that still the correct rule, though there may be and are some expressions to the contrary in Marshal v. Commissioners, 89 N. C. 103. In addition to what we have said above, the great importance to the city of Durham of the public work which it is trying to carry out would make us hesitate before we would interfere by injunction." And in Durham v. Eno Cotton Mills, 141 N. C. 615, 54 S. E. 453, 7 L. R. A., N. S., 321, Walker, J., refers to the failure on the part of the complainant to offer available evidence which would have gone far toward establishing the injury complained of if it had been in his favor.

459 But where the special conditions referred to, and to some extent relied upon in these cases, do not exist, and there are facts in evidence which tend to establish with reasonable certainty that there is a well-grounded apprehension of irreparable injury to complainant's health by reason of the threatened and unwarranted use of adjacent property, the decisions in this state are to the effect that such user should be restrained till the hearing. Thus, as far back as 4 Hawks, in the case of Attorney General v. Blount, 11 N. C. 384, 15 Am. Dec. 526, this being a bill to prevent the erection of a mill dam, on the ground that there was reasonable certainty that such a structure threatened the health of citizens living near, the court held "that, while the object of a bill is to prevent the erection of that which will be productive of injury serious and irreparable if erected, this court will pass upon the question and interpose its authority to prevent the threatened injury." And in Attorney General v. Hunter, 16 N. C. 12, this being a bill to enjoin the maintenance of a mill dam, on the ground that it injuriously affected the health of the inhabitants of the town, it was held that the suit was well brought, and Henderson, J., delivering the opinion of the court, said: "Where the right infringed is of a doubtful character, as the right of view over another's ground, there a court of equity will order the right to be established at law before it will grant an injunction, in the meantime staying the owner of the land from closing up the view; but here the rights infringed upon are of a character not in the least doubtful-the health and comfort of the relators and others for whom they act."

In Eason v. Perkins, 17 N. C. 38, the principle of these last two cases was affirmed, and that case was distinguished on the ground that it appeared that the mill in question was a great public benefit, and as the injury was only threatened

to one family, the private right under the special circumstances there prevailing should yield to the public good. And a similar decision was made for like reason in Daughtry v. 460 Warren, 85 N. C. 135. Again, in Clark v. Lawrence, 59 N. C. 83, 78 Am. Dec. 241, it was held that when it was made to appear with reasonable certainty that the health of adjacent residents would be affected by the erection of a cemetery, equity would interfere, though in that case a preliminary restraining order was refused on the ground that the evidence did not come up to the requirements so as to bring the case within the principle.

The doctrine announced in these cases in our own court is supported by well-considered decisions in other jurisdictions: Gilford v. Babies' Hospital, 1 N. Y. Supp. 448; Baltimore v. Fairfield Imp. Co., 87 Md. 352, 67 Am. St. Rep. 344, 39 Atl. 1081, 40 L. R. A. 494; Coker v. Birge, 9 Ga. 425, 54 Am. Dec. 347; Goldsmith v. Tunbridge Wells Imp. Co., L. R. 1 Eq. Cas. 161. These and other authorities, too, indicate that it is not practicable to lay down a general rule so clearly defined that its proper application can always be readily made, and each case to some extent must be made to depend upon its own special facts and circumstances. Thus, in Gilford v. Babies' Hospital, 1 N. Y. Supp. 448, it is said: "The learned counsel have cited many adjudications, and the subject is thoroughly treated in Wood's Law of Nuisance. It seems unnecessary to specify cases, because each one differs from most others in facts. In Ross v. Butler, 19 N. J. Eq. 294,97 Am. Dec. 654, the court states a correct conclusion: ‘In fact, no precise definition can be given. Each case must be judged of by itself.' In Wood's text-book it is well said, in section 9: The locality, the condition of property and the habits and tastes of those residing there, devested of any fanciful notions or such as are dictated by "dainty modes and habits of living," is the test to apply in a given case. In the very nature of things there can be no definite or fixed standard to control every case in any locality. The question is one of reasonableness or unreasonableness in the use of property, and this is largely dependent upon the locality and its surroundings.' To my mind, the hospital is not a reasonable use of property, considering the locality and surroundings."

461 In the case at bar there is evidence on the part of plaintiff, direct, positive and specific, that the erection and use of a hospital in that particular locality, in the manner and for the purpose proposed, will be a source of real dan

ger to the lives and health of numbers of people living in that vicinity; and, while the affidavit of defendant himself makes specific response, a large portion of the supporting evidence offered by defendant is very general in its terms, and made without reference either to the special locality or to the special manner in which the particular hospital is to be constructed and carried on.

If defendant desires to proceed with the construction of his buildings and risk the results of the trial, the restraining order may be modified to that extent, but any and all use of the buildings for the purposes indicated should be restrained to the hearing, and the judgment of the court below in that respect is affirmed.

Modified and affirmed.

Courts of Equity will not Grant an Injunction to Allay Mere Apprehensions of injury, but only when the injury is imminent and irreparable: Schubach v. McDonald, 179 Mo. 163, 101 Am. St. Rep. 452; Boyd v. Board of Council of Frankfort, 117 Ky. 199, 111 Am. St. Rep. 240.

The Right of a City to Locate a Pesthouse or Smallpox Hospital in a residence portion of a city is discussed in City of Paducah v. Allen, 111 Ky. 361, 98 Am. St. Rep. 422; Frazer v. Chicago, 186 Ill. 480, 78 Am. St. Rep. 296.

The Liability of Persons Communicating Contagious Diseases to Others is the subject of a note to Missouri etc. Ry. Co. v. Wood, 93 Am. St. Rep. 840.

CASES

IN THE

SUPREME COURT

OF

NORTH DAKOTA.

BLAKEMORE v. COOPER.

[15 N. D. 5, 106 N. W. 566.]

TAX DEEDS.-Executors are the "Assigns" of Their Testator within the meaning of a statute authorizing the issuance of a tax deed "to the purchaser, his heirs or assigns." (p. 576.)

TAX TITLE-Burden to Prove Compliance with Law. In the absence of an enabling statute, it is incumbent upon one who claims title to land derived from a sale thereof for taxes to prove affirmatively that every mandatory provision of the law under which the sale was affected was strictly complied with. (p. 577.)

CONSTITUTIONAL LAW-Impairment of Obligation.-All legislative acts which work an impairment of the obligation of a contract, whether by directly changing its terms or indirectly by rendering it ineffective and of less value through a change of remedies, are forbidden by the constitution. (p. 578.)

TAX TITLE-Impairment by Subsequent Legislation.—A statute making tax deeds prima facie evidence of title enters into the contract of purchase, and thereafter the legislature cannot impair the evidentiary character of the deeds, for to do so would impair the obligation of the contract. (p. 581.)

TAX SALES.-The Right to Redeem from a Contract of Sale, under North Dakota laws of 1890, was a "right accrued" within the meaning of section 2686 of the Revised Code, which preserves actions and proceedings which had been commenced and rights which had accrued. (p. 584.)

TAXATION-Repeal of Revenue Laws.-The repeal or revision of revenue laws has a prospective operation only, unless the intention of the legislature to the contrary clearly appears. (p. 585.)

are

TAXATION-Retroactive Operation of Redemption Statute.Statutory provisions relating to redemption from tax sales prospective, and do not apply to certificates issued under former statutes. (p. 585.)

TAXATION-Notice Terminating Right of Redemption.—If statutes in force when a tax sale was made require service of notice of the expiration of the right of redemption as a condition to obtaining a deed, deeds issued without such notices are invalid. (p. 585.)

TAX SALE.-A Notice of Tax Sale Published in a Newspaper is not invalidated through the failure of the owner or manager to file with the county auditor an affidavit setting forth the paper's qualifications as required by statute. (p. 586.)

J. E. Robinson, for the appellant.

Newman, Holt & Frame, for the respondent.

8 YOUNG, J. The plaintiff brought this action under chapter 5, page 9, Laws of 1901, to determine adverse claims to the north fifty feet of lot 6 in block 37, Keeney & Devitt's second addition to the city of Fargo. The plaintiff's interest therein was acquired through purchase at three separate tax sales to wit, the sales for the 1890, 1892 and 1893 taxes, and upon which tax deeds were issued in 1902. The sales were made to Louis A. Kedney, and tax sale certificates issued to him. The deeds were issued to "Robert B. Blakemore, executor, and Laura B. Kedney, executrix." The complaint alleges that Louis A. Kedney died in 1898; that in his 9 last will and testament he named Robert B. Blakemore as executor and his widow, Laura B. Kedney, executrix; that the persons so named duly qualified and have not been discharged; that the said Louis A. Kedney devised his entire estate, real, personal and mixed, to Robert B. Blakemore and William C. Macfadden in trust for the use and benefit of his wife, Laura B. Kedney, during her widowhood, the remainder to his children per stirpes when they shall have attained the age of twenty-two years; that Laura B. Kedney was duly appointed guardian of the persons and of the estate of the three children, who are all minors. All of the persons above named are joined as plaintiffs, and allege that they have "an estate and interest in and encumbrance upon" the property above described, and that the defendant claim. "certain interests in or estates in or liens or encumbrances upon said premises adverse to these plaintiffs." The prayer is in the statutory form, except that neither possession nor compensation for the use are asked for. The defendants, John Cooper and George McCauley, answered jointly, and expressly deny that the plaintiffs have any right, title or interest in or lien upon the land in question, and allege that in May, 1903, McCauley was the owner in fee of said land and under a patent from the United States government, that he conveyed the same to his codefendant Cooper, and that the latter is now owner in fee simple and in possession. When the case was called for trial counsel for defendants demanded a trial by jury, stating that the action is in effect an action in ejectment. The request was denied and the case was tried under section 5630, Revised Codes of 1899. The findings of the trial judge were in all respects favorable to the plaintiff and judgment was entered thereon quieting