Ronayne v. Loranger

Moese, J. It appears that the dam sought to be destroyed •and enjoined as a nuisance in this case has been in existence as it is for over 60 years. There is no showing how long any of the complainants have held the lands which are claimed to be injured by this dam, except the allegation that they have [374] occupied the same fot several years last past before the filing of the bill of complaint. The dam is upon the property of the defendant, as is also the mill-pond formed by the same. It would also seem that he has acquired the right of flowage by'express grant of all the lands overflowed by reason of said dam, except the overflow in times of high water, which then extends beyond his right. I do not think it would be equitable to destroy this man’s property and means of livelihood in a proceeding of this kind. He ought to be entitled to a jury trial, and I think our laws contemplate that he shall have it. These parties complainant in all probability bought their lands with this dam in existence, and in view of them, knowing the extent and character of its unhealthful features and influences. If so, they are not entitled to the same equitable considerations that would prevail had the defendant created this alleged nuisance after they had acquired and settled upon their respective premises. If this dam is a public nuisance, it is the subject of indictment, and this would give the defendant an opportunity to-defend his right to hold and use his property before a tribunal of his peers. Our statutes also authorize township boards of health, in proper proceedings, to destroy, remove, or prevent nuisances in certain cases. How. Stat. §§ 1640-1643. It is alleged in the bill that the township board of French-town, in which township this dam is situated, have refused to declare’ it a nuisance. This would seem to indicate that there is, at least, a difference of opinion as to the malarious character and effect of this dam. Individuals aggrieved by a private nuisance may proceed against the same in an action on the case. If the plaintiff in such action prevails, the-court has power to abate and remove the nuisance. How. Stat. §§ 1680, 7961, 7963. "Without considering the other points raised in the case by [375] tbe counsel for tbe respective parties, I tbink the bill of complaint should have been dismissed in the court below, for tbe reason that tbe defendant ought to be permitted to hold and enjoy bis property until it is taken away from him by tbe verdict of a jury, or some express statutory proceeding that is warranted by tbe Constitution of our State, and for tbe further reason that tbe rights of tbe complainants can be adjudicated and enforced at law as well as in equity. Tbe right to tbe beneficial enjoyment of their • property can be settled and determined in a court of law just as completely and effectively as in this proceeding, and at the same time tbe defendant loses no substantial right or benefit in making his defense. I therefore hold that tbe decree of tbe court below should be reversed, and tbe complainants left to pursue, without prejudice, their action at law to right their wrongs, if any exist.