19 N.J. Eq. 142 | New York Court of Chancery | 1868
The suit is brought by seven complainants. The defendants are the proprietors of a dam across the Raritan river,
The answer, after answering the whole bill, states these facts, and submits that the bill is multifarious, and prays the same benefit by reason thereof, as if a demurrer had been filed on that account.
The complainants are improperly joined in the same bill; those who own no lands below the dam cannot be injured by the enlargement of the head-gates. The fault is not what is properly called multifariousness ; which depends more upon the subject matter of the suit than the parties to it, and consists in joining in one bill several matters perfectly distinct and unconnected, in part of which some of the parties have no interest. As to any of the complainants below the dam, the two matters are not distinct and unconnected; the damage to them is by the joint operation of the two alleged injuries.
But the rule of pleading in equity is the same in both cases. Both multifariousness and misjoinder of complainants should be taken advantage of by demurrer, or plea, or by answer expressly for that purpose. The court, at the
This rule would be nugatory if the answer could in all casos state the objection, and pray the same advantage as if taken by demurrer. The whole bill, or any part of it, could in this way be demurred to in an answer. This objection as taken here, is really a demurrer, and it is none the less so because written on the same sheet, between the paragraphs of the answer, instead of being engrossed and filed as a separate paper. In this case especially, where the testimony, amounting to nearly four hundred printed pages, has been taken at great expense of time and money, it would be oppressive now to dismiss the bill, on grounds which the settled practice of the court very wisely and properly provides should be disposed of ou demurrer. By this course, the complainant would, by the act of the defendant, be deprived of the right of having the formal objections to his bill settled before taking tho testimony, and disclosing his whole case. 1 Dan. Chan. Prac. 352 ; Story’s Eq. Pl., § 284 a. 539 ; Ward v. Cooke, 5 Madd. 122 ; Wynne v. Callander, 1 Russ. 293 ; Greenwood v. Churchill, 1 M. § K. 546 ; Oliver
The Somerville Water Power Company were incorporated by an act passed Pebruary 28th, 1840, which authorized them to build a dam across the Baritan river, at the place where they have constructed it. It was provided by the act that the dam should not raise the water more than two and a half feet above its ordinary level, and that the company should be liable to the owners of lands above the dam for all damages arising from overflowing or back-water. It authorized the company to construct a raceway from above the dam to a point in the river some miles below; and when the raceway should be completed, it authorized them to divert the waters of the river, oP so much as should be necessary for the water power cieated by the act, into the raceway; but such diversion was not to be made until they should have obtained the written consent and permission of the owners of all lands lying on the river between the dam and the point where the raceway should again intersect the river.
The persons who were incorporated by this act had for more than a year previous, under articles of association, been engaged in making contracts foP carrying out the purpose for which they were subsequently incorporated, which was, to create a water power by a dam and raceway, by which the whole fall of the river for miles might be taken advantage of, and the power concentrated at one spot, where a manufacturing village would be established, and factories built to use the power thus created. They had made contracts for the lands on both sides of the river where the dam is built, and for those to be occupied by the raceway which is on the north side of the river, and had commenced excavating the raceway, and built head-gates at the place where it was to connect with the river, above the dam. These head-gates were built in 1839, and finished in that year, or within a short time afteP its close; they were shortly after washed out by a freshet, and lay down the whole winter,
The Somerville Water Rower Company, in 1848, mortgaged their property, franchises, and contracts to trustees, to secure to the holders of fifty bonds, for $1000 each, the payment of these bonds. This mortgage was foreclosed in the Circuit Court of the United States, and the mortgaged property was, by virtue of said decree, on the 27th day of February, 1864, sold and conveyed by the marshal to the holders of the bonds. The defendants had been incorporated by an act passed March 24th, 1868, and the purchasers at the marshal’s sale, in March, 1864, conveyed the property to the defendants. The defendants, by their charter, were authorized to purchase the property and franchises of the Somerville Water Rower Company; but that company were not authorized by their charter to mortgage or sell their franchises. For that, special legislation was necessary; for this water power company is not included in the act of March 5th, 1858, {Nix. Dig. 791, § 36,) by which, upon a judicial sale of the main works of a railroad or canal company, or a turnpike or plank road company, the franchises pass to the purchasers.
The defendants, to increase the efficiency of their water power, were making preparations to put the dam in thorough repair, and to tighten it, and stop all the leaks in it. They allege that the dam never has been tight, and that in its present condition one-third of the water of the river, at its ordinary stages, and one-half, in times of drought, percolates through it. They were also preparing and intended to change and enlarge the head-gates. Their plan was to extend the raceway higher up the river, and at such higher point to construct two head-gates, each one foot wider than the present culverts, so as to pass more water from the river through the raceway, for the use of the mills at the lower end of it.
As to the owners of lands on tho south side of the river, between the dam and the end of the raceway, the answer i nsists that the owners of these lands in 1839, from whom these complainants derive title, gave to John I. Gaston and his associates, who were the original Somerville Water Power Company, their written consent to erect the dam, and to divert the whole of the water of the river, or so much as they might deem necessary for their purpose, into this raceway ; and they insist that the act of the legislature, and this consent, gave the right to divert the whole of the waters of the river, as against the parties who signed the consent, and all claiming under them; that this right was property, and passed by the mortgage and foreclosure sale.
This alleged written consent is lost, and the fact whether it was ever given is disputed, and is one of the most difficult questions in the cause. It is alleged that it was signed by Peter B. Dumont, wbo then owned the lands which the com-r plainants, F. T. Frelinghuysen and T. Hope, now own; by Catharine Veghte, who then owned the lands now owned by the complainant R. H. Veghte; by John and Garrett Van
But admitting that such consent was signed, did it, either alone or in connection with the act of 1840, create a title in the associates or the company to divert, at their pleasure, all the water in the river ?
This river was not a public river. The owners on each side owned the soil to the middle of the river, subject to no public right, and had the right to have the waters flow in
But the common law may be altered by statute, and it was in the power of the legislature, either by general law or by i this charter, to have ordained that such rights might be con-iveyed or created by writing without seal. It is contended that this act, by correct construction, gives such effect to this consent. The act simply authorizes the company to divert the water of the river; it gives to them a power and papacity which they would not have without it, like a power to buy, mortgage, and sell lands, and the other powers specially conferred by this charter. It defines one objeot and purpose of their incorporation. But like all other objects and powers, it is to be executed in the manner prescribed by law; it was not intended to dispense with a deed as the means of conveyance, any more than a power given to a charitable corporation to take property by bequest or devise, would dispense with the necessity of the will being executed with the forms required by law.
The legislature did not intend to give the right of taking property by condemnation. In the exercise of the power of eminent domain, the act, in its preamble and its provisions, provides for the consent of the owners. The act here is dealing with private property. It uses no words apt or proper to divest it from the owners, or to vest it in the company. It uses words apt and proper to grant power to a corporation to do a certain act as part of the franchises granted to them. In such case the powers granted are to be strictly pursued, and not to be extended, by implication, beyond the usual meaning of the words. The proviso to
This question has, in effect, been settled in this state, by the derision in the Court of Errors, in the case of Hetfield v. The Central Railroad Company, 5 Dutcher 571. In that case the charter of the railroad company, which authorized thorn to enter upon and take tho lands required for their road, directed that they should not enter without the consent of the owner. The company had entered and built their road, with the consent of the owner. And the court held, that this did not dispense with the necessity of a deed or conveyance of tho land or riglit in the form required by law in like cases, that it was not intended to confer title. That decision must control this caso. And this charter must be held not to change in this case the settled principle that an incorporeal right or easement cannot be created or transferred except by deed.
The consent in such case is only a license, and will have the effect given to a license, at law or in equity. In general, a license at law will create no estate in the lands of the licensor, but will justify or excuse any act done under it. It is revokable, oven when given for a consideration, and after it has been executed. Wood v. Leadbitter, 13 M. & W. 838. But in such cases, where the revocation would be a fraud, courts of equity give a remedy, either by restraining the revocation, or by construing the license as an agreement to give the right, and compelling specific performance by deed, as of a contract in part executed. Angelí on Watercourses, § 318, 322; Wetmore v. White, 2 Caines’ Cas. in Error 87; Hulme v. Shreve, 3 Green’s C. R. 116; Le Fevre v. Le Fevre, 4 S. & R. 241; Rerick v. Kern, 14 S. & R. 267.
But a license to a person to do or erect something on his own land, by which a right or easement of the licensor may
This effect given to a license by parol or by writing, without seal, seemingly contrary to the principle of law that a right to an easement can arise or pass by deed only, is said by some to be founded on the doctrine of abandonment. It is settled, that an easement or right in the estate of another, acquired by grant or prescription, may be lost by actual abandonment, that is, by a non-user for twenty years, or even for less time, accompanied by acts which show an intention not to resume it. And it is said that the effect of a license to do an act on the land of the licensee, can only extinguish such easement as may be abandoned, that is, easements or rights acquired by grant or prescription, and does in no case affect easements or incorporeal hereditaments, which are, by law, annexed to the land of the licensor. An-gelí on Watercourses, § 303; Fentiman v. Smith, 4 East 107. Of this kind, is the right to running water passing over or along his land in a natural stream or watercourse. It is creating an easement in, or parting with, a right annexed by law, not giving up or abandoning a right acquired by grant or prescription. I am much inclined to think that the last is the correct doctrine.
But, as applied to one branch of this case, this question is of no' importance. So far as the license is not executed, it can now be revoked, and it has been revoked; it would be revoked by the filing of this bill; it was revoked, long ago, by the death of P. B. Dumont and the other licensors, and by the alienation of the lands which it affected. It will not authorize any raising of the dam or water in the river, or any greater diversion of that water by a raceway or gates of greater capacity than such as were erected and put in operation while the license was yet in force and unrevoked. Peter B. Dumont died in 1846. Nothing done by virtue of
This makes the question whether the license 'could be revoked in this case, after acts done by virtue of it on the lands of the licensee, of little or no consequence in this suit. Dumont died twenty years before the filing of this bill, and erections made under the license from him, either of a dam to hold back the water, or of a raceway and head-gates to divert it from the channel, had, by time and adverse enjoyment, ripened into a right which cannot now be affected by any revocation. Besides, the expense incurred in this case, on faith of the license, would make it a fraud to revoke it now; and even if revoked at law, a court of equity will grant no relief by injunction founded on such revocation.
Had the dam and raceway been erected without license, and enjoyed adversely for twenty years, the right to continue them, as enjoyed, would be established at law. The claim to erections made under a license, is better for the defendants than a claim by mere adverse enjoyment, as it will give a right to such works as they erected and put in operation before 1864-, notwithstanding they may not have been kept up to the full extent of their erection, provided there was no actual abandonment of them, or any substantial part of them; whereas, the claim by adverse enjoyment requires that they should show a substantial enjoyment and occupation, to the extent claimed, for twenty years, excepting intermissions caused by accident or temporary neglect of repair.
It becomes, then, important to determine to what extent these works were erected before 1846. The license was for two purposes: to erect a dam, and divert the water of the river in the raceway. The dam was erected before 1846, and was erected of the height which it now is. There is no evidence that shows it has been raised, or that the height at which it now is by the recent repairs of the defendants, is greater than its original height, or that it raises the water more than two and a half feet above its former level. It is
■Some hold, that a way acquired by prescription will be extinguished by non-user alone, while it requires adverse possession in case of a grant. I do not find any decision founded on this distinction, and it would seem unfounded, as prescription is based upon the presumption of a grant. 3 Kent 448 ; Angell on Watercourses, § 252 ; Washb. on Easements 550, § 1; Ward v. Ward, 7 Exch. 838 ; Jennison v. Walker, 15 Gray; Bannon v. Angier, 2 Allen 128; Ar
Eor these reasons, I am of opinion that the defendants have the right to maintain the dam at its present height, and to repair it so as to make it perfectly tight. As the complainants, Wever and John Veghte, have no cause of complaint, except from the height or tightening of the dam, the bill, as to them, must be dismissed.
The other branch of the license was the diversion of the water of the river through the raceway. We must ascertain what diversion was made, or works erected and put in operation for the purpose, before 1846. These works were erected and the diversion made on the lands of the defendants, then belonging to the parties who erected them, under whom the defendants derive title. The authorities all agree, that if any work erected on such license is torn down, or is destroyed by the elements, the license may then be revoked, and after such revocation, it cannot be rebuilt without a new license. This principle will put out of the question the first large head-gates, erected in 1839, which were washed away by a freshet before the raceway was completed. The license having been revoked in 1846, those or others of the same capacity, cannot now be put in their place by virtue of the license. The same result would follow from the fact that the works were never completed so as to divert water, until after the destruction of these first head-gates; they were placed there in 1839, and washed away in that year, or in 1840. The raceway was not completed, so as to let in water, until 1842. The license was not to erect head-gates or construct a raceway, but to divert water. And only the erection, as a whole, of some work intended to divert the water, is such acting upon it as will make it irrevocable. Any experimental or tentative erections, afterwards given up, will not be considered as an execution of the license.
The outlet for the water from the river above the dam into the raceway, at the completion of the works in 1843, was the same two trunks which now remain there, made of
I have arived at this conclusion, supposing from the evidence, that the diversion of water from the river by these means will not-, even in times of drought, divert all the water of the river, or nearly all) but will leave a sufficient quantity of water flowing in the channel below the dam to maintain at all times a running stream, with sufficient water for the use of the complainants owning lands below the dam, and those who may occupy them, for all agricultural and other useful purposes for which they have been used. I am not
As against the complainants, R. II. Vcghte, Hope, Stryker, Carter, and Erelingliuysen, the defendants must be perpetually restrained from enlarging or in any way altering their head-gates or raceway in such manner as to divert any ventor .¡uantity of the water of the river than will be cb-.m- i-ed if/ them as they now are, A¡en jv/wred and cleared from obstructions that have accumulated in them since their original construction.