Edgecombe County NcArchives Court.....Bell, V Blount 1826
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 8, 2009, 11:57 pm

Source: Nc Court Reports Vol 11, 1826
Written: 1826

June Term 1826

THE ATTORNEY-GENERAL and JOSEPH BELL and others, inhabitants of the town of 
Tarborough, v. BLOUNT.

From Edgecomb.

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.

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 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 (385) writ of injunction.

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, and it was now moved to dismiss the bill.

The case was argued at a former term by 

Mordecai, in support of the motion. 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 anything done to the hurt or 
annoyance of the lands, tenements or hereditaments of another. (3 Blackstone's 
Com., 216.)

A public nuisance, is either the doing a thing to the annoyance of all the 
king's subjects, or the neglecting to do a thing which the common good 
requires. (4 Blackstone, 166.) This dam then, if erected, would, according to 
the Complainants' allegation, be a public nuisance, an offence against tbe 
public order and economical regimen of the state. Who shall apply for the 
redress of a wrong? The public. The offence must be punished by indictment, at 
the instance of the 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 could sustain no action, 
even if the mischief has come upon them; because for a public wrong, no 
private action will lie; a fortiori then they cannot sustain this proceeding 
to (386) avert the mischief. The case of Dunn v. Stone (2 Law Rep., 263), is 
express, that for an act in the nature of a public nuisance, no individual is 
entitled to an action, 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 Hardwicke, in the case of Baines v. Baker (Ambler 158; 2 
Atkyns, 751). The case was one of an application to restrain, by injunction, 
the building of a hospital for innoculation. 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 this 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 Maddpcls. 104.) And on authority of the Attorney 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.

Gaston, for complainants.-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 complainants 
may resort for 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 Maddocksy 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 pro-(387)missory 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 Fonblanque, 41, 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 in this case is by no 
means imaginary; and an accurate examination of the authorities will show that 
all that is meant 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 (1 Burrows, 333); then 
surely the evil apprehended in this case, the poisoning it with pestilential 
vapours, is a nuisance also. In reply to the observation that this when 
completed will be, if a nuisance at all, public, and that therefore, 
individuals have no right to ask the preventive aid of this Court, it proceeds 
on the opinion that public nuiances are punishable only at the instance of the 
state. The tact is, that the distinction will be found to exist between 
nuisances, which are private, such as are public, and such 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 ol 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. 
Pragnell, Cro. Car., 510). We find also the same doctrine prevailing in the 
Court of Equity (Corporation of London v. Bolt, 5 Ves., jun., 129).

The case of the Attorney General v. the Utica In-(388)surance 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 recognizes as the origin of this species of jurisdiction, by 
injunction, that head of mischief, or those mischevious consequences, which 
required a power to prevent as well its to remedy.

As to the cases from Ambler & Atkyns, 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, are 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 
(389) 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 (4 N. C., 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. 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 favor of the defendant. The evil which it was sought there to 
prevent was likely to prove injurious to health—an injury certainly admitting 
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 
tenant;" and 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 show, 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 (Ambler, (390) 158). Accordingly, it is laid down (2 Maddocks, 174) that 
injunctions will be granted in "a plain case." The opinion is repeated by Lord 
Hardwicke, in the Fishmongers Company v. the East India Company (1 Dickins, 
163). The same sentiment is adopted by Lord Eldon, in the Attorney-General v. 
Nichols (16 Ves., jun., 342), and in the Attorney 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 fact, which it is not very easy to determine," and adds, "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 mediums of the 
proper law officer of the state.

After argument, upon the suggestion of the Court, the Attorney-General was 
made a party complainant; curia adv. vult.

Taylor, C. J.—Two enquiries 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 this case.

It is manifest, that without some jurisdiction (391) 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 Atyns, 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 mill 
was broke 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 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, (392) that not merely in the fears of the inhabitants, 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 satistiod with much 
less evidence than has been adduced in this case. I am of opinion that the 
injunction ought to be made perpetual.

Hall, Judge.-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 tho 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, Judge, was of the same opinion, so the injunction was made 
perpetual.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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