1. It is the general course of the court of equity, on applications to restrain private nuisance by an injunction, to order an issue at law to ascertain the fact of the existence of such nuisance before the court will act.
2. Where a party has no particular interest in an alleged nuisance from the ponding back of water, he cannot sustain a bill for an injunction, but must rely on the remedy by information in the name of the Attorney-General.
PEARSON, C J.
Treating the bill as a proceeding for an injunction against a private nuisance, we are of opinion that the plaintiffs, William Frizzle and Warren Frizzle, are concluded by the deeds which they executed to Joel Patrick and Lewis Pugh, for the parcels of land on the north and south sides of the creek, for the express purpose of enabling them to erect a dam, and pond back the water in order to get a head of water sufficient to run a mill; so they cannot be heard to complain against their own deed. In regard to the flat, if there has (357) been a breach of contract on the part of the defendants, the remedy at law is adequate, and certainly a breach of contract, in that particular, is not a sufficient ground to induce a Court of Equity to interfere by its writ of injunction.
In the case of a private nuisance, the rule in this Court is, that the fact of nuisance should be established by an action at law before an injunction will issue, with certain exceptions as in Clark v. Lawrence, ante, 83, where an issue was ordered on the fact of nuisance or no nuisance. This comes within the general rule, and we can see no ground on which to make it an exception and direct an issue, unless the rule is to be disregarded altogether. They have been paid for the privilege of erecting a mill at the site set out in the proceeding, and are concluded in respect to a private nuisance. The other plaintiffs, Jesse Hart and Charles Rogers, show no particular interest in this matter, and must stand like any other citizens who are objecting to the erection of a public nuisance. In other words, they must file an information in the name of the Attorney-General, setting forth their reasons for believing that the defendant, Patrick, is about to commit a public nuisance, and making that the ground for asking the interference of this Court by its writ of injunction. Decretal order of the Court below reversed and injunction dissolved.
PER CURIAM. Decree accordingly.
Cited: R. R. v. R. R., 88 N.C. 82.
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