Hyatt v. . Myers

71 N.C. 271

• Court: Supreme Court of North Carolina
• Decided: June 5, 1874
• Status: Published

Opinion

Settle, J.

While Court» of equity are slow to interfere in cases of private nuisance, yet they will do so if the fact of nuisance be admitted or established at law, whenever the nature of' the injury is such that it cannot be adequately compensated by damages, or will occasion a constantly recurring grievance. Adams Eq. 211; Story Eq. 926; 2 Dev. Eq. 38.

In tbe ease before us, the plaintiff having established the nuisance by an issue before a jury, may sue repeatedly and in that way, probably, compel the defendant to abate it.

Failing in that, under our old system his remedy would be to file a bill in equity. And then whether equity would enjoin or not, would depend upon circumstances. If the nuisance were serious and wanton, then it would be restrained as a matter of course. So too, if it were continuing and constantly annoying. But otherwise, if it were useful to the defendant and of trifling inj ury to the plaintiff, for this, compensation could be made in damages; or if the public benefit over-balanced the private injury, for these, private interest must yield to the public good upon fair consideration. Under our new system, blending law and equity, everything may be considered in the pi’esent action.

The plaintiff having established the nuisance by the verdict .of the j ury, it was proper for his Honor to consider whether he would leave the plaintiff to his repeated actions, or whether he would restrain or abate the nuisance by an order in this cause.

He determined upon the latter course ; and the amount of his judgment is to give the defendant time to abate the nuisance. If the defendant fail to do so, then at the appointed time he will hear a motion for an injunction. This, so far as we can now see, was proper. What he will do, or what he ought to do, if that motion is made, we cannot now see. Having heard the trial, he seems to have been satisfied that he ought to interfere by injunction. That may be so; but the facts are not stated so as to enable us to determine the matter.

If there be dissatisfaction with the order which his Honor shall see proper so make, upon hearing the motion for an injunction, and either party shall appeal, it will be necessary to state the facts (not the testimony) so that this Court can review the action of his Honor.

All that we can say now is that there is no error in what has' been done, except, perhaps, the suggestion to the defendant, for so we must consider it, to' abate the nuisance by raising the smoke-stack ; for aught that appears, that might aggravate the nuisance.

It would have been more appropriate simply to have allowed the defendant time to abate the nuisance.

Let this opinion be certified, &c.

Pee CueiaM, Judgment accordingly.