1 N.J. Eq. 157 | New York Court of Chancery | 1830
In tbe consideration of this case, I shall assume that both corporations have legal existence. As it regards the defendants, no objection can be raised against their existence as a body corporate by these complainants. They have brought them into court as a company; the direct object of the bill is to operate upon them as a company and in no other capacity, and so they must be considered by the court. So, on the other hand, the allegations of the defendants, that the Society is virtually dissolved ; that they are acting in direct opposition to the spirit of their charter; that they are speculating in perfect security on the very extensive privileges granted them, without incurring any corresponding risk, or embarking any of their capital in the manufacturing and making of such commodities as are mentioned in the act of incorporation, and therefore their charter rights are forfeited and gone, cannot avail them at this time, or before this court. The case of Slee v. Bloom, 19 Johns. 474, was cited and relied on by the defendants’ counsel, to show that a corporation might be considered in a court of equity as having forfeited or surrendered its charter, by doing or suffering acts to be done which destroy the end and object for which it was instituted. That case was decided by the court of errors, and reversed the decree of the chancellor as found in 5 Johns. C. R. The learned judge was of opinion, that the court of chancery was not the proper tribunal for calling in question the rights of a corporation, as such, for the purpose of declaring its franchises forfeited and lost; and this, as a general principle, I take to be correct. But without admitting or denying the authority of the particular case cited, it is enough to say that the present one is not within it. In that case it appeared, among other things, that the stockholders had come to the resolution to abandon the factory and corporation altogether. No such fact is before me in relation to this corporation. The charter granted to the Society for establishing useful Manufactures, was exceedingly liberal. It was intended to promote a great national object, and well calculated to afford extensive protection to exertion and enterprize. It was created in perpetuity, and the ordinary and natural effect of nonuser wras expressly provided against. How far the risk and en-terprize of the Society are commensurate with the privileges and
Considering, then, both parties as properly in court, I shall inquire, in the first place, what are the rights of the plaintiffs, as exhibited by the case made.
The river Passaic, at the town of Paterson, is not a navigable stream. The tide does not ebb and flow, nor is the stream navigated by boats or craft of any kind. The Society, at the place selected as the seat of their manufactories, own the land on both sides of the river, and have had the possession for many years. They are the riparian proprietors, and upon plain and acknowledged common law principles they are entitled to the use of the stream. They have in it a property growing out of the ownership of the soil, which is ofttimes of more value than the soil itself, and at all times as sacredly regarded by the law. This being the case, they have a right to enjoy it without diminution or alteration. Lord Ellenborough, in the case of Bealy v. Shaw, 6 East. 208, says, “ The general rule of law, as applied to this subject is, that independent of an}f particular enjoyment used to be bad by another, every man has a right to have the advantage of a flow of water in his own land, without diminution or alteration: but an adverse right may exist, founded on the occupation of another.” This right, at all times valuable, is to the Society vital. Their hopes and expectations not only, but their very existence are dependent on it. The right is not confined to the use of so much water as may be necessary for their present purposes. They have appropriated to themselves the use of the stream. They have a right to take out the whole of it for the purposes of their manu-factories, provided it is again, after being used, restored to the bed of the river for the benefit of those below; and provided also that no one having prior rights is thereby injured. Such I take to be the common law rights of the Society, independent of any additional privileges that may be secured to them by their charter.
I propose now to consider the rights of the defendants, and how far, if at all, they interfere with those of the complainants ; and whether, in the exercise of those rights, any injury has been done to the plaintiffs ; and whether, in the further use of them, the plaintiffs will be so certainly and permanently injured, as to justify the interference of the court at this time by injunction.
And first, as to the rights claimed by the defendants. I do not understand them as claiming a right to the ad libitvm or unrestrained use of the waters of the Passaic, or its tributaries, subject to the payment of a compensation or damages to the Society for establishing useful Manufactures. If such claim was set up, it would be necessary to inquire how far it could be supported ns against the chartered rights of the Society. But I consider that (uiis!ion not ¡nopeilv before the court. They claim, un-de: ¡no :¡'X (C oicoi po! ;■!: s. , ¡¡u: ri'.'ht to construct a navigable ouiíú foso u.., {}, O; ,v-, o; ho íi, u c. Tbev chum the use of ¡lie water- of ⅛⅛- > oioiuroo-:, air. oi ¡he extra, w ater of Green non-L Tiny rdeir. to bring the water from the Hopatcung into tie R rkaway 1 . niake use of that, river as a part of the canal, and to take out of it again wafer for the use of the canal— not thereby diminishing the ordinary and natural flow of the water at the great falls at Paterson.
It dues not follow, that, because a person as riparian proprietor has a right to the flow of a stream, and to use it for the purpose of manufacturing, or any other purpose requiring the use of wa*er, that, therefore no other proprietor or person shall be at liberty to use for the same or like objects the water above him. This would be contrary to natural justice and the reason of things. Each one has a right to the use, provided that in the exercise of such right he does no injury to his neighbour: 2 Blac. Com. 403.
Now if the Morris Canal and Banking Company make such use of the waters of the Passaic, or any of its tributary branches, as to occasion no diminution in the flow of the stream at the place where it is used by the complainants; and if in such use rq injury whatever is done to the complainants ; are they not ex
But the Morris Canal Company claim the further privilege of introducing into the Rockaway the waters of the lake Iiopatcung, and of one of the branches of the Raritan—and then of taking out of the Rockaway below so much water as may be necessary for the purposes of their canal; averring that the waters of the stream will be thereby in no wise diminished. The water thus taken out, it is admitted, is not to be returned until it shall have passed the great falls at Paterson. They say that the supply of water thus brought in, together with the extra, supply which they are authorized to take from Green pond, will in times of drought afford to the Society a more copious flow than they would otherwise have, and therefore that it will be a benefit. On the other hand, it is contended by the Society-, that the Calml Company have no authority thus to commingle different streams and diffeienl rights ; that they are entitled to the flow of the identical stream of water, not only without diminution, but without alteration; that if the claims of the Company in this behalf are sustained, the supply afforded by these substituted streams may in time diminish, and the property and immunities of the Company be jeoparded or ruined. This is supposed to present a question of novelty and importance. It certainly is not the case of a simple diversion of the stream for necessary purposes, returning it again to its natural channel when those purposes shall have been answered; but would seem to be rather a substitution of part of one stream for part of another. The principle that assigns to every tiling capable of ownership a legal and determinate owner, is wise and salutary, and promotive of* the great ends of civil society^ This principle, however, can only be applied to streams of water in a limited sense. There is no such thing as actual property in running water. It is transient in its nature, and must be permitted to flow for the common benefit. The interest is rather of a usufructuary kind, but not the less absolute or vested on that account. To say, then, that a
The next inquiry is, whether the complainants have already been injured by the drawing off’ of the water, and whether such injury is continued ; and if not, whether the apprehended danger is of that character as to justify the interference of this court by injunction.
And first, as to the fact of the injury, and its continuance. The bill charges that the Company, about the middle of July,
It appears further from the case presented, that at the times when the water was let into the canal, as complained of by the
The power of the court to grant injunctions in cases of nuisance will not be questioned. There is a necessity for some preventive remedy, wrhen it is ascertained that great or immediate mischief, or permanent injury, is about to be done to private property; and this is the foundation of the jurisdiction. But the exercise of the power must always rest in the sound discretion of the court, to be governed by the nature of the case.
The Morris Canal Company are about completing their canal. The great problem, whether their means of supply will afford them a sufficient quantity of water, without causing any diminution of the water in the Passaic at the great falls, and of consequence injuring the complainants, must soon be solved. Important interests are involved in the solution. This court will afford to the Company its protection, so far as may be legally done, until the result shall be ascertained. .But the defendants must remember that they proceed upon their own responsibility, and at their peril. If there be any hazard or any danger, it is theirs to encounter and overcome it. The rights of the Society are clear, vested, and prior rights; and the enjoyment of them in their full extent will be secured.
The injunction is refused.