70 Conn. 720 | Conn. | 1898
The principal question upon this reservation is not whether, upon the facts alleged, the plaintiffs are entitled to any remedy, nor if so to what remedy, but it is whether they are entitled to the specific remedy by way of injunction claimed by them.
The defendant under its second, third and seventh causes of demurrer contends, in substance, that this court has already decided this question against the plaintiffs in the case of Fisk v. Hartford, 69 Conn. 375. In support of this contention it is claimed that the present complaint is substantially the same as the original complaint; that it sets forth no new facts, and no new grounds on which an injunction should issue; and that the prayer for relief is substantially the same as in the former case.
We think the case referred to does not decide the question raised here, and that a comparison of the original complaint and prayer for relief with the present complaint and prayer for relief, clearly shows that the defendant’s contention is not well founded. The original complaint in substance and effect prayed that the city might be restrained from disposing of its sewage through the intercepting sewer, and this court said that prayer ought not to be granted. The present complaint prays that the city may be restrained from diverting the waters of Park river and its tributaries into the reservoirs and leading pipes of the city, to the injury of the plaintiffs’ rights; and the question whether, upon the facts now stated, this prayer should be granted, was neither considered nor decided in the former ease, and is now for the first time properly before this court.
We also think that the present complaint states a valid cause of action for damages at least, and that it sets out such facts as would ordinarily entitle the plaintiffs to the equitable relief here sought, unless it also shows that they have delayed so long in applying for it as to make it inequitable now to grant it. The only question, therefore, raised by the demurrer, which we deem it necessary to consider at any length, relates to the laches or delay of the plaintiffs and their predecessors in title in seeking this remedy.
It is, however, further admitted by the pleadings, that until the intercepting sewer was built and used, the city returned to Park river, above the plaintiffs’ dam, through its sewer pipes, substantially all the water diverted into its reservoirs, and the important question in the case is whether this fact furnishes a sufficient excuse or justification for the delay of the mill owners in asserting their rights. Upon the admitted facts we think it is clear that the rights of the mill
We think it is clear that when the city first began to divert this water to the detriment of the mill owners, without their consent and without making compensation to them, it was an invasion of their rights, even though the city did return the water so diverted, in the shape of sewage, into the river above the dam; it was such an invasion of their rights as would have been enjoined against in a proper proceeding upon sufficient proof, and the fact that the water was so returned as sewage would have been no defense in such a proceeding. This invasion and violation of the rights of the mill owners has been continuous since 1867, and it has grown in extent with the growth of the city and the use of
It is a well established rule in equity that if a party is guilty of laches or unreasonable delay in applying for an injunction, he may thereby forfeit his claim to that special form of remedy; and where in such case, by his laches, he has made it impossible or very difficult for the court to enjoin his adversary without inflicting great injury thereby, an injunction should be refused and the party left to his remedy at law. Traphagen v. Jersey City, 29 N. J. Eq. 206; State v. Paterson, 40 N. J. L. 244; Logansport v. Uhl, supra; Tash v. Adams, 10 Cush. 252; 2 Pom. Eq. § 817.
Applying these principles to the facts in this case, we think an injunction should not be granted. Great harm would or may result to the city and its inhabitants if an injunction
The Superior Court is advised that the demurrer upon this point should be sustained, and that an injunction should be refused.
In this opinion the other judges concurred.