| R.I. | Mar 6, 1859
It is evident that this case is not one for the specific action invoked by the bill. The right of the plaintiffs, so far from being clear from what has been disclosed at the hearing, is embarrassed in the first place by the question under our mill act. This, it is true, we might, as incidental to the relief, decide; but then, again, the title is rendered, at the very least, doubtful, by the mixed question of law and fact which the case raises, to wit: whether the defendants have not, by the adverse enjoyment of themselves and of those under whom they claim for upwards of twenty years under a claim of right, gained a title, as against the plaintiffs, to keep up this dam for the use of their mills, upon paying a reasonable compensation for flowage. These are questions for a court of law; and the last peculiarly so; not only from its exclusively legal character, but from the kind of proof which it involves, proper to be submitted only to a jury.
No doubt a court of equity may, when it finds the plaintiff's title embarrassed by mixed questions of law and fact, retain the bill, and give the plaintiff liberty to bring an action at law or make up issues at law, fitted to resolve those questions. But in a case like this, where the title of the plaintiffs, doubtful under the statute at best, has been suffered by them to be weighed down by upwards of twenty years' user of the defendants, which, so far as we can see, was adverse, the proper course of the plaintiffs was, before filing their bill, to have asserted their title at law; and afterwards, if there successful, to come here for redress against a continued resistance to their established legal rights.
There is no reason apparent for their coming into this court, in the first instance, such as there would be if they were suffering an irreparable mischief, which demanded the interposition of the court, pending the litigation at law; or, if they required the *63 aid of the court to insure them, by way of condition upon the other party in the matter of proofs, or by discovery, a fair trial at law. Nothing of this sort is even pretended; but it is the bald case of plaintiffs coming into this court to abate a mill-dam, or the dam of a reservoir for the use of mills, on account of the flowage of land caused thereby, when they have accepted compensation for the flowage from 1809 to 1850; the dam having been kept up as a mere reservoir dam at least from 1832 to the filing of this bill in 1855, notwithstanding as one of the plaintiffs swears he disputed the right of the defendants to maintain it. It is singular, if the right were really contested by him, that he did not, in all this course of time, contest it in the effectual form of an action at law, by which it might have been settled for or against him ! And during the three years and upwards that this bill has been pending, it is again singular that no application has been made to the court by the plaintiffs, for liberty to bring an action at law to establish their title.
In the leading case upon this subject of Jones v. Bacon, 4 M. C. 433; S.C. 18 Eng. Cond. Ch. R. 432, Lord Cottenham says, that he could "find no case in which the court has thought it right to retain a bill, simply for the purpose of enabling a plaintiff to do that," that is, to bring an action at law to settle his title, "which these plaintiffs might have done at any time during the last four years;" referring to the period of time which had elapsed since the plaintiffs knew of what they claimed to be an infringement of their right. But what should be said of retaining a bill until the right was settled at law, after a delay of the plaintiff to bring an action for upwards of twenty-six years since he obtained such knowledge ? What should be said of a delay to sue so protracted, and an adverse user on the other side so long continued, that it has become a grave question at least, whether the user has not ripened into a right? Under such circumstances, we can give no relief upon this bill, nor find any precedent for retaining it until the title of the plaintiffs is settled at law; and as upon this ground the bill must be dismissed with costs, we purposely abstain from touching upon the matters of law and fact concerning the title, as well as upon the ground of equitable estoppel set up in the answer.
Bill dismissed with costs. *64