Attorney-General Ex Rel. Sundry Citizens of Raleigh v. Hunter

16 N.C. 12

• Court: Supreme Court of North Carolina
• Decided: December 5, 1826
• Status: Published

Opinion

The opinion of the Court, was delivered by

Henderson, Judge:

We are satisfied beyond a reasonable doubt, that the flowing hack of the water as contemplated by the Defendant, according to bis own admissions, will create a public nuisance, and that of the worst kind, being one destructive to the health and comfort of the citizens of Raleigh. And we arc called on to send the question of nuisance or no nuisance, to a Court of Law ; for what to inform our consciences ? they are already informed. And were a Jury to find that it was not a nuisance, irs a case of this kind, we should feel ourselves bound to disregard their verdict; for a Jury would require the most satisfactory evidence of the fact, at least they would require a preponderance of evidence, to convict; with as, under all the circumstances oflhc case, a probability is sufficient. In the first place, the injury is irreparable, the place, the seat of government, where its officers are, compelled to reside. These things make a difference between this case and that of a common nuisance. It is true it is a question of the most delicate kind, an inter-fornico with private rights, from which all department;; of government should abstain, except in cases of necessity. It is however a sound political maxim, and one sanctioned by the Courts of Justice of this country, that individual interest must yield to that of the many ; ami this is something like the interest of the many, for every individual is in some way or other, interested in the welfare of the capital. We refer to the decision of Bell and Blount, (4 Hawks, 384) as an authority to shew the jurisdiction of the Court. Where the right infringed is of a doubtful character, as the right of view over another’s ground, there a Court of Equity will order the right to he established at law, before it will grant an hv junction, in the mean time, staying the owner of the land from closing up the view 5 bnt here the rights infringed upon, are of a character not in the least doubt-health and comfort of the relators, and others for whom they act.

Injunction tentetuated.