#### HENRY S. CLARK *against*DAVID LAWRENCE, *Trustee.*

Whenever it can be clearly proved that a place of sepulture is so situated that the burial of the dead there, will endanger life or health, either by corrupting the surrounding atmosphere, or the water of wells or springs, a court of equity will grant injunctive relief.

Where a bill was filed, praying to have a nuisance abated, and for an injunction to restrain the defendant from erecting it in future, and the act complained of was of the character of a nuisance, but the testimony was not sufficient to satisfy the Court that it amounted, to a nuisance in the particular case, the Court directed an issue to be tried in the superior court, to determine the fact.

Cause removed from the Court of Equity of Pitt county.

The bill is filed to obtain an injunction to restrain the defendant, who is the trustee of the Baptist congregation in the towp of Greenville, from permitting the church yard to be used as a cemetery.

The lot in question, adjoins the lot upon which the plaintiff’s dwelling house is situated, and was purchased by the Baptist congregation about the year 1827, the plaintiff’s lot being at the time unoccupied and unimproved — there being no house *84upon it until the year 1845. At the time the plaintiff purchased his lot, which was in the year 1850, there were only two graves on the lot in question, and these were in the part most remote from his dwelling.

In December, 1857, there were two burials of dead bodies on this lot, about three feet from the boundary line of the plaintiff’s lot, and about thirty-five feet from one well, and seventy-two from another, from which he supplied himself and family with water. These dead bodies were deposited in wooden coffins, and buried *to*a depth of three or four feet, and in one case the grave was lined at the bottom and up the sides with brick and cemented. The soil was of a mixture of clay and sand, and the ground sloped from the graves towards the plaintiff’s wells, which, together with his dwelling house, were situated in a northerly direction from the grave yard.— The bill alledged that this situation exposed himself and family to the effluvia arising from decaying bodies, and which the south winds that generally prevail in summer, will bring directly into his house, by which the health of plaintiff’s family and the value of his lot will be irreparably injured. The bill further alleges that the quality of the water in plaintiff’s wells, has been so impaired by their close proximity to these graves, as to render them unfit for use. This fact is denied by the answer. There was evidence to show that the water in the plaintiff’s wells had formerly been good, but that it is now very bad.

There was much other testimony, which, in the view taken by the Court of this case, it is not deemed necessary to set out.

The cause being set down for hearing upon the bill, answer, exhibits and proofs, was transferred to this Court by consent.

*Hodman, Shaw*and *J. H. Bryan,*for the plaintiff.

*Donnell,*for the defendant.

Rattle, J.

The jurisdiction of the court of equity to restrain by an injunction, the erection or continuance of a nuis-*85anee, either public or private, which is likely to produce irreparable mischief, is well established. It is equally well settled that the destruction of, or injury to the health of the inhabitants of a city or town, or of an individual and his family, is deemed a mischief of an irreparable character. In the case of a city or town, where the apprehended injury is clearly proved, the court will not hesitate to grant the injunction, even against the erection or continuance of a water grist mill, though such mills are generally deemed of public benefit, and the building of them has been encouraged and protected by our statute law. See *Attorney General*v. Hunter, 1. Dev. Eq. 12; *Attorney General*v. Blount, 4 Hawks’ 384. In the case of a private nuisance, caused by a mill pond, the .court will interfere indeed, but with more caution and hesitation, both because the public benefit arising from the mill is opposed to the private interest of an individual, and because, where the land of the individual is overflowed, as in most cases it will be, and the damages assessed by a jury therefor, exceed twenty dollars, the party may, at law, by repeated actions, compel an abatement of the nuisance; *Eason v. Perkins,*2 Dev. Eq. 38; *Barnes*v. *Calhoun,*2 Ired. Eq. 199.— See also, *Spencer*v. *London and Birmingham R. R. Co.,*8 Simons, 193.

The same principle which would excite into activity the restraining power of the court, where the health of the community, or of an individual member of it, is in danger of being destroyed or impaired by a mill pond, will be equally ready to interpose its protection, when a similar danger is threatened from the establishment of a cemetery in a city or town, or very near the dwelling house of a private person.— This, we think, was recognised in the case of *Ellison*v. *The Commissioners of Washington,*5 Jones’ Eq. 71, though the decision in that case, on account of its peculiar circumstances, was averse to the application for the injunction. In cases of this kind, the plaintiff will not have to encounter th,e difficulty that a place for the burial of the dead, within the limits of a city or town, or near the residence of a private *86person in the country, is considered a matter of public weal. On the contrary, the public sentiment is already, or is becoming to be in favor of more secluded spots, where we, like the Patriarch of old, “may bury our dead out of our sight.”— ’Whenever, then, it can be clearly proved that a place of sep-ulture is so situated, that the burial of the dead there, will endanger life or health, either by corrupting the surrounding atmosphere, or the water of wells or springs, the court will grant its injunctive relief upon the ground that the act will be a nuisance of a kind likely to produce irreparable mischief, and one which cannot be adequately redressed by an action at law. In the present case, the evidence upon which the cause has been brought before us, for a hearing, does not so clearly satisfy ns of the fact of a nuisance, either existing or apprehended, as will justify us in granting an injunction without further enquiry. Under such circumstances, the usual course is to require the party to establish his allegations of a nuisance by an action of law; *Simpson*v. Justice, 8 Ired. Eq. 115, and the cases there cited. That course would be most appropriate, and would be adopted by us, if, as was said in the *Attorney General*v. Hunter, *ubi*supra, “ the right infringed were of a doubtful character, as the right of view over another’s ground.” But, in a case like the present, where the thing complained of is certainly of the character of a nuisance, and the only doubt is, whether the testimony proves that it is so, in the particular case, we think that we can accomplish the same purpose in a manner more convenient to the parties, and quite as satisfactory to ourselves, by directing an issue to be tried in the Superior Court of law for Pitt county, whether the bui'ial of the dead, in the church lot mentioned in the pleadings, has produced, or, if continued, is likely to produce sickness in the plaintiff’s family, or to impair their comfort, either by corrupting the .air or the water in his wells. Let an order be drawn accordingly.

Pee Cubiam, Decree accordingly.