Wilder v. . Strickland , 55 N.C. 386 ( 1856 )

The bill was originally filed as an information in the name of the Attorney General, on the relation of the plaintiffs, and as a bill of complaint; but subsequently was dismissed as to the Attorney General, and is carried on in its other aspect.

The plaintiffs allege in their bill, that they each own and reside upon lands lying on the Tar River, in the County of Nash, and have been so residing for many years past; that the defendant, Jacob Strickland, has commenced erecting a grist and saw-mill on that river, about a mile below the residences of the plaintiffs, and was just about commencing to build a dam across the river, which would pond the water back upon the plaintiffs, and, as they believed, would cause much damage to their lands by overflowing them, and by saturating them with water, so as to render them unfit for cultivation; that the pond of water thus raised would, as they believed, destroy the health of their families, impair the values of their estates, and finally compel them to remove. They further allege that there is no necessity for the proposed mill; that there is already a very good one a short distance off, and that this structure is not desired by the neighborhood; so far from that, they say the community there are stronglyopposed to its erection. The prayer of the bill is for an injunction to restrain the building of the proposed mill. The injunction had issued by an order of the Judge at Chambers, and has been since pending. There was a prayer also for general relief.

The answer of the defendant denied the allegations as to injuries to the lands of the plaintiffs, and the health of their families, and denied that the neighboring community was opposed to the proposed work; asserting its great necessity and convenience to the public, and that it was greatly desired by the neighbors. The answer also stated that the proposed mill was intended as a substitute for an old one which defendant owned on another stream, about a quarter of a mile off, which was very insufficient and unsatisfactory to the public, and much more injurious to the health of the community than (388) the intended mill could possibly prove, and which it was his intention to pull down as soon as the new one was finished.

There was replication to the answer, commissions and proofs, and the cause being set down for hearing was sent to this Court by consent. The bill is filed to enjoin the defendant from erecting a mill, upon the allegation that it will cause much damage to the lands of the plaintiffs by rendering them of no value for cultivation where they are cleared, and destroying the timber and other growth where they are not cleared, and they fear will destroy the health of their families. The defendant admits he is about to erect a public mill at the place designated; that the site is a very favorable one for such an establishment. He denies that it will overflow or render sobby and unfit for cultivation any part of the lands of the plaintiffs, and denies that it will render the families in the neighborhood unhealthy. The plaintiffs further allege that a large majority of the neighbors are against the erection of the mill. This is denied by the defendant. The answer further states that the defendant is the owner of a mill on Turkey Creek, which is not more than a half a mile from his new site, and which has a more extensive pond than the contemplated mill will have; and that it is the opinion of a number of the neighbors that the pulling down of the old mill, which the defendant intends to do, as soon as the new one is erected, and the erection of a new one, will be more useful to the neighborhood, and less injurious to the health of it, than the old one.

The controversy is a matter of evidence. To the testimony then. Does the plaintiffs' proof sustain their bill? Many depositions have been taken on both sides. We will examine the testimony of the plaintiffs first.

H. H. Bryant testifies that the old mill is a wet-weather (389) mill, and that, in the summer months, it cannot make flour, or saw.

Dr. Drake is of opinion that the breaking up of the old mill will prove beneficial to the health of the neighborhood.

Dr. Matthews knows the river, and judging by his eye, thinks a six-foot dam would so raise the water in the river, as to prevent the plaintiff Wilder, from clearing a valuable piece of land, containing forty or fifty acres, and would likely produce disease in his family.

Mr. Morgan never leveled the ground, but, judging by his eye thinks a six-foot dam would back the water up two or three branches on Wilder's land, so as probably to overflow some of the low places; covering how much land he does not know; and that the pond might injure the health of Wilder's family; and that it is difficult, at times, to get meal from the old mill.

Mr. Cone agrees with Mr. Morgan as to the overflowing of the low places in the guts and branches, and as to getting meal; there was a difficulty at times, at the old mill, and he thinks a new mill is necessary to supply the neighborhood.

Doctor Mann thinks it probable, that in the year 1846, the families of Williams and Strickland; were made sickly by the old pond. He further states that the old mill cannot supply the neighborhood, and the proposed mill, on the river, is necessary, and will prove a great convenience to the neighbors, there not being a constantly grinding mill for about eighteen miles above it. Mr. Taylor, does not think a six-foot dam will pond the water back on the lands of the plaintiffs.

James Strickland, son of the plaintiff Zadock Strickland, and son-in-law to the plaintiff Wilder, thinks a six-foot dam would throw the water up the guts and ravines, and effectually prevent the draining of portions of the low grounds of Wilder and Strickland, and thinks it would injure the health of their families. Has never known a dam across Tar river to produce sickness.

Reddin Strickland, another son of plaintiff Strickland, thinks as his brother does as to the river dam's producing sickness in (390) the families of his father and Wilder, and that it would injure about fifty acres of the land of each.

Condary O. Strickland, another son of the plaintiff Strickland, agrees with his brothers as to probable effect of the dam upon the health of the families of Wilder and his father, and thinks about eight or ten acres of the land of both Wilder and his father would be covered by the water.

William Wilder, a relative, thinks the dam would sob a great deal of the land of the plaintiffs, but does not think it would cover any.

This is the evidence of the plaintiffs. Does it sustain the allegations of their bill? We think it does not. It is true that the river-dam may, and no doubt will, pond the water back into the guts and ravines on the lands of the plaintiffs, to the extent of eight or ten acres on each, as stated by C. O. Strickland; but the last witness, Wm. Wilder, and the witness Taylor, do not think it will cover any of their land. The first allegation of the bill is not sustained. As to the second, relating to the effect of the river-dam upon the health of the neighborhood, the physicians who were examined testified as to the origin and effect of malaria in producing disease. None of them, however, testified that the river-dam would produce disease. It might or it might not. Even the sons of the plaintiff Strickland do not say it will, but they think it will. This allegation is not sustained.

As to the allegation that the neighbors are in general opposed to the erection of the proposed mill, there is no evidence on the part of the plaintiffs; but there is, from his own witnesses, sufficient evidence to show that the mill contemplated by the defendant is required, not only by the convenience of the neighborhood, but by their necessities. The old mill is a wet-weather mill, and it is often impossible in the summer-time to get even meal from it, and it cannot, at those times make flour, or saw. Every one who depends upon a wet-weather mill knows the inconvenience to which they are often exposed in sending to a distant river-mill. In this case, Dr. Mann, a witness of the (391) plaintiffs, states that the contemplated mill is required, not only by the necessities of the neighborhood, but by its convenience, as there is no mill on the river above it, for upwards of eighteen miles.

Considering the proofs offered by the plaintiffs as not sustaining the allegations of the bill, we have not brought forward, in detail, the proofs of the defendant. They, however, fully sustain the defence, that the contemplated mill will neither injure the health of the families of the plaintiffs, nor cause such an injury to their lands, as will justify the Court denying to the neighborhood the convenience of a public mill which will grind all the year. His proofs also show that if the river-mill shall prove injurious to the health of the families of the plaintiffs, it will not be as much so as is the old pond which he intends to dispense with as soon as the new mill is erected. If upon such evidence as is offered by the plaintiffs, the courts will interfere to restrain the building of a mill, it must be built in a wilderness where there is no one to be injured, either in health or property; for it must needs be, that in a thickly settled neighborhood, some one must be injured in one way or the other. We are satisfied, too, from the testimony of the defendant, that not only is such a mill required by the necessities and convenience of the neighborhood, but a very large portion of it desires its erection. It is not every slight or doubtful injury, that will justify the Court in exerting their extraordinary power of injunction in restraining a man from using his property as his interest may demand, when the benefit of such user is mutual to the public and to the owner.

Should the fears, real or assumed, of the plaintiffs, as to the effects of the proposed mill upon the health of their respective families be realized, they will not be without redress. The courts of law will be open to them, and they will go into them with more grace, having by these proceedings put the defendant on his guard.

Per curiam.

Bill dismissed with costs.

Cited: Privett v. Whitaker, 73 N.C. 556; Dorsey v. Allen, 85 N.C. 363;Walton v. Mills, 86 N.C. 283; Hickory v. R. R., 143 N.C. 452; Pedrick v.R. R., 143 N.C. 510; Berger v. Smith, 160 N.C. 211.

(392)