Thomas v. Calhoun

George, J., delivered the opinion of the court. The appellants filed their bill in the Chancery Court to enjoin the continuance of a mill-dam, which they alleged was a private nuisance as to them. The equity of the bill is that [83] the defendants’ mill-dam has caused a part of the complainants’ land to be injured by the flowage of back-water on it, and also by increasing the height of overflows occasioned by freshets, and that it has rendered the complainants’ residence unhealthy. The answer denies fully the allegations of the bill on these points. Several witnesses, including the neighbors and three doctors of medicine, were examined. The •chancellor on final hearing dismissed the bill, and the complainants have appealed. We^ cannot say that the decree of the chancellor is erroneous, but we think it is fully sustained by the evidence. The injury done to the land of the complainants is of a trifling-nature, and can be fully compensated by an action at law for damages. The injury is not shown to be irreparable, nor incapable of being removed by the building of levees designed to confine the creek within its bed. In such a case, when the business complained of is lawful,, and carried on wholly on the land of the defendant, equity will not assume to exercise the delicate duty of preventing by injunction the exercise of the right of ownership by the proprietor. Biglow v. Hartford Bridge Co., 14 Conn. 578 ; McCorker v. Iker, 12 Ohio, 387; Green v. Lake, 54 Miss. 540. The proof leaves it in great doubt whether the dwelling of the complainants has been rendered more unhealthy by the erection of the mill-dam. This is an application to the court to enjoin the defendants from a lawful use of their property — a use for which it is adapted by nature, and which is valuable to them. It is true that no one has a right to use his own so as to cause a legal injury to another; and courts of equity will in proper cases enforce by injunction the rights of third parties thus injured. But whoever asserts that the owner should be restrained in this use, where the business carried on is lawful, must make it clear that his rights have been invaded. The court will not interfere in a doubtful case. When injury to the healthiness of complainant’s dwelling is the ground on which relief is asked, the court will be prompt [84] to interfere; but to justify the interference the complainant must show to its satisfaction that the injury inflicted or threatened is real, and not purely imaginary. Decree affirmed.