#### WILLIAM FRIZZLE *aud others against*JOEL PATRICK.

It is the general course of die court of equity, on applications to restrain private nuisances by an injunction, to order an issue at law to ascertain the fact of the existence of such nuisance before the Court will act.

Where a party has no particular interest in an alleged nuisance from the pond-ing back of water, lie cannot sustain a bill for an injunction, but must rely on the remedy by information in the name of the Attorney General.

This was an appeal from the Court of Equity of Pitt county.

The plaintiffs, William Frizzle, Warren Frizzle, Charles Rogers and Jesse Hart, set forth in their bill, that the plaintiffs, William and Jesse Frizzle, conveyed each a small tract of land to the defendant and one Lewis B. Pugh, to enable them to erect a mill on little Contentnia Creek, and that they did so about the year 1850, and that, at the same time, the parties agreed, by parol, as a part of the equivalent for this agreement, the said Patrick and Pugh were to keep a flat in their mill-pond to transport produce for the neighborhood, and to pay them ; that the said grantees did erecta mill-dam, and by that means, ponded back the water so as to injure the plaintiff's, W. and Tí . Frizzle, in a very great degree by overflowing their tillable laud, and to injure all the plaintiffs and other neighbors, by causing an uncommon amount of sickness; that the said mill was, shortly before filing the bill, burned *355down, and that against their earnest remonstrances, and in disregard' of large pecuniary offers on their part, the defendant, Patrick, who had purchased out Pugh, was preparing to rebuild the mill, and they apprehended the same injurious consequences to their health. They further allege, that the defendant totally disregarded his promise to put a flat in his mill-pond while the dam was up, and refused to make compensation to the Messrs. Frizzle for damage done to their lands by ponding back the water on them. The prayer is for an injunction to restrain the defendant from rebuilding his inill-dam and for general relief.

The answer of the defendant, denies that any extraordinary amount of sickness was produced by his mill-pond. He admits that a very fatal disease prevailed during a part of the time his pond was in existence, but he says this was a disease, called diptheria, and as he is advised by medical men, ■ was, in no degree, produced or aggravated by standing water ; that it prevailed as much in neighborhoods where there was no watercourse as in that of his mill-pond, and has, in no degree, abated since his mill has been burned and tire water off. He admits, that he said in conversing about establishing a mill, that he intended to keep a flat in his mill-pond, but he denies that he made any deliberate contract to that effect, or that this consideration entered, in a material degree, into their bargain, and that no one-has ever desired such a flat, or called on him to put one in his pond, and insists that, even if this was as alleged by plaintiffs, that they have an adequate remedy, at law, for the breach of this contract. lie sets forth, specifically, the deeds made to him by the plaintiff's, "William and Warren Frizzle, which, in the former parts thereof, are in the usual form, and then contain this clause, (in the deed from William,) “ and I, the said William E. Frizzle, in the bargain’ have bargained and sold unto the said Lewis Pugh and Joel Patrick, the full and lawful privilege of ponding the water back upon my creek low ground, above the said Lewis Pugh and Joel Patrick’s mill-seat, to a sufficient head of water to run the mill, or any machinery whatever, provided *the*
      *356wafer does not back upon any of high or tenable lands; if so, we, the said Lewis Pugh and Joel Patrick, do bind ourselves and assigns to the said William R.‘Frizzle, a fair price for all the high or tenable land the mill may cover,” and the deed from Warren Frizzle, conveyed his tract of land, by a deed, containing the like provisions. lie further alleges, in his answer, that before this bill wás filed, he offered to leave it to men, mutually chosen by them, to say what, if any, damages had been sustained by the plaintiff, William’s high or tillable lands, and to pay whatever might be assessed by them, and that he refused to agree to these terms, or in any way to settle amicably this question of damages. lie insists that, according to the written contract between them, if either of the Messrs. Frizzle has any claim of this kind, he has a full and adequate remedy at law. He admits that lie is about to rebuild his mill, but says that neither of these parties has any equitable ground to prevent him from so doing ; that as to the Messrs. Frizzle, thejr are concluded by the terms of their deeds, from interfering through the court, and as to the other plaintiffs, they have no interest or ground of complaint whatever.

On the coming in of the answer, the defendant moved to dissolve the injunction, which his Honor refused, but ordered it to be continued to the hearing, from which order the defendant appealed to this Court.

*Fowle*and *Phillips,*for the plaintiffs.

*Donnell*and *J. W.*Bryan, for the defendant.

PKAitsON, C. J.

Treating the bill as a proceeding for an injunction against a private nusiance, we are of opinion that the plaintiffs, William Frizzle and Warren Frizzle, are concluded by the deeds which they executed to'Joel Patrick and Lewis Pugh, for the parcels of land on the north and south sides of the creek, for the express purpose of enabling them to erect a dam, and pond back the water in order to get a head of water sufficient to run a mill; so they cannot be beard *357to complain against their own deed. In regard to the flat, if there has been a breach of contract on the part of the defendants, the remedy at law is adequate, and certainly, a breach of contract, in that particular, is not a sufficient ground to induce a court of eqnity to interfere by its writ of injunction.

In the case of a private nuisance, the rule in this Court is, that the fact of nuisance should be established by an action at law before an injunction will issue, with certain exceptions as in the case of *Clark*v. *Lawrence,*ante 83, where an issue was ordered on the fact of nuisance or no nuisance. This comes within the general rule, and we can see no ground on which to make it an exception and direct an issue, unless the rule is to be disregarded altogether. They have been paid for the privilege of erecting a mill at the site set out in the proceeding, and are concluded in respect to a *jorwate nuisance.*The other plaintiffs, Jesse Ilart and Charles Eogers, show no particular interest in this matter, and must stand like any other citizens, who are objecting to the erection of a public nuisance. In other words, they must file an information in the name of the Attorney General, setting forth their reasons for believing that the defendant, Patrick, is about to commit a *pvMic*nuisance, and making that the ground for asking the interference of this Court by its writ of injunction. Decretal order of the Court below reversed and injunction dissolved. ,

Per Curiam, Decree accordingly.