Summary
From Edgecomb.
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 in-, tended 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 ivould ensue, as the noxious vapours 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 the preventive aid of the Court,- and therefore prayed a writ of Injunction.
Tiie 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 tiie 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, and it was now moved to dismiss the Bill.
The case was arg-ued at a former term by,
It is first necessary to ascertain what is the legal character of the apprehended mischief: in other words, if this mill and dam. when erected would be a nuisance at all, would that nuisance be public or private ? A private nuisance, is defined to be any thing done to the hurt or annoyance of the lands, tenements or hereditaments of another. (3 Mackstone’s Com. 216).
A public nuisance, is either tiie doing a thing to the annoyance of all tiie king’s subjects, or the neglecting-to do a tiling which tiie common good requires. (4 Blackstone, 166). This dam then, if erected, would, according to the Complainant’s allegation, be a public nuisance, an offence against the public order and economical regimen of the State. Who shall apply for the redress of such a wrong ? The public. The offence, must be punished by indictment, at the instance of tiie State, for it is the State which is injured. As no particular individual is specially injured, no individual can recover damages. (3 Blackstone, 219).
If the nuisance actually existed, these Complainants pould sustain no action, even after the mischief has come upon them; because for a public wrong, no private action will lie; a fortiori then they cannot sustain this preceed-}ng. to avert the mischief. The case of Bunn v. Stone, (2 ^aw R£P- 263) 's express, that for an act in the nature of a public nuisance, no individual is entitled to an aC(j011j unless he has received an extraordinary and particular damage, not common to the rest of the citizens. The fears of mankind, though well founded, do not make that a nuisance which at law is not so. So determined by Lord Uardtoicke, in the case of Baines v. Baker (Ampler 158. 2 Mkyns 751). The case was one of an application to restrain, by injunction, the building of a hospital for inoculation. The Injunction was refused, and it was then held, that in cases of public nuisance, there should be an information by the Attorney-General on behalf of the public. (1 Maddock’s Chan. 128). Now if this be a nuisance, it must be ¡public. But if the erection of tiiis dam and mill be an offence, it is one criminal in its nature, and to restrain the commission of a criminal act, an Injunction will not be granted. (1 Maddocks 104). And on the authority of the Mtorney-General v. Utica Insurance Company. (2 Johns. Ch. Ca. 371) it may well be questioned whether this Court has any jurisdiction in cases of this kind.
The case stated in the bill is that of irreparable mischief, peculiarly affecting the Complainants, sought to be prevented by aid of this Court’s prohibitory powers. As a remedy exists for every wrong, there must of necessity, be some tribunal in the land to which these Cmplainants may resort fop relief. This Court is the proper tribunal. In cases where irreparable mischief may be done, in cases of waste, or in a plain case of nuisance, an Injunction will immediately be granted, (2 Maddocks 174.) The prevention of mischief, which should be one of the principal objects of every system of jurisprudence,- constitutes a very important branch of equitable jurisdiction. Bills quia timet proceed on this principle. So also do bills to prevent waste, to perpetuate testimony, to restrain the negotiation of bills of exchange or promissory notes obtained by fraud; in which last case, as in plain cases * * of waste, &c. Courts of Equity will, on motion, grant an injunction immediately, on the bill being filed. — (1 F.on-llanque 4l, in notis.) ' ’
As to the objection, that the fears of mankind will not make a nuisance, however well founded they may be, the injury apprehended itpthis case is by no means imaginary; and an accurate examination of the authorities will shew that all that is meaut by the rule is, that fears however reasonable, do not create or make that a nuisance which is not already declared to be such by law, but the apprehension of a real nuisance, is the best cause for a bill quia timet.
It has been expressly decided, that infecting the air of a populous neighborhood with noisome smells is a real nuisance, (l Burrows 333) ; then surely the evil apprehended in this case, the poisoning it with pestilential va-pours, is a nuisance also. In reply to the observation ihat-this when completed will be, if a nuisance at all, imblic, and that therefore, individuals have no right to ask the preventive aid of this Court, it proceeds on the opinion that public nuisances are punishable only at the instance of the State. The fact is, that the distinction will be found to exist between nuisances, which are private, such as are public, and sucli as are public and yet especially affect certain individuals; for the first class, the party injured alone can complain; for the second the state, for the third individuals as well as the state, for it would be the strangest of solecisms, where individuals have a deep, peculiar and distinguishing interest, to deny them the opportunity of asking protection for it. In accordance with this opinion, we find that even at law, where a nuisance is public, yet those individuals affected by it, have a right to sue, (5 Reports 73, Mosely v. Fragnell, Cro. Car. 510). We find also the same doctrine prevailing in the Court of Equity (_Corporation of London v. Holt, 5 Ves.jun. 129).
The case of (the Mtorney-General v. the Utica Insu~~ ranee Company, 2 Johns. Ch. Ca. 371) relied on by the Defendant’s Counsel confirms the. same idea, for the Chancellor explicitly adverts to the fact, that in the case before him, no individuals are disturbed in the enjoyment of their private rights, and recognises as the origin of this species of jurisdiction, by Injunction, that head of mischief,, or .those mischievous consequences, which required a power to prevent as well as to remedy.
As to the cases from Jhnbler cf Mkijns, cited by Defendant’s Counsel, whether the reasoning there resorted to be correct or not, it is on a foundation not applicable in the case now before the Court.
So important is the exercise of this preventive power, that an Injunction will be granted in urgent cases of nuisance, on mere petition and affidavit '(2 Maddocks 174— Corporation of London v. Bolt, 5 Ves. jun. 129.)
In-the case of Wingfield v. Crenshaw (4 Hen. <§• Mun. 474) the doctrines for which I have contended are admitted, and if they be not correct, this Court is deprived of one of the most important branches of its jurisdiction.
Seawell. — The grounds on which we have proceeded, in this motion to dismiss, are, that the apprehended injury stated in the Bill, is of such nature, that these Complainants are not the proper persons to seek redress; that the nuisance (admitting the erection of this mill and dam to be one) is public, and if so, the proceeding should be by the Attorney-General, at the instance of the public: and further, that the fears of a community, cannot frame a case justifying the extraordinary interference which is sought by this bill. The authorities which have been already cited in support of these grounds, it seems to me, arc directly in point. But it is urged, that this is not the case of a nuisance purely public •, that it affects in a peculiar manner the inhabitants of Tarborough. If, on this ground, these Complainants may sustain their Bill, may not every individual,in the State do the same, without regard to the locality of his residence ? The injury to the town of Tarborough, and to the State at large, is precisely the same in kind, and differs only in the measure. But that each individual injured by this public nuisance could not seek a remedy for it, has been decided in Powell v. Stone (2 Law Rep. 263). If they cannot sue, after damages have actually befallen them, they surely cannot sue to prevent damage. It is not questioned that this Court has the power to interfere by Injunction in cases of irreparable mischief,- but what are cases of irreparable mischief? The true rule is, that Complainant must have sustained an injury, for which he has a remedy at law, but which cannot be repaired by pecuniary compensation — then a Court of Equity will interfere to prevent. If this idea of irreparable mischief be correct, then the case cited by Complainant’s Counsel, from Hen. <§• Munford, is in favour of the Defendant.— The evil which it was there sought to prevent, was likely to prove injurious to health — an injury certainly admit-ihg of no pecuniary compensation — yet the Chancellor, while he distinctly admitted his power to prevent irreparable mischief, refused the Injunction, on the ground that it. was not a proper case for the interference of the Court. The case cited from 5 Vesey,jun. will be found, on examination, not applicable in the present case. — It was probably the fact, that by a plan adopted by Parliament for the improvement of the city, the property was vested in the corporation of London ; and their application for an Injunction was merely that of a landlord • against his tenant. This idea is countenanced by the remark of Lord Loughborough, in the case: “ I can only interfere as between landlord and tenantand by the observation of Chancellor Kent relative to the case, that it was “ a private suit by Bill.” (2 Johns. Ch. Ca. 383). But the current of decisions is uniform to shew', that Courts of Equity will not interfere by Injunction to prevent, unless it is obvious to the Court, that a nuisance is about to be created. The opinion is advanced by Lord Hardwicke, in Baines v. Baker f.dmbler 158). Accord- ^ ‘s down (2 Maddocks 174) that Injunctions will be granted in “a plain case.” The opinion is re-pea ted by Lord Hardwicke, in the Fishmongers Company v. the Easi-India Company (1 Eickins 163). The same sentiment is adopted by Lord Eldon, in the Mtorney-Ge-neral v. JYichol (16 Ves.jun. 342) and in the Mtorney-General v. Cleaver (18 Ves.jun. 217). In the latter of these cases, which was an information at the relation of several inhabitants of Battersea and Chelsea against the Defendants, as manufacturers of soap, praying an Injunction against them, until an indictment then pending against them should be tried. Lord Eldon observes, that “ what is a nuisance, with reference to carrying on a trade, is a question of fad, which it is not very easy to determine,” and adds, e< that he had frequently known verdicts, deciding manufactories to be no nuisance, by which it cannot be denied, the whole comfort of life is destroyed, and health may in some degree be affected.”— The injunction was refused, until the fact should be ascertained by the Jury.
The case now before the Court, we believe, is not a plain case of nuisance. It does not necessarily follow, in the nature of things, that the evils dreaded will result from the erection of this mill. If they do, it will then be an injury to the public, and the public has its remedy through the medium of the proper law officer of the State.
After argument, upon suggestion of the Court, the attorney- General was made a party Complainant 5 curia adv. vult.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
