21 N.J. Eq. 576 | N.J. | 1870
The counsel of the defendant, as a preliminary matter, submitted to the court the question, whether the Court of Chancery has jurisdiction to try the question of nuisance or no nuisance, involved in this cause.
Upon the abstract question, whether a court of equity has jurisdiction over nuisances, whether they come within the class of public or of private nuisances, very little need be said. "Whatever contention there is at the bar, or disagreement among judicial minds, as to the principles on which that jurisdiction should bo administered, there is no room for controversy that such jurisdiction pertains to courts of equity. It is a settled principle that courts of equity have concurrent jurisdiction with courts of law in cases of private nuisances; the interference of the former in any particular case being justified, on the ground of restraining irreparable mischief, or of suppressing interminable litigation, or of preventing multiplicity of suits. Angell on Watercourses, § 444; 2 Storys Eq. Jur., § 925; The Society v. The Morris Canal Co., Saxt. 157; Scudder v. Trenton Del. Falls Co., Saxt. 694; Burnham v. Kempton, 44 New Hamp. R. 79.
The doctrine of the English courts is, that the jurisdiction of courts of equity over nuisances, not being an original jurisdiction for the purpose of frying a question of nuisance, but being merely a jurisdiction in aid of the legal right for the purpose of preserving and protecting property from injury pending the trial of the right, or of giving effect to such legal right when it has been established in the appropriate tribunal, the court will not, as a general rule, entertain jurisdiction to finally dispose of the case, where the right has not been previously established and is in any doubt, and the defendant disputes the right of the complainant or denies the fact of its violation. Under such circumstances the court will, ordinarily, do nothing more than preserve the property in its present condition, if that bo
It is said in the ninth edition of Story on Equity Jurisprudence, that in the American courts the rule of the English law requiring tlio complainant’s legal rights to be first established in a court of law before a court of equity will give relief, has, in general, not been enforced in its strictness. 2 Story’s Eg., § 925 d. In our own state it has been somewhat relaxed. The mere denial of the complainant’s right by the defendant in his answer, will not oust the court of its jurisdiction by injunction. Shields v. Arndt, 3 Green’s Ch. 235; Holsman v. Boiling Spring Bleaching Co., 1 McCarter 335. So also, when the complainant has for a long time been in the undisputed possession of the property or enjoyment of the right with respect to which ho complains, and the acts of the defendant which constitute the injury to such property or the invasion of such right, have been done recently before the filing of the bill, the Court of Chancery has entertained jurisdiction to decide and dispose of the entire litigation. The language of Chancellor Pennington on this subject in Shields v. Arndt, has been very generally approved, and ‘the principle he states has been adopted by the courts of this state. lie says: “ It was not so much against the general jurisdiction of the court that the objection is raised, as to its exercise when the defendant, as in this case, denies the complainant’s right. It is the province of this court, as the defendant’s counsel insist, not to try this right, that belonging alone to a court of law, but to grant the possession whenever that right has been ascertained and settled. If it be intended to say that a defendant setting up this right by his answer, thereby at
The decree in that case was against the complainant, on the ground that he had not established by the proofs in the cause his right to the stream in question, as an ancient watercourse. On appeal to the senate, sitting as a court of appeal, the decree was reversed by a vote of eleven to seven, and a perpetual injunction was decreed. Minutes of Court of .Errors and Appeals, June 19th, 1844.
In Shields v. Arndt, the complainant had been in the enjoyment of the flow of water upon his land without interruption, until just before the bill was filed. In the other cases in which chancery has granted relief on final decree, by injunction, the complainant was either in the full enjoyment of the right, which was protected from threatened invasion, when the bill was filed, or his right originally was not disputed, and its continued existence was clearly established at the hearing, and the act of the defendant, which interrupted the enjoyment of it, had been done within a recent period before the bill was filed. Robeson v. Pittenger, 1 Green’s Ch. 57; Brakely v. Sharp, 2 Stockt. 206; Earl v. De Hart, 1 Beas. 280; Holsman v. Boiling Spring Bleaching Co., 1 McCarter 335; Del. and R. Canal Co. v. Raritan and Del. Bay R. R. Co., 1 C. E. Green 321; S. C., on Appeal, 3 C. E. Green 546; Morris Canal and Banking Co. v. Central R. R. Co., 1 C. E. Green 419.
In Holsman v. The Boiling Spring Bleaching Company,
The principle supported by these cases was not impaired by the decision of this court, in The Morris and Essex R. Co. v. Prudden, 5 C. E. Green 530. In that case the appeal was from an order of the. Chancellor for a preliminary injunction, on depositions taken under a rule to show cause. The premises on which the defendants were about to lay their track, were within the limits of an old turnpike which had been vacated under legislative authority to enable the defendants to use a part of the same for their purposes; on the faith of which they acquired the title to the fee, and for twenty years had occupied it for a single track, and other purposes connected with their business. The right ■of the complainant for the protection of which the bill was filed was not all' clear, and the injury on which he based his
In the case now under consideration the defendant had been in the use of his dam, as it was at the time of the filing of the bill, since 1853, unmolestsd by the complainants, or their ancestor, until 1861, when the first of the actions at law was brought. It is therefore insisted by the defendant's counsel, that the suit is prosecuted not for relief in aid of a legal right, but for establishing a legal right, the appropriate tribunal for the determination of which is a court of law. But the decisive answer to this position of counsel lies in the fact, that the right of the complainants at the time of the filing of the bill, and the invasion of those rights by the defendant, are admitted by the answer. The bill alleges the seisin of the farm in question by the complainants, and that the same bounds on Black river,, which from time immemorial had been used and accustomed to flow and run by and along the said farm in its natural and accustomed channel, free and clear of all obstructions whatever, and that prior to 1846 the flow of the said river along the complainants’ said farm was not in anywise affected by the defendant’s dam, or the pondage thereof. The charge is, that the defendant in October or November,,
Purthermore, at the time of the filing of the bill, two ■suits at law brought by Eliza Carlisle, one of the complainants, and who was in possession, were pending against the defendant, to recover damages for injuries sustained by reason of the overflow of these lands, by the raising of the dam in 1846. One of these suits was brought in 1861, the other in 1866. These causes having been taken down for trial to the Morris circuit, at the Term of January, 1867, the defendant relinquished his plea to one of the counts of the declaration in each case, in which such injury was complained of, and confessed the cause of action, and submitted to pay substantial damages. Judgments were accordingly entered for the plaintiff in those suits on the 6th of June, 1867, transcripts whereof were made exhibits in this cause.
The extent to which the complainants were entitled to have the defendant’s dam reduced,'in order to effect an entire abatement of the nuisance, could not be settled by an ordinary action at law for overflowing the complainants' land. The facts necessary to fix the proper measure of such
The complainants’ right to such relief as is sought by the bill, being admitted by the answer, and also having been established in the suit at law, the sole question of fact in controversy was, whether the defendant had effected an abatement of the admitted nuisance by lowering his dam to its level before the increase of 3 846. The inquiry necessary to decide that controversy, may he made in the Court of Chancery; at least there is nothing in the subject matte)' of that investigation, that, by established rules of equity procedure, would entitle the party to an issue as of course. Even in the case of an heir-at-law, who is entitled to an issue as a matter of course, when the controversy is as to the factum of a will, if he does not dispute the will, but merely denies that certain portions of the land passed by the words of description, a court of equity has full jurisdiction to determine the question thus raised without granting an issue, or may grant such issue at its discretion. Ricketts v. Turquard, 1 H. of L. Cas. 472. A court of equity has jurisdiction to ascertain and determine the rights of parties under a reservation, in a grant of a water privilege, of so much water “ as is necessary for the use of a forgo, and two blacksmiths’ bellows,” without requiring the right to be settled at law. Olmsted v. Loomis, 5 Seld. 423.
In Broadbent v. The Imperial Gas Company, which was before Vice Chancellor Wood (2 Jurist N. S. 1132), and afterwards before Lord Chancellor Cranworth, (3 Jurist N. S. 221, 7 DeG., M. & G. 436), and subsequently before the House of Lords (5 Jurist N. S. 1319, 7 H. of L. Cas. 600), the complaint was that the complainant, who was a market gardener, ■was injured by a nuisance arising from the manufacture of gas by the defendants, on the premises adjoining his garden. The complainant, in 1854, brought his action at law to recover damages for such nuisance. The cause came on for trial before Lord Chief Justice Jervis, and by consent was referred to Sergeant Channel to settle the amount of damage
The case, from the opinions in which these extracts have been taken, is the same as that now before the court, except that this case is strengthened by the fact that the nuisance complained of is admitted by the answer, and the alterations which are claimed to have removed it were made after the bill was filed.
It was further urged upon the argument with much earnestness, that although it might be competent for the court to determine the question in controversy, yet that, under the circumstances of this case, an issue should have been allowed for the determination of the disputed facts by the verdict of a jury.
The power of courts of equity to order the trial of an issue of fact which the court is itself competent to try, ought to be sparingly exercised, and a practice of sending ordinary matters to the decision of a jury, ought
The.granting or refusing an issue is a matter of discretion, and no application was made to the Chancellor for an issue. The case of Carlisle v. Cooper, 3 C. E. Green 241, in which the question of jurisdiction was raised, was not between these parties. The subject matter of the controversy there, was the dam complained of in this case, but tire complainant in that cause was John D. G. Carlisle, and the application to the Chancellor was not an application for a feigned issue. In the answer in this case, the defendant, after stating the abatement of his dam nine inches, submits and insists “ that if the complainants shall insist that the defendant has not reduced his dam to the height it was prior to the year 1846, and insists upon trying that question in this honorable court, that this honorable court is not the appropriate tribunal in which to try and decide that question.” A replication was hied, and the parties proceeded to
The position was also taken, that the complainants had lost their right to relief by long delay. Mere delay in applying to the court is frequently a ground for denying a preliminary injunction, and is also a reason for courts of equity refusing to take cognizance of a case, where there is a remedy at law. But where the legal right is settled, and the more efficacious remedy of a court of equity is necessary to complete relief, delay is no ground for a denial of its aid, unless it is coupled with such acquiescence as deprives the party of all right to equitable relief. A person may so encourage another in the erection of a nuisance, as not only to be deprived of the right of equitable relief, but also to give the adverse party an equity to restrain him from recovering damages at law for such nuisance. Williams v. Earl of Jersey, 1 Cr. & Ph. 91. So a party who knowingly, though passively, encourages another to expend monev under an erroneous opinion of his rights, will not bo permitted to assert his title, and thereby defeat the just expectation upon which such expenditure was made. Dann v. Spurrier, 7 Ves. 231; Rochdale Canal Co. v. King, 2 Sim. N. S. 78; S. C., on final hearing, 21 Eng. L. & Eq 178; Ramsden v. Dyson, L. R. 1 H. of L. 140; Dawes v. Marshall, 10 C. B., N. S., 697; Wendell v. Van Rensselaer, 1 Johns. Ch. R. 354; Ross v. The E. & S. R. R. Co., 1 Green’s Ch. 422; Hulme v. Shreve, 3 Green’s Ch. 116; The Morris and Essex R. Co. v. Prudden, 5 C. E. Green 531; The Raritan Water Power Co. v. Veghte, 6 C. E. Green, ante p. 463. The defendant’s case is not within either of these principles. He did not make his expenditure in erecting his dam, and increasing the capacity of his mill, either
The damages paid by the defendant in the two suits at law, amounted to $500. The injury done to the farm of the complainants by the backwater, rendered a part of their land comparatively useless, and the evidence shows that a nuisance was created on it deleterious to health, and that-the enjoyment of the premises .was thereby impaired. For such injuries an action at law furnishes no adequate remedy,, and the party enjoined is entitled to the protection of a court of equity by abatement of the nuisance. Holsman v. The Boiling Spring Bleaching Co., 1 McCarter 335; 2 Story’s Eq. Jur., § 926.
As the facts were when the bill was filed, the nature and extent of the injury sustained by the complainainants were such as to entitle them to relief in a court of equity, and it would be an extraordinary proposition, that a defendant after the institution of the suit for such relief, should be enabled to defeat complete redress by a partial abatement of the nuisance, thus mitigating but not removing the evil, upon an insistment that the effects of such portion of the nuisance as still remained, were not of sufficient consequence to entitle the complainant to ask that perfect relief which he was entitled to when he sought his remedy.
The appeal upon the merits, raises the question whether the relief which was granted by the Chancellor, is such as is warranted by the evidence.
The exact import of the decree is, that the defendant is entitled to maintain his dam at the height of the present .stone work, and the mudsill thereon, and the sheathing, with the right to place on the mudsill, for the whole length thereof, moveable gates of plank of the width of seven inches, reaching a line nine inches above the said mud-sill, and no higher; and that by means of these contrivances the defendant shall be entitled to use the water ■of said river, subject to the obligation in times of freshets ■or high water, to so raise the said gates as that the surface of the water shall not be raised above a line drawn twelve and a quarter inches above the top of the mudsill. «
The dam was built originally in 1827. It then consisted of a stone wall with a sill upon it, and was about thirty-six feet long. In 1828 or 1829, the superstructure was increased by the addition of posts twelve inches long, with a cap piece on the top nine inches wide. The space between the cap piece and the sill, at each end, was boarded up tight. The rest of the space was occupied by gates nine or ten inches wide, leaving a space between the top of these gates and the underside of the cap, through which the water flowed under the cap piece. In 1846 it is admitted that the ■structure of the dam was raised, and in 1852 changes were made which increased its power of retaining and throwing back the water. In 1866, when the bill was filed, the super
The principle o'f law stated by the Chancellor, that the-extent of the right acquired by adverse user is not determined by the height of the structure, but is commensurate with the actual enjoyment of the easement, as evidenced by the extent to which the land of the owner of the servient -tenement was habitually or usually flowed during the period, of prescription, rests upon sound reasoning, and is supported by authority. Angell on Watercourses, §§ 224, 379; Burnham v. Kempton, 44 New Hamp. R. 78. The introduction into the rule requiring continuity of enjoyment to acquire a-prescriptive right, of the qualification of habitual use, as applied to the effect of the structure, is the only qualification that is permissible where the easement is such that its-enjoyment is profitable only from a continuous use, as an easement to overflow lands.
That the degree of flowage upon the lands of another fixes the extent of the right, is shown by a variety of cases..
The rule is clearly stated by Chancellor Green in the líolsman case, thus: “ Whore an action is brought for overflowing the plaintiff’s lands by backwater from the defendant’s mill dam, it establishes no title by adverse enjoyment, to prove that the defendant’s mill has been in existence over twenty years, or that the dam has been in existence for that period. The question is not how high the dam is, but how high the water has been held, whether it has been held for twenty years so high as to affect the land of the plaintiff as injuriously as it did at the time the action was brought.”
As a general rule, the height of the dam when in good repair and condition, including such parts and appendages as make its efficient height in its ordinary action and operation, Axes the extent of the right to flow, without regard to fluctuations in the flowage which are due to accidental causes, such as a want of tlio usual repairs, or the variation in the quantity of water in the stream in times of low
In the dam of 1828 there were two gates, each fourteen feet long, and the so lid planking between the mud sill and the cap piece occupied four feet at each end. The difference between the superstructure of the dam of 1828, in its effect in flowing the lands of the complainants, and that ordered by the Chancellor in his decree, is quite inconsiderable. But with respect to the condition of the superstructure of the dam, and the mode of its use between 1828 and 1846, and from 1846 to 1853, there is great contrariety in the evidence. The conflict relates to the use of boards to close up the space between the top of the gates and the cap piece, thus making the top of the cap piece the line of the tumble; to
The evidence touching the extent of the prescriptive right to flow the lands of the complainants by means of the permanent structure of the dam and moveable gates, and also to the use of flash boards, is reviewed by the Chancellor. His conclusion is, that there is not sufficient proof of an use of the flash boards in such a definite manner, or at certain fixed times or occasions, as to establish a qualified right to use them, when they operate to raise the water to any extent on the land of the complainants, and that the right to maintain the permanent structure of the dam, and to raise the‘water upon the complainants’ lands by the use of the gates, is such as I have mentioned as the substance of the decree.
It is not proposed to examine the evidence in detail; a portion of it has been referred to by the Chancellor in his opinion. .It is sufficient to say that his conclusions on all these points are supported by direct testimony, and are consistent with the collateral facts proved, and in my judgment are sustained by the weight of the evidence in the cause.
Objection was made to that portion of the decree which provided for the raising of the gates in times of freshets and high water. As the prescriptive right to the use or flow of water originates from its accustomed use, the right may be qualified as to times, seasons, and mode of enjoyment, by the character of the use from which the right has originated. Angell on Watercourses, §§ 382,222,224; Bolivar Manf. Co. v. Neponset Manf. Co., 16 Pick, 241; Marcly v. Shults, 29 N. Y. 346; Burnham v. Kempton, 44 New Hamp. R. 78. Prescriptions may be upon condition in restraint of the mode in which the prescriptive right is to be enjoyed, or may have annexed to them a duty to be performed for the
In the lease to Thompson for the year 1829, the defendant inserted a covenant requiring the tenant to hoist the gates in 'time of high water, if need be, so that no damage should be done. Similar covenants are contained in subsequent leases, and the evidence is, that it was the uniform practice of the tenants in the use of the dam and its appendages, to control the height of the water in the pond in times of high water, by raising the gates and permitting it to flow off. Like the use of flash boards, only in times of low water, this mode of user qualifies the right which the defendant acquired from user, and the portion of the decree which regulates the management of the gates, is necessary to restrain the flowage of the complainants’ lands to what it was accustomed to be during the time of prescription.
In Robinson v. Byron, the injunction was to restrain the defendant from using dams, weirs, shuttles, flood gates, or other erections, otherwise than he had done before the 4th of April, 1785, so as to prevent the water flowing to the complainant’s mill in such regular quantities as it had ordinarily done before the said 4th of April. 1 Brown’s C. C. 588. A decree of a like nature was made by Lord Eldon, in Lane v. Newdigate, 10 Ves. 192.
The decree, by its reference to the cap piece as fixing the extreme height to which the water may be raised by the use of the gates when shut, is probably more specific in its direction than is usual; but it removes all uncertainty in the adjudication of the court as to the extent of the rights of the respective parties. The complaint that the exercise of the defendant’s right to the water is thereby made impracticable, is without foundation. That it might be more conveniently exercised if his right was enlarged, is no reason why it should be enlarged by the sacrifice of the rights of the complainants without compensation.
The plea of the complainants is based on the allegation that the stone work of the dam was raised by the defendant in 1846. The Chancellor decides that it was not, and he is supported in this by the clear weight of the evidence.
With the exception of the formal modification above mentioned, the decree is affirmed in all respects. Both parties having appealed, and neither party succeeding on the appeal, the affirmance is without costs to either in this court.
The decree was affirmed by the following vote :
For affirmance — Bedle, Clement, Depge, Ogden, Scuddbr, Van Syckel, Wales, Woodiiull. 8.
For reversal — Vail.