Joyner v. Conyers. of working the land, but that the timber was cut for the express purpose of being sold; and amounted to waste. The prayer of the bill is, that the said slaves, Lucy and Peggy, and their increase, may be decreed to be delivered up to the plaintiff, W. H. Joyner, the administrator de bonis non of Thomas Y. Yarbrough, that the same, with the hires of the said slaves, since the death of Polly Richards, may be divided among the plaintiffs, according to the provisons of the will, and for that purpose, that a sale of the said slaves shall be ordered, and an account of the hires. The bill further prays for a proportionate share of the land-damages and a compensation for damage and waste done to their estate in remainder. The answers being by persons in their representative characters, do not affect the questions involved. At December Term, 1859, this Court ordered an account of the estate of Thomas Y. Richards, in the hands of his executrix, Polly Richards, to be taken by the clerk of this Court, and at the present term, Mr. Freeman reported "that on the 21st of March, 1832, when the girl, Lucy, was sold, the executrix had assets more than sufficient to pay the debts of her testator, together with all the expenses attending the same, and also, that on the 8th of September, 1834, when the girl, Peggy, was sold, she had more than sufficient to pay the debts of her testator." There was replication to the answer and proof taken, and the cause was set down for hearing on the bill, answer, exhi. bits, and former orders, and sent to this Court. J. J. Davis and W. F. Green, for the plaintiffs. MANLY, J. When this cause was under the consideration of the Court at December Term, 1859, the sale by the executrix, Polly Richards, of the girl slaves, Lucy and Peggy, and the buying them back again, in a short time afterwards, was of so suspicious a character, that an account was ordered of Joyner v. Conyers. the assets of the estate, that we might see whether the sale was necessary to pay debts. The report of the clerk, at this term, negatives the supposition that it could have been for the purpose of raising assets to pay debts. The assets, in hand, were already abundantly sufficient for that purpose. It could have been, therefore, only for the purpose of changing the title. As the executrix was to have a life-estate in these girls, with an interest in remainder limited over, she had a motive for desiring to change the estate which she held. No form of a sale, without necessity, under the influence of such a motive, could effect her object; the estate remained the same. The facts of the case, and especially the significant one disclosed by the report of the clerk, constrain us to hold the sale of both the slaves, Lucy and Peggy, inoperative and void. They, and their offspring, must be accounted for and surrendered to the administrator de bonis non of Thomas Y. Richards, to be accounted for, by him, with the persons entitled in remainder. There must, also, be an account of the hires of the slaves since the death of Polly Richards. With respect to the damages recovered by Polly Richards, the tenant for life of the land, from the Raleigh and Gaston Railroad company, we are of opinion the plaintiffs are also entitled to an account. By the condemnation of the land, under the provisions of the charter of the road, the company acquired an easement, in the same, for 99 years. The $150 assessed as damages, were not assessed, we take it, for the injury done alone to the life-estate, but to the estate in remainder also. The persons, therefore, in remainder, are entitled to a part of this fund, viz., such an amount of the same as will be proportional to the period of time for which they suffer the incumbrance. This, we mean, is the general rule applicable to cases of this sort. There may be special cases in which other elements will properly enter into the calculation; as, for instance: The special location of the road might affect, materially, the calculation of relative damage. If it ran through Clark v. Lawrence. the yard of the tenant for life, the rule would not do the tenant full justice, while, if it went through a remote woodland, it would do more justice. It is referred to the clerk to enquire and report to what part of this sum of $150, the persons in remainder are entitled. It is also alleged, that there was a waste of the land by the tenant for life, by cutting timber, not needed for the estate, but-which was cut for market. The clerk may make enquiry into this matter also and report results. PER CURIAM, Decree accordingly. HENRY S. CLARK against DAVID LAWRENCE, Trustee. Whenever it can be clearly proved that a place of sepulture is so situated that the burial of the dead there, will endanger life or health, either by corrupting the surrounding atmosphere, or the water of wells or springs, a court of equity will grant injunctive relief. Where a bill was filed, praying to have a nuisance abated, and for an injunction to restrain the defendant from erecting it in future, and the act complained of was of the character of a nuisance, but the testimony was not sufficient to satisfy the Court that it amounted to a nuisance in the particular case, the Court directed an issue to be tried in the superior court, to determine the fact. CAUSE removed from the Court of Equity of Pitt county. The bill is filed to obtain an injunction to restrain the defendant, who is the trustee of the Baptist congregation in the town of Greenville, from permitting the church yard to be used as a cemetery. The lot in question, adjoins the lot upon which the plaintiff's dwelling house is situated, and was purchased by the Baptist congregation about the year 1827, the plaintiff's lot being at the time unoccupied and unimproved there being no house Clark v. Lawrence. upon it until the year 1845. At the time the plaintiff purchased his lot, which was in the year 1850, there were only two graves on the lot in question, and these were in the part most remote from his dwelling. In December, 1857, there were two burials of dead bodies on this lot, about three feet from the boundary line of the plaintiff's lot, and about thirty-five feet from one well, and seventy-two from another, from which he supplied himself and family with water. These dead bodies were deposited in wooden coffins, and buried to a depth of three or four feet, and in one case the grave was lined at the bottom and up the sides with brick and cemented. The soil was of a mixture of clay and sand, and the ground sloped from the graves towards the plaintiff's wells, which, together with his dwelling house, were situated in a northerly direction from the grave yard.The bill alledged that this situation exposed himself and family to the effluvia arising from decaying bodies, and which the south winds that generally prevail in summer, will bring directly into his house, by which the health of plaintiff's family and the value of his lot will be irreparably injured. The bill further alleges that the quality of the water in plaintiff's wells, has been so impaired by their close proximity to these graves, as to render them unfit for use. This fact is denied by the answer. There was evidence to show that the water in the plaintiff's wells had formerly been good, but that it is now very bad. There was much other testimony, which, in the view taken by the Court of this case, it is not deemed necessary to set out. The cause being set down for hearing upon the bill, answer, exhibits and proofs, was transferred to this Court by consent. Rodman, Shaw and J. H. Bryan, for the plaintiff. BATTLE, J. The jurisdiction of the court of equity to restrain by an injunction, the erection or continuance of a nuis Clark v.. Lawrence. ance, either public or private, which is likely to produce irreparable mischief, is well established. It is equally well settled that the destruction of, or injury to the health of the inhabitants of a city or town, or of an individual and his family, is deemed a mischief of an irreparable character. In the case of a city or town, where the apprehended injury is clearly proved, the court will not hesitate to grant the injunction, even against the erection or continuance of a water grist mill, though such mills are generally deemed of public benefit, and the building of them has been encouraged and protected by our statute law. See Attorney General v. Hunter, 1. Dev. Eq. 12; Attorney General v. Blount, 4 Hawks' 384. In the case of a private nuisance, caused by a mill pond, the court will interfere indeed, but with more caution and hesitation, both because the public benefit arising from the mill is opposed to the private interest of an individual, and because, where the land of the individual is overflowed, as in most cases it will be, and the damages assessed by a jury therefor, exceed twenty dollars, the party may, at law, by repeated actions, compel an abatement of the nuisance; Eason v. Perkins, 2 Dev. Eq. 38; Barnes v. Calhoun, 2 Ired. Eq. 199.See also, Spencer v. London and Birmingham R. R. Co., 8 Simons, 193. The same principle which would excite into activity the restraining power of the court, where the health of the community, or of an individual member of it, is in danger of being destroyed or impaired by a mill pond, will be equally ready to interpose its protection, when a similar danger is threatened from the establishment of a cemetery in a city or town, or very near the dwelling house of a private person.This, we think, was recognised in the case of Ellison v. The Commissioners of Washington, 5 Jones' Eq. 71, thongh the decision in that case, on account of its peculiar circumstances, was averse to the application for the injunction. In cases of this kind, the plaintiff will not have to encounter the difficulty that a place for the burial of the dead, within the limits of a city or town, or near the residence of a private |