2 Johns. Ch. 161 | New York Court of Chancery | 1816
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The statute under which the trus- - tees of the village of Newburgh are proceeding, (sess. 32. ch. 119.) makes adequate provision for the party injured by the laying of the conduits through his land, and also affords security to the owner of the spring or springs from whence the water is to be taken. But there is no provision *for making compensation to the plaintiff, through whose land the water issuing from the spring has been accustomed to flow. The bill charges, that the trustees are preparing to divert from the plaintiff’s land, the whole, or the most part of the stream, for the purpose of supplying the village. The plaintiff’s right to the use of the water, is as valid in law, and as useful to him, as the rights of others who are indemnified or protected by the statute; and he ought not to be deprived of it, and we cannot suppose it was intended he should be deprived of it, without his consent, or without making him a just compensation. The act is, unintentionally, defective,
It is a clear principle in law, that the owner of land is entitled to the use of a stream of water which has been accnstomed, from time immemorial, to flow through it, and the law gives him ample remedy for the violation of this right. divert or obstruct a water course is a private nuisance ; and the books are full of cases and decisions asserting the right and affording the remedy. (F. N. B. 184. Moore v. Browne, Dyer, 319. b. Lutterel’s case, 4 Co. 86. Glynne v. Nichols, Comb. 43. 2 Show. 507. Prickman v. Trip, Comb. 231.)
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The Court of Chancery has also a concurrent jurisdiction, by injunction, equally clear and well established, in these cases of private nuisance. Without noticing nuisances arismg from other causes, we have many cases of the appheation of equity powers on this very subject of diverting streams. In Finch v. Resbridger, (2 Vern. 390.) the lord keeper held, that after a long enjoyment of a water course running to a house and garden, through the ground of another, a right was to be presumed, unless disproved by the other side, and the plaintiff was quieted in his enjoyment, by injunction, So, again, in Bush v. Western, (Prec. in Ch. 530.) a plaintiff who had been in possession, *for a long time, of a water course, was quieted by injunction, against the interruption of the defendant, who had diverted it, though the plaintiff had not established his right at law, and the Court said such bills were usual. These cases show the ancient and established jurisdiction of this Court; and the foundation of that jurisdiction is the necessity of a preventive remedy when great and immediate mischief, or material injury, would arise to the comfort and useful enjoyment of property. The interference rests on the principle of a clear and certain right to the enjoyment of the subject in question, and an injurious interruption of that right, which, upon just and equitable grounds, ought to be prevented. (Anon. 1 Vern. 120. East India Company v. Sandys, 1 Vern. 127. Hills v. University of Oxford, 1 Vern. 275. Anon. 1 Vesey, 476. Anon. 2 Vesey, 414. Whitchurch v. Hide, 2 Atk. 391. 2 Vesey, 453. Attorney-General v. Nichol, 16 Vesey, 338.)
I have intimated that the statute does not deprive the plaintiff of the use of the stream, until recompense be made. He would be entitled to his action at law for the interruption of his right, and all his remedies at law, and in this Court,remain equally in'force. But I am not to be understood as denying a competent power in the legislature to take private property for necessary or useful public purposes; and, perhaps, even for the purposes specified in the act on which this case arises. But to render the exercise of the power valid/' a fair compensation must, in all cases, be previously made to the individuals affected, under some equitable assessment to be provided by law. This is a necessary qualification accompanying the exercise of legislative power, in taking private property for public uses; the limitation is admitted by the soundest authorities, and is adopted by all temperate and civilized governments, from a deep and universal sense of its justice;
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Grotius, (De Jur. B. & P. b. 8. ch. 14. s. 7.) Puffendorf, (De Jur. Nat. et Gent. b. 8. ch. 5. s. 7.) and Bynkershoeck, (Quæst. Jur. Pub. b. 2. ch. 15.) when speaking of the eminent domain of the sovereign, admit that private property may be taken for public uses, when public necessity or utility require it; but they all lay it down as a clear principle of natural equity, that the individual, whose property is thus sacrificed, must be indemnified. The last of those jurists insists, that private property cannot be taken, on any terms, without consent of the owner, *for purposes of public ornament or pleasure; and he mentions an instance in which the Roman senate refused to allow the praetors to carry an aque
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I may go further, and show that this inviolability of private property, even as it respects the acts and the wants of the state, unless a just indemnity be afforded, has excited so much interest, and been deemed of such importance, that it has frequently been made the subject of an express and fundamental article of right in the constitution of government. Such an article is to be seen in the bill of rights annexed to the constitutions of the states of Pennsylvania, Delaware, and Ohio; and it has been incorporated in some of the written constitutions adopted in Europe, (Constitutional charter of Lewis XVIII., and the ephemeral, but very elaborately drawn, constitution de la Republique Frangaise of 1795.) But what is of higher authority, and is absolutely decisive of the sense of the people of this country, it is made a part of the constitution of the United States, “ that private property shall not be taken for public use, without just compensation.” I feel myself, therefore, not only authorized, *but bound to conclude, that a provision for compensation is an indispensable attendant on the due and constitutional exercise of the power of depriving an individual of his property ; and 1 am persuaded that the legislature never intended, by the act in question, to violate or interfere with this great and sacred principle of private right. This is evident from the care which this act bestows on the rights of the owners of the spring, and of the lands through which the conduits are to pass. These are the only cases in which the legislature contemplated or intended that the act could or should interfere with private right, and in these cases due provision is made for its protection, or for compensation. There is no reason why the rights of the plaintiff should not have the same protection as the rights of his neighbors; and the necessity of a provision for his case could not have occurred, or it, doubtless, would
In the case of Agar v. The Regents’ Canal Company, (Cooper’s Eq. Rep. 77.) an injunction was granted, on filing a bill supported by affidavit, restraining defendants acting under a private act of parliament, from cutting a canal through the land of the plaintiff, in a line and mode not supposed to be within the authority of the statute.
I shall, accordingly, upon the facts charged in the bill, and supported by affidavits, as a measure immediately necessary to prevent impending injury, allow the injunction, and wait for the answer, to see whether the merits of the case will be varied.
Injunction granted.