Attorney-General ex rel. sundry citizens of Raleigh v. Hunter, 16 N.C. 12, 1 Dev. Eq. 12 (1826)

Dec. 1826 · Supreme Court of North Carolina

16 N.C. 12, 1 Dev. Eq. 12

The Attorney-General upon the relation of sundry citizens of Raleigh, v. Theophilus Hunter.

From Wake

injtmclions are not awarded by Courts of Equity for the infringement of doubtful rights, until they have boon established at law. But when the right is clear and the injury irreparable, an injunction will be awarded, although, the right has not been established at law.

Where a bill charged that the Defendant’s mill dam injured the health of the relators, an injunction was perpetuated, notwithstanding the Defendant had been indicted for the same nuisance, on which there had been a mistrial, and although an indictment was still pending.

The bill charged that the Defendant bad erected a mill-dam in the vicinity of the city of Raleigh, that the exhalations from the pond, hadwendeml the inhabitants unhealthy, and prayed a perpetual injunction.

The Defendant by his answer, denied that his inilf-pond had any pernicious influence upon the health of the town, and averred that he had been indicted in Wake County Court for a nuisance in erecting the dam, and that the Jury, upon an attempt to try the indictment, had disagreed, and had refused to find a verdict for the State. That subsequently a nolle prosequi had been entered by the prosecuting officer. That the Defendant had again been indicted in the Superior Court, that a trial had been delayed by the State, the Attorney-General entering a nolle prosequi and ordering new process, and that this last indictment was still pending.

Much testimony was taken and read at the hearing, which it is not necessary to recapitulate, as the Court thought that the allegations of the bill were fully sustained.

The case was argued at June Term 1826, by Gaston, for the Plaintiffs, and Badger, for the Defendant 5 no note of which argument, is in the hands of the present Reporters. At that Term, the final decree was settled. but from some oversight it was not entered, or the cause reported.

The opinion of the Court, was delivered by

Henderson, Judge:

We are satisfied beyond a reasonable doubt, that the flowing hack of the water as contemplated by the Defendant, according to bis own admissions, will create a public nuisance, and that of the worst kind, being one destructive to the health and comfort of the citizens of Raleigh. And we arc called on to send the question of nuisance or no nuisance, to a Court of Law ; for what to inform our consciences ? they are already informed. And were a Jury to find that it was not a nuisance, irs a case of this kind, we should feel ourselves bound to disregard their verdict; for a Jury would require the most satisfactory evidence of the fact, at least they would require a preponderance of evidence, to convict; with as, under all the circumstances oflhc case, a probability is sufficient. In the first place, the injury is irreparable, the place, the seat of government, where its officers are, compelled to reside. These things make a difference between this case and that of a common nuisance. It is true it is a question of the most delicate kind, an inter-fornico with private rights, from which all department;; of government should abstain, except in cases of necessity. It is however a sound political maxim, and one sanctioned by the Courts of Justice of this country, that individual interest must yield to that of the many ; ami this is something like the interest of the many, for every individual is in some way or other, interested in the welfare of the capital. We refer to the decision of Bell and Blount, (4 Hawks, 384) as an authority to shew the jurisdiction of the Court. Where the right infringed is of a doubtful character, as the right of view over another’s ground, there a Court of Equity will order the right to he established at law, before it will grant an hv junction, in the mean time, staying the owner of the land from closing up the view 5 bnt here the rights infringed upon, are of a character not in the least doubt-health and comfort of the relators, and others for whom they act.

Injunction tentetuated.