Burnett v. . Nicholson
Supreme Court of North Carolina
MotioN by defendants heard at January Special Term, 1878, of Halifax Superior Court, before Schenck, J. The material facts appear in the opinion.
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MotioN by defendants heard at January Special Term, 1878, of Halifax Superior Court, before Schenck, J. The material facts appear in the opinion. The defendants moved to have the damages alleged to have been sustained by them, by reason of the issuing of a restraining ■order, assessed by a jury; which motion was refused by His Honor, who held that if they were entitled to damages, their remedy was by an action for malicious prosecution which would not lie until final judgment in'this cause, from which ruling the defendants appealed.
1Opinion of the Court
’Smith, C. J.
The plaintiffs were the owners of a public grist mill on the waters of Pishing creek and brought their .action to restrain the defendants from constructing a dam and erecting another mill on the same stream about eleven hundred yards below, on the ground that the water would be ponded back and interfere with or obstruct the operations of their mill and that the public health would be also ■endangered. On application to the Judge for an injunction lie appointed a time and place, of which notice was to be given the defendants where he would hear the motion, and meanwhile he issued…
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