Burnham v. Kempton

| N.H. | Jan 15, 1859

Bell, J.

J. and D. N. Patterson are alleged to be entitled with the complainants, and Kempton, the defendant, to the use of the dam and water. They are not alleged to be interested in the mills. They are parties to the agreement. They are not parties to the bill. The rule is, that “ all persons materially interested in the subject ought generally, either as plaintiffs or defendants, to be made parties to the suit, or to be served with a copy of the bill.” 1 Dan. Ch. Pr. 240. It is necessary that the plaintiff’ should bring regularly before the court, either as co-plaintiffs with himself, or as defendants, all persons so circumstanced, that, unless their rights were bound by the decree of the court, they might cause future molestation or inconvenience to the party against whom the relief is sought; Ibid. 241; or, as it is better expressed in the margin, “ all having a right to sue the party for the same thing.” Story’s Eq. Pl. 74, 136, &c.; 2 Swift’s Sys. 248; Adams’ Eq. 312 ; Brightley’s Eq. Jur. 418, sec. 537. Tenants in common must all sue or be sued in cases touching their common rights and interest. Story’s Eq. Pl., sec. 159.

It is ai’gued that the real question presented by this case is one of private nuisance, to which the principle applies that a court of equity will not interpose until the rights of the parties have been determined at law; and in support of this view it is said that the parties, being owners of the opposite banks of the stream, are to be taken to be tenants in common of the water and water privilege, of common right; and it is therefore necessary for the party who sets up an exclusive right to the whole, to allege the title, by deed or prescription, under which he claims, which is not done in this bill; but the only ground of claim set up is the agreement recited in the bill, which cannot operate as a grant, and is at most a bare license, revokable at the pleasure of the party who grants it, and that it was in fact revoked by the sale of Perkins to Kempton.

"We think none of these positions can properly be assumed by the court in the present stage of the case, whatever may hereafter appear to be involved in it. The questions on the demurrer are to be decided by the allegations of the bill itself, taking them to be true. The claim set up in the bill is the right to extend and maintain their dam to the north bank of the river, and there connect it with the bank. To show the importance of this right, they state the ownership of the mills, and the exclusive use they have had of the water by means of their dam. They allege the agreement between Perkins and them, as the foundation of this right. In this agreement, which seems founded on sufficient consideration, “ it is admitted that the present mill-dam owners may continue to connect their dam with the bank on the west side of the river, so long as they see fit.” This can hardly be regarded as a mere license in a court of equity. At law, as no interest in land can be conveyed by an instrument not under seal, it cannot operate to create or convey any easement, and therefore cannot operate further than as a license. Put in a court of equity, which has power to enforce the specific performance of contracts, it may be regarded as a contract, which, though it does not create or convey an easement, may yet bind the party to allow the use of an easement, and a court of equity may restrain the party from violating his agreement.

It may also be regarded as an admission of an existing right or easement, upon which parties have acted for a series of years, and by which the conscience of the party might be so far bound that he would not be heard in a court of equity to deny it.

These suggestions may furnish an answer to the point taken, that, before bringing a bill, the right ought to be established by a trial at law. The right set up is an equitable right, of which the law might not take cognizance, and as to which it might afford no means of trial.

This agreement is made with only one of the plaintiffs by name, and the question may therefore arise as to the construction of the language used, “ the present mill-dam owners’’ which is in itself equivocal. If construed the present owners of the mill-dam, it would not be the foundation of any claim by those who have since become 'interested ; but if construed the oioners of the present mill-dam, it might be effectual as an admission or as an agreement for the benefit of the owners for the time being, which would include all the plaintiffs who are alleged to hold the rights of the previous parties.

Upon the statements of the bill alone, without the light which might be thrown upon the construction by other circumstances, we think the last is to be deemed the true meaning, particularly as the present mill-dam seemed to be spoken of in contrast with the new dam then agreed to be built.

It might then become a question how far this defendant, Avho has acquired the rights of Perkins, would be affected by his contract; and, judging from the facts stated in the bill, Ave think he must be held to have had notice of whatever equitable rights the plaintiffs had to maintain the dam, of which they were in the notorious, Adsible possession and use. .

As, then, it does not appear that a decision must necessarily be given against the plaintiffs upon their own allegations, we think, the defect of parties being amended, the demurrer as to other points must be overruled.