Sheldon v. Rockwell

9 Wis. 166 | Wis. | 1859

By the Court,

Dixon, C. J.

There is no doubt of the power of a court of equity to interfere by injunction, to prohibit injuries occasioned by the back-flowage of water, in cases like the present.

But in this proceeding there is one feature which we consider conclusive upon the rights of the parties. It is the length of time which the plaintiff permitted to pass after’the erection of the dam in question, and before the commencement of his suit to restrain its construction or continuance. Nineteen years elapsed between the building of the dam and the institution of this action. The dam was begun in August, 1837; this suit in August, 1856. In less than twelve months more his remedy at law, by action on the case, would have been barred. In the meantime, the dam was four times destroyed by floods, and as often rebuilt by the defendants. During all the time, the plaintiff resided in the immediate neighborhood, and upon the premises for the injury to which he now complains. With the exception of a verbal notice to the defendants at the time the dam was originally built; that its 'erection would be an infringement of his rights; he remained during all the time a calm and constant observer of every step taken, and every movement made by the defendants, without one word of complaint or warning. He commenced no suit; consulted no attorney. No fraud, misrepresentation, or unfair dealing on the part of the defendants is alleged. No accident, mistake, or excuse for the delay on bis part is set up. After nineteen years of profound sleep, he seems suddenly to have awakened to a sense of his position, and finding the dam, for a fifth time swept away by high water, and the defendants engaged in replacing it, the same as before, he asks of a court of equity that they be restrained. Could a more preposterous proposition be urged. A statement of these facts constitutes the strongest refutation of his claim for relief.

The granting or refusal of injunctions rests in the sound discretion of the court. They are never granted when they are against good consience, or productive of hardship, oppression, injustice, or public or private mischief. The plaintiff, by his silence and acquiescence, has invited and encouraged the defendants to expend their time and means in the construction and repairing of the dam, and the mills and machinery used in connection with it In them they have a large pecuniary interest; and though they may have erected them for purposes of private speculation, they are, nevertheless entitled to the consideration of the court. The public have a large interest in the improvements created by their capital and enterprise.

During the greater portion of the time since the erection of the dam in question; the building and maintaining of dams and mills have been so much regarded matters of public concern, that they have been, and now are, fostered and protected by statutory laws. For a court now to interfere and say to the defendants, that they shall not rebuild their dam, because, by an accident against which it was impossible for them to guard, it has been destroyed, and their mills and •machinery thereby rendered temporarily useless, would be an act of gross oppression and injustice.

The court lends its aid only to the vigilant, active, and faithful. This tardy application must be regarded as made in bad faith. After his gross and unparalleled negligence, the plaintiff can have no standing in court for the purpose of asking the relief here sought. Unreasonable delay, and mere lapse of time, independently of any statute of limitations, constitute a defense in a court of equity. This doctrine is very, ancient, and established by a great number of decisions.

In the leading case of Smith vs. Clay, Ambler 645, Lord Camden said: “ A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced; and, therefore, from the beginning of the jurisdiction, there was always a limitation to suits in this court.”

In McKnight vs. Taylor, I Howard, U. S. Rep., 161, a bill filed to adjust matters of account, which were not barred by the statute of limitations, was dismissed for want of reasonable diligence. Taney, C. J., adopts the language of Lord Camden, and adds: “ It is not merely on presumption of payment, or in analogy to the statute of limitations, that a court of chancery refuses to lend its aid to stale demands.”

In Haight vs. The Proprietors of the Morris Aqueduct, 4 Wash. C. C. R., 601, the defendants having had the adverse possession for twenty years, of certain water, which had previously flowed into the plaintiff’s mill pond, which they had used during that period by means of an aqueduct for supplying water to the town of Morristown, suffered it to go into disuse, in consequence of a decay of the logs of the aqueduct, for three years, during which the water again flowed into the plaintiff’s pond. Upon the defendants commencing the reconstruction of the aqueduct, the plaintiffs applied for an injunction, which was refused, on the ground that twenty years’ possession vested a.complete title to the water in the defendants. In passing upon the case, Washington, J., says: “ The next objection to the interference of this court, which I consider to be insuperable, is the acquiescence of those under whom the plaintiffs claim, in the construction of this aqueduct originally; and in their subsequent use and enjoyment of the water by which it was supplied; which circumstance, though unaccompanied by long possession, would be sufficient to close the doors of a court of equity to this application. In such a case the court will not only refuse to interfere in favor of the party who has thus acquiesced, or been guilty of inexcusable negligence; but will even grant injunctions to restrain actions brought at law for the nusiance.” Although the latter proposition may not be true, the former is undoubtedly the law of such cases.

In the case of the Birmingham Canal Co. vs. Lloyd, 18 Vesey, 515, the plaintiffs having permitted the defendants to proceed for nearly two years, and to expend a large sum of money in the erection of their machinery, Lord Eldon refused an injunction, for the reason that the plaintiffs had not commenced their opposition when they could have done so with justice.

If in England two years acquiescence defeats a proceeding like the present, 'how much less delay ought to suffice for that purpose in a newly settled country like our own, where by the rapidity of our growth and enterprise, a few months oftentimes determines the destinies of our cities, villages, and places of business ? The diligence required by the law ought to be measured by the mischief which would ensue from a want of it.

The same principles will be found established in the following English and American cases: Bond vs. Hopkins, 1 Sch. & Lef., 413, 428; Hovenden vs. Lord Armesley, 2 id., 607, 630, to 640; Stackhouse vs. Bornston, 10 Ves. 466; Beckford vs. Wade, 17 Ves., 466, 467; Chalmondeley vs. Clinton, 2 Jac. & Walk., 1, 138 to 152; Postlock vs. Gordon, 1 Hare R., 594; Vigors vs. Pike, 8 Clarke & Fin., 650; Decouche vs. Savetier, 3 John. C. R., 190; Kane vs. Bloodgood, 7 id., 93, Dexter vs. Arnold, 3 Sum., 152; Piatt vs. Vattier, 9 Peters, 405, 416, 417; Sherwood vs. Sutton, 5 Mason R., 143, 145, 146; Bowman vs. Wathen, 1 How., U. S. R., 189; Gould vs. Gould, 3 Story R., 516; and Weller vs. Smeaton, 1 Cox, Ch. R., 102.

The objection that no finding in writing was made and filed by the judge, is overruled for the reason that no exception was taken.

The judgment of the circuit court is affirmed, with costs.