Russell v. Popham

4 Sarat. Ch. Sent. 79

• Court: Saratoga Chancery Court
• Decided: March 4, 1845
• Status: Published

Opinion

The Chancellor.

This is an appeal from a decision of the vice chancellor of the first circuit, denying the complain-’ ant’s application for an injunction restraining the defendants from occupying d lot in the city of New-York, adjoining the complainant’s dwelling'house, as a coal yard. The vice chancellor was right in supposing that this was not a proper case' for a preliminary injunction. A coal'yard'prima facie is not a- public nuisance, though it is possible so to use it as to make' it noxious to the public. But if the affidavits on the part of the defendant are true, this yard is not so conducted as to be' a public nuisance. The alledged injury to the complainant’s' house by t-he"depodit of coal upon the adjacent lot may be such a private nuisance as to entitle the complainant to the interference of this court after he' has established the fact that it is a real and substantial and continuing injury to his premises, in a suit at law. It would,-however’, be going much’ further than this court has heretofore considered itselfas'jiis'-' ti-fied in going, to interfere by a preliminary injunction upon the state of facts presented to the vice chancellor upon corn"' plainant’s bill and the affidavits in opposition thereto.

The order appealed from,- must be affirmed, with costs.-