#### 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 injur,, 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 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 *385aid 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,

*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 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-*386}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.

*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 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 *387the 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).

*388The 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, with*389out 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**390*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.*

Tayior, 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.

*391It is manifest, that without some jurisdiction competent, to prevent a threatened evil of the sort complained of, there would be a great defect ofjustice 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 lias accordingly been long settled as a prin-. ciple 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 immediately be 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 millpond 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 *392(own quite *so unhealthful;*but if the Court sees, that no: merely in the fears .of the inhabitants, but a moral ccr-tainty exists, that if this work is suffered to proceed, the jiean(, 0f 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 ad-, duced in this case. I am of opinion that the Injunction ought to be made perpetual.

Hair, 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 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, Judge, was of the same opinion, so the Injunction was made perpetual.