the case cited, which, "with the utmost diligence" on the part of the assignee of the judgment, cannot be discovered, because "He has not any object to which he can direct his inquiries." In the light of these views, we think the ground taken for the reversal of this decree is not maintainable, and this opinion is, to the fullest extent, sustained by the views expressed by the Supreme Court of Vermont in the case of Heartt v. Chipman et al. (2 Aiken R. p. 166,) determined by that court. And finding no error in the record, the decree must be affirmed with costs. CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF ARKANSAS, AT THE JANUARY TERM, A. D. 1853.* MARTIN ET AL. EX PARTE. The Constitution of this State contains no provision that private property shall not be taken for public use, without just compensatian; yet, this prohibition, upon the Legislature, is implied from the nature and structure of our government, even if it were not embraced by necessary implication in other provisions of the Bill of Rights. The right of eminent domain is inherent in the government or sovereign power, and equally so is—or ought to be—in every government of laws, the vested right to his property in the citizen, and the right of eminent domain, means that when the public necessity or common good requires it, the citizen may be forced to sell his property for its value. The court express the opinion that the prohibition upon the power of the Legislature to take private property for public use, without providing for just compensation to be first made to the owner, is implied, and necessarily implied in the preamble to our constitution, and in several articles of the bill of rights. Though the Legislature has power to provide for the taking of private property for useful and necessary public purposes, it is bound to provide a fair compensation to the individual whose property is taken, and until a just indemnity is afforded to the party, the power cannot be legally exercised. The act of the General Assembly of January 6th, and the act supplemental thereto, NOTE-The Judges being indisposed, there was no court at the July Term, A. D. 1852. Martin et al. Ex parte. of January 10th, 1851, providing for the reclaiming of swamp and overflowed lands by levees, drains, &c., make no provision for the compensation of individuals for property taken or injured in constructing such levees or drains, and hence the Swamp Land Commissioners, their agents, &c., may be injoined from constructing a levee that will obstruct the drain of waters from the lands of an individual, cause them to be overflowed, injure the health, &c. Where the rights of the individual, claiming to be injured, are not concluded by a just compensation awarded for the loss or injury to his property, the agents of the State are liable, in damages, for the trespass or waste committed; and where this amounts to a nuisance, liable to continue, or the damages from it are likely to be irreparable, an injunction may be granted to restrain the act complained of, or by decree, the nuisance, if erected, may be abated. This jurisdiction is one inherent in the powers of a court of chancery. But it ought to be exercised with caution. Where the undertaking is of a public nature, or where great expense has been incurred, if of a private nature, an injunction to stop it will not be granted without a reasonable notice to the defendant; and then the chancellor may well hear affidavits in support, or denial of the allegations of the Bill. Application for Mandamus. On the 9th December, 1852, John Martin and Hugh Martin presented a bill for injunction, to the Hon. CHARLES W. ADAMS, Judge of the Phillips Circuit Court, in vacation, against the Swamp Land Commissioners and others, the substance of which bill is stated in the opinion of this Court. The Judge refused the injunction, endorsing the following reasons therefor: "It appears to me that all the allegations of the bill being taken as true, they do not establish in complainants a right to have the operations of the Swamp Land Commissioners restrained in the premises. A much stronger case should be made out for the purpose of restraining the acts of public agents, than would be sufficient to warrant the interferance of the court to stay and restrain the acts of private individuals. Defendants are acting under a law which confers upon them authority to act for the public good, and, in so doing, to exercise a sound discretion for the carrying into effect the general objects of the works intrusted to their care and supervision. And whilst a reckless and flagrant invasion of the rights of private individuals cannot Martin et al. Ex parte. [ JANUARY be tolerated, yet, to warrant the interference of this court, it should plainly appear that the complainants are or will be injured beyond the true necessity of the case; that they cannot be compensated in damages for the injury, or that the true and legitimate objects of the work for the promotion of the public advantage, are not thereby advanced to an extent to warrant the act complained of. In addition to this, the bill does not sufficiently describe the extent of the injury to complainants, or the extent of the injury which might possibly accrue to defendants, and leaves the court without any reasonable data upon which to fix upon the amount of bond which ought to be required of complainants." The judge having refused the injunction, complainants applied to this court for mandamus to compel him to grant it. ENGLISH, HANLY & PALMER, for petitioners. Courts of Equity will interfere and injoin a private nuisance, to restrain irreparable mischief, suppress interminable litigation, or prevent a multiplicity of suits. Injunction will be granted where the injury, from its nature, is not susceptible of being adequately compensated by damages at law, or where from its continuance or permanent mischief, it will occasion a constantly recurring grievance, which can not be otherwise prevented. 2 Story's Equity, sec. 925, p. 238. Leah v. Cannon, 2 Hum. 169, 172. Spooner v. McConnel, 1 McLean 337. Cases calling for such remedial interposition of courts of equity are, the obstruction of water courses, the diversion of streams from mills, the back flowing on mills, or other premises, and the pulling down banks of rivers, and thereby exposing adjacent lands to inundation. 2 Story's Eq., sec. 927, p. 240. Eden. on Injunc. 269. Causing the waters of a stream, by the erection of a dam, or the like, below the party's line, to overflow his grounds, or springs, or thereby create near his residence ponds of stagnant water, is Bigelow a nuisance. Neal & Shelton v. Henry, Meigs 17, 22. v. Norrells, 10 Pick. 348. Merrill v. Parker, Coxe 460. v. Wheeler, 2 Dev. & Bat. 50. Omevany v. Jaggins, 2 Hill S. C. 634. Wilb v. Port. Manufac. Co., 3 Sumner 189. Shields v. Arndt, 3 Green Ch. 234. The allegations in the bill show that a levee could be made over Long Lake, with a culvert, to answer all the public purposes of preventing overflow from the Mississippi river, and at the same time leave open a passage for the current of the lake, and thereby avoid the overflow of complainants' lands; and the Commissioners, and their agents and contractors, were bound so to construct the levee. But put the case in the strongest view against complainants: Suppose it necessary for the public good to construct a solid levee across Long Lake, and that the Commissioners had been authorized by law to do so in their discretion, yet, if such a levee would overflow the lands of complainants, damage them, and make their place unhealthful, a court of equity would enjoin the erection of such a levee, because the law providing for making such levees, makes no provision to compensate complainants for damages; and it is part of the paramount law that the property of an individual cannot be taken or injured for public purposes without a provision for his compensation. This doctrine is clearly settled in Gardiner v. Village of Newburg, 2 John. Ch. R. 162. This case shows also that persons acting under authority of law, are as subject to be injoined from committing a nuisance as private individuals; and that they have no discretion to damage private property in constructing a levee, as supposed by the circuit judge. Chancery can order nuisances to be abated, as well as restrain them from being erected. Burgen v. Burgen, 2 John. Ch. Rep. 272. Complainants state in the bill the probable extent of the overflow upon their lands that will result from a solid levee across the lake, and that it will injure the health of the place. It would be hard for them to fix a price in dollars and cents for such dam |