#### MRS. M. G. JONES v. R. G. LASSITER and the CITY OF RALEIGH.

(Filed 3 November, 1915.)

1. Injunction — Public Benefits.

Tbe construction of public utilities, or works for public benefit, will not be restrained at tbe suit of private individuals, unless tbe damages caused thereby are both serious in amount and irreparable in character; and where a contractor for paving streets of a city with a combination of asphalt and concrete has located his mixing and heating apparatus near the boarding-house of the plaintiff, and it is found by the trial judge that the location was a proper one for the character of the work, which was for the public benefit, and that the defendant was able to respond in damages for the injuries caused, an order restraining his work to the final hearing will be denied.

2. Same — Main Belief — Prima Pacie, Case — Trial by Jury.

Where relief by injunction is the principal remedy sought in a suit, the courts will generally continue it to the hearing upon plaintiff’s making out a prima facie case; but this rule has no application where important public works and improvements are sought to be stopped, for in such instances the courts will ordinarily let the facts be found by the jury before interfering by injunction.

Appeal by plaintiff frdm an order o'f Cooke, J., dissolving an injunction, at tbe September Term, 1915, of "Wake.

Douglass & Douglass for plaintiff.

Armistead Jones & Son, B. H. Perry for Lassiter.

BeowN, J.

This action is instituted to recover damages for alleged injury to plaintiff’s property, bealtb and business, caused by tbe operation of an aspbalt mixing plant near ber residence in tbe city of Raleigb, and to perpetually enjoin tbe defendant Lassiter from tbe operation thereof.

On 14 October, 1914, Lassiter entered into a contract with tbe city of Raleigb to pave its streets with a combination of aspbalt and concrete, carried through a high beating process, and required to be under a sufficient beat at tbe time of laying same upon tbe streets, and it was necessary that tbe plant be located as near to tbe streets to be improved as practicable, so that tbe beat, to a high degree, might be retained in transit to tbe street.

*751The defendant Lassiter located his plant npon the right of way of the Seaboard Eailway, in the midst of various shops and foundries there situated, and about 175 feet from plaintiff’s dwelling. The judge below finds (1) that the gritty dust that came from the grinding of the stone, when the wind was blowing from a northern direction, was thrown upon and against her house and furniture, thereby greatly damaging her property; (2) that the throwing out of the said fine particles of dust and the emission of smoke was a menace to her health and others in her dwelling-house, and which was being used as a boardinghouse, and that because of the condition referred to her boarders were threatening to leave, which would seriously affect her means of securing a livelihood; (3) that the fine particles of gritty dust and smoke being blown into, her eyes have produced soreness in one of her eyes, which will at least become chronic if the condition continues. It is admitted that the defendants are solvent and fully able to respond in damages'for any amount that may be recovered.

The court also finds that the machine is in the most fitting location to accomplish the important work of building the streets, and that to stop the work would greatly interfere with the public good. An injunction until the final hearing was refused, but the injunction is made effective on and after 1 January, 1916.

The right to grant an injunction effective on that date is not before us, as defendants did not appeal. It has been repeatedly held by this and other courts that the construction or use of public utilities will not be enjoined at the suit of private individuals, unless the damage is both serious in amount and irreparable in character. It is against public policy to restrain industries, public improvements and enterprises prosecuted for the public good and that tend to develop the country and its resources. Waste Co. v. R. R., 167 N. C., 340; Griffin v. R. R., 150 N. C., 312; Berger v. Smith, 160 N. C., 205. Private rights must sometimes yield to the public good, certainly upon compensation.

It is true that when the injunctive relief sought is not merely ancillary to the relief demanded, but is, itself, the principal relief sought, the courts will generally continue the injunction to the hearing upon the making out of a prima, facie ease. Marshall v. Commissioners, 89 N. C., 103.

But this rule does not hold good 'in cases where important public works and improvements are sought to be stopped. In such matters, in the interest of the public good, the courts will let the facts be found by a jury before interfering by injunction. The right of this plaintiff to recover damages for her alleged injuries is not now before us.

Af&rmed.