18 N.J. Eq. 241 | New York Court of Chancery | 1867
The complainant in this suit alleges that the defendant, in November, 1846, by raising his dam in Black river, below where it runs through the farm of the complainant, caused the water of the river to flow back on his farm, and that, although until 1853 he so regulated the gates in the dam as to cause very little to flow back, yet since that time he has closed them, and caused great injury to the farm of the complainant; that two suits at law, brought by complainant against defendant, for the damages caused by the overflow, one in 1861, and the other in 1866, are pending; that a verdict has been rendered in' one in favor of complainant, but judgment is not entered.
The prayer of the bill is, that the 'height of the old dam, by which it is admitted he was entitled to flow back water, may be ascertained and settled, that the dam may be reduced to its original height, and that defendant may be perpetually restrained from raising it above that height, and from further obstructing the flow of the water by any increased height or other means, with the usual prayer for other relief.
In this state of the pleadings, a motion is made by defendant with a triple aspect. First, to dismiss the bill, on the ground that it shows no equity on which this court can give relief. It is agreed by complainant’s counsel, that the case shall be considered on this motion, as if a demurrer had been put in, and the bill dismissed, if the court is of opinion that no relief can be had on this bill upon any proof that could be offered under it. Secondly, that the complainant elect between this and his suits at law. Or thirdly, in case the bill is not dismissed, and no election ordered, that the suit may be stayed until the determination of the suits at law.
A suit in equity may be sustained to abate or remove a nuisance, and also to determine the rights between parties in cases of this sort, and to ascertain the height to which the owner of a dam is entitled to flow back-water upon the lands above the dam. And this may be done, and is done in many cases, without any trial at law. In doubtful cases, resort in general will be had to trial by jury to settle and determine the facts. But when upon the hearing the evidence is entirely satisfactory to the court, it will not order an issue, or wait for the result of a trial at law, before making a decree. Yor will it on the hearing refuse relief because the complainant has delayed his suit, if it is clear upon the evidence that he ought to have the relief granted. But delay is often the ground for refusing a preliminary injunction, as in the case of the Attorney General & al. v. The New Jersey Railroad Company, 2 Green’s C. R. 136. There the bridge was erected, at least so much of it as constituted the obstruction to navigation, before the application to the court. The court held the application too late, as the preliminary injunction is only a preventive remedy, and refused the application.
Yo suit at law can settle the height at which the defendant is entitled to keep the water by his dam. All that such suits can settle is as to the fact whether a certain height complained cf is correct or not, but how much higher the
The application to compel the complainant to elect between this and his suits at law must also be refused, for the reason that the suits are for different objects. The suits at law are for damages for the past; this is to prevent injury for the future. The complainant may be entitled to the relief he seeks in both courts, and a recovery in one would not interfere with his recovery in the other. His bill does not pray for damages for past injuries, and even if this court could, under ' the general prayer, ascertain in this suit the damages upon his application, he has made no such application yet, and when he does, it will be the proper time to interpose the existence of a suit at law, to arrest the inquiry here.
The third application, to delay this suit until the determination of the suits at law, must be refused for the reasons already given. The determination of the suit at law will not settle the height at which the defendant may maintain the water in his dam. It may settle that, at the times of the injuries there complained of, the water was too high, but how much it should be lowered, will yet remain to be settled here.
The motions must be denied.
. And the same decision, for the same reasons, is rendered in the case of Waters v. Cooper, argued at the same time.
