#### SAMUEL SIMPSON *vs.*JOHN R. JUSTICE & AL

Uhe jurisdiction of Courts of Equity to interfere, by injunction, in the'ease 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.

,'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 actiqn at 'law.

Where a party-does not take out an injunction in the first instance, but per- ■ mits the other party to go on, erecting the buddings, §-c, from which a nuisance is anticipated, i£ *at the hearing,*he prays for a perpetual injunction, he must do so, on the ground, that, in the meantime, the fact of “ nui- " -sanee” 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 County, at the Fall Term, 1851.

*116*James W. Bryan,*for the plaintiff

submitted the following argument:

1. The Court of Chancery has a concurrent jurisdiction by injunction, equally clear and well established in cases of private nuisance ; *Finch*v *Resbridger, 2*Vernon 390, *Bush*v *Western,*Free in Ch. 530. These cases show the ancient and established jurisdiction of this Court; and the foundation of that jurisdiction is the necessity of a preventive remedy when great and immediate mischief, or material injury would arise to the comfort and useful enjoyment of property. The interference rests on the principle of a clear and certain right to the enjoyment of the subject in question, and an injurious interruption of that right, which, upon just and equitable grounds, ought to be prevented ; *Gardner*v *Village of Newburgh,*2 Johns C. R. 162, Anon 1 Vern. 120, *East India Co.*v *Sandys*1 Vern. 127, *Hills*v *University of Qxford,*1 Vern. 275, Anon. 1 Vesey, 476, Anon *2*Vesey, 414, *Whitchurch v Hide, 2*Atk. 391, 2 Vesey 453, *Attorney General v Nichol,*16 Vesey, 338. It can order private nuisances to be abated as well as restrain them from being erected ; *Coulson*v *White*3 Atk. 21, *East India Co.*v *'Vincent, %*AUt. .83, *Van. Bergen V Van Bergen,*2 J.eh’o.s. C. R. 272 Rut this h? not to be done until the opposite party has been heard. Lord Ha'Rbwiche said, in *Ryder*v *Bentham,*1 Vesey, 543, that the Court never made an order *on motion to*pull down anything, though it will sometimes on motion, order a thing going on to be stayed. Where certain individuals suffer an injury from a public nuisance, quite distinct fro,m that done to the public at large, the Court will en.tprt.ain a bill, filed .by those individuals to be relieved from the nuisance; *Barnes*v *Calhoun, 2*Ire. Eq. 199, *Spencer*v *'The London and Birmingham Railway Company.*8 Simons, 103. In *Crowder*v *Finkler,*19 Vesey, 6f7, Lord Eimon thought *117that Crowder had a distinct case from the public at large, and said, “ I am inclined to think that an injunction mav be granted in this case not of nuisance, but of danger to property.”

2. To constitute a nuisance, it is not necessary that the noxious trade or business should endanger the health of the neighborhood. It is sufficient if it produces that which is offensive to the senses, and which renders the enjoyment of life and property uncomfortable ; 9 Paige C. R. 576, *Rex*v *Neil,*2 Carr, and Payne’s R. 485, *Rex*v *White,*1 Burr. R. 337. In general, offensive trades and manufactures are public nuisances. A brew-house erected in such an inconvenient place that the business cannot be carried on without greatly incommoding the neighborhood, may be indicted as a common nuisance. So in the like case may a glass house or swine yard. With respect to a candle factory, it has been holden, that it is .no common nuisance to make candles in town, because the needfulness of them shall dispense with the noisomeness of the smell; but the reasonableness of this opinion seems justly to be questionable, because whatever necessity there may be,' that candles be made, it cannot be pretended thati.it is necessary to make them in a townj.l Hawk. P. C. 75, s. 10, 2 Roll. Ab. 139, Cro. Car. 510, Vent. 26, Keb. 500, 2 Salk. 458, 2 Ld. Raym. 1163. It seems that erecting gun-powder mills or keeping a gun-powder magazine near a town, is a nuisance by the common law, for which an indictment or information will lie; *Williams*v *East India Company,*3 East, 1-92. The entering of smoke discharged from defendant’s chimneys.into the plaintiff’s house amounted, in contemplation oí law, to a nuisance ; *Rich*v *Basterfield,*2 Carring-ton and Kirwan, 257, (61 Eng. C. L. R. 255,) *Sampson*y *Smith,*8 Simons 272, (11 Eng. C.- R. 433.) And so if one’s neighbor sets up an& exercises any offensive trade, as *118a tanner’s, a tallow chandler’s, or the like, for though these are lawful and necessary trades, yet they should be exercised in remote places ; for the rule is, *sic utere tuo ut Kilienum non loedas,*Cro. Car. 510, 3 Inst. 231, *5*Rep. 1 Rol. Ab. 88, *2*Rol. 140. And so where the defendant built •a breW' house, &c., and burnt coal so near the house of the plaintiff, that by thi stink and smoke he could not dwell there without danger of his health, it was adjudged a nuisance, though a brew-house is necessary, and so is burning ■coal in it; Hatton 195, and per Lord Mansfield in *Rex*v *White,*1 Burr, 333 ; “ it is not necessary that the smell should be unwholesome ; it is enough, if it render the enjoyment of life and property uncomfortable.”

3. The repeal of the ordinances of the corporation of Newbern cannot help the defendants, even it thereby an express license were given to them, to erect their distillery, if the same were used by them, so as to create the nuisance complained of. Where commissioners, possessed «of a jurisdiction founded on acts of parliament, so execute what they conceive to be their duty, as to create or occasion a public nuisance, this Court has an undoubted right to interpose. The jurisdiction is exercised not for the purpose of overruling the powers of others, by way of appeal from their authority, but for the purpose of exerting a salutary control over all for the benefit of the public ; *Attorney General v Forbes,*2 Mylne and Craig, 123, (4 Eng. C. L. R. 123,) *Frewin*v *Lewis,*4 Mylne and Craig, 49, S. C. 9 Simons. An exclusive legal right ought to be protected in Equity against violations of hourly repetition and interminable duration , *Long*v *Beard,*N. C. Term R. 256.

*W. H. Haywood,*for the defendant.

*119Pearson, J.

The plaintiff and the defendants own lots Nos. 5 and 4, in the town of Newbern, which are separated by Pollock street. The plaintiff has on his lot, No! 5, a comfortable brick dwelling house and out-houses, in which he has resided a great many years. The defendants, in 1847, erected on the lot No. 8, a turpentine distillery, sitúa» ted about one hundred yards from the plaintiff’s house, and about eighty yards from his nearest out house, 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 cofrimu-nicaie itself at the distance of the plaintiff’s houses: for the fire arising therefrom, (supposing them to be so unfortunate as, from 'accident or neglect, to have their distillery take fire,) will emit such a thick smoke, as to prevent sparks and, in fact, emit butdittle heat; and they aver that, although there have been many distilleries of turpentine in the town of Newbern; during the last fifty years, kept constantly in operation, and several of them have been con*120sumed by fire, yet, in no one instance, has fire ever been communicated toother buildings. They deny that “the smoke, blacks and soots” issuing from their distillery will spread over the lot oí the plaintiff, so as to annoy him or his family ; for, they say, this “ smoke, blacks 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, &c. 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.

Thebillis 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 ol it in the light of a private nuisance. As to a nuisance of this kind, the jurisdiction of Courts of Ecfuity to interfere, by injunction, is-of recent origin, and is always exercised sparingly,- and with great cautiob; because if, in fact, there be a nuisance, there is an adequate romody at law, by successive *121actions on the case. *Att’y 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, it 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 de-. gree ; 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. Rep. 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 autho-aity for its support, it will be found in the case last above cited.

*122So 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 sic[e. 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 sootwhether they have ever seen the smoke issuing from the distillery reach, and settle upon, the plaintiff’s lot *1*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 ot 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 one hundred yards, is not greater than from the erection of an ordinary dwelling house and out-buildings, 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. The bill dismissed with costs.