Hammond v. Fuller
1 Paige Ch. 197
New York Court of Chancery
1828
Check Treatment

The Chancellor :—The contest between the parties on this motion is, whether the dam of the defendants raises the water of the Paradox Creek at and above the line between Pliny Mooers’ patent and lot No. 306 in the Paradox tract, • above the natural level of the stream, as it existed previous to the erection of the mills-of either of the parties; and in such manner as materially to injure the mills or mill priv*198ileges of the complainants. If it does so, the defendants must lower their dam, and pay to the complainants the damages which they have sustained by the violation of the injunction. It is impossible for the court, from the mass of contradictory affidavits presented, to determine this question with any reasonable prospect of doing justice between the parties. An issue must therefore be awarded to determine the question; and then both parties will have an opportunity to cross-examine the witnesses before the jury. But as the merits of the whole *suit depend upon the same question, and the parties are willing that one issue only should be awarded if an issue is necessary on this motion, there must be a decree entered directing an issue to be made up and tried at the circuit in the county of Essex, to determine this question; and the issue must be formed in such a manner that the jury which tries such issue, if the same is found for the complainants, may also assess the damages which they have sustained in consequence of such raising of the water at and above the line of lot No. 806, and that the damages be ascertained by the verdict up to the time of the trial of such issue. And all other proceedings on the motion which has been made to remove the dam of the defendants, and all further questions and directions in relation to the suit generally, must be reserved until after the trial of the said issue.