Opinion · Supreme Court of North Carolina
Barnes v. . Calhoun
37 N.C. 199
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1842-06-05
- Topic
- bankruptcy
Gastcn, J. The object of this bill is to enjoin the defendant from erecting a mill on a branch of a creek, running through his land, in the county of Edgecomb. The plaintiff alleges, that the erection of the proposed mill would pond the water back and cause it to overflow a considerable part of his land, and prove utterly destructive to the health of himself and his family, and highly injurious to that of several of the neighbors. The defendant admits that the erection of the mill will cause the water to overflow a part of the plaintiff’s land, which he alleges to be unfit for cultivation, insists that the mill is called for by the wants of the community, and utterly denies that its erection will produce any injury to the health of the plaintiff or his family, or to *200 that of any of his neighbors. Thirty-eight witnesses have ^een examined, and we have not only heard all these depositions read, but have deliberately read them afterwards, in our chambers.
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BARNESv. CALHOUN,37 N.C. 199(1842)
ROBERT BARNES v. JOHN.W. CALHOUN.
Supreme Court of North Carolina
(June Term, 1842.)
2. But the court 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.
The question arising upon the pleadings and proofs are stated in the opinion of the Court.
The tracts of land of the plaintiff and the defendant are situated in the fork of a creek and on the south side of that branch of the creek on which it is proposed to erect the mill. Their dwellings are about 150 yards apart, each about half a mile from the run of the branch, the plaintiff's higher up the branch than the defendant's. At the proposed mill site, which is nearly opposite to the defendant's dwelling, a dam was raised upwards of fifty years ago by an ancestor of the defendant as preparatory to the erection of a mill, but he was prevented from completing his purpose by a want of means, or a supposed want of means, and the place left in the dam for the mill was never closed and the water consequently not ponded back by the dam. The mill, to be useful, should have a head of seven or eight feet of water, and to obtain this head the water must be ponded back about a mile and made to cover about thirty acres of land. This land is now low and wet, with a growth of gum and oaks, and more of it belongs to the defendant than to the plaintiff. The water, by being thus ponded, will be brought to within 700 yards of the plaintiff's dwelling, and in one place, where there is a short depression or ravine, to within 500 yards thereof. A good mill there erected would be a public convenience, especially to those neighbors who live on the north side of the branch, and seems to be generally desired by them; but doubts are entertained by several of the witnesses whether a mill can be made to stand permanently at that place.
On the questionhow farthe erection of the proposed mill would prove injurious to the health of the plaintiff and his family or to that of his neighbors we are furnished with testimony of two kinds. The first consists of the opinions of witnesses derived, as they declare, from their observation and experience. Upon these it is impossible to arrive at any certain conclusion. Many declare their decided conviction (201) that it will be exceedingly pernicious to the health of the plaintiff's family and that of the neighbors, while an equal number, at least, express with great confidence the opinion that it will be perfectly harmless in this respect. Two medical gentlemen depose that newly-erected mill ponds generate poisonous miasma because of the decomposition of the trees killed by the standing water; that this miasma is far more injurious to residences on the north than on the south side of ponds because of the general prevalence of southerly winds in the summer season, and that physicians are not agreed as to the extent to which this miasma will reach, some holding that it will not be injurious beyond a quarter of a mile, while others teach that its deleterious effects will be felt two miles off.Page 150
Upon the whole we confess that the strong leaning of our opinion is with those who think that the apprehensions of the plaintiff are not without foundation. But we do not on that account feel ourselves authorized to grant the extraordinary remedy which he asks of us. We entertain no doubt of the right of this Court thus to act in cases of undoubted and irreparable mischief, and we hold that it may thus act upon the application of individuals, not only in the case of a private nuisance, but, where the individuals suffer special injury, in the case of a public nuisance also.Spencer v. R. R., 8 Simons, 193. But it will only act in a case of necessity, where the evil sought to be prevented 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 have a tendency to promote the public convenience. No one can read our statutory provisions on the subject of erecting public mills and declaring the remedy for persons injured by the erection of public gristmills or mills for domestic manufacturers or other public purposes, and fail to see that the Legislature has manifested a strong disposition to favor them. It would ill accord with the duties of the ministers of law to act counter to the policy of the makers of the law.
(202) If the plaintiff, indeed, were without other remedy we should feel ourselves bound to interpose in his behalf; for the act contemplated by the defendant is an admitted wrong. The defendant has no right to overflow the plaintiff's land. But the plaintiff is not without remedy. He can prefer his petition at law, and on the trial he will be entitled to recover damages, not only for the direct injury of overflowing his land, but for the injurious effects therefrom resulting to health. And it is specially provided by the statutes referred to that if the annual damage be estimated by the jury as high as twenty dollars the plaintiff may by repeated actions compel the defendant to take down his mill.
This legal remedy will probably prove efficacious for every legitimate purpose, and to this remedy we must leave the plaintiff.
The bill must be dismissed, but, as we think, without costs.
PER CURIAM. Bill dismissed without costs.Cited: Ellison v. Comrs.,58 N.C. 58;Clark v. Lawrence,59 N.C. 85;Dorsey v. Allen,85 N.C. 362;Redd v. Cotton Mill,136 N.C. 344;Durhamv. Cotton Mills,141 N.C. 630;Hickory v. R. R.,143 N.C. 452;Pedrickv. R. R., ib., 509;Durham v. Cotton Mills,144 N.C. 711.Page 151
(203)