An injunction against building a mill-dam will be granted if it appears the complainant will be injured thereby; and although the injunction be dissolved upon the coming in of the answer, relief will be decreed to the extent of the injury occasioned, by compelling the defendant to reduce the height of his dam.
A bill in equity was exhibited to the Court for the purpose of obtaining an injunction against the building of a mill, by which means it would overflow the plaintiff's lands above. The defendant owned the land on both sides of the watercourse.
It was doubtful with OVERTON, J., whether it should be granted, as it appeared that the overflowing would do very little if any injury. It is a principle of law that every man must so use his own property as not to injure another.
It will however be recollected that mills are a public benefit, and we should not therefore discourage the building them. In such cases, where the damage is minute, I should be inclined to leave the parties to their remedies at law, summum jus is never favored in this court. There should be some material probable injury to authorize this court to interfere.
Co. Lit. 200 b; 4 Mass. 576; 3 Cain. 307; 4 Dall. 211.
WHITE. J. —
There can be no distinction between smaller and larger injuries. If the erection of the dam overflow any of the complainant's lands, though ever so little, the defendant ought to be restrained.
OVERTON, J.,
consented that an injunction might issue, and upon the coming in of the answer the Court would be better able to decide. Afterwards, upon the answer being filed, the injunction was dissolved.
At May term, 1809, on its being made appear that the plaintiff's lands were overflowed, the Court decreed that the defendant should reduce the height of his dam, so as to permit the water within the bounds of the plaintiff's land to run without obstruction in its usual course. The counsel cited the following authorities: 1 Ves. Jr. 140; 1 Ves. 543; 1 B. C. C. 574; 3 Atk. 726; 2 Ves. 356.