Beveridge v. Lacey 3 Rand. 63, 24 Va. 63

*Beveridge v. Lacey.

November, 1824.

Equity Jurisdiction — Public Nuisance.* — A Court of *476Equity will not correct abuses merely public; and therefore, it will not interfere to prevent a public nuisance, unless the party asking'its aid, can shew that some private injury is actually sustained or justly apprehended by him. .

This, was a suit brought by Lacey, in the Winchester Chancery Court, to injoin and restrain. Beveridge from digging or causing to be dug, the ground in one of the streets in the town of Middleburg, in Loudoun county. The bill states, that the said street runs by the complianant’s house and lot; and that the ground, which the defendant is digging, under pretense of levelling the said street, will weaken and injure the foundation of his said house, and greatly lessen the value of his property, and make it necessary, in order to get from the complainant’s house into the street, to have divers steps made, to descend the bank.

The injunction was awarded.

The answer of Beveridge states, that the defendant, as early as the year 1814, did cause to be cut down one side of the street, on which the house of the complainant is situated, that is, the side next the defendant’s property, with the free consent-of the complainant, who then undertook to cut down and graduate the other side, so as to suit his own views; but in a way to give regularity and uniformity to the street, which, as then left, was in an unsafe and unseemly state; that, after waiting so long a time for the complainant to comply with his undertaking, the defendant proceeded, at.his own expense, to take down the other side of the said street, at which the complainant expressed much anger, pretending that he was fearful that his property would be injured by the manner in which the work would- be done; that to relieve him from that apprehension, the defendant directed his labourers not to approach nearer to the building of the complainant, than ten *feet, leaving the slope to be made of so much on that side of the street, by the complainant, in any manner he might choose; and in this way, the work was going on, until stopped by the injunction of the complainant; that the house of the complainant is situate on a lot at the intersection of the main and a cross street; and the main street having been previously cut down, the defendant was bringing the cross street nearly to its level, so as to form a gentle slope down the cross street over the main one, or down it, corresponding with the face of the circumjacent grounds; that the defendant was greatly incommoded by the abruptness of the street, in his business, which was mercantile; and the digging contributed to remove this inconvenience, without injuring the complainant; that the complainant himself assisted the defendant in cutting down the bank, after he had commenced the work; and he prays that the injunction may be dissolved, and the bill dismissed.

A motion was made to dissolve the injunction, and denied.

Depositions were taken, which established that the distance from the place where Beveridge was digging, to the property of Lacey, was ten feet and a half, and that Beveridge gave positive orders to his servant, not to dig nearer to Lacey’s property, than the distance above mentioned; that the said digging would be a benefit to the street and the public at large, as it was dangerous, on account of the high bank, for carriages and waggons to pass; that the main street had been cut down before by the road company, which had left a high bank to be ascended, in getting into the cross street, between Lacey’s and Bev-eridge’s property; that the cutting would not have diminished the value of Lacey’s property, but, on the contrary, would enhance it; that Lacey consented, that Bev-eridge might dig to a certain mark, which he has not encroached upon; &c.

The Court decreed, on a final hearing, that the injunction be perpetuated, and that each party should pay his *own costs; from which decision, the defendant Beveridge appealed to this Court.

Leigh, for the appellant.

The nuisance complained of is a public nuisance, and the party complaining, must shew a specific injury to himself, or he cannot support his application to a Court of Equity. Hind’s Ch. Prac. 591. The. evidence proves, that so far from an injury, it is a benefit to Lacey. No individual has a right to obstruct improvements, which are to produce a public benefit. This work is not a nuisance, because nothing deserves that name, which renders a street more commodious. 3 Bac. Abr. tit. “Highways,” letter E. p. 497. Besides, wherever there are trustees appointed, the Court of Chancery never interposes; and here there were trustees. Atto. Gen. v. Foundling Hospital, 4 Bro. Ch. Cas. 165.

Johnson, for the appellee,

relied on the Chancellor’s opinion (which was contained in the record,) and contended that this was not a nuisance of a public nature, but one which affected his private property.

November 25.