The defendant by his answer denied that his millpond had any pernicious influence upon the health of the town, and averred that he had been indicted in Wake County Court for a nuisance in erecting the dam, and that the jury, upon an attempt to try the indictment, had disagreed, and had refused to find a verdict for the State; that subsequently a nolle prosequi had been entered by the prosecuting officer; that the defendant had again been indicted in the Superior Court, that a trial had been delayed by the State, the Attorney-General entering a nolle prosequi and ordering new process, and that this last indictment was still pending.
Much testimony was taken and read at the hearing, which it is not necessary to recapitulate, as the Court thought that the allegations of the bill were fully sustained.
The case was argued at June Term, 1826. We were satisfied beyond a reasonable doubt (13) that the flowing back of the water as contemplated by the defendant, according to his own admissions, will create a public nuisance, and that of the worst kind, being one destructive to the health and comfort of the citizens of Raleigh. And we are called on to send the question of nuisance or no nuisance to a court of law. For what? To inform our consciences? They are already informed. And were a jury to find that it was not a nuisance, in a case of this kind, we should feel ourselves bound to disregard their verdict; for a jury would require the most satisfactory evidence of the fact, at least they would require a preponderance of evidence, to convict; with us, under all the circumstances of the *Page 14 case, a probability is sufficient. In the first place, the injury is irreparable; the place, the seat of government, where its officers are compelled to reside. These things make a difference between this case and that of a common nuisance. It is true, it is a question of the most delicate kind — an interference with private rights, from which all departments of government should abstain, except in cases of necessity. It is, however, a sound political maxim, and one sanctioned by the courts of justice of this country, that individual interests must yield to that of the many; and this is something like the interest of the many, for every individual is in same way or other interested in the welfare of the capital. We refer to Bell v. Blount, 11 N.C. 384, as an authority to show the jurisdiction of the Court.
Where the right infringed is of a doubtful character, as the right of view over another's ground, there a court of equity will order the right to be established at law before it will grant an injunction, in the meantime staying the owner of the land from closing up the view. But here the rights infringed upon are of a character not in the least doubtful — the health and comfort of the relators, and others for whom they act.
(14) Injunction perpetuated.
Cited: Eason v. Perkins, 17 N.C. 38; Bradsher v. Lea, 38 N.C. 304;Clark v. Lawrence, 59 N.C. 83; Vickers v. Durham, 132 N.C. 882; Cherryv. Williams, 147 N.C. 459; Pruitt v. Bethell, 174 N.C. 457.