30 N.J. Eq. 135 | New York Court of Chancery | 1878
This is a bill of peace. The complainants are the lessees of the Morris Canal and Banking Company, and as such have, since 1871, operated the canal and other works of that company. The canal crosses the Rockaway river at Hover, and is so constructed that for a short distance the river is used as a part of it. In order to secure sufficient water in the river, at that point, to float the boats at all times during the season of navigation, a dam was built across the river. At the junction of the canal with the river, on the east side of the latter, there is what is called a guard-lock, placed there to prevent the water of the river, when at unusual height, from flowing into the canal below the river on the east, but serving no other purpose. It is usually left open. The defendant McFarlan is the owner of a rolling-mill at Hover, on the river above the dam. The defendants, the Halseys and Beach, are owners of land on the river at Rock-away, below Hover, on which there is, in the river, a natural fall, furnishing water-power by which the machinery of a grist-mill and a saw-mill, and the machinery of an iron forge or bloomery on their land, are driven. The defendant, Van Winkle, is their lessee of the mills, and Hoagland their lessee of the forge.
The complainants have been prosecuted in the supreme court of this state for damages, in several actions which are still pending. Three of them were brought by McFarlan.
Of the suits brought by the Halseys, the first was begun on the 22d of September, 1876, and the first of those brpught by Van Winkle and Hoagland, respectively, were commenced on the same day. All of those three suits were removed into the federal court, and since then have been no further proceeded in. Three other suits, brought by the Halseys, Van Winkle and Hoagland, rlspectively, were begun on the 22d of September, 1877, for the like grievance (the diversion of the water) as their former suits, but the time of the alleged injury in those cases was from the 22d of September, 1876, and the damages were laid, in each case, at $490. In those suits the complainants filed a plea of the general issue, and the causes were noticed for trial, but all further proceedings were stayed by the injunction.
The complainants, by their bill, present three reasons specially applicable to the litigation which has been begun by McEarlan, why that litigation should be drawn into equity. The first is that the dam was originally built on land which, theretofore, had belonged to Henry McEarlan, the elder, and which the Morris Canal and Banking Company acquired of him for the purpose of building and maintaining the dam there, and that the dam was originally erected, not only with the consent of Henry McEarlan, Sr., and by his permission and license, but with his aid; they alleging that it was built at the joint expense of him and the canal company. The second is that the defendant, McEai’lan, was, from 1829 to 1833, and from 1844 to 1859, excepting the year 1848, a director of the canal company, and while he was director attended the meetings of the board, and resided at Dover, and was fully cognizant of the affairs of the company, the use made by them of the dam and of the flash-boards of which he now complains, and also knew of and participated in the transactions of the company in deepening and widening the canal, and reconstructing the locks and planes thereof to accommodate
As to the litigation by the Halseys and the tenants of their property, a single consideration, as peculiarly applicable thereto, is presented by the bill, and that is that the canal company, after the enlargement of their canal, in 1845, settled with and paid Joseph and John D. Jackson, who were then the owners of the property, or one of them, in full for all .damages which might be sustained by them, or either of them, by reason of the supposed decrease of the waters of the Rockaway river at the mills and bloomery, by means of the dam and flash-boards, and received from the Jacksons a grant ' in fee, in the nature of a perpetual license, to maintain the dam and flash-boards, and that the license or grant has, through lapse of time, been lost; and that the Halseys are the children and heirs at law of a daughter of Joseph Jackson, and hold their present title and claim to the land's under him.
The bill presents another consideration applicable to the litigation of all the defendants, viz.: that the complainants .ought in equity to be protected against these numerous suits. The considerations which are presented as peculiarly applicable to the litigation by McEarlan, were both appropriate to the case of the complainants in the suit brought by them against him and others in this court, to restrain him and them from removing the flash-boards, and which has recently, on final hearing, terminated in favor of the defendants. Lehigh Valley R. R. Co. v. McFarlan, 3 Stew. 180. In that case this court adjudged, on final hearing of the cause, after full
But it is enough to say, in reference to the relief claimed against McFarlan in particular, that the court has already, in a suit brought by the complainants against him in respect to the flash-boards, adjudged that the complainants have no right to maintain those boards on the dam, and the injunction restraining him from removing them has been dissolved. It cannot reasonably be expected that it will now restrain him from pursuing his claim for the recovery, by legal proceedings, of damages for the injury which he may have sustained by the unlawful placing of those boards upon the dam.
The consideration presented as specially applicable to the other defendants, the defence of a grant which is lost, is available at law.
But it is urged that this court will interfere to save the complainants from the trouble, vexation and expense of a multiplicity of suits, and it is, in this connection, suggested that the complainants are operating, for the public benefit, a large and important work, a great line of artificial navigation ; and that they should be protected by equity against
The case is not one where many, claim the same right against one, or where one defends the same right against many. The rights are different. If the complainants, in the construction or operation of their works, do injury to persons or property, they must answer for it, as others are compelled to do. If, in so answering for an injury, it appears that they are harassed with unnecessary suits, this court is open for their relief, to protect them against the vexatious
In the case before me, the bill makes no reference to any other person or persons than the defendants, who call, or who will be likely to call, in question the same rights which the defendants contest in the suits at law. See Willis’s Eq. Pl. 277. For aught that appears in the bill, these defend
“And your orator shows and charges the truth to be, that the object of the said eight suits at law, now pending against your orator in said supreme court, is, to impeach, controvert and call in question the right of your orator to maintain and use said dam at Dover, which is already in controversy in this court, between your orator and said Henry MeFarlan, as hereinabove set forth [referring to the before-mentioned suit for injunction, recently decided], and that your orator, in defending said several suits in a court of law, will be required to maintain and establish the same right in each of said eight cases, and that thereby your orator will be subjected to great and useless expense, and that, to prevent said useless and vexatious litigation and such a multiplicity of suits, your orator is entitled to the intervention and aid of this honorable court.”
It appears, from the bill, that the fact that there are eight suits at law, instead of four only (one by MeFarlan, one by the Halseys, and one by each of their two tenants), is due to the fact that the complainants, in the exercise of what they claim to be their right, removed four of the suits at law into the federal court. Perhaps, if that removal had not taken place, the four would have been the only suits brought until the questions raised therein should have been determined at law. That they have not been pursued, is probably owing to the fact that they were removed. One set of the suits may perhaps be regarded as mere skirmishing for position. But, however that may be, the suits of each party were brought for damages for different periods of time.
This court would (it should be added), on application of the complainants, protect them against being required to defend themselves on the same claim of right in all the suits brought by each party, and would direct that one of the suits brought by MeFarlan, the Halseys and Van Winkle and Hoagland, respectively, be brought to trial, and that the other suits, brought by the same parties for the
The injunction must be dissolved. From what has been already said, it follows that the bill has no equity, and is, besides, multifarious.
The demurrer will be allowed.