
    CUNNINGHAM vs. RICE.
    The doctrines of Mygatfc and others vs. Goetchins, (20 Geo. Rep. 350,) reviewed and re-affirmed.
    In Equity, in Eloyd superior court. Decision by Judge Hammond, at chambers, Dec. 9, 1858.
    The defendant in error, John H. Rice, filed this bill to enjoin plaintiff in error, 0. T. Cunningham, from erecting a steam flouring mill in the city of Rome.
    The allegations of the bill were, that complainant’s residence was about 300 feet from the site of the proposed mill — a street intervening — that said mill would be a nuisance to complainant — the smoke, sparks and soot therefrom would greatly disturb and annoy himself and family, and seriously diminish the value of his property.
    The bill was sworn to and supported by the affidavit of a number of respectable and intelligent citizens of the city of Rome.
    The Chancellor granted the injunction.
    Defendant fi.ed his answer admitting the facts as to his intention to build said mill, and the situation of the premises as stated in complainant’s bill, but denying that said mill would be any nuisance or injury to him or his property, and that his fears and apprehensions in relation to the injury and annoyance from the sparks, smoke, noise and soot, were imaginary and fanciful — that defendant’s own residence was nearer the site of the proposed mill than complainant’s ; and that if he thought or believed that it would do complainant any injury he would not build it.
    Defendant, in support of his answer, had the certificate of a number of respectable citizens of Rome, to the effect that in their opinion'the proposed mills would not injure complainant’s property; and that the annoyances contemplated from the erection of said mills, would not, in their judgment, be experienced by him. Upon the filing of his answer, defendant moved to dissolve the injunction. The court overruled the motion and held up the injunction and defendant excepted.
    Underwood & Smith, for plaintiff in error.
    T. W. Alexander, contra.
   By the Court.

Lumpkin J.

delivering the opinion.

In Mygatt et al. vs. Goetchius, (20 Geo. Rep. 350,) this court held that when taking the bill and answer, the structure complained of will not prima facie, constitute a nuisance — the injunction will not be continued; but that the party will proceed at his peril — the whole subject being under the control of the jury at the hearing.

We re-affirm the doctrines of that case, and agree that it fully covers and controls this. Indeed, this is a much weaker case than that.

Judgment reversed.  