Opinion
(December Term, 1851.)
1. The jurisdiction of Courts of Equity to interfere, by injunction, in the case of private nuisance, is of recent origin, and is always exercised sparingly and with great caution; because, if, in fact, there be a nuisance, there is an adequate remedy at law, by successive actions on the case.
2. Where it is not certain, but only contingent, whether the act of the defendant, sought to be enjoined, will be a nuisance or not, the Court will not interfere until the fact of "nuisance" has been established by an action at law.
3. Where a party does not take out an injunction in the first instance, but permits the other party to go on, erecting the buildings, etc., from which a nuisance is anticipated, if, at the hearing, he prays for a perpetual injunction, he must do so, on the ground, that, in the meantime, the fact of "nuisance" has been established by an action at law, or, at all events, he must support his application by strong and unanswerable proof of nuisance.
CAUSE removed from the Court of Equity of CRAVEN, at Fall Term, 1851.
James W. Bryan for the plaintiff.
W. H. Haywood for the defendant.
The plaintiff and the defendants own lots Nos. 5 and 4 in the town of New Bern, which are separated by Pollock Street. The plaintiff has on his Lot No. 5 a comfortable brick dwelling-house and outhouses, in which he has resided a great many years. The defendants in 1847 erected on the Lot No. 8 a turpentine distillery, situated about 100 yards from the plaintiff's house and about 80 yards from his nearest outhouse, in a direction north of east, and have there carried on the business of distilling turpentine ever since. The bill was filed in July, 1847. It alleges that the defendants are about to erect a distillery; that it will be so near the lot and dwelling-house of the plaintiff as to be a nuisance to him in two ways: Turpentine being an inflammable substance, the distillery will be apt to catch fire, which will be communicated to the buildings of the plaintiff; and in the second place, the operation of the distillery will produce a vast quantity of "smoke, blacks, and soot," which will spread over the lot of the plaintiff, enter his dwelling and other houses, and soil the clothes and furniture and persons of himself and family. He therefore prays for a perpetual injunction against the erection and carrying on of the distillery.
The defendants admit that it is their intention to erect the distillery, but they allege that the plaintiff will not be at all in danger of fire therefrom, for although turpentine is inflammable, yet a fire from the distillery will not communicate itself at the distance of the plaintiff's houses, for the fire arising therefrom — supposing them to be so unfortunate as, form accident or neglect, to have their distillery take fire — will emit such a thick smoke as to prevent sparks, and in fact emit but little heat; and they aver that although there have been many distilleries of turpentine in the town of New Bern during the last fifty years kept constantly in operation, and several of them have been consumed by fire, yet in no one instance has fire ever been communicated to other buildings. They deny that "the smoke, blacks, and (120) soots" issuing from their distillery will spread over the lot of the plaintiff so as to annoy him or his family, for, they say, this "smoke, backs, and soots" which sometimes issue from turpentine distilleries are not a necessary consequence of the operation, but result from the practice of keeping up the fire by burning "scrapings," by which is meant the chips, bark, etc., which settle at the bottom of barrels of turpentine, and, being saturated therewith, make a quick fire. If pine wood is used there is but little smoke, and no blacks or soot that will go over fifty yards; and if oak wood is used neither "smoke, blacks, or soot" will be generated so as to be carried, even by a direct wind, to the lot of the plaintiff. They aver that such distilleries have been in operation within the town of New Bern for many years past; that it is believed they have contributed much to the health of the place, and it is certain they have added much to its business and prosperity.
The bill is sworn to, but no application for an injunction was made, and the defendants erected the distillery and have since been carrying on the operation.
The erection of the distillery is complained of as a private nuisance. There is no allegation that it would be injurious to the town or any considerable part of it. It is true the plaintiff alleges that many of his neighbors will be subjected to a like inconvenience, but they do not join with him in making the complaint, and there is no proof in regard to them. We are therefore to consider of it in the light of a private nuisance. As to a nuisance of this kind the jurisdiction of courts of equity to interfere by injunction is of recent origin, and is always exercised sparingly and with great caution, because if, in fact, there be a nuisance there is an adequate remedy at law by successive actions on the (121) case. Attorney-General v. Nichols, 1 Ves., 338; an anonymous case before Lord Thurlow, 1 Vesey, Jr., 140.
There is an obvious difference between a thing which is a nuisance of itself and one which may or may not be a nuisance according to the manner in which it is used. The present case comes under the latter head. From the proof, it seems that if the fire is kept up by burning "scrapings" the "smoke, blacks, and soot" will be carried to the lot of the plaintiff when the wind is north of east. If pine wood be used this result may also follow, but in a very slight degree. And if ash wood be used, then the plaintiff will not be at all affected, without reference to the wind. So the annoyance to the plaintiff must be looked upon as contingent. It depends on the wind and on the kind of fuel which may be used. In such cases it is settled that this Court will not interfere until the fact of "nuisance" has been established by an action at law. Earl of Ripon v. Hobart, 8 Eng. C. L., 336.
Again, this bill was filed July, 1847. The plaintiff did not then move for an injunction, possibly because of an unwillingness to give the bond. In the meantime the defendants have gone on, as they had a right to do, and erected the distillery and have kept it in constant operation for near five years. It is a clear principle of equity — so clear as to strike every one at the first blush — that where a party, instead of taking an injunction in the first instance, stands by and allows the other to make an outlay of his money in erecting buildings and other fixtures, if, at the hearing, he prays for a perpetual injunction he must do so on the ground that in the meantime the fact of "nuisance has been established by an action at law, or, at all events, he must support his application by strong and unanswerable proof of nuisance." If this principle needs any authority for its support it will be found in the case last above cited.
(122) So far from strong and unanswerable proof of actual nuisance in the present case since the creation of the distillery the plaintiff offers no proof of it whatever. On the contrary, the proof as to this matter is on the other side. The defendants, upon cross-examination, ask all of the witnesses called by the plaintiff who have had an opportunity of seeing it, whether the walls of the plaintiff's building are blackened or give any other indication of ever having been touched by "smoke, blacks, or soot"; whether they have ever seen the smoke issuing from the distillery reach and settle upon the plaintiff's lot. They all answer in the negative. The defendants called several witnesses who proved the same fact, or rather who disprove the fact of nuisance.
Upon the allegation of nuisance, by reason of the exposure to fire, the testimony is conflicting, and the question is left at least doubtful. It is proved that many distilleries have been in operation within the town for many years past and no fire has ever been occasioned by them. It would seem that the exposure to fire from a distillery at a distance of 100 yards is not greater than from the erection of an ordinary dwelling-house and outbuildings constructed of wood on an adjoining lot.
It must be declared to be the opinion of the Court that under those circumstances and with this proof the plaintiff is not entitled to the relief prayed for.
PER CURIAM. Bill dismissed with costs.
Cited: Ellison v. Commissioners, 58 N.C. 58; Clark v. Lawrence, 59 N.C. 86; Thompson v. McNair, 62 N.C. 124; Dorsey v. Allen, 85 N.C. 363; Redd v. Cotton Mills, 136 N.C. 344; Durham v. Cotton Mills, 141 N.C. 630; Hickory v. R. R., 143 N.C. 452, 455; Pedrick v. R. R., ib., 409; Cherry v. Williams, 147 N.C. 457; Little v. Lenoir, 151 N.C. 418; Berger v. Smith, 160 N.C. 209.
(123)