BBICKELL, C. J.
— The bill is filed by the appellant to restrain the appellees from erecting, for the use of a grist mill they are constructing, a dam across a stream not navigable, running through their lands near to the city of Troy. The material averments are, that the stream upon which the dam is to be erected is formed by the confluence of two streams running through the city, draining a large part of it, and into which much of its sewage is discharged; that the mill is being constructed on the site of a former mill, and the dam will collect the waters on the site of the former pond, which has been disused for several years, and suffered to grow over with briars and other shrubs. The stream will afford but a scant supply of water during the summer and fall, and in operating the mill in those seasons, much of the ground covered by the pond will be alternately flooded and drained. The dam will cause much of the deposits from the drainage and sewage from the city to collect in the pond; there will be, in consequence of the undergrowth covering the pond, decay and decomposition of vegetable matter. These causes will generate malaria, producing disease in a large part of the city, and will be pernicious to the health of appellant and his family residing in the city near the confluence of the two streams. [584]*584While the former mill was in existence, sickness did result from it, and the appellant lost three children, whose sickness and death, as he was advised by his physician, was from disease generated by the pond. The appellees have not made application to the judge of probate for an order to erect the dam, though it was known to them its erection would be resisted.
The appellee Croskey answers, denying that he is engaged or has any interest in the erection of the dam, or in the construction of the mill; states that he sold the lands to Mc-Quaggs, who desired to rebuild the mill, and the sale being on credit, he retained the title as security, for the purchase-money. McQuaggs answers, and denies tbe more material allegations of the bill; admits he is engaged in the erection of the dam and construction of the mill, without having made application for an order in the mode prescribed by the statute; admits appellant’s residence with his family as stated in the bill, but denies that his health or that of his family can be affected by the dam. Much testimony was taken, to which reference is unnecessary, in the view of the case we are constrained to take. On the hearing, the Chancellor was of opinion the evidence did not show that the appellant would suffer any other injury from the dam, than such as his neighbors would suffer, and therefore decreed a dissolution of the temporary injunction and a dismissal of the bill.
The jurisdiction of the courts of equity to restrain the commission or continuance of nuisances, public or private, is settled, and has been of frequent recognition in this court. 1 Brick. Dig. 672, §§ 467-476. The ground of jurisdiction is the ability of the court to afford more complete remedies than courts of law can afford, bound and tied down to remedies they are not capable of moulding and adapting to the necessities of particular cases, thereby preventing irreparable injury, suppressing a multiplicity of suits, and avoiding vexatious and oppressive litigation. As the court is not in the exercise of its ordinary jurisdiction, but is interfering to supply the deficiencies of legal remedies, it interferes only when there is immediate, pressing necessity for the prevention of an injury, incapable of adequate compensation in damages at law, “or such as, from its continuance or permanent mischief, must occasion a constantly recurring grievance, which can not be otherwise prevented but by an injunction.” — 2 Story’s Eq. § 925. The rules laid down by Lord Brougham in the leading case of Earl of Ripon v. Hobart, 3 Myl. & Keene, 169, respecting the exercise of the jurisdiction, have been here adopted. He said : “ If the thing sought to be prohibited is in itself a nuisance, the court will interfere to stay irrepara[585]*585ble mischief without waiting for the result of a trial; and will, according to the circumstances, direct an issue, or allow an action, and if need be, expedite the proceedings, the injunction being in the meantime continued. But, when the thing sought to be restrained is not unavoidably and in itself obnoxious, but only something which may,.according to circumstances, prove so, then the court will refuse to interfere until the matter has been tried at law, generally by an action, though in particular cases an issue may be directed for the satisfaction of the court, where an action could not be framed so as to meet the question.” It may also be laid down as a general proposition, that the court will not, unless the evidence is full, clear and convincing, take upon itself to decide that a thing which may or may not become a nuisance, will so operate, or that a nuisance in fact exists, without the trial of an issue at law. — Cummings v. Barrett, 10 Cush. 186; Burnham v. Kenton, 44 N. H. 78; Eastman v. Company, 47 N. H. 71; Mason v. Sunborn, 45 N. 171; Jushbald v. Barrington, 4 L. R. Ch. App. 388.
When the nuisance operates to destroy health, or to diminish seriously the comfortable enjoyment of a dwelling house, it is in its nature and consequences productive of irreparable mischief, for which the law can furnish no adequate remedy. High on Inj. § 491; 2 Story on Eq. §§ 926-7; Holman v. Boiling Springs, 1 McCarter, N. J. Eq. 343. The erection of dams, or other obstructions, in such manner as to affect materially the natural flow of the water to the manifest injury of the lands of other riparian proprietors, or to injure materially the health of those residing in the vicinity, the court has enjoined without awaiting the trial of an issue at law, or until there was a trial of the issue. — Sprague v. Rhodes, 4 R. I. 301; Whitfield v. Rogers, 26 Miss. 84; White v. Forbes, Walker (Mich.) 112. Every man has a right to the undisturbed enjoyment of his property, especially to dwell in his homestead freed from the peril of disease and death, caused by artificial constructions erected by his neighbor on his own lands, whatever may be the purpose of such constructions. The right is imbedded in the common law maxim of such frequent use — sic uiere tuo ut alienum non laedas. For the preservation of health, and the protection of the undisturbed enjoyment of property, courts of equity in recent times have interfered upon the just and conservative principle, that it was better to prevent, than to undertake to cure or compensate for the evil, after it was wrought.— Whitfield v. Rogers, supra.
From the'earliest period in our legislative history, it has been a fixed policy to provide a judicial proceeding by which [586]*586it could be speedily ascertained before the erection of a dam on a water-course for the uses of a mill, gin, or other machinery, not only how far it would affect rights of property, but what would be its influence on the health of the neighborhood. A proceeding before the county court, on the application of the land owner, proposing to erect the dam, was authorized first by an act of the territorial legislature passed in 1811. The act was revised by an act adopted in 1812, and continued of force, with some changes, it is not necessary now to refer to, until the Code of 1852 became of force. It was declared unlawful for any person to erect a mill, so as to overflow any other mill, or create a nuisance in the neighborhood.
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BBICKELL, C. J.
— The bill is filed by the appellant to restrain the appellees from erecting, for the use of a grist mill they are constructing, a dam across a stream not navigable, running through their lands near to the city of Troy. The material averments are, that the stream upon which the dam is to be erected is formed by the confluence of two streams running through the city, draining a large part of it, and into which much of its sewage is discharged; that the mill is being constructed on the site of a former mill, and the dam will collect the waters on the site of the former pond, which has been disused for several years, and suffered to grow over with briars and other shrubs. The stream will afford but a scant supply of water during the summer and fall, and in operating the mill in those seasons, much of the ground covered by the pond will be alternately flooded and drained. The dam will cause much of the deposits from the drainage and sewage from the city to collect in the pond; there will be, in consequence of the undergrowth covering the pond, decay and decomposition of vegetable matter. These causes will generate malaria, producing disease in a large part of the city, and will be pernicious to the health of appellant and his family residing in the city near the confluence of the two streams. [584]*584While the former mill was in existence, sickness did result from it, and the appellant lost three children, whose sickness and death, as he was advised by his physician, was from disease generated by the pond. The appellees have not made application to the judge of probate for an order to erect the dam, though it was known to them its erection would be resisted.
The appellee Croskey answers, denying that he is engaged or has any interest in the erection of the dam, or in the construction of the mill; states that he sold the lands to Mc-Quaggs, who desired to rebuild the mill, and the sale being on credit, he retained the title as security, for the purchase-money. McQuaggs answers, and denies tbe more material allegations of the bill; admits he is engaged in the erection of the dam and construction of the mill, without having made application for an order in the mode prescribed by the statute; admits appellant’s residence with his family as stated in the bill, but denies that his health or that of his family can be affected by the dam. Much testimony was taken, to which reference is unnecessary, in the view of the case we are constrained to take. On the hearing, the Chancellor was of opinion the evidence did not show that the appellant would suffer any other injury from the dam, than such as his neighbors would suffer, and therefore decreed a dissolution of the temporary injunction and a dismissal of the bill.
The jurisdiction of the courts of equity to restrain the commission or continuance of nuisances, public or private, is settled, and has been of frequent recognition in this court. 1 Brick. Dig. 672, §§ 467-476. The ground of jurisdiction is the ability of the court to afford more complete remedies than courts of law can afford, bound and tied down to remedies they are not capable of moulding and adapting to the necessities of particular cases, thereby preventing irreparable injury, suppressing a multiplicity of suits, and avoiding vexatious and oppressive litigation. As the court is not in the exercise of its ordinary jurisdiction, but is interfering to supply the deficiencies of legal remedies, it interferes only when there is immediate, pressing necessity for the prevention of an injury, incapable of adequate compensation in damages at law, “or such as, from its continuance or permanent mischief, must occasion a constantly recurring grievance, which can not be otherwise prevented but by an injunction.” — 2 Story’s Eq. § 925. The rules laid down by Lord Brougham in the leading case of Earl of Ripon v. Hobart, 3 Myl. & Keene, 169, respecting the exercise of the jurisdiction, have been here adopted. He said : “ If the thing sought to be prohibited is in itself a nuisance, the court will interfere to stay irrepara[585]*585ble mischief without waiting for the result of a trial; and will, according to the circumstances, direct an issue, or allow an action, and if need be, expedite the proceedings, the injunction being in the meantime continued. But, when the thing sought to be restrained is not unavoidably and in itself obnoxious, but only something which may,.according to circumstances, prove so, then the court will refuse to interfere until the matter has been tried at law, generally by an action, though in particular cases an issue may be directed for the satisfaction of the court, where an action could not be framed so as to meet the question.” It may also be laid down as a general proposition, that the court will not, unless the evidence is full, clear and convincing, take upon itself to decide that a thing which may or may not become a nuisance, will so operate, or that a nuisance in fact exists, without the trial of an issue at law. — Cummings v. Barrett, 10 Cush. 186; Burnham v. Kenton, 44 N. H. 78; Eastman v. Company, 47 N. H. 71; Mason v. Sunborn, 45 N. 171; Jushbald v. Barrington, 4 L. R. Ch. App. 388.
When the nuisance operates to destroy health, or to diminish seriously the comfortable enjoyment of a dwelling house, it is in its nature and consequences productive of irreparable mischief, for which the law can furnish no adequate remedy. High on Inj. § 491; 2 Story on Eq. §§ 926-7; Holman v. Boiling Springs, 1 McCarter, N. J. Eq. 343. The erection of dams, or other obstructions, in such manner as to affect materially the natural flow of the water to the manifest injury of the lands of other riparian proprietors, or to injure materially the health of those residing in the vicinity, the court has enjoined without awaiting the trial of an issue at law, or until there was a trial of the issue. — Sprague v. Rhodes, 4 R. I. 301; Whitfield v. Rogers, 26 Miss. 84; White v. Forbes, Walker (Mich.) 112. Every man has a right to the undisturbed enjoyment of his property, especially to dwell in his homestead freed from the peril of disease and death, caused by artificial constructions erected by his neighbor on his own lands, whatever may be the purpose of such constructions. The right is imbedded in the common law maxim of such frequent use — sic uiere tuo ut alienum non laedas. For the preservation of health, and the protection of the undisturbed enjoyment of property, courts of equity in recent times have interfered upon the just and conservative principle, that it was better to prevent, than to undertake to cure or compensate for the evil, after it was wrought.— Whitfield v. Rogers, supra.
From the'earliest period in our legislative history, it has been a fixed policy to provide a judicial proceeding by which [586]*586it could be speedily ascertained before the erection of a dam on a water-course for the uses of a mill, gin, or other machinery, not only how far it would affect rights of property, but what would be its influence on the health of the neighborhood. A proceeding before the county court, on the application of the land owner, proposing to erect the dam, was authorized first by an act of the territorial legislature passed in 1811. The act was revised by an act adopted in 1812, and continued of force, with some changes, it is not necessary now to refer to, until the Code of 1852 became of force. It was declared unlawful for any person to erect a mill, so as to overflow any other mill, or create a nuisance in the neighborhood. When, as in this case, the person proposing to erect the mill and dam, owned the land on both sides the stream, on application, a writ of ad quod damnum was issued, commanding the sheriff to summon and empannel seven land holders or freeholders to meet upon the lands, and among other inquiries they were to make, was, whether, in their opinion, the health of the neighbors ivill be materially annoyed by the stagnation of the waters. Their inquest was returned to the county court, and if, upon that, or other evidence, it appeared to the court, the health of the neighbors will be materially annoyed, leave to build the mill and dam could not be given. Clay’s Dig. 376-8, §§ 1, 16. The present statute authorizes like proceedings before the judge of probate, and of the inquiries the jury are required to make, is, lohether the health of the neighborhood will probably be endangered. If, from the inquest, or other evidence, it appears such is the fact, the judge must not grant the application. Whoever erects a dam without obtaining an order therefor, is liable to double damages for any injury resulting therefrom. — Code of 1876, §§ 3555 -79.
These statutes indicate very clearly, a settled policy to subordinate the right of the land owner to erect on his own lands, dams obstructing water-courses, to the preservation of the health of the neighborhood. Though they may be intended for lawful and useful purposes, authority for their erection can not be obtained if there is probability of danger to the health of the vicinage. The stagnation of water is of greater peril to health, in this latitude and climate, than in higher latitudes, and it is in view of this fact, these statutes have been enacted. In the exercise of its jurisdiction to prevent the erection of such obstructions, a court of equity would but follow the law, if a case is presented in which the evidence is not so clear and determinate that it can act safely, an issue of fact should be awarded to be tried by a jury. There should be much reluctance in subjecting individuals or com[587]*587munities to the dangers of disease. For injuries to property compensation may be made,' after they have been suffered, but for injuries to health, no adequate compensation can be made ; they are irreparable.
Without expressing any opinion as to the right of evidence in this case, there is enough in it to require that an issue to be tried by a jury should be directed. A continuance of the injunction will merely preserve the existing state of things, and can not work an injury to the appellees, for which they may not obtain adequate compensation in damages, by action on the injunction bond, if finally it shall be ascertained that the dam will not ’ endanger the health of the neighborhood, or if it will, that it will not be of special injury to the appellant. We intend no relaxation of the general rule, that the court should not interfere with erections by a proprietor on his own lands, unless they are per se nuisances, working irreparable mischief; or if the erection is not of itself a nuisance, but is, prima facie, a legitimate exercise of his dominion over his own property, that it must be shown clearly the erection, if completed, will prove a nuisance, inflicting irreparable injury — injury irreparable of adequate compensation. Nor, do we intend a relaxation of the rule, that the court will not interfere, when the injury of which complaint is made and sought to be restrained, is doubtful or contingent, when the thing contemplated may or not prove noxious, according to the manner of its completion, and the mode in which it ípay be used. The legislation to which we have referred, requires that in the class of cases to which it relates, the jurisdiction of the court should be adapted to, and exercised, in view of its policy. In determining whether a temporary injunction to restrain a threatened nuisance should be continued or dissolved until the fact of nuisance is satisfactorily ascertained, regard must be had to all the circumstances of the particular ease, the nature and character of the injury apprehended, and then the test should be applied — ought the party complaining to be protected, or required to submit until the fact of nuisance is. ascertained and experience shows whether he will be subjected to the injury apprehended.
If the deleterious consequences will result from the erection of the dam, which are stated in the bill, it will certainly be a public nuisance. But if it will also be as to the appellant a private nuisance — if it is of special injury to hi?ji — if it will materially affect the comfortable enjoyment of his home, and endanger the health of himself and family — that it will also affect others of his neighbors, does not lessen the injury he will sustain, nor merge it in that of which the public may complain. — 2 Story Eq. § 924; Millions v. Sharp, 37 N. Y. [588]*588611; Mayor v. Rogers, 10 Ala. 57; Mohawk Bridge Co. v. N. & S. R. R. Co. 6 Paige, 554; Crowder v. Tinkler, 19 Vesey, 616.
The legal title to the lands residing in Croskey, he having an immediate right of entry thereon, and having made an executory contract of sale of them with fall knowledge of the purposes to which McQuaggs intended devoting them, he was a proper, if not a necessary party to the bill. — Wood on Nuisances, § 822. Whether he shall be taxed with costs, will rest in the discretion of the Chancellor, and will materially depend upon his participation in the litigation,
The decree of the Chancellor is reversed, the temporary injunction reinstated, and the cause is remanded, that an issue of fact may be formed and tried by a jury to aid the Chancellor in ascertaining — 1. Whether the erection of the dam will probably endanger the health of the neighborhood. 2. Whether the complainant will be thereby materially injured in the comfortable enjoyment of his dwelling, or the health of himself and family endangered,