Rosser v. Randolph

| Ala. | Jan 15, 1838

ORMOND, J.

— It was made a question at the bar, whether a bill could be filed by an individual to enjoin a nuisance, which, although it might affect him, was also public in its character; and whether the proper mode of proceeding, was not by information.

Although in the case of the Attorney General vs the Utica Insurance Company, (2 Johns. Chan. Rep. 371,) this right is doubted by Chancellor Kent, and was formerly doubted in England, the question appears to be settled by the recent English decisions, and was so determined by this court, in the case of the State, ex rel. of the Mayor and Aldermen of Mobile, (5 Port., 279" court="Ala." date_filed="1837-06-15" href="https://app.midpage.ai/document/state-v-mayor-of-mobile-6529246?utm_source=webapp" opinion_id="6529246">5 Porter, 279.)

Notwithstanding the power of the chancellor to interfere by injunction, in the case of a private nuisance, is unquestionable — yet, it must be admitted, that the control thus exercised over an individual, in the use or enjoyment of his property, is one of the transcendant powers of the Court of chancery — a power necessary to be vested in the court for the security of all, but which should be cautiously and sparingly exercised.

It is difficult, if not impossible, to define, in advance, all the cases in which the court would be authorised thus to interfere; but it may be safely laid down as applicable to this class of cases, that it must be satisfactorily shown, that the proposed erection would inflict an irreparable injury, such an one as could not be adequately compensated in damages; or it must threaten materially to impair the comfort of the existence of those living near it, to entitle those aggrieved to the aid of the preventive justice of the law. But a clear and plain case must be made out.

Both in England and the United States, the Court of chancery is exceedingly unwilling to interfere by injunction, until the nuisance has been established by a trial at law.

In the case of Van Bergen vs Van Bergen, (3 Johns. Chan. Rep. 287,) Chancellor Kent- thus slates the law: “ The cases in which chancery has interfered by injunction, to prevent or remove a private nuisance, are those in which the nuisance lms been erected, to the prejudice or annoyance of a right which the other had long previously enjoyed. It must be a strong and mischievous case of pressing necessity, or the right must have been previously established at law, to entitle the party to call to his aid the jurisdiction of this court/’

Again, in the same case, quoting the opinion of Lord Eldon with approbation., he puts the jurisdiction of the court upon the ground. “ of material injury, and of that special and troublesome mischief which required a preventive remedy, as well as a compensation in damages.” To the same effect is the case of Wingfield vs Crenshaw, (4 Henn. & Munf. 474.) With tills sound and lucid exposition of the law, we entirely agree, and will now proceed to apply its principles to this case.

The allegations of the bill, material to be stated, are, that the defendant wa3 about erecting a mill near the dwelling of the complainant, and that the health of his family, and that of the neighborhood generally, would be thereby endangered — also, that the flow of water from the mill, while in operation, would drown and render valueless a spring on which he relied to furnish himself and his family with pure water. That the defendant had not procured an order of court, authorising him to erect the mill, and prays an injunction.

The injunction was granted, in the first instance, but the defendant, in defiance thereof, proceeded to build his mill, and put it in operation. Its effects on the health of the complainant’s family, and on liis spring of water, are therefore susceptible of proof.

Many witnesses have been examined, but it does not appear from the testimony, that the health of the complainant’s family has suffered by tbs erection of the mill. But it appears very conclusively, that whilst the mill is in operation, the spring of the complainant is overflowed by the rash of water about two feet, and continues so some short time after the mill stops; — and that the water of the spring is injured by the overflow of the creel?, after it has subsided, from the sediment which is deposited. It also appears from the testimony, that by digging a ditch two hundred and fifty yards long, the spring will be protected from the overflow of the creek.

It was decided at the present term of this court, in the case of Hendrick vs Johnson, (6 Porter,) that the legislative provision, on the subject of the erection of mills and other water works, did not affect the common law right of the citizen. That any person has, without application to the judge of the County court, the right to erect a mill on a stream of water running through his land. This right he must exercise at his peril, and in such a manner as not to affect the rights of others.

The question, here, is not whether complainant is injured by the erection of the defendant’s mill;. but whether the injury is of such a character as to entitle him to the interposition of a Court of chancery.

If, by the erection of the defendant’s mill, the complainant was deprived of the use of his spring of water, and water of as good quality could not be procured by digging in its neighborhood, or the overflow from the-creek obviated by a reasonable amount of labor, the jurisdiction of the Court of chancery would be complete — as no adequate compensation could be made for the privation of such an important element of existence as water; and no one should be allowed to use his property in a manner so prejudicial to his neighbor.

The spring appears to be situated almost in the bed of the creek, so that the smallest flood in the creek renders it useless. It however appears from the testimony, that by digging a ditch .two hundred and fifty yards long, and some of the witnesses add, by making an embankment, the spring will be protected from the rise in the creek, caused by working the mill — and it does not appear but that a well could easily be had in its neighborhood. This being the case, we do not see on what principle the jurisdiction of a Court of chancery can be sustained. By the application of labor, the value of which can be ascertained, or which the defendant, if applied to, might be willing himself to do, the spring can be restored to its original state; thereby giving to complainant the full enjoyment of his spring of water, and at the same time securing to the defendant those rights which appertain to him as owner of the adjacent land. A Court of chancery will not interfere in this extraordinary manner, to sustain or enforce even a right capriciously insisted on.

It does not follow, that because the erection of the mill is a nuisance, for which the complainant may have an action on the case, that therefore he is entitled to the interposition of a Court of chancery—Attorney General vs Nichol, (16 Vesey, jr. 338.)

As already stated, to call into exercise the extraordinary power of tile court, “ there must be a strong and mischievous case of 'pressing necessity.” This does not seem to be one of these cases, but is one in which a court of law can afford full and adequate relief.

The decree of the court below is affirmed at the cost of the complainant in the court below, and in this court.