Arnold v. Klepper

| Mo. | Jan 15, 1857

Scott, Judge,

delivered the opinion of the court.

The objection, that the complainants are not the proprietors of the land on which they have built their mill, has no force in it. They claim by purchase, and show their deed from the former reputed owner, who, it is alleged, is under some disability which renders her conveyance inoperative. These defendants can not be permitted to come in and force the complainants to litigate their title with them, when the supposed owner of the title is passive and makes no claim. Tbe complainants had such confidence in their title as induced them to erect the machinery of whose injury they complain. As they have expended money on the faith of their title, making costly improvements, and as there is no adverse claimant asserting his rights, it is nothing but reasonable that they should be protected from the acts of others injurious to their interests. The law requires that he who asks leave to build a dam under its provisions should be the proprietor of-the land on which it is to be built. But that requirement does not authorize persons to mouse about for flaws in a man’s title and compel him to litigate with them his rights. The law never contemplates that the courts, on every application for a writ of ad quod dam-num, should try an ejectment, and that, too, in the absence of one of the parties. If the person desirous to build the mill has a title on which he is willing to risk his money, and there is no adverse claimant asserting his right to the mill seat, the law would seem to be satisfied.

This case does not come within the 25th section of the act concerning mills. The defendants had never obtained any leave to erect a dam on the mill stream. Then, according to the 26th section of the said act, their dam, stoppages and obstructions, not being made according to law, were public nuisances, and might be dealt with accordingly. The 25th section was designed to reach those cases in which a mill and dam, erected in pursuance to law, was injured by a damjsubsequently built, likewise under the provisions of the statute. They are not made nuisances, and the law, only in the event of their operating to the injury of others, authorizes a court of chan-chery to have them abated. Such being the state of the law, under the circumstances of this case we are not disposed to interfere. We are not affected by the argument that, if the law would allow an injunction in cases of an erection authorized by law, a multo fortiori it would in case of one not authorized. The difference is, the law makes one a public nuisance, and it may be destroyed, while the other is not so.' The plaintiffs have ample remedies without the extraordinary one by injunction. They may sue for damages, and if they are successful may then have an injunction, if it is necessary. They may set in motion a criminal proceeding to abate this nuisance.

It is strange that the idea of making an issue — a single issue, and not a great many, as they sometimes do for no other purpose than to create confusion — did not occur to the parties. A great number of witnesses, much greater than testified for the plaintiff, asserted'that the dam of the defendants caused no injury whatever to the plaintiffs’ mill. The principal witness for the plaintiffs, and one mostly confided in, it wo.uld seem, as an expert, testified that there was a current of water below Arnold’s (plaintiffs’) mill for two hundred yards. The backwater from Klepper & Gfalbreath’s (defendants’) mill did not come nearer than two hundred yards of plaintiffs’ mill.

A court of chancery should be well satisfied of the existence of a nuisance before it interferes by injunction. The old law, in case of injuries like the present, never permitted an interference until after the establishment of the plaintiff's’ right by a recovery of damages in a court of law. An innocent party may be ruined by the exercise of such a power. He may have vested all his estate in an enterprise which he was persuaded would not injure another. The public' interest is promoted by competition among the owners of useful machinery. The law encourages such competition, and a captiousness, dictated by a fear of it, is entitled to no countenance in the courts of justice. A monopolizing spirit may see wrongs not perceptible to the disinterested.

There is no warrant in the statute for an injunction in this case. Although a private injury resulting from a public nuisance may be checked by an injunction, yet it is not done until the party complaining has established his right to redress by an action at law. The 25th section of the act concerning mills and mill- dams being out of this case, the principle asserted in the case of Welton & Edwards v. Martin, 7 Mo. 307" court="Mo." date_filed="1842-04-15" href="https://app.midpage.ai/document/welton-v-martin-6610566?utm_source=webapp" opinion_id="6610566">7 Mo. 307, is applicable. The judgment will be reversed and the bill dismissed; the other judges concurring.