White v. Forbes

This Court may stay or prevent nuisances by injunction. R. S. 499. Gardner v. Village of Newburgh, 2 J. C. R. 162. Sometimes the complainant is required to establish his right at law, before equity will protect him by injunction in the enjoyment of it; but that is only when the right on which he bases his claim to the interposition of the Court is doubtful, and in dispute.

It is contended that the injury is too inconsiderable in itself for the Court to take cognizance of this case, and that the statute requires the Court to dismiss every suit concerning property, except between partners or for the foreclosure of mortgages, where the matter in dispute does not exceed one hundred dollars. R. S. 365; Laws 1839, p. 221. This is not a suit to settle the title to property. All the complainant asks is to be protected in the enjoyment of pi’operty, about the title to which there is no dispute. The question presented is, whether or no the defendant shall be allowed to erect a dam on his own land, to such a height as to flow the land of complainant, lying on the river a short distance above defendant’s mill. It *114is not denied, but on the contrary is admitted, that the old dam, before it was carried away by the freshet, caused the water to overflow more or less of complainant’s land. The defendant does not place his defence on this ground, but upon another and different ground, viz: that the land so overflowed, and which will be again, if he is allowed to erect a new dam of the same height with the old one, is of little or no value, and the flowing of it not productive of any serious injury. The evidence on this point is conflicting. Some of the witnesses think it would do little or no injury, while others estimate the damages at from $800 to $500. The extent of the injury, provided there be a substantial injury done, is of no very great importance. Every man has a right to the enjoyment of his property undisturbed by another, and to be protected in that enjoyment; and, what one may consider of little value, another may esteem very highly. The Court will not, in cases of this kind, be governed by dollars and cents alone, but will inquire whether the injury is of such a nature, that it can reasonably be supposed to lessen materially the enjoyment of property by its owner.

The complainant lives on the premises. They are his home. He places a high value on the land, and wants it for a meadow; and he is apprehensive that the flooding of it will generate disease, and render the atmosphere of his dwelling less salubrious.

Injunction made perpetual, with costs.