11 Vt. 135 | Vt. | 1839
The opinion of the court was delivered by
The original jurisdiction of the court of chancery over the subjects of account, trust, fraud or accident, does not extend to this case. The subject matter of this bill is clearly of common law jurisdiction, unless in relation to the injunction. The jurisdiction of the court over the matter of private nuisances and matters of this kind is merely in aid of the courts of common law, and is mostly designed to prevent immediate and irreparable injury, and to preserve the subject matter of controversy from destruction until the right can be settled. ¡ And where the right is fully settled at law, a bill may be sustained fully to carry into effect the judgment, to prevent endless controversy, in the nature of a bill of peace. But the court of chancery will never sustain a bill in such case, to adjudge and settle the legal rights of the parties, when in dispute. That must be done by a court of law, or by a long, uninterrupted and undisputed user. (Angell on Watercourses, 174.)
The present bill is not of either of these classes of- cases. The water course, the subject matter of controversy, is in no danger of being destroyed. The rights of the parties are entirely unsettled. Indeed, 'the bill seems to have been brought' to settle them and adjust damages, as well as to procure an injunction. For such purposes it cannot be entertained. But it is insisted that the only question arises on the construction of the grants, that is, whether the defendants are restricted only as to the quantity of wa
Demurrer allowed, and bill dismissed.
