Attorney General Ex Rel. Eason v. Perkins , 17 N.C. 38 ( 1831 )

The defendant, in his answer, admitted the fact of Mooring's having formerly owned the mill, and his purchase of the land on which it was situated, which he averred took place in 1828. He also (39) admitted his intention of rebuilding the mill, having formed that resolution in consequence of the earnest request of the neighborhood. He alleged that the old mill was in existence in 1795, when the relator purchased the land on which he lived; that it had continued in operation from that period until Mooring permitted it to go to ruin, without any complaint on the part of the relator. He insisted that Mooring had never abandoned the intention of rebuilding, but had actually prepared timbers for that purpose, and denied that the old millpond had, or that the new one would have, an injurious effect upon the health of the neighborhood.

The points on which the parties were at issue were submitted to a jury, who found that the proposed pond would overflow some land belonging to the relator; that the health of the relator and of his family would be injured thereby, but not that of the neighborhood; and that the erection of the proposed mill would be of public utility, and not a nuisance. The arguments at the bar took a wide range, embracing a discussion of almost the whole jurisdiction of this Court, under the head of nuisance. It is not intended to notice all the points of controversy, because the Court is under no necessity of laying down any general principles for the decision of this case. It stands on very special circumstances, found upon issues requested by the parties.

It is admitted that for the ordinary damage to the plaintiff's land by flooding it, there is a remedy by action, and that it is an adequate remedy. On that score, then, the interposition of this Court is not asked.

But it is said that the injury to the plaintiff's health and (40) that of his family is one which cannot be ascertained at law; much less adequately compensated, and that a just apprehension of it forms a proper case for the preventive justice of equity, by injunction.

It may be so, where the nuisance thus operating upon an individual arises from an establishment made for personal gratification or mere private profit. It is certain that equity does, in some instances, restrain mere private nuisances. But it is equally certain that it is not forward to do so, unless they interfere with a clear right long previously enjoyed, or will be followed by irreparable mischief, which makes immediate action a duty founded on imperious necessity. These are general doctrines. And the destruction of health might well be considered a case of irreparable mischief, in a case where private emolument alone is looked to on the other side. But our views cannot be thus limited in the case before us. Mills are necessary public conveniences, and water mills the ordinary and almost the universal kind in this State. It is a maxim that private right must yield to public convenience, upon adequate compensation. Without adverting to the variety of subjects to which courts have applied it, it is sufficient for the occasion to remark that the Legislature hath by divers statutes extended it to mills. In a modern act it has been carried to the unusual extent of taking away the common-law action until the quantum of damage has been ascertained, by a peculiar method, to be more than £ 10 annually. If less, it amounts to a compulsory lease for five years. It may be that the damages of the plaintiff will be less than the sum specified in the act. It would be strange if this Court were to prohibit the erection of a mill for which, if erected, the party, by positive enactment of the Legislature, can have no action at common law. If the plaintiff rely on the magnitude of the injury, he ought to have put it to the jury to assess the probable amount, or at least to have made proof to rebut an inference fairly deducible from the verdict. The jury have found that the mill will be a convenience to the neighborhood, and of public utility, and that the (41) health of the neighborhood will not be injured, but that of the plaintiff's family will, though to what extent or what probable extent it is not said. The argument is that this is sufficient, for it is impossible for a jury to say which fever is caused by the pond or by the general insalubrity of the climate, and that though the lower part of the State be unwholesome, yet the pestilence ought not to be aggravated by artificial causes. True; that is, from wantonness or for mere gain's sake, which would be wicked gain, indeed. But where a general convenience is involved, it constitutes a preponderating consideration, unless in itself it also produce a general mischief, or no compensation is awarded for the invasion of private right. Compensation is in this case amply provided for by the inquisition of a jury upon the amount of damages. The general mischief consists in corrupting the atmosphere so as to affect the general health of the neighborhood. If it extend only to one family, it cannot, as a general rule, be held a nuisance, under this head, to be redressed by abatement or injunction. A case may arise, as supposed at the bar of the pond of an insignificant mill throwing off vapors destructive to the healthfulness of a large landed estate; a case in which between the public convenience and private suffering there is no kind of comparison; wherein the court would act. But the circumstances must be specially shown. None such appear here. There is nothing in this case but the interest of a single individual to weigh against public utility. This will not suffice. We must take notice that in this climate a less injury than that can hardly be expected from any mill. We must take notice that the Legislature was as much aware of that fact as we are, and yet that they have encouraged the building of mills by restraining successive actions for the private injury, and also authorized the county courts to order the building on the lands of another, unless the mill would "create a nuisance to the neighborhood." (Act of 1777, Rev. ch. 122). This is an exposition of a principle from the source of the law, which the Court must respect.

It might be material, too, that the plaintiff and those under (42) whom he claims submitted for forty years to this grievance; that he bought his land in 1795, while it subsisted, and allowed its continuance for five and twenty years. That is, indeed, no positive bar to a remedy; but it is a powerful reason why this Court should leave him to his legal remedy. He and the defendant must both have calculated the value and the inconvenience of the mill, and its attendant consequences, when they made their purchases.

But the stress of the case lies in the other circumstances. Less harm cannot follow the building of a mill in the alluvial region of the State than the rendering of one plantation less salubrious. To perpetuate this injunction would be to issue one against the erection of another mill below the falls in our rivers.

The cases heretofore in this Court are entirely distinguishable. Bell v.Blount, 11 N.C. 384, and Raleigh v. Hunter, 16 N.C. 12, were founded on facts diametrically opposite to the present. There the health of towns was put in jeopardy. Crudup v. Carpenter^* turned materially on the contract, and the extent of damage, ascertained by the verdicts at law, in comparison with the value of the mill property. Upon neither of those principles, nor any other compatible with legislative policy or chancery precedents, can this bill be sustained. It must, therefore, be dismissed with costs.

PER CURIAM. Bill dismissed.

Cited: Attorney-General v. Lea, 38 N.C. 304; Clark v. Lawrence,59 N.C. 85; Hyatt v. Myers, 71 N.C. 273; S. c.,73 N.C. 237; Privett v. Whitaker, id., 556; Brown v. R. R.,83 N.C. 131; Daughtry v. Warren, 85 N.C. 137; Dorsey v. Allen, id., 363; Cherry v. Williams, 147 N.C. 459; Berger v. Smith, 160 N.C. 211;Rope Co. v. Aluminum Co., 165 N.C. 576.

^* This case was not reported, as it was decided solely upon the special terms of an agreement.