75 S.E. 1098 | N.C. | 1912
The facts are sufficiently stated in the opinion of the Court by MR. JUSTICE WALKER.
This case was before us at a former term, and is reported in
There are some things which, in their nature, are nuisances and which the law recognizes as such. There are others which may or may not be so, their character, in this respect, depending on circumstances. This case would seem to fall directly within the principle as applied in Dorseyv. Allen,
The following authorities support the same view: "Where an injunction is asked to restrain the construction of works of such a nature that *170
it is impossible for the court to know, until they are completed and in operation, whether they will or will not constitute a nuisance, the writ will be refused in the first instance. Nor in such a case will the motion for an interlocutory injunction be allowed to stand over until the work is so far executed that its character may be determined. It is proper, however, under such circumstances to dismiss the bill without prejudice to any further application which plaintiffs may think themselves entitled to make." 1 High on Injunctions (4 Ed.), sec. 743. "A court of equity will grant injunctions to prevent undoubted and irreparable mischief; and it may thus act on the application of individuals, not only in the case of a private nuisance, but where the individuals suffer special injury, in the case of public nuisances also. But the courts will only exercise this power in a case of necessity, where the evil sought to be remedied is not merely probable, but undoubted. And it will be particularly cautious thus to interfere where the apprehended mischief is to follow from such establishments and erections (as, for instance, a public mill) as have a tendency to promote the public convenience." PerGaston, J., in Barnes v. Calhoun,
In Attorney-General v. Lea, supra, the Court held: A court of equity will refuse to interfere by injunction in the case of the erection of a milldam, unless it is shown that it will be a public nuisance, or, if it will be a private nuisance only to an individual, unless it manifestly appears that so great a difference will exist between the injury to the individual and the public convenience as will bear no comparison, or that the erection of the dam will be followed by irreparable mischief. The Court refused an injunction against the erection of a turpentine distillery in Simpson v. Justice, supra, because the nuisance was not certain, but only contingent, and required the fact of nuisance (210) to be first established. It was said therein that the jurisdiction of the court to enjoin in the case 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 may be an adequate remedy at law, depending somewhat, of course, upon the nature of the nuisance, citingAttorney-General v. Nichols, 1 Ves., 338, and an anonymous case beforeLord Thurlow in 1 Vesey, Jr., 140. There is an obvious difference, saidJudge Pearson, between a thing which is a nuisance in itself and one which may or may not be a nuisance according to the manner in which it is used; a turpentine distillery and like structures being of the latter class. If they make noises or generate "smoke, blacks, and soot," or tend to diminish property values, those facts must appear by proof and not be left to mere conjecture. No one should be prevented by a resort to this extraordinary process of the court, on the part of his neighbor, with nothing more than a supposed grievance, from engaging in an enterprise which is not only lawful, but beneficial to the public, because of the unfounded fear or apprehension of the plaintiff that the value of his property may be impaired or that he may suffer some inconvenience from smoke and noise. His appeal for the intervention of the "strong and omnipotent arm of the court" is answered by Chief JusticePearson in Hyatt v. Myers,
A good legal definition of an actionable nuisance will be found inDargan v. Waddell, supra: "A stable in a town lot is not, like a slaughter-pen or a hog-stye, necessarily or prima facie a nuisance. But if it be so built, so kept, or so used as to destroy the comfort of persons owning and occupying premises and impairing their value as places of habitation, it does thereby become a nuisance. If the adjacent proprietors be annoyed by it in any manner which could be avoided, it becomes an actionable nuisance, though a stable in itself be a convenient and lawful erection." See, also Wilder v. Strickland,
All the authorities tend to the conclusion that plaintiff must offer tangible proof of the fact of nuisance, when there is no nuisance per se, before the court will interfere to stop the erection of a building (212) or the prosecution of a lawful business, especially if it will be beneficial to the public, and, in the latter case, not unless the *173 private injury is greater in proportion than the public benefit. The court will not act upon speculative proof, or such as furnishes ground only for a conjecture.
The plaintiff has not brought his case within these principles, so as to induce the court to interfere in his behalf. We have, said, in this case, at the former term, that the mill in question is not a nuisance per se, and the authorities, as we have shown, sustain that view. We also held that he must prove that it would be, in fact, a nuisance. This he has not done. It is evident that plaintiff, when testifying, was merely giving his opinion or conjecture as to what might occur should the mill be erected. In other words, he is simply declaring that to be a nuisanceper se, which the law says is not such a nuisance. How can he know, at this time, whether the mill, if properly built and carefully operated, will injure him in such a way as to be a legal nuisance? His fears and apprehensions of injury may be purely imaginary and utterly groundless, for it is possible, or even probable, that the defendant can so construct and operate it as to avoid any substantial injury to the plaintiff. It appears, also, that plaintiff has built and operated a cotton gin since the dwellings were erected, within fifty yards of them, which is nearer than the mill will be, and yet no complaint has been made against it. There is also strong proof that the ordinance was procured at the instance of the plaintiff for the purpose of destroying the competition of defendant, his business rival, with him, and we may add, that it also tends strongly, if not conclusively, to show that the ordinance was adopted, not to protect the public or individuals against a threatened nuisance, but in furtherance of plaintiff's scheme to thwart the efforts of his business competitor and thus cripple him. Although this is not to be taken as conclusive against plaintiff's supposed equity, it is a matter which might be considered and turn the scale in a doubtful case, and tends, certainly, to show that his apprehensions of injury are either not entertained at all or are greatly exaggerated. Ellison v. Commissioners,supra. As we said in Durham v. Cotton Mills,
If the fears, real or assumed, of the plaintiff, as to the effects of the proposed mill upon the comfort of his family and the value of his property be realized, he will not be without redress. The courts of law will be open to him, and he will go into them with more grace, having by these proceedings put the defendant on his guard. Wilder v. Strickland,supra.
We have not made any special reference to the ordinance, as we hold that there is no sufficient evidence, in law, of any nuisance in fact, and this is the question we ordered to be tried below. As in harmony with the view then taken of the case by this Court, we may add these authorities: Judge Dillon says, with reference to the power of a municipal corporation to pass ordinances for the suppression or abatement of nuisances: "Such powers, conferred in general terms, cannot be taken to authorize the extrajudicial condemnation and destruction of that as a nuisance which, in its nature, situation, or use, is not such." 1 Dill. Mun. Corp. (4 Ed.), secs. 95 and 374. And in River Rendering Co., v.Behr,
The ordinance in this case was manifestly directed against this particular building, and had the effect, if not intended, to prevent the defendant, by the erection of his mill, from injuring the business of his local rival; but even if intended to promote the public welfare and safety, it has not been shown to be a nuisance, and this sustains the nonsuit and the order dissolving the injunction, whatever the ground of his Honor's decision may have been. This was not an effort of the commissioners to establish fire limits, conceding that they have the power, under the town charter, or inherently, to do so, but to declare that to be a nuisance which is not one per se, nor in fact, so far as the proof tends to show. *175
We do not question the power of the municipal board to enact ordinances prohibiting the erection of dangerous buildings in proper cases. But any ordinance may be declared void if, in itself, or because of the peculiar facts and circumstances which gave raise to its adoption, or with reference to which it must be enforced, it will be unreasonable and oppressive in its operation. That is what, in substance, we formerly decided in this case.Barger v. Smith,
Plaintiff cannot maintain an action against defendant for committing a public nuisance, unless he shows special injury peculiar to himself, and this he has not done. High on Injunctions (4 Ed.), secs. 757, 761, 762, 764, and 828. We have not overlooked the fact that defendant has built his gin and mill on an adjoining lot, about the same distance from plaintiff's lot as the other mill, if erected, would have been, and there has been no word of protest against it, so far as appears.
This case is distinguishable from Raleigh v. Hunter,
No error.
Cited: Rope Co. v. Aluminum Co.,