Cherry v. . Williams

*456 IIoKE, J"., after stating tbe facts: The authorities in this State will uphold the position that, when there are facts in evidence which give good reason to believe that the owner of property in the residential portion of a thickly settled vicinity is about to devote it permanently to a use which imports serious menace to the health of the owners and occupants of adjacent property, such user should be restrained until the facts on which the rights of the parties depend can be properly determined at the final hearing. The conditions suggested, if established, come well within the definition of an actionable nuisance, and if there is a well-grounded apprehension that neighbors will be unreasonably exposed to serious danger from a disease of the nature of consumption the injunction should be continued to the hearing. The injury threatened in such case would be irreparable. As said by Justice Walker, in Durham v. Cotton Mills, 141 N. C., 615, “When injunction is sought to restrain that which it is apprehended will create a nuisance, the proof must show that the apprehension of matérial and irreparable injury is well grounded upon a state of facts from which it appears that the danger is real and immediate.” Courts are properly very reluctant to interfere with the enjoyment of property by the owner, and there is a line of cases in this State, and they are in accord with established doctrine, to the effect that when the owner of the property is about to engage in an enterprise which may or may not become a nuisance, according to the manner in which it may be conducted, courts will not usually interfere in advance to restrain such an undertaking, and especially when the apprehended injury is “doubtful or contingent or eventual”; but these decisions will very generally be found to obtain in causes where the apprehended injury was threatened by reason of some industrial enterprise which gave promise of benefit to the community, affecting rather the comfort and convenience than the health of adjoining proprietors and giving indication *457 that adequate redress might in most instances be afforded by an award of damages, as in Simpson v. Justice, 43 N. C., 115; Hyatt v. Myers, 71 N. C., 271; Hickory v. Railroad, 143 N. C., 451, to which we were referred by counsel- for defendant. But, so far as we have examined, whenever this principle has been apparently applied with us to cases which threatened serious injury to health, and injunctive relief was denied complainant, it will be found either that there was some defect in the proof offered by plaintiff or such proof was successfully controverted by defendant, or there were other conditions present which required the application' of some other principle than that which defendant here invokes for his protection. Thus, in Ellison v. Commissioners of Washington, 58 N. C., 57, bill in equity to restrain the placing of a cemetery so as to threaten the healthfulness of plaintiff’s dwelling, injunction was refused on the ground that the evidence did not tend necessarily to establish that the proposed cemetery would bring about the apprehended result, and further on the ground that “plaintiff had voluntarily put himself by the site of the ground selected for this establishment.” And accordingly in the very next volume of the reports ( Clark v. Lawrence, 59 N. C., 83) it was said that, where it was made to appear that a proposed cemetery would endanger the life and health of an adjoining owner, an injunction should be granted, and Judge Battle, delivering the opinion of the Court and referring to Ellison v. Commissioners, supra, said: “The same principle which would excite into activity the restraining power of the Court, where the health of the community or of an individual member of it is in danger of being-destroyed or impaired by a mill pond, will be equally ready to interpose its protection when a similar danger is threatened from the establishment of a cemetery in a city or town or very near the dwelling house of a private person. * * * This, we think, was recognized in the case of Ellison v. Commissioners of Washington, supra, though the decision' in *458 that case, on account of its peculiar circumstances, was adverse to tbe application for tbe injunction.” And in Vickers v. Durham, 132 N. C., 880, being a case for injunction against discharging sewage of tbe city of Durham on property so as to threaten the health of complainant’s family, relief was denied in part on the ground that the testimony of the complainant failed to controvert that of defendant as to the efficiency of the disinfecting plant of the city. And the fact that the present right to dump the sewage was of great public importance was also allowed weight in the conclusion arrived at. Thus Montgomery, J., for the Court, said: “So it appears from everything in the case that the complaint of the plaintiff is based solely upon an apprehension of injury. None of the witnesses of the plaintiff professed to know anything concerning the plant for disinfection or the methods of purification. The plaintiff is simply afraid that he may be injured by something of which he has no theoretical knowledge and with which he has no practical experience. On the other halad, the affidavits filed by the defendant are made by prominent and experienced scientists, and one of them has in several instances seen the practical results of the plan proposed by the city of Durham to dispose of its sewage. In Dorsey v. Allen, 85 N. C., 358; 39 Am. Rep., 704, this Court said: ‘When the anticipated injury is contingent and possible only, or the public benefit preponderates over the private inconvenience, the Court will refrain from interfering.’ We think that still the correct rule, though there may be and are some expressions to the contrary in Marshal v. Commissioners, 89 N. C., 103. In addition to what we have said above, the great importance to the city of Durham of the public work which it is trying to carry out would malee us hesitate before we would interfere by injunction.” And in Durham v. Eno Cotton Mills, 141 N. C., 615, Walker, J., refers to the failure on the part of the complainant to offer available evidence which would have gone far towards establishing the injury complained of if it had been in his favor. *459 But where the special conditions referred to, and to some extent relied upon in these cases, do not exist, and there are facts in evidence which tend to establish with reasonable certainty that there is a well-grounded apprehension of irreparable injury to complainant’s health by reason of the threatened and unwarranted use of adjacent property, the decisions in this State are to the effect that such user should be restrained till the hearing. Thus, as far back as 4 Hawks, in the case of Bell and Inhabitants of Tarboro v. Blount, 11 N. C., 384, this being a bill to prevent the erection of a mill dam, on the ground that there was reasonable certainty that such a structure threatened the health of citizens living near, the Court held “that, while the object of a bill is to prevent the erection of that which will be productive of injury serious and irreparable if erected, this Court will pass upon the question and interpose its authority to prevent the threatened injury.” And in Citizens of Raleigh v. Hunter, 16 N. C., 12, this being a bill to enjoin the maintenance of a mill dam, on the ground that it injuriously affected the health of the inhabitants of the town, it was held that the suit was well brought, and Henderson, J., delivering the opinion of the Court, said: “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.” In Bason v. Perkins, 17 N. C., 38, the principle of these last two cases was affirmed, and that case was distinguished on the ground that it appeared that the mill in question was a great public benefit, and as the injury was only threatened to one family the private right under the special circumstances there prevailing should yield to the public good. And a similar decision was made for like reason in Daughtry v. *460 Warren, 85 N. C., 136. Again, in Clark v. Lawrence, 59 N. C., 83, it was beld that when it was made to appear with reasonable certainty that the health of adjacent residents would be affected by the erection of a cemetery equity would interfere, though in that case a preliminary restraining order was refused .on the ground that the evidence did not come up to the requirements so as to bring the case within the principle. The doctrine announced in these cases in our own Court is supported by well-considered decisions in other jurisdictions. Gilford v. Hospital, 1 N. Y. Supp., p. 448; Baltimore v. Fairfield Imp. Co., 87 Md., 352; Coke v. Burge, 9 Ga., 425; Goldsmith v. Imp. Co., 1 L. R. Eq. Cases, 1865-66. These and other authorities, too, indicate that it is not practicable to lay down a general rule so clearly defined that its proper application can always be readily made, and each case to some extent must be made to depend upon its own special facts and circumstances. Thus, in Gilford v. Hospital, supra, it is said: “The learned counsel have cited many adjudications and the subject is thoroughly treated in Wood’s Law of Nuisance. It seems unnecessary to specify cases, because each one differs from most others in facts. In Ross v. Butler, 19 N. J. Eq., 294, the Court states a correct conclusion‘In fact, no precise definition can be given. Each case must be judged of by itself.’ In Wood’s textbook it is well said, in section 9 : ‘The locality, the condition of property and the habits and tastes of those residing there, divested of any fanciful notions or such as are dictated by “dainty modes and habits of living,” is the test to apply in a given case. In the very nature of things there can be no definite or fixed standard to control every case in any locality. The question is one of reasonableness or unreasonableness in the use of property, and this is largely dependent upon the locality and its surroundings.’ To my mind the hospital is not a reasonable use of property, considering the locality and surroundings.” *461 In tlie case at bar there is evidence on the part of plaintiff, direct, positive and specific, that the erection and use of a hospital in that particular locality, in the manner and for the purpose proposed, will be a source of real danger to the lives and health of numbers of people living in that vicinity; and, while the affidavit of defendant himself makes specific response, a large portion of the supporting evidence offered by defendant is very general in its terms and made without reference either to the special locality or to the special manner in which the particular hospital is to be constructed and car-' ried on. If defendant desires to proceed with the construction of his buildings and risk the results of the trial, the restraining order may be modified to that extent, but any and all use of the buildings for the purposes indicated should be restrained to the hearing, and the judgment of the court below in that respect is affirmed. Modified and Affirmed.