47 N.H. 71 | N.H. | 1866
On or about the first day of April, A. D., 1861, the plaintiffs filed their original bill of complaint against the defendants, containing sundry allegations duly set forth in the same, and closing with a prayer for relief as therein stated. At the June Law Term in this district, the defendants appeared and filed a demurrer to said original bill, and contended that plaintiffs were not entitled upon said bill to the relief therein prayed for :
1. Because the plaintiffs had a plain, full, ample and adequate remedy at law, and all the injuries complained of in said bill might be fully compensated thereby.
2. Because the injuries complained of are neither imminent nor irreparable, nor is there any danger of their becoming so, either in their nature, or as matter of fact.
8. Because the right of the plaintiffs to enjoy the land free from the molestation complained of had not been determined by any action, suit, or other proceeding at law.
In A. D. 1862, at the December Law Term in this district, this demurrer was overruled by the court, and the defendants obtained leave to withdraw their said demurrer, and file their answer to the bill. In the meantime plaintiffs had leave to file a supplemental bill, which was afterwards duly filed on the 27th of May, A. D., 1863. At the subsequent June Term, defendants furnished their answer to the original bill, as well as to the supplemental bill. This answer sets out the title and rights claimed by the party, and suggests that plaintiffs should join certain other interested persons as defendants, admits some of the facts as charged in plaintiffs’ bills, and alleges many other facts and arguments as explanatory of their case, and, in general, negatives many of the charges in plaintiffs’ bills. Plaintiffs’ supplemental bill states, among other things, that since the filing of their original bill, the action
This peaceable, continued, unmolested, well known adverse enjoyment by the defendants, and those under whom they claim, of the right to flow or detain the waters of the river above their dam, as it was during the twenty years prior to the time of said notice, may be regarded as now having become perfected, or ripened into a perfect legal right. It is the adverse enjoyment of a stream of water for a period of twenty years, which affords of itself presumptivé evidence of a grant. Gilman v. Tilton, 5 N. H. 231; Burnham v. Kempton, 44 N. H. 88; Odiorne v. Lyford, 9 N. H. 502. It is claimed on the part of the defendants, that the old dam, with its flashboards, as it existed prior to 1837, and as it was then kept, was as high as the present stone dam, which was built or finished in 1840. This fact is strenuously denied by the plaintiffs. Upon this point much conflicting testimony was offered by the respective parties. Sitting as a court of equity, we do not now feel called upon to establish the legal rights of the parties, nor to decide whether a private nuisance here exists, where that fact is controverted, but will require the party asking for the interference of the court first to establish his right by law. Burnham v. Kempton, ante.
In answer to this averment, the defendants, under the power of the statute law, have brought their writ of review of said action at law and it has been entered at the Trial Term of this court, and is there still pending and undecided. Of course the former judgment is in doubt and legal uncertainty, for upon another trial it may be reversed. A review is a new trial of the issues originally tried. Knox v. Knox, 12 N. H. 357; Avery v. Holmes, 10 N. H. 574. Hence, it is the final judgment allowed by law, which must be regarded as concluding the rights of the parties in such cases. Therefore the proof offered to sustain the fact, that the plaintiffs have legally sustained or established their right at law, falls short of what is expected and necessary in cases of this kind.
Again, it is doubtless true, that courts of equity, in this State, have by law and practice, a large power and jurisdiction conferred upon them to issue writs of injunction whenever the same shall become necessary to prevent injustice. To justify our interference here, the request being made to issue our final writ of injunction in restraint of the defendants, and the consequences of the exercise of such power being considered important by the defendants, as affecting large pecuniary interests, the plaintiffs should of course show by their proof a case of strong and clear injustice, of pressing necessity and imminent danger, of great and irreparable damage, and not of that nature for which an action at law would furnish a full and adequate indemnity. Damesville v. Dupont, 18 Ben. Monroe 800; Hood v. New York & New Haven R. R., 23 Conn. 609; Bolster v. Callerline, 10 Indiana 117; Whittlesey v. Hartford & Fishkill R. R., 23 Conn. 421; Gray v. Ohio & Penn. R. R., 1 Grant’s Cases, 411 Penn.; 3 California 238; Jordan v. Woodward, 38 Maine 423; Morse v. Machias Water Power Co., 42 Maine 119; Hilliard on Injunctions, sec. 9, ch. 1, secs. 16, 17, 18, 21, 22, 23, 31, ch. 1; also sec. 43 upon the subject of Delay, also sec. 86, ch. 27, subject, Easements, page 448, and subsequent thereto.
On application for an injunction to restrain the defendant from building a new mill for grinding and sawing for the public, on the ground that the construction of the dam would injure the land of plaintiff and the health of his family; testimony being heard by the court: held by the court, that it is not every slight or doubtful injury that will justify
The practice in our State corresponds with the aforesaid leading authorities, subject to some modifications, varying with the leading circumstances in each case, viz. : Burnham v. Kempton; Coe v. Lake Company, 37 N. H., and other cases, ante; Wason v. Sanborn & als., 45 N. H. 169.
Again, in Hilliard upon the law of Injunctions, sec. 39, ch. 1, the principle or law is stated, that where either party may suffer, by the granting or withholding of an injunction, the rule in equity requires the court to balance the inconveniences, likely to be incurred by the respective parties, by means of the action of the court, and to grant or withhold the injunction, according to a sound discretion. Where an injunction might cause irreparable injury to the defendant, in the event of the plaintiff not being exclusively entitled, and the damage sustained by the plaintiff in the event of establishing his title allows of compensation, the injunction will be refused.
In the aforesaid law of Wason v. Sanborn, this court has to some extent defined our power, and has claimed for ourselves a suitable and liberal exercise of this discretion, in granting writs of injunction; and that the court will not grant such writs as a matter of course, in the case of private nuisance, even where damages substantial have been recovered, and the plaintiff has established his legal title. It will consider whether the complainant be entitled to equitable relief, and, moreover, will not grant it where an injunction will not restore the party to his former position. Wood v. Sutcliffe, 2 Simons N. S. 163; Attorney General v. Nichols, 16 Vesey 333; Tucker v. Carpenter, 1 Hemphill 440; Adams’ Equity, 211; Fishmongers' Company v. East Ind. Company, Dick R. 161.
In a recent English case, it is said, the jurisdiction of this court over cases of nuisance, by injunction at all, is of recent growth, and has not till lately been much exercised, and has at various times found great reluctance, on the part of learned judges, to use it, even in cases where the thing or act complained of was admitted to be directly and immediately hurtful to the complainant. See Lord Brougham, Ripon v. Hobart, 3 Mylne & Keen 169. So where damages can compensate the injury or loss suffered from a nuisance, equity will not interfere; nor if the evidence is conflicting, and the injury doubtful, eventual, or contingent. Laughlin v. President, &c., 6 Indiana 223; Butler v. Rogers, 1 Stockton 487; vide secs. 1 and 2 Hilliard on Inj. against Nuisance, pages 269, 270.. The amount of the injury is sometimes a material consideration, the court refusing to interfere where the damages were trivial. Attorney General v. Sheffield Gas Company, 19 Eng. Law and Equity, 639.
Again, it is objected by the defendants, that the plaintiffs decline to give this court full jurisdiction of their case. They bring forth their
As before intimated, we think it would be inconsistent with the ends of justice and the approved practice in equity, to permit the plaintiffs to proceed in this court, and at law at the same time for the same claims, to ask for a remedy in a court of equity. Sawyer v. Wood, 4 Johns. Chanc. 416; Story’s Eq. sec. 746, and note ; and the authorities quoted by defendants in second brief. The plaintiffs, having obtained compensation in one suit at law, and without, however, bringing it to final judgment, and not proposing to abandon their second suit at law, ask the court for other adequate damages, and for the writ of injunction, and otherwise to prescribe for them full and ample redress for all their grievances, without giving us control of their whole case.
In the recent English case of Prothers v. Phelps, 35 Eng. Law and Equity Rep., 518, the question of practice is discussed, and it is there settled, that a plaintiff, who comes to this court for its aid, is bound to put under their control his legal rights relating to the whole subject matter of litigation. As the present case is now situated, we must regard it as quite clear, that we have not full or complete jurisdiction over plaintiffs’ suits at law. We can exercise at best only a doubtful or divided jurisdiction, and for this reason we may now properly decline to act at all.
Since the plaintiffs purchased their lands in 1856, they do not show, allowing all they claim, the loss of but a small amount of their land, and perhaps a few trees by means of the water in the river. Defendants say that the loss or damage claimed by plaintiffs, is to be attributed to other causes than to defendants’ dam, more especially to the cutting away the trees on the banks, for the purpose of using their lands as rolling-ways for stones and logs, and to the natural, common, and usual effects of freshets, particularly to ice freshets, which break down the little trees on'the banks of the river, and wear off the soft banks of the river in seasons when the frost is coming out of the ground, and from filling in of the river above plaintiffs’ land by the Concord Bail-road with rubble, also by digging away the river bank, thereby changing the natural current of the stream, and to the prejudice of the plaintiffs’ land, and some other causes fully set forth in the arguments of the counsel, other than defendants’ dam, contending, that defendants’ dam has a tendency to protect the bank of the river bordering on the plaintiffs’ land rather than to injure it. Now, without going into the examination of all the causes in detail which may affect more or less plain