
    Vaughn vs. Law.
    Where the legal right of complainant is clear, the existence of a nuisance manifest, and the injury of a character not to be compensated in damages, a trial at law is not necessary in order to give a court of chancery jurisdiction in such cases.
    Mitchell erected a dam which caused the water to overflow the land of Vaughn; Vaughn, in an action at law, recovered damages against Mitchell, and by a decree in chancery based thereupon had the dam abated; Mitchell sold his land to Jones; Jones re-built the dam lower down on the same creek, so as to overflow the same land of Vaughn as high as the first dam, and sold to Law without notice of the previous proceedings at law and equity: Held, that law was a privy in estate by the purchase, and stood in the same situation with Mitchell, and that the judgment against Mitchell established the nuisance against him.
    On the 28th day of February,- 1838, Dixon Vaughn filed a bill in the chancery court at Columbia, Maury county, against Samuel Law- Vaughn alleges in his bill that in 1819 or 1820 he purchased and took possession of a tract-of three hundred acres of land on Fountain creek, in Mau-ry county, and in 1824 he procured a deed in fee simple therefor; and that his possession of the premises had been continued from the time he purchased the same till the filing of this bill; that there was but one lasting spring upon the tract; that it furnished cool and wholesome drinking water, and that he erected his dwelling house with a view to the use of the water furnished by the spring, cleared a farm anq ma(je valuable improvements thereupon; that the spring was about thirty yards distant from the creek, in a sink, and had an outlet under ground to the creek; that the creek run in a semi-circle around a portion of his tract, the land lying east of the creek, and the eastern margin of the creek being ‘the boundary of the tract, so that the whole bed of the creek belonged to the complainant, and that since 1819, it had been used and enjoyed by him for stock water and for other purposes; that Mitchell was the owner of a tract of three hundred acres adjoining the tract of complainant on the same creek and next below; that within about three hundred yards of complainant’s lower line, in the year 1824, said Mitchell erected a mill-dam across the said stream; that in consequence thereof the water of the stream backed up so as to overflow said spring, and render the water thereof totally unfit for use; that the water in the bed of the creek upon the premises of complainant became stagnant and foetid, and the health of his family was destroyed in consequence thereof; that a fish-trap of complainant was destroyed thereby; that the creek was rendered inconvenient of passage, and other inconveniences and injuries inflicted upon complainant by the erection of said mill-dam; that not more than thfee quarters of a mile in a straight line above complainant’s premises the¡re was a mill, and there was another within three or four miles below, and two others within four miles of the mill so erected by Mitchell; that in 1824 he instituted an action in the circuit court of Maury county against said- Mitchell for the creation of a nuisance by the erection of said dam, and recovered a judgment against him for the sum of seventy-five dollars, damages; this did not cause an abatement of the nuisance, and at the June term, 1829, in an action subsequently instituted for the continuance of the nuisance, he recovered a verdict and judgment for-the sum of forty-three dollars, damages, and the further sum of forty-three dollars, costs; this did not effect an abatement of the nuisance, and in 1830 he filed a bill in the chancery court at Columbia against Elizabeth Mitchell, relict of said Mitchell, deceased, and all the heirs of Mitchell who had an est in the tract of three hundred acres aforesaid, and in his bill made the allegations above set forth; that this suit was tried at March term, 1833, upon full proof, and that it was then ordered, adjudged and decreed, that as it appeared to the satisfaction of the court that “in ordinary stages of the water in said creek the dam so erected caused the water to set back upon and entirely to cover the complainant’s spring, whereby it had become entirely unfit for use, and that the continuance of said dam would be a material and permanent injury to the complainant, that so much of said dam as caused the water in said creek to set back upon, cover, overflow or drown in any, the least degree, whatever, the said spring, be abated and prostrated;” that commissioners were appointed by the order of the court for the purpose of ascertaining the height at which the said dam might be suffered to remain without overflowing the complainant’s spring; and that said commissioners reported that the dam should be cut clown so as to be four feet high and no more; that said report was confirmed by the court, and the dam cut down accordingly; that in this condition it continued till the year 1837, at which time Stephen B. Jones purchased the aforesaid three hundred and twenty acre tract from Mitchell’s heirs; that said Jones had no other or better title to the land than Mitchell’s heirs had; that he purchased with a full knowledge of the two judgments at law against Mitchell, and the decree of the court of chancery ordering, the nuisance to be abated, as before stated; and that “in the year 1837 he re-built or erected anew the said dam, or a new dam on the said tract of land, across Fountain creek, at the same place where the former dam stood,’’ in contempt of the decree of the chancery court in 1833, and against the protestations of complainant; that said Jones by deed dated the 2d January, 1838, conveyed the said tract of land to one Samuel Law, then a citizen of the county of Maury, and under said conveyance said Law had taken possession the tract of land, and continued the nuisance created by the erection of said dam; that said Law purchased the land with full knowledge of the two judgments at law and the decree aforesaid. The bill alleges further that the injury com-piajneci 0f by the erection of said dam is permanent, and such as admits of no compensation in damages, and prays that the nuisance be abated.
    The defendant filed a demurrer to this bill, and for cause of demurrer sets forth the following, to wit: “It appears, from complainant’s showing, that Stephen B. Jones erected the mill-dam complained of on his land, which said Jones had a right to do, and the complainant had not, by judgment in a court of common law against Stephen B. Jones, established the fact that said Jones had created a nuisance by the erection of the dam aforesaid, nor that said Law had continued the said nuisance; and defendant insists that until complainant shall have established the fact as aforesaid, against the party or parties aforesaid, and settled the rights of the parties, that a court of chancery cannot take jurisdiction of the cause.”
    The complainant joined in demurrer, and on the 24th day of March, 1838, the court overruled the demurrer, and ordered that the defendant have leave to answer.
    Samuel Vaughn filed his answer, and states that he knows nothing with regard to complainant’s title to the tract of land which he claims in his bill, but admits that he purchased, in the fall of 1837, of Stephen B. Jones, a tract of land containing three hundred acres, on Fountain creek, in Mau-ry county, on which is situated the mill and dam spoken of in complainant’s bill, and the mill and dam was then in the condition it was in when the purchase was made by him; and that he was informed and believed that Stephen B. Jones purchased the same from J. D. Mitchell and Edwin Mitchell, two of the heirs of Mitchell, deceased; that he had resided in the county of Maury but a short time, and that he knew nothing of the two verdicts and judgments alleged by the complainant to have been recovered against Mitchell, deceased, and that he knew nothing of the alleged decree in chancery in regard to said dam; th^t J. D. Mitchell and Edwin Mitchell “were minors at the time and date of all the transactions set forth in complainant’s' bill, and insisted that the alleged judgments at law and the decree in chan-eery were void as to them, and did not estop them, or those claiming under them, from contesting the right of complainant to have the dam abated; that the minors aforesaid were poor and necessitous, and that the decree spoken of, was obtained by compromise; that the mill-dam was erected by S. B. Jones, and entirely completed by him before respondent became the purchaser of the land; that it was in the same condition then' as it was at the date of the purchase; that he did not know .with certainty that it was more than five feet high, but supposed it was a few inches higher than five feet; and that he was informed by S. B. Jones, and believes that said Jones built the mill-dam without objection on the part of complainant; that the spring alluded to in complainant’s bill had been abandoned by complainant for years before the building the mill, that a large rock was placed over the mouth of it, rubbish had been washed over it, which so completely stopped it up that the place of its location could not be discovered, and that it was in that condition when Jones erected the dam complained of; that the difficulty of passing the creek after the dam was erected and the alleged destruction of the ford were the chief causes of complaint put forth by complainant after the erection of the dam; and that complainant proposed that if respondent would give him for the injury done the ford the paltry sum of twenty-five dollars he would not institute suit for the alleged nuisance; that the creek was not rendered impassable, and that the health of complainant was not injured by the overflow alleged to have been created by the mill-dam.
    The answer insists that defendant was a stranger to the suits at law and equity against Mitchell and Mitchell’s heirs, aird that they did not bind him; that the dam, for the prostration of which the said suits at law and the suit in equity were instituted, is not the same dam now complained of, and that said judicial proceedings did not establish the existing mill-dam to be an injury to the property or an infringement of the rights of complainant; and that the court had no jurisdiction till the nuisance complained of was established against him by a verdict at law and a judgment thereupon.
    ^ september rules, 1838, the complainant filed a general replication to the answer of the defendant.
    The proof in the eause shows that the complainant and defendant owned respectively the lands set forth in the bill and answer, and were in possession of the same, and that Fountain creek run through them as alleged; that there was but one lasting spring upon the land of Yaughn, which was the one for the overflow of which this bill was filed; that Mitchell built a dam across Fountain creek on his own premises, about three hundred yards below the lower boundary line of complainant’s land, which caused the water of the stream to overflow the spring; that the spring' was in a sink about thirty yards from the bank of the-creek; that the water of the spring was good wholesome drinking water before' the erection of the dam complained of, and that complainant used it occasionally but not constantly before the erection of the dam; that before the erection of the dam the water was injuriously affected by the water of the creek at times when there were swells in it, and that after the erection of the dam the water was totally destroyed and rendered unfit for drinking water; tfiat there was a ford across the creek on the land of complainant, through whieh the complainant was accustomed to pass in going to a mill belonging to his son about three quarters of a mile above the mill of defendant; that this ford, though difficult generally of passage, was rendered more so by the back water of defendant’s dam; that the sickness in the family of complainant had been somewhat increased since the erection of the dam, though no evidence to prove that the increase of sickness may not have been occasioned by other causes was introduced!
    It whs in proof also that the several verdicts and judgments at law against Mitchell were obtained as set forth in complainant’s bill, and that the decree in chancery was rendered ordering that the dam should be reduced in height to eight feet. There was no evidence that Law knew of the existence of the judgments at law or the decree in . pcht» chancery at the time he purchased the property írom b. Jones, who phrchasedit from the heirs of Mitchell, deceased. It appears that the dam was cut down in conformity with the decree; but the dam still affected injuriously to some extent the spring, which was abandoned by complainant; and covered up with rock and rubbish for several years, with thé alleged purpose of keeping stock from falling into it. The dam of Mitchell was broken down by drift-wood after its height was reduced by the decree in chancery, and 'continued in this condition nearly two years. The property was sold in this dilapidated condition to Stephen B. Jones; he removed the fragments of the broken dam and re-erected a new dam at the same place; he knew of the previous judicial proceedings by which the dam built by Mitchell had been abatéd, and proceeded to erect the new dam in opposition to the known wishes of complainant-,.wdro, about this period, uncovered his spring and hung a gourd in the vicinity. Jones put the mill in operation and sold the property to defendant, Law. The dam erected by Jones was higher than that built by Mitchell. Such is the substance of the great mass of testimony in the record.
    At the September term, 1839, the cause came on to be heard upon the bill, answer, replication and proof. The chancellor being of the opinion that Law was a privy in estate with Mitchell; deceased, and with the heirs of Mitchell, and that the dam had been previously decreed to be a nuisance and ordered to be abated so as not to exceed five feet in height above the level of the lower sill and the court regarding the decree so far binding upon all the parties and privies as to placé the burden of proof, to show that it had ceased to be such nuisance, on those who claim a right to erect or continue said dam higher than it was ordered to be in the decree aforesaid and the chancellor, being further of opinion that such proof had not been made, ordered; ad* judged and decreed that said Law abate and lower said dam so that it shall not exceed the height of five feet above the horizontal level bf the lower sill immediately adjoining the mill-house, according to the principles 'heretofore do-dared in the case of Vaughn against the heirs of Mitchell. The defendant appealed.
    
      Pillow, for the plaintiff in error,
    contended: 1st. That the dam complained of was not a nuisance; the proof exhibited wholly failed to establish the charge in the bill that the health of complainant’s family had been destroyed by the erection of the dam, and the spring not furnishing good water at any time, and being injuriously affected by every swell in the creek by its communication therewith, was wholly abandoned and covered up by complainant with rock and rubbish; the injury if any was slight. Lex de minimis non curat.
    
    
      % That the bill did not charge that the dam now complained of was the same dam erected by Mitchell, and abated by a decree of the chancery court as a nuisance; that proof showed that it was not the same dam, but a new and different dam, erected some six or seven years after Mitchell’s dam was built, by a different person and with other materials; that the dam erected by Jones has never been declared by judicial proceedings to be a nuisance. If it be not the identical dam built by Mitchell, and declared a nuisance in chancery based upon proceedings at law, it cannot be regarded as the same nuisance, nor as a continuance of the same, but as the creation of a new nuisance, if it be a nuisance at all. The dam built by Jones may be very different in its nature and effects from that erected by Mitchell. The question as to whether the last erected dam is a nuisance is in issue between the parties; until this question is settled by the verdict and judgment of a court of law, this court has no jurisdiction of the case. Caldwell vs. Knott, 10 Yer. 209. ^Whatever facts may be exhibited in proof, this being a case of ordinary nuisance, the chancellor had no right by the rules of law to determine the fact of nuisance or no nuisance. The verdicts obtained against Mitchell did not establish at law the present dam to be the same nuisance, nor a continuance thereof, though it be admitted that Law is a privy in estate with Mitchell. This is not a technical quibble. The verdicts would be conclusive against Mitchell’s dam. They would not weigh any' thing against a dam erected by Jones seven years afterwards. The then is asked to take jurisdiction of a case of alleged nui-" sanee in which there has been no proceedings at law to determine the rights of complainant; and the question to be determined is, whether this is one of the cases in which a court of chancery will take jurisdiction without previous proceedings at law. He contended that it was not. If the evidence be conflicting and the injury doubtful, this alone will be sufficient reason for withholding the interposition of a court of chancery. 2 Story’s Eq. 204. The injury must not have been already inflicted; it must be impending, or the party complaining will be turned over to a court of law.
    3. The injury must be such as cannot be compensated in damages; a mere diminution of the value of property by the nuisance, without irreparable mischief, will not furnish any foundation for equitable relief. Attorney General vs. Nichol, 16 Yes. 342: Winstanly vs. Lee, 2 Swans. Rep. 336: Earl of Kipon vs. Hobart, 3 M. and K. 179. He contended, therefore, that the present case was not such as would justify a court of chancery in assuming jurisdiction in the absence of a judgment at law establishing the nuisance complained of.
    
      Nicholson, for defendant in error.
    The court below acted correctly in overruling the demurrer.
    1. The bill charges that “Jones proceeded to re-build or erect anew the said dam or a new dam on the said tract of land at the same place where the former dam stood.” This language is explicit as to the identity of the nuisance complained of with that ordered by the court in 1833 to be abated; and the defendant, Law, standing in the relation of a privy in estate, could not require the fact of nuisance or no nuisance to be again submitted to a jury. The defendant was affected with notice of the two judgments at law and the decree of the chancery court, they being matters of record, and therefore cannot set up any want of actual notice.
    2. The fact of nuisance having been established by the actions at law, and the decree abating the dam being matter record, the defendant was not only effected with notice thereof¿ but, upon assuming the relation of a privy m estate, must submit to all the consequences attendant upon the matters of record. The record established the fact of nuisance as against Mitchell and his heirs; of course the purchaser from Mitchell’s heirs would take the land subject to the consequences of this recorded fact, and would occupy the same position with the heirs of Mitchell. The decree of the chancery court abated the dam and enjoined the heirs of Mitchell from re-building it; of course the purchaser from the heirs of Mitchell would take the land with this injunction attached to it. The power to abate nuisances and restrain men from erecting them is of no avail if it can be avoided and evaded by a mere transfer of the land. The virtue of the injunction, to.be sufficient, must accompany the transfer and attach to the purchaser as well as to him against whom it was pro.-, nounced. It was the opinion of the court below, that the judgment in 1833 was so far binding upon the parties and their privies, as to place the, burden of proof; to show that it had ceased to be such nuisance, on those who claim a right to re-erect or continue, said dam. It might happen that a spring, that was once valuable would cease to run altogether, and to, cover it with back flowage would therefore be no nuisance; but there can be no pretence in this case, that the.spring ceased to run or be valuable; the proof is abundant to the contrary.
    3. It is insisted, that after the prostration of the dam in 1833, the spring was abandoned by complainant. The proof does not show an abandonment of the spring. The reason for the non-user of the spring whilst the. dam was five feet high is proved, to wit, because it still flooded the spring. If the defendant desired to avoid the effect of the decree in 1833 it rested upon him to show a- clear and permanent abandonment of the spring and an acquiescence in its- destruction. The. right of complainant to his spring was as perfect as his right to his land; whether he chose to use it or not, his right to its use could not be barred except by an express license to destroy it, or such an acquiescence in its destruction as would show a total and permanent abandonment of it to the use of another. If no such license be shown, then no abandonment for a less time than seven years,' and an actual destruction of it during that period, ought to raise even a presumption against his right. No such license or acquiescence is shown; on the contrary, so soon as Jones commenced building the dam Vaughn hung out his gourd as notice that his spring was not abandoned.
    4. It is urged that the present dam across Fountain creek is not the same darn against which the decree of 1833 was. pronounced; that it was made at a different time by a different person and with different materials. From this it is argued that it is not the same nuisance but a new nuisance, which is the proper subject matter for an investigation before a jury with a view to the settlement of the rights of the parties at law. It is admitted that both dams were erected at the same place, and it is not controverted that the present dam is higher than that built by Mitchell, and backs the water 'farther up the creek; and yet it is insisted that the nuisance thus created is a new nuisance! The dam which creates the nuisance .is confounded with the nuisance itself; Mitchell’s dam flooded complainant’s spring, and thereby produced a nuisance; Law’s dam flooded complainant’s spring, and thereby produced a nuisance; both dams create the same nuisance, yiz. .the flooding of the spring. The verdicts of the juries in the one case would properly settle the rights of the parties in the other, and would give a court of chancery juris die-; tion of the, cause.
   Geeen, J.

delivered the opinion of the court.

This bill is filed to have a nuisance abated. The defendant has a mill, the dam of which is raised so high as to overflow the only spring- of complainant and destroys the water. The land now owned by defendant was formerly owned by one Mitchell, who first erected the mill and dam. In 1824 the complainant recovered of Mitchell, in an action at law, damages for an injury done his spring by the erection of said mill-dam. In 1826 complainant prosecuted a second action for a continuance of the nuisance, and obtained another judgment. In 1830 complainant filed his bill praying that the nujgance abated. in 1833 a decree was rendered that the ¿am should be cut down, so that the pond should not overflow the spring. The dam was cut down and so remained until Mitchell sold his land to one Jones, who, in 1837, proceeded to re-build the dam, and then sold the dam and mill to defendant, Law. The complainant sets forth these facts in his bill, and prays that the said nuisance be abated. To ibis bill there is a demurrer, on the ground that complainant should have established the existence of the nuisance in an action at law; and that not having done this, a court of chancery has no jurisdiction of the case. This demurrer is not well taken. If an action at law and a verdict of a jury were necessary in the first place to establish the existence of a nuisance, the suit and judgment against Mitchell for this same nuisance stand on record, and as effectually establish the fact against this defendant as against Mitchell, from whom he derives his title. Having placed himself in the relation of a privy in estate, he must submit to all the consequences of this recorded fact, as by purchasing the land from Mitchell he places himself in the same position in reference to this matter. But the counsel have misconceived the case of Caldwell vs. Knott, 10 Yer. Rep. 209. In that case the defendant urged a verbal license on the part of the complainant’s ancestor to build the mill; that it had been erected, and the spring overflowed for ten years before the bill was filed. Under these circumstances the court said the right of the complainant was not clear, and the length of time the mill had existed, together with the other facts proved, made it questionable whether the defendant had not acted under a license in the erection of his mill. It was therefore determined, that before a court of' chancery would take jurisdiction in such a case, the existence of the nuisance must be established at law. But in a case where the right is clear and the existence of the nuisance manifest, and the injury is of a character that cannot be compensated in damages, a court of chancery interposes to prevent the mischief. In such case a trial at law is not necessary in order to give jurisdiction. On an examination of the case of Caldwell vs. Knott, it will be perceived that there is nothing in that case opposed to the views above taken. The demurrer was properly disallowed, fore, upon either of the foregoing grounds.

The proof amply sustains the allegations of the bill. The spring which is overflowed is the only one on the plantation of the complainant. It is true he did not use it for a considerable time. Why he did not is left to conjecture; but that can make no difference. He did not acquiesce in the destruction of it by the defendant’s pond; and if he were deprived of its use he would be entirely dependant upon the pleasure of his neighbors for water. Indeed we do not see why the complainant did not proceed against the defendant for contempt for the violation of the former decree instead of filing this bill.

Let the decree be affirmed.

Noíe. — Tenant for years erected a nuisance and afterwards made an under-lease to J. S. The question was, whether after a recovery against the first tenant for years for the erection, an action would lie against him for the continuance after he had made an under-lease. Et per cur. it lies, for he transferred it with the original wrong, and hisdemise affirms the continuance of it; he hath also rent as a consideration for the continuance, and therefore ought to answer the damage it occasions. Rosewell vs. Prior, Salk. 460. Receipt of rent is upholding. Cro. JU. 373, 555. The action lies against either, at the plaintiff's election.  