: Raleigh v. Hunter, 16 N.C. 13; Attorney-General v. Lea, 38 N.C. 304; Clark v. Lawrence, 50 N.C. 85, 86; Privett v. Whitaker, 73 N.C. 556; Vickers v. Durham, 132 N.C. 881; Pedrick v. Blount, 143 N.C. 509; Cherry v. Williams, 147 N.C. 459; McManus v. R. R., 150 N.C. 661.
(393)