Miller v. Trueheart

Holding

Miller exhibited a bill against Trueheart and others in the superiour court of chancery of Richmond, setting forth, that Trueheart and others, in the year 1815, erected a mill and mill dam on a branch of Deep creek in the county of Powhatan, only 1925 yards, and in a south western direction, from Miller’s dwelling house; that the mill pond covered ten or twelve acres of land; that Miller’s dwelling place, always before the erection of the mill dam, and the stagnation of the waters thereby, had been as healthy as any in that part of the country, but immediately afterwards, it became and continued to be for many years, extremely sickly, and his whole family were afflicted with severe bilious diseases every year; that Miller imputed this remarkable change, and it was imputed by intelligent physicians and others well acquainted with the localities, and was no doubt justly imputable, to the effluvia from the stagnant waters of the mill pond; that in 1823, Miller brought suit against Trueheart and others for the nuisance, in the circuit court of Powhatan, and in 1824, having, on a full and fair trial, proved the injury sustained by him to the satisfaction of a jury of the country, recovered a verdict .and judgement for 400 dollars; that about the same time, the mill dam was carried away hy a fresh, and the pond drained, and thenceforth, Miller’s dwelling place was restored to its original salubrity; but that Trueheart and others were now about to repair and rebuild the mill dam, and if they should be permitted to do so, Miller had the strongest reason to fear, and did apprehend, that the severe visitations of disease, with which he and his family had been afflicted during the former continuance of the mill and mill pond, would be repeated, and his dwelling place rendered unsafe for habitation ; and that this was an evil for which he could not be compensated by any damages which a jury could assess: therefore, he prayed an injunction to inhibit Trueheart and others from proceeding to repair and rebuild their mill dam &c.

The injunction was awarded.

Trueheart and others, in their answer, suggested, without positively asserting, that their mill and mill dam had been erected, in the first instance, by leave of court; for they said (what would have been wholly impertinent if they had not obtained such leave) that the mill dam having been carried away, as stated in the bill, they were proceeding to repair and rebuild the same, as they had lawful right to do, according to the provisions of the statute.* And they insisted, and affirmed, that it was the general opinion of persons most competent to judge on the subject, that the injurious effects upon the health of the neighbourhood, and especially on the salubrity of Miller’s dwelling place, were owing solely to the number of trees standing in the pond, deadened by being overflowed with the water, and gradually decaying 5 and that, in order to obviate the mischievous effects complained of by Miller, they proposed, and had begun, to cut down and remove the dead trees, and to clear away and burn all the rubbish and vegetable matter, from the bed of the mill pond, and so to remove the only cause, as they said, of any injurious effects to the health of the neighbourhood.

Miller exhibited with his bill, the record of his suit against Trueheart and others, in the circuit court of Powhatan, and many depositions of witnesses, taken and read in that cause. And it was proved, by the evidence of many witnesses, that, before the erection of the mill dam, Miller’s dwelling place had been uncommonly healthy, and never subject to bilious fevers. An aged woman who had lived near by for fifty years, and reared many children, deposed, that her own dwelling place, and Miller’s, had been, for all that time, and until the erection of the mill dam, uncommonly healthy, and since the dam was erected, uncommonly sickly. Five physicians were examined, who were uniform and clear in the opinion, that the sickness in Miller’s family during the continuance of the mill dam and mill pond, was caused by effluvia from the pond: two of these who had practised in Miller’s family, described the sickness as unprecedented ; that there were not enough of the well to wait on the sick; that, of the family consisting of forty-five persons, thirty-two were down at a time; and that between 1815 and 1823, four of Miller’s family, and a son among them, died, as these physicians believed, from the pernicious effects of the mill pond. And it was proved also, that since the dam had been carried away, and the pond drained, the former salubrity of Miller’s dwelling place had been restored.

The chancellor, on the motion of Trueheart and others, dissolved the injunction, but reserved liberty to the parties to apply again to the court, the plaintiff to reinstate the injunction, or the defendant to have the bill dismissed with costs : saying, that it would be his duty to require proof, if insisted on, of the matter in the answer not responsive to the bill, namely, that all the dead timber and rubbish in the bed of the mill pond, had been or would be removed or burned, before the ground should be again overflowed by the mill pond; and that he himself was inclined to think that the defendants were correct as to the effect of such precautions; but that they must proceed at their own peril, both as to cause and effect.

From this order, upon the petition of Miller to this court, an appeal was allowed him.

Case Coverage

• Stuart A. Raphael, What is the Standard for Obtaining a Preliminary Injunction in Virginia?, 57 U. Rich. L. Rev. 197 (2022).

  Footnote example of a 19th century case citing English chancery rulings from before and after 1776 without revealing whether it considered those precedents binding or persuasive.