Bibb v. Shackelford,

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| Ala. | Jan 15, 1863

A. J. WALKER, C. J.

Special injunctions are contra-distinguished from injunctions designed to restrain proceedings in courts of common law, which, in England, are granted upon the defendant’s default. — 3 Dan. Ch. Pl. & Pr. 1811; 1 Hoff. Ch. Pr. 78. The dissolution of special injunctions, when the equity of the bill is controverted in the answer, is usually a matter of course, but, to prevent irreparable mischief, the chancellor is clothed with a discretion over the subject; and the injunction may, therefore, in proper cases be retained, notwithstanding the negation of all equity by the answer. — Poor v. Carlton, 3 Sumner, 70 ; Clum v. Brewer, 2 Curtis, 506, 518 ; Hollister v. Barkley, 9 N. H. 230 ; Orr v. Littlefield, W. & M. 19 ; Attorney General v. Bank, Walker’s Ch. R. (Michigan,) 90 ; Brooks v. Diaz, 35 Ala. 599" court="Ala." date_filed="1860-01-15" href="https://app.midpage.ai/document/brooks-v-diaz--co-6506669?utm_source=webapp" opinion_id="6506669">35 Ala. 599 ; 3 Leading Cases in Equity, 204.

Some of the decisions go so far as to maintain the proposition, that the question of the dissolution of all injunctions is left to the discretion of the chancellor, “on a full and liberal view of all the circumstances, which make for or against the dissolution.” — Boyd v. Anderson, 2 Johns. Ch. 202" court="None" date_filed="1816-10-11" href="https://app.midpage.ai/document/roberts-v-anderson-5550174?utm_source=webapp" opinion_id="5550174">2 Johns. Ch. 202 ; Loyless v. Howell, 15 Ga. 554" court="Ga." date_filed="1854-07-15" href="https://app.midpage.ai/document/loyless-v-howell-5552109?utm_source=webapp" opinion_id="5552109">15 Ga. 554 ; Semmes v. Mayor of Columbus, 19 Ga. 471" court="Ga." date_filed="1856-01-15" href="https://app.midpage.ai/document/semmes-v-mayor-of-columbus-5552515?utm_source=webapp" opinion_id="5552515">19 Ga. 471 ; Cox v. Mayor of Griffin, 18 Ga. 728" court="Ga." date_filed="1855-08-15" href="https://app.midpage.ai/document/cox-v-mayor-of-griffin-5552414?utm_source=webapp" opinion_id="5552414">18 Ga. 728 ; Crutchfield v. Danilly, 16 Ga. 432" court="Ga." date_filed="1854-08-15" href="https://app.midpage.ai/document/crutchfield-v-danilly-5552162?utm_source=webapp" opinion_id="5552162">16 Ga. 432 ; West v. Rouse, 14 Ga. R. 715 ; Swift v. Swift, 13 Ga. 140" court="Ga." date_filed="1853-02-15" href="https://app.midpage.ai/document/swift-v-swift-5551860?utm_source=webapp" opinion_id="5551860">13 Ga. 140 ; Dent v. Summerlin, 12 Ga. 5" court="Ga." date_filed="1852-08-15" href="https://app.midpage.ai/document/dent-v-summerlin-5551746?utm_source=webapp" opinion_id="5551746">12 Ga. 5 ; Holt v. Bank of Augusta, 9 Ga. 552" court="Ga." date_filed="1851-05-15" href="https://app.midpage.ai/document/holt-v-bank-of-augusta-5551574?utm_source=webapp" opinion_id="5551574">9 Ga. 552 ; Hemphill v. Bank, 3 Kelly, 432. Upon this proposition we do not now announce an opinion.

The injunction here was special. The merits of the case, *614for the purpose of the question in hand, centre in the allegation, that a dam, which the defendant was erecting, would produce a malarious pond, and injuriously affect the health of the community. This the defendant denied. Notwithstanding this denial, the chancellor had a discretion as to the dissolution of the injunction. The authorities show that, in many cases, where irreparable injury might result from a dissolution, if the bill should be really true, although denied by the answer, the injunction has been retained. — Troy v. Norment, 2 Jones’ Eq. 318 ; Lloyd v. Heath, Busbee’s Eq. 39 ; James v. Lemly, 2 Ired. Eq. 278 ; Swindall v. Bradley, 3 Jones’ Eq. 353; McBrayer v. Hardin, 7 Ired. Eq. 1. In this case, if the bill be true, a dissolution of the injunction, followed by the erection of the defendant’s dam, would eause injury to health, and, perhaps, loss of life. This case is, therefore, of that class in which the chancellor would, in the exercise of his discretion, ordinarily retain the injunction until the hearing, notwithstanding the denial of the answer.

There are some circumstances presented here, which doubtless controlled the chancellor’s discretion, and led him to dissolve the injunction. The bill alleges no facts, from which the pernicious influence of the contemplated pond could be inferred with certainty. It states that from which the probability of the production of sickness might be argued. Beyond that, the case rests upon the naked assertion, that the pond will produce sickness. This assertion is not shown to have any other basis than the judgment of the plaintiff. It is a fact in the case, undeniable, because it is indicated in a title-paper, and shown in the bill and answer, that a dam had before stood at the same place, where the defendant was about to erect his dam. A strong argument for or against the proposition, that the pond would produce sickness, was deducible from the effect, of the previous pond. If the former pond had been unhealthy, it is fair to infer that the complainant would have alleged the fact, which would have so much strengthened his case. His failure to allege that fact goes far to show that it did not *615exist, and, therefore, could not be alleged. We are, for that reason, justified in giving full credence to the assertion of the answer, that a pond had existed for many years, in precisely the same locality, without in any degree injuring the health of the community, or, indeed, being suspected of having that effect.

The Georgia supreme court refuses to reverse the chancellor’s decree, made in the exercise of his discretion, unless it has been flagrantly abused. — Loyless v. Howell, 15 Ga. 554" court="Ga." date_filed="1854-07-15" href="https://app.midpage.ai/document/loyless-v-howell-5552109?utm_source=webapp" opinion_id="5552109">15 Ga. 554. See, also, Jeter v. Jeter, 36 Ala. 391" court="Ala." date_filed="1860-06-15" href="https://app.midpage.ai/document/jeter-v-jeter-6506764?utm_source=webapp" opinion_id="6506764">36 Ala. 391. We think we may safely go so far as to say, that we will not reverse sucha decree, unless we feel a full and satisfactory conviction that the chancellor has erred. We are not sure that, in the exercise of our judgment, we would have dissolved the injunction ; but, when we weigh the circumstances above referred to, we can not feel such a conviction that the chancellor has erred, as will justify us in reversing his decree.

Affirmed.