Dorsey v. Allen

• Decision Date: 31 October 1881
• Citation: 85 N.C. 358,39 Am.Rep. 704
• Court: North Carolina Supreme Court
• Parties: M. DORSEY and wife v. SAMUEL H. ALLEN.

39 Am.Rep. 704

85 N.C. 358

M. DORSEY and wife

v.SAMUEL H. ALLEN.

Supreme Court of North Carolina.

October Term, 1881.

*1 MOTION for an injunction heard at Chambers in Henderson, Vance county, on the 27th of October, 1881, before Gudger, J.

The motion was refused and the plaintiffs appealed.

Messrs. Edwards & Batchelor, for plaintiffs .

Mr. W. H. Young, for defendant .

SMITH, C. J.

The defendant having begun the erection of the necessary buildings for a planing mill and cotton gin, to be operated by steam on his lot adjoining that owned and occupied by the plaintiffs as their place of residence, this action is instituted to arrest the farther prosecution of the work upon the ground mainly that the proposed use of the houses when completed will expose their premises to increased perils of fire, and that the noise from working the machinery will render their dwelling uncomfortable and unfit for a residence. The complaint invokes the exercise of the restraining power of the court in this early stage of the enterpise, and insists that the defendant should build upon the rear part of his lot, where there is ample space equally convenient and accessible, and thus avert the apprehended danger of fire, and lessen, if not remove the annoyance occasioned by the operations carried on in the mill and gin house through the agency of steam power. The plaintiffs state that a division fence nearly eight feet high separates the respective lots, from which the defendant's buildings are removed but about nine feet; that the planing mill and gin house are one hundred and eleven feet apart, the first being 118 feet and the latter 39 feet from their kitchen, and respectively 170 and 67 feet from their dwelling, all the structures being of wood.

Numerous affidavits were produced and read upon the application for a preliminary restraining order, upon the examination of which we find no reasons for a dissent to the conclusion reached by His Honor upon the hearing. Much of the testimony and largely that of the plaintiffs' express the apprehensions entertained by the witness as to the probable effects of the works when in full operation, in the disturbing noise produced and the increased perils of fire, and the consequent impairment in value of the plaintiffs' premises as a residence. Other testimony is as to the public convenience to be subserved by the additional means of ginning provided, and the public needs of the mill in furnishing building materials required in the thrifty and rapidly improving town in which it is located. Many of the witnesses say that the noise and disturbance of trains running on the railroad track, from which the plaintiffs' dwelling is distant forty yards, by night and day greatly exceed any caused by the defendant's operations, and while there is a concurrence in the opinion that these erections may become annoying and a source of discomfort to the plaintiffs and their family, rendering their residence less desirable and of less market value as such, the preponderance is greatly in favor of the public advantages to be derived from both establishments.

Some of the witnesses, and among them the defendant's engineer who has charge of the engine and is superintendent of the business, testify to the superior character of the machinery and the careful provisions against accidents, and say that very little noise is made by the running of the engine and gin, which then had been in use several days.

We reproduce these leading features in the testimony to show that while the buildings erected for the purpose of dressing timber and ginning cotton by the motive power of steam, are not necessarily nuisances and may become so under some circumstances, to be determined by the jury, it was eminently proper in the judge to decline to interfere in the case...