Berger v. Smith

• Decision Date: 16 October 1912
• Parties: BERGER v. SMITH et al.
• Court: North Carolina Supreme Court

75 S.E. 1098

160 N.C. 205

BERGER v. SMITH et al.

Supreme Court of North Carolina

October 16, 1912

Appeal from Superior Court, Wayne County; Peebles, Judge.

Action by N. B. Berger against R. H. Smith and another. From a nonsuit ordered, plaintiff appeals. No error.

The erection of a sawmill, though prohibited by ordinance, will not be enjoined where plaintiff does not show that he suffered special injury peculiar to himself.

M. T Dickinson, of Goldsboro, and Winston & Biggs, of Raleigh, for appellant.

Langston & Allen, of Goldsboro, for appellees.

WALKER J.

This case was before us at a former term, and is reported in 156 N.C. 323, 72 S.E. 376. We then held that the sawmill which it was alleged the defendant was about to erect in violation of the ordinance was not a nuisance per se, and we remanded the case in order that it might be submitted to a jury to ascertain if it was a nuisance in fact. At the trial, the court, upon plaintiff's evidence, ordered a nonsuit, and plaintiff appealed.

It appeared by the evidence that the mill had not been built but that defendant only intended to build it, and plaintiff testified that its operation, if it was built, "would be annoying to his family by reason of noise, smoke and flying trash, and would expose his property to fire." He also stated that it would depreciate the value of his property and other property in the same block. There was more evidence to the same effect. 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 Dorsey v. Allen, 85 N.C. 358, 39 Am. Rep. 704. The facts of the two cases are almost identical, and, in substance, they are sufficiently alike to make that case a controlling authority. In the Dorsey Case plaintiff sought to enjoin the erection of a planing mill and cotton gin, which had already been begun, and he alleged, as does the plaintiff in this case, that the operation of the mill and gin, when finished, would render their dwellings not only uncomfortable, but unfit for habitation, by reason of the noise of the machinery, that they would be exposed to increased perils from fire, and that their property would be greatly impaired in value. The court, approving the order of the judge refusing an injunction to stop the progress of the work in its early stages, as being unnecessary for the protection of the plaintiff, said: "Before operations were commenced, there was no increased danger from fire, and no disturbing noise made requiring judicial interference, and the relief could be obtained after the results were definitely ascertained, if the plaintiffs should be found entitled to it. The nuisance, if incidental and not necessary to the proper conduct of the business, or inherent and inseparable from it, could then be abated, and the defendant's knowledge of the pending suit would take from him all just cause of complaint when it should be so adjudged. But it would be an unwise exercise of power upon such uncertainty as to the practical working of an undertaken enterprise and its consequent effects, for the court to interpose and prevent its being carried out, with its promises of substantial and lasting benefits to a community because of the discomfort and inconvenience a single family or a small number of persons may experience from its presence in their vicinity, so inconsiderable when weighed in the scale with the public interests. While it is true that a business lawful in itself may become so obnoxious to neighboring dwellings as to render their enjoyment uncomfortable, whether by smoke, noxious and offensive odors, noises, or otherwise, as to justify the protecting arm of the law, yet there must be the ascertained and not probable effects apprehended. When the anticipated injury is contingent and possible only, or the public benefit preponderates over the private inconvenience, the court will refrain from interfering." The following authorities support the same view: "Where an injunction is asked to restrain the construction of works of such a nature that 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 (4th Ed.) § 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." Per Gaston, J., in Barnes v. Calhoun, 37 N.C. 199. This was said by the learned judge after confessing that the strong leaning of the court's opinion was with those who thought that the apprehensions of the plaintiff were not without foundation. Ellison v. Commissioners, 58 N.C. 57, 75 Am. Dec. 430, furnishes another illustration of the principle. The plaintiff there sought to enjoin the laying off of his land for a cemetery. The court strongly intimated that a cemetery was not a nuisance per se, and would not be either a public or private nuisance, in fact, if it was properly arranged and sufficiently drained and in other respects carefully supervised. If it threatened or proved to be actually deleterious to the health of the people of the vicinity, the case would be different. The word "nuisance" was held, in its legal sense, to be confined to such matters of annoyance as the law recognizes and for which it gives a remedy by way of redress or abatement, or in a proper case, by restraining process. "The unpleasant reflections," said Judge Manly, "suggested by having before one's eyes constantly recurring memorials of death is not one of these nuisances. Mankind would, by no means agree upon a point of that sort, but many would insist that suggestions thus occasioned would, in the end, be of salutary influence. The deathhead is kept in the cell of the anchorite, perpetually before his eyes as a needful and salutary monitor. The nuisance which the law takes cognizance of is such matter as, admitting it to exist, all men, having ordinary senses and instincts, will decide to be injurious." "The subject of nuisances, private as well as public, has undergone much discussion in the courts during the past few years. Amongst other principles established is one which we think definitive of the rights of the parties now before the court. It is settled in respect to private nuisances, that where the nuisance apprehended is dubious or contingent, equity will not interfere, but will leave complainant to his remedy at law"--citing Drewry on Injunctions, 242; Barnes v. Calhoun, supra; Atty. Gen. v. Lea, 38 N.C. 301; Simpson v. Justice, 43 N.C. 115. In Atty. Gen. v. Lea, supra, the court held: "A court of equity will refuse to interfere by injunction in the case of the erection of a mill dam, 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 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, citing Atty. Gen. v. Nichols, 1 Ves. 338, and an anonymous case before Lord Thurlow in 1 Vesey, Jr., 140. There is an obvious difference, said Judge 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...