Benner v. Jordan

2 Edm. Sel. Cas. 473

• Court: New York Circuit Court
• Decided: July 1, 1853
• Status: Published

Opinion

Edmonds, J.:

The only thing restrained in this case is the use of a horse-power. That power is not, of itself, necessarily a nuisance. It may be so used as to disturb no one, and in this case it is doubtful whether, in this particular case, it is a nuisance to any one. Under such circumstances, it is the well established practice of this court not to grant an injunction until the question, whether nuisance or not, shall have been determined by a jury, either on indictment, or in an action, or on issues ordered by the court. That has not been done in this case, and the injunction must be dissolved, with costs.