Frizzle v. . Patrick

Supreme Court of North Carolina

Frizzle v. . Patrick

59 N.C. 354

DecidedJune 5, 1863

StatusPublished

This text of 59 N.C. 354 (Frizzle v. . Patrick) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frizzle v. . Patrick, 59 N.C. 354 (N.C. 1863).

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Opinion

PKAitsON, C. J.

Treating the bill as a proceeding for an injunction against a private nusiance, we are of opinion that the plaintiffs, William Frizzle and Warren Frizzle, are concluded by the deeds which they executed to'Joel Patrick and Lewis Pugh, for the parcels of land on the north and south sides of the creek, for the express purpose of enabling them to erect a dam, and pond back the water in order to get a head of water sufficient to run a mill; so they cannot be beard *357 to complain against their own deed. In regard to the flat, if there has been a breach of contract on the part of the defendants, the remedy at law is adequate, and certainly, a breach of contract, in that particular, is not a sufficient ground to induce a court of eqnity to interfere by its writ of injunction.

In the case of a private nuisance, the rule in this Court is, that the fact of nuisance should be established by an action at law before an injunction will issue, with certain exceptions as in the case of Clark v. Lawrence, ante 83, where an issue was ordered on the fact of nuisance or no nuisance. This comes within the general rule, and we can see no ground on which to make it an exception and direct an issue, unless the rule is to be disregarded altogether. They have been paid for the privilege of erecting a mill at the site set out in the proceeding, and are concluded in respect to a jorwate nuisance. The other plaintiffs, Jesse Ilart and Charles Eogers, show no particular interest in this matter, and must stand like any other citizens, who are objecting to the erection of a public nuisance. In other words, they must file an information in the name of the Attorney General, setting forth their reasons for believing that the defendant, Patrick, is about to commit a pvMic nuisance, and making that the ground for asking the interference of this Court by its writ of injunction. Decretal order of the Court below reversed and injunction dissolved. ,

Per Curiam, Decree accordingly.

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PKAitsON, C. J.

Treating the bill as a proceeding for an injunction against a private nusiance, we are of opinion that the plaintiffs, William Frizzle and Warren Frizzle, are concluded by the deeds which they executed to'Joel Patrick and Lewis Pugh, for the parcels of land on the north and south sides of the creek, for the express purpose of enabling them to erect a dam, and pond back the water in order to get a head of water sufficient to run a mill; so they cannot be beard *357 to complain against their own deed. In regard to the flat, if there has been a breach of contract on the part of the defendants, the remedy at law is adequate, and certainly, a breach of contract, in that particular, is not a sufficient ground to induce a court of eqnity to interfere by its writ of injunction.

In the case of a private nuisance, the rule in this Court is, that the fact of nuisance should be established by an action at law before an injunction will issue, with certain exceptions as in the case of Clark v. Lawrence, ante 83, where an issue was ordered on the fact of nuisance or no nuisance. This comes within the general rule, and we can see no ground on which to make it an exception and direct an issue, unless the rule is to be disregarded altogether. They have been paid for the privilege of erecting a mill at the site set out in the proceeding, and are concluded in respect to a jorwate nuisance. The other plaintiffs, Jesse Ilart and Charles Eogers, show no particular interest in this matter, and must stand like any other citizens, who are objecting to the erection of a public nuisance. In other words, they must file an information in the name of the Attorney General, setting forth their reasons for believing that the defendant, Patrick, is about to commit a pvMic nuisance, and making that the ground for asking the interference of this Court by its writ of injunction. Decretal order of the Court below reversed and injunction dissolved. ,

Per Curiam, Decree accordingly.

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Bluebook (online)

59 N.C. 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frizzle-v-patrick-nc-1863.