88 N.J. Eq. 397 | New York Court of Chancery | 1918
This is a motion to strike out the answer filed by the three defendants. It is the equivalent of a demurrer.
Prior to the passage of the Chancery act (1915), which by rule 51 thereto annexed, provided that any pleading may be objected to by motion on the ground that it discloses no cause
The language of the present rule 67 is a clear departure from that of the former rule 213. It is that any pleading may be objected to by motion on the ground that it discloses no cause of action, defence or counter-claim. By its very terms it extends the motion to strike out answers, for they are defensive pleadings, and the rule says that a pleading may be objected to because it discloses no defence. It must be apparent that the reason that demurrers did not spring into use contemporaneously with the institution of answers in chancery is, that originally the complainant in the bill called upon the defendant to answer his allegations and make discovery on oath, and, what the defendant set forth was therefore evidence in the cause. As the answer was formerly regarded as evidence (and still is, if the bill prays for answer upon oath), there sprung'up a method of objecting to defective answers, known as exceptions: and exceptions lay for scandal, impertinence ánd insufficiency. While a demurrer to an answer (whether or not under oath), insufficient because it disclosed no defence, might with propriety have long ago been substituted for an exception, the fact is that this departure from precedent was not inaugurated .in our state until two jrears ago.
The motion to strike out the answer is rested upon two grounds: (1) that the matters pleaded constitute no defence, and (2) that if the answer is not wholly bad then certain specific parts should be struck out because irrelevant, immaterial and impertinent, and certain other parts because evasive, con
Although a demurrer to an answer would not formerly lie, courts of equity have always had the power to strike out pleadings (including answers) as sham and frivolous, the same as courts of common law. Stanbery v. Baker, 55 N. J. Eq. 270, 271. And rule 53 of the present edition (chancery rules 1917) recognizes this power.
The defendants contend that the answer presents a valid defence, hut if not plainly so, that it is at least arguable that it does in whole or in part, and that, therefore, the motion should lie denied, or be put over until the hearing, because rule 67 further provides that on the hearing of a motion to strike out, the court, in its discretion, may order the application to stand over until hearing. It is further .provided that if the objection be to a bill or counter-claim, the court may require the same to be answered on such terms and conditions as may be ordered. This is significant, because, if an answer should not be struck out or should be struck out only in part, the court could not order the complainant to reply to the answer, for this would deprive him of his election to go to hearing on bill and answer, and therefore the rule properly and purposely leaves it to the complainant’s discretion whether to reply or go to hearing on bill and answer. Of course, if the answer be struck out in its entirety the complainant would be entitled to a decree either as on confession or on proofs taken ex parte, unless leave were given to answer over.
While the lord-chancellor in ancient times performed strictly legal functions and held an ordinary legal court, yet the extraordinary court or court of equity, that is, chancery', had become a court of greatest consequence in Blackstone’s day. 3 Bl. Com. 48, 50. And suits in equity in our state are probably now as numerous as those at law; and the parties litigate hero at arm’s length upon principles governing their rights residing in the great body of equity jurisprudence which has been evolved in England and this country, and particularly in this state. There is, therefore, now as much reason that the defendant, being subpoenaed to answer a bill in chancery, shall set up in his
A view of the allegations of the bill and averments in the answer are necessary to an understanding of the motion sub judice.
The bill alleges that from the year 1887 continuously until the present time the complainant has been seized in fee, and has been in the possession and occupation of, certain silk dyeing works and premises, situate in the city of Paterson, consisting of a united tract of land whereon are erected buildings and oilier property constituting the plant which during all that time has been used and now is used by the complainant in its business of dyeing goods, which premises are bounded on the northerly side thereof by and along the northerly line of the Passaic river as the same runs for a distance of about one thousand (ive hundred feet, and extend over the whole bed of the river along, the distance of one thousand five hundred feet and contain about fifteen acres, of land, exclusive of the bed of the river. That the Passaic river is, and from time immemorial has been, a natural water course flowing from its source above and through the city of Paterson, and through and along the premises of the complainant ultimately to its outlet into Newark bay in this state; the premises being situated on the Passaic river wholly above the point where the tide ebbs and flows, and that the river at and above the premises of the complainant is a private stream or water course. That before and at the time of the impounding, confining, interruption and diversion of the water in the bill set forth, the complainant of right ought to have had and enjoyed, and still of right ought to have and enjoy, the benefit and advantage of the waters of the river, which during all that time of right ought to have run and flowed in its natural, usual and accustomed manner, and until the impounding, confining, interruption and diversion thereof thereinafter men
The bill prays that the defendants, the East Jersey Water Company, the Montclair Water Company and the Acquaekanonk Water Company, and each of them, be enjoined from impounding, confining, retarding, diverting or in anywise interfering with, or hindering, or changing the natural How of the waters of the Passaic river at the plant of the complainant at Little Falls, or at any other place, or any of the tributaries of the river above the said premises of the complainant, so as to in anywise hinder, interrupt or change the natural flow of the waters of said river to and past the premises of the complainant.
The three defendants, the East Jersey Water Company, the Montclair Water Company and the Acquaekanonk Water Company, joined in an answer. This pleading admits certain alie
It is with the allegations which they deny and matter which they set up by way of defence that we are concerned on this motion, in connection, however, with their admissions and protestation of want of knowledge.
They deny that at the time of the impounding, confining, interruption and diversion of the water complainant of right ought to have had and enjoyed and still of right ought to have and enjoy the benefit and advantage of the waters of the river which, during all that time of right ought to have run and flowed in' its natural, usual and accustomed channel and which still of right ought to run and flow unto the premises and dye works of the complainant, whereby complainant would be supplied with water sufficient for the operation of the business of dyeing goods. They deny that the complainant for want of the water, of which it was deprived by them, could not use its works or carry on its business as it otherwise would have done, or that the legal right of the complainant to recover against the East Jersey Water Company for the impounding, interruption and diversion of the water at the dam, reservoir and works at Little Falls, was. established a.t law in the action against the East Jersey Water Company, or that the establishment of the legal right of the complainant in that action for the diversion at the dam, reservoir and works, operated to establish or did establish the right of complainant to recover against the defendants for the alleged joint impounding, interruption and diversions by them, or that the right of the complainant is fully established hv the action at law with respect to the water as against any or all of the defendants for the purpose of the relief prayed for. They deny that the undiminished flow of water in the river at the plant is a large, or anything but an insignificant element, of value in the plant of complainant for its use in the business of dyeing goods, which is the only business in which the complainant has ever used it, and the only business in which the eomplainant has been, and is now, engaged, and deny that the diminished flow of water in the river, due to the diversions has greatly or appreciably
Aside from admissions, protestations of want of knowledge and denials, the defendants, by way of new matter, say, that notwithstanding their impounding of the water of the Passaic river and their diversions thereof, complained of in the bill, there has at all times remained in the Passaic river and flowed past the complainant’s works, sufficient water available for reasonable riparian uses, and the fact that the complainant ceased to take
As to the judgment referred to in said bill, recovered in the supreme court, wherein the complainant was plaintiff and the East Jersey Water Company was defendant, and which is claimed by the bill to have established the complainant’s right against the defendants to recover against them for the alleged joint impounding, interruption and diversion of the waters of the Passaic river at the works at Little Palls by the defendants, they say that, subsequently, and on or about July 27th, 1914, the complainant (as plaintiff) brought another suit against them (as defendants) in the supreme court to recover damages for an
“(1) If they [the jury] should find that the plaintiff would use the diverted water, if it were not diverted, for the purpose of further polluting- the river, then the plaintiff cannot claim more than nominal damages from the defendants, who stand in the -shoes of the municipalities whom they are supplying with. the water, for depriving the plaintiff of that water. (2) That the plaintiff had no right to complain of the diversion by the defendants if you [the jury] find that the only damages suffered was being thereby prevented from committing a nuisance.'’
That the complainant filed its present bill of complaint praying for an injunction, and the defendants submit that the
That the complainant has been operating its dye works at their present site on the Passaic river, in the city of Paterson, since in or about the year 1887, and that in or about the summer of 1897, the East Jersey Water Company commenced to erect its reservoir and works, now owned and operated by it at Little Falls, and that it completed them in or about the month of November, 1899, at an expense of some $3,400,000; that it was a matter of ■common knowledge throughout the community of Paterson and elsewhere prior to the erection of those works, and during their construction, that they were being erected for the purpose of enabling the East Jersey Water Company to furnish water supplies therefrom to the cities of Paterson and Passaic and various other municipalities, and that the result of their operations would necessarily be to substantially diminish the flow of water in the Passaic river below the point of diversion; that the complainant was well aware apd had full knowledge of these facts, but took no proceedings at that time to enjoin the East Jersey Water Company from erecting the works, but stood mutely by, permitting the said East Jersey Water Company to expend the sum of nearly $3,500,000 in the erection of its works; and defendants submit that for this reason the complainant should now be held estopped from obtaining an injunction against them, but that it should be left to its legal remedy against these defendants, if at has any under the circumstances.
That complainant is one of a number of dyeing concerns in the city of Paterson who carry on their business below the Great Falls and above East 12th street in the city of Paterson, all of whom, including the complainant, are jointly polluting the Passaic river by casting their sewage and discharged chemical waste water into it, and, were it not for that pollution, the cities of Newark, Jersey City, Paterson and Passaic, and the various
The defendants further aver that the Passaic river and its tributaries above Little Falls, constitute the only available source from which water in sufficient quantities can be provided for the cities and towns of northern New Jersey, and that the supply is more than adequate, not only for the' present, but for all future needs within the bounds of reasonable forecast, if the waters are properly impounded and protected from pollution; that all the water now taken by the defendants is taken under legislative authority for public uses of an imperative character, and, apart from the reason given above why the complainant is-not entitled to the relief sought for, that the injury, if any, to the complainant, from the impounding and diversion of the waters, is nominal and inconsequential; that if, however, the complainant should be entitled to any relief in this court (which the defendants deny), then they offer to pay to the complain- , ant the damages, if any, resulting from the* taking by them of the water of the Passaic river, or which may result therefrom up to the full capacity of their mains; such damages to be ascertained by this court, pursuant to its practice in like cases.
Counsel for complainant on the oral argument, and in their brief, asserted that the complainant is seeking the protection of its rights as riparian owner by injunction upon equitable terms, namely, that an injunction issue unless the defendants-shall cause complainant’s rights to be condemned at law. This condition is not tendered in the bill, as well it might have been,, hut, for that matter, even though it were not conceded by complainant. the court would have the right to impose it.
It is claimed on behalf of the complainant that its right to this relief under the facts submitted by the answers, is settled by this court in Paterson v. East Jersey Water Co., 74 N. J. Eq. 49; affirmed, for the reasons stated by Vice-Chancellor Emery, 77 N. J. Eq. 588. I shall, for brevity, call this the Paterson Case.
An examination of this case makes it apparent that the defendants’ admitted diversion of the waters in the case at bar is substantially the same as in the one adjudicated. The defendants here as there claim that the diversion causes no appreciable injury to the complainant, a lower riparian owner, and that the maxim de minimis non curat lex, applies. But that question was decided adversely to the defendant in the Paterson Case, the defendant being one of the defendants here, and that in the Paterson Case the diversion was less than in the case before me. On this question ATce-Chancellor Emery said in the Paterson Case (at ¶. 86) :
“On this branch of the case, therefore, I reached the conclusion that the diversion of the water by the defendant for purposes of sale is an infringement of the complainant’s right as a lower riparian owner to the continued flow of the stream, and that without proof of any actual or perceptible damage, so far as the establishment of its legal right is concerned, if the diversion is of such a perceptible and sensible amount as not to be excluded under the maxim de minimis, complainant is entitled to resort to this court for protection, in view of the fact, against defendant’s claim of the right to divert and to continue the diversion. If this view be correct, the examination in detail of the evidence bearing upon the matter of actual damage, and the extent to which the diversion has so far affected the use and enjoyment of complainant’s riparian lands, becomes unnecessary for tire purpose of settling the complainant’s right; but it is of importance in other aspects of the case, viz., as affect
And at p. 98 he said:
“Assuming complainant’s right to the protection of this court to be established, the question of greatest difficulty in the case relates to the manner in which the protection shall be given, and the terms and conditions, if anjq which should be imposed. Belief in equity should certainly extend; I think, to a declaration of complainant’s right, but under the general practice of the court, and independent of statute, such declaration can be made only as incidental to and the basis of some equitable relief. 3 Dan. Ch. Pr. (6th Am. ed.) *2180, note. This power has been given to the court of chancery by statute in England, and in a leading case (Swindon Water Co. v. Wilts & Berks Canal Co., supra) was followed in directing the injunction. See 1 Seton Dec. p. 214.”
The defendants lay stress upon Vice-Chancellor Emery’s observation that in his view the maxim de minimis in the Paterson Case made examination of the evidence hearing upon the actual damage unnecessary, but that such examination became of importance as affecting the right to an injunction or the terms and conditions upon which it might issue, and they claim that in this last aspect the answer should stand and evidence he taken thereunder to be considered on the question of the issuance of an injunction, and terms, if for no other purpose. But it is to he borne in mind that the Paterson Case was prosecuted, heard and determined before the Chancery act of 1915, and at a time when an answer could not he objected to as raising no defense, that is demurred to, practically. And these observations of the vice-chancellor were made in his opinion after the case had been heard and the evidence was all in. There had been no preliminary question about it.
Upon the state of pleadings which, to my mind, admittedly show that the diversion of the water is sensible and appreciable, it is unnecessary and undesirable to send a complainant to a final hearing and permit of the taking of voluminous testimony in order that a merely incidental matter may be determined, that is, the terms upon which an injunction should issue,
The defendant the East Jersey Water Conrpany in the case before me as in the Paterson Qase, appears to be a private corporation not possessing the power of eminent domain; and this, too, would appear to be the case with the other defendants, the Montclair Water Company and the Acquackanonk Water Company, so far as any allegation in the bill is concerned. And there is no direct averment in the answer to the effect that these other defendants, the Montclair Water Company and the Acquackanonk Water Company, possess the power of eminent domain. It is, however, stated in the answer that although the complainant for a long time has been aware that the defendant the East Jersey Water Company was impounding and diverting the waters*of the Passaic river at Little Falls for the use of the inhabitants of the cities of Paterson and Passaic and other municipalities, that the complainant during all that time acquiesced in the impounding and diversion of the waters by “these defendants” for such municipal purposes, making it thereby appear that the defendant the Montclair Water Company and the Acquackanonk Water Company, as well as the East Jersey Water Company, were supplying the diverted water to municipalities for municipal uses and purposes, and the allegation is, that the complainant, during all the time men
On the question as to the condition upon which an injunction in this class of cases may issue unless compensation be made, Vice-Chancellor Emery said in the Paterson Case (at p. 98):
“Complainant, having established its right, is entitled, if the general course of practice be followed, to the equitable relief by which alone the right can be protected, an injunction against its violation. The defendant, however, contends that the case comes within a.n exception to this general rule protecting property rights by injunction, and under which courts of equity, where the property in question is actually taken for a public use, and serious injury would result from the injunction, without corresponding benefit or advantage to the public, will decline to issue an injunction, if it is a case where compensation can reasonably be made and defendant is willing to make it. And the defendant here, by its answer, offers to make compensation, under the direction of the court, for damages resulting from the talcing of the water hip to the full capacity of its mains.’ This course of directing an injunction only in case
In this case, as already pointed out, complainant seeks an. injunction upon the equitable condition that it shall issue only upon defendants refusing to make compensation, and defendants, by their answer, offer to make compensation if complainant’s right be established.
In Sparks Manufacturing Co. v. Town of Newton, 57 N. J. Eq. 367, 392, 393, Vice-Chancellor Pitney held upon the authorities in our state, which he cites, that where a riparian owner seeks an injunction to restrain a corporation from diverting water for public purposes which it has power to condemn, and the corporation offers to pay such compensation as the court shall deem just, and the complainant consents, the court has jurisdiction to ascertain the amount of compensation. This case was cited by Vice-Chancellor Emery in the Paterson Case, 74 N. J. Eq. (at p. 99), with approval,'and Ms decision, as stated, was affirmed on his opinion. Sparks Manufacturmg Co. v. Newton was affirmed by the court of errors and appeals sub nom. Ingersoll v. Newton, 60 N. J. Eq. 399, wherein Mr. Justice Dixon, writing the opinion for the court of errors and appeals, said that the conclusions expressed by Vice-Chancellor Pitney as to the power and duty of the court of chancery, on the pleadings and evidence, to fix the compensation that the defendant ought to pay to the complainant as a condition to withhold the injunction to which it would otherwise be entitled, the court of errors and appeals agreed, and dissented only with respect to the amounts awarded. See, also, Speer v. Erie Railroad Co., 68 N. J. Eq. 615, wherein Mr. Justice Swayze, writing the opinion for the court of errors and appeals, observed (at p. 221) that the power of the court of chancery to award damages where both parties submit themselves to the jurisdiction of the court, is established, citing Sparks Manufacturing Co. v. Newton, supra, and Ingersoll v. Newton, supra.
Defendants in their briefs also assert that it would be an extraordinary exercise of the right of injunction to cut off the water supplies of these municipalities without giving them an opportunity to condemn and to pay compensation, and without any of the municipalities who would be affected by the injunction being made parties to the suit, and assert that such municipalities were held to be necessary parties in Wilson, Attorney-General, v. East Jersey Water Co., 78 N. J. Eq. 330. The decision in that ease was that the court would not determine the validity of contracts between municipalities and a corporation for water supplies from the streams of this state unless the parties interested in the contracts were parties to the suit. It is a sufficient answer to say that there is no question of the validity of contracts before the court in the ease at bar, and, as remarked by Vice-Chancellor Stevens in the Wilson Case (at p. 345), no objection is made in the answer to the absence of parties.
Vice-Chancellor Emery, in the Paterson Case (at p. 103), observed that—
“If any of the water companies or municipalities supplied by defendant have the ultimate power of condemning the water rights in question, there would seem to be no reason why they should not be allowed to do so upon compensation in aid of the
Upon this branch of the case I conclude that the law arising upon the admitted facts is that the defendants the Montclair Water Company and the Acquackanonk Water Company may condemn, and the East Jersey Water Company may make compensation to be ascertained in and by this court, unless all of the municipalities which take from it will condemn in aid of its diversion.
The equitable defence of estoppel asserted in the answer, namely, that the complainant has acquiesced in the impounding and diversion by the defendants for an unreasonable length of time, and that it would be inequitable to the defendants to now enjoin them, and that the defendant the East Jersey Water Company, long since commenced to erect and completed its water works on the Passaic river at great expense, is answered by Vice-Chancellor Emery in the Paterson Case (at p. 96), where he said:
“But whether served (with notice) or not, there is, in my judgment, no estoppel against the complainant’s protection of its rights as riparian owner by mere silence or failure either to give notice or to bring suit immediately. In Simmon v. Paterson (Court of Errors and Appeals, 1899), 60 N. J. Eq. 385, 392, it was held that the acquiescence of the riparian owners, continued for years, did not deprive them of their right to property in the stream, although it might affect the right to injunction. This legal right of the riparian owner is barred only by an actual grant or uninterrupted enjoyment for twenty years. Hutchinson v. Coleman (1828), 10 N. J. Law 74, 78; Campbell v. Smith, 8 N. J. Law 140; 14 Am. Dec. 400. And an equitable remedy in aid of the legal right is not ordinarily barred by mere acquiescence in a less period, independent of any circumstances raising special equities. None such appear in
As to the equitable defence that the complainant does not come into court with clean, hands because, with others, it is polluting the Passaic river, and that were it not for that pollution Newark, Jersey City, Paterson, Passaic and the various other municipalities which use up the water which is diverted by the defendants, could take and use that water and yet leave sufficient in the river for all legitimate rises of the dye houses and other riparian owners, including the complainant, below the point of diversion, and that there would be plenty of water left in the river for their uses were it not so polluted, it would seem to be sufficient to say that as the defendants admittedly divert the water above and not below the riparian lands of the complainant, it is not available to the defendants to assert that if things were not as they are hut as they might possibly otherwise be that the complainant is not entitled to relief, especially as the thing complained of in the bill, namety, the palpable and appreciable diversion is caused by the defendants, who, as a fact, are in nowise injured by the conduct of the complainant. In 1 Pom. Eq. Jur. (3d ed.) § 399. it is laid down:
“Broad as the principle is in its operation, it must still be taken with reasonable limitations; it does not apply to every unconscientious act or inequitable conduct on the part of a plaintiff. The maxim, considered as a general rule controlling the administration of equitable relief in particular controversies, is confined to misconduct in regard to, or at all events connected with, the matter in litigation, so that it has in some measure affected the equitable relations subsisting between the two parties, and arising out of the • transaction : it does not extend to any misconduct, however gross, which is unconnected with the matter in litigation, and with which the opposite party has no concern. When a*422 court of equity is appealed to for relief it will not go outside of the subject-matter of the controversy, and make its interference to depend upon the character and conduct of the moving party in no way affecting the equitable right which he asserts against the defendant, or the relief which he demands.”
In Wilson v. Bird, 28 N. J. Eq. 352, it was held that one who comes into a court of conscience to enforce a forfeiture must come with skirts free from blame.
In Lewis’ Appeal, 67 Pa. St. 166, the court said:
“The rule that he who comes into equity must come with clean hands must be understood to refer to willful misconduct in regard to the matter in litigation. Snell Eq. 25. All the illustrations given in Fran. Max. Eq. 5, under the maxim, as he states it, He that hath committed iniquity shall not have equity, show this.”
It is alleged and admitted that in an action at law, in the supreme court in 1912, complainant, as plaintiff, recovered against the East Jersey Water Company, as defendant, final judgment for damages sustained by the complainant for deprivation of water of the Passaic river of -which the complainant had been deprived during the six years before action brought, which judgment was paid by the defendant in 1914; and the complainant alleges that its legal right to recover against the Bast Jersey Water Company for the diversion of the water at its works at Little Palls was established in that action, and that the diversions of the defendants the Montclair Water Company and the Aequackanonk Water Company jointly with the defendant the- East Jerse3 Water Compaq, were made at the works at Little Falls theretofore owned and operated Iw the defendant the East Jersey Water Company, and that the establishment of that right in the action at law against the last-named company operated to establish, and did establish, the right of the complainant to recover against the three defendants for jointly interrupting and diverting the waters at Little Falls, and that the right of the complainant is fully established by that action at law with respect to the diversion, as against all of the three defendants named, for the purpose of the relief prayed in the bill.
It would seem to be quite beside the mark for the defendants to aver that the court of errors and appeals in reversing the second judgment “necessarily” held any particular thing, when they proceed themselves in their answer to set forth exactly what the court of errors and appeals did hold ih setting aside the judgment and granting a new trial. It was that the trial' judge erred in refusing to charge the jury that if-they found that the plaintiff would have used the diverted water, if it had not been diverted, for' the purpose of further polluting the river, then the plaintiff could not claim more than nom
The averment in the answer as to the suit in which the issue as to liability was presented is that which was commenced in
These views make it unnecessary to consider whether, as a principle of substantive law, the judgment in the former suit operates to estop the defendants on the question of liability- - the East Jersey Water Company as a party to* that action and the Montclair Water Company and the Aequackanonk Water Company as successors in interest of, and as parties in privity with, the East Jersey Water Compaq, because they are concluded by the Practice act and rules mentioned.
One other matter remains to be considered, and that is: Are the averments in the answer which contradict and are repugnant to the admissions made in the pleading, capable of saving the case of the defendants on their answer? For instance, the bill alleges and the answer admits that prior to the impounding and diversion of the waters the complainant had used them for the purpose of dyeing goods, and that from 1906 to 1912, the defendant the East Jersey Water Company at a dam, reservoir and works owned and operated by it at Little Falls on the Passaic river above the complainant’s premises, impounded and diverted the water of the river during these 3ears by an aver
It must be perfectly apparent upon tírese admitted facts that the impounding and diverting of this water and the consequent deprivation of its use by the complainant, a lower riparian owner, was palpable and appreciable. And yet the defendants in answer say that the injury, if any, to the complainant from this impounding and diversion of the waters is nominal and inconsequential. This last averment of fact is entirely inconsistent with their previous admission of facts to the contrary. An answer in chancery must be consistent, and a defendant
Equitable defences must be consistent. Gilbert v. Galfin, 11 N. J. Eq. 445. An answer may contain within itself such circumstances as will suffice to deprive it of all efficacy. Per Chief-Justice Green, in Plume v. Small, 5 N. J. Eq. 650. These decisions in Gilbert v. Galpin and Plume v. Small were made upon final hearing. But now by the Chancery act (1915) and rule 67 of this court demurrer to an answer, in effect, will lie. And in this situation the power with reference to overruling defective pleas on demurrer in actions at law, is applicable, that is, the answer will be overruled if its averments do not constitute a defence. Aid the substantive law on this question is the same as that concerning declarations in suits at law which do not state a cause for action.
In Pope v. Skinkle, 45 N. J. Law 39, it was held that' if a pleading appear on its face to be untrue in one of its essential allegations it is bad on demurrer. Now, having admitted in their answer that the complainant is appreciably injured by the diversion of the waters of the Passaic river, the rule that 'a pleading is to be construed against the pleader, requires that the subsequent averment in their answer that the diversion of the waters is nominal and inconsequential, is to be taken as an untrue statement of an essential averment, and must be held to be bad.
The averment in the answer that notwithstanding the impounding and diversion of the water by the defendants there has at all times remained in the. river and flowed past the complainant’s works, sufficient water available for reasonable riparian uses, cannot avail the defendants to - overcome the admission that the quantity impounded and diverted has been appreciable and damaging to the complainant. This may well be a defence on the question of damages, as may also be the question of polluting the river by the use made of its waters by the complain
A defendant may not make disserving admissions in an answer responsive to the bill, and then, by way of new matter, plead facts inconsistent with those admissions. In other words, a defendant may not by self-serving statements avoid the effect of disserving ones — at least not unless they amount to confession and avoidance, and they do not in this case.
Finding that the answer as a whole does not constitute a valid defence against the complainant’s right to an injunction upon equitable -terms, it becomes unnecessary to consider the specific objections to certain parts of the pleading. The answer must, therefore, be struck out. The terms of the order to be made will be settled on motion and on notice.
Supplemental memorandum. Filed, March 16th, 1918.
The complainant moves for decree and submits a form thereof. The defendants, who have had notice of the motion, also submit a form. The complainants draft of decree provides for an injunction, but stays its issue during a period to be determined by the court, and provides that if before that time proceedings at law for condemnation of complainant’s rights bó commenced by the defendants, then that an injunction shall not issue, &c.
The defendants contend that as to the East Jersey Water Company, which does not possess the power of condemnation, damages should be ascertained in this court instead of allowing the companies and municipalities which derive a supply from it, and which have the ultimate power of condemnation, to condemn in aid of that company’s diversion.
It is true that defendants in their answer submit that if the complainant shall be entitled to relief they offer to pay damages to be ascertained by this court. There is no like offer in the bill, nor proffered submission to any terms in it, but, in their oral argument and in their brief, counsel for complainant stated that it was seeking protection upon equitable terms, namely,
The defendants in the form of decree submitted provide for an amendment to the bill so that the complainant shall be made to pray that unless and until the defendant the East Jersey Water Company makes such compensation to the complainant as shall be ascertained by this court to be just, it be enjoined, &c. Of course this relief cannot be granted. A defendant cannot amend a complainant’s bill without notice of motion therefor, and none has been given, and not even then, as I view it, without complainant’s consent. This is quite different from the court giving complainant leave to amend a bill in a given case because of valid objection to the bill by defendant.
In the opinion I made no allusion to the fact that so far as anything was disclosed in the pleadings it did not appear that the judgments granting new trials in the cases mentioned were by express terms limited to the question of damages. Assuming that these judgments, which were not before me, reversed the verdicts and granted new trials without more, still, I take it that rule 131 of the supreme court operates upon the situation by its own inherent force. It is, I think, to be assumed that the judgments ordering new trials limit them to the question of damages only, but, if not, then I think the rule operates upon the situation, and, in either event, the estoppel on the question of liability is complete.
The drafts of decrees submitted by the complainant in the cases of Weidmann Silk Dyeing Co. v. The Mayor and Common Council of Newark (43-380), and Weidmann Silk Dyeing Co. v. The Mayor and Common Council of Jersey City (43-381), will also be signed, with the same time limit set in which condemnation proceedings must be commenced to stay the issuance of injunctions.