Westbrook Manufacturing Co. v. Warren

77 Me. 437 | Me. | 1885

Walton, J.

We do not think the injunction prayed for in this case can be rightfully granted.

The unlawful diversion of the water of a stream is a nuisance, for which one thereby injured may maintain an action at law. And in some cases, such an invasion of one’s light may be restrained by an injunction issued by a court of equity. But, as a general rule, a remedy by injunction is obtainable only when the right is clear, and the invasion of it, actual or threatened, is such as will result in permanent or irreparable injury. In all other cases the injured party must be content with such redress as is afforded by an action at law. The wrong complained of in this case is that the defendants had, within ten days, commenced to use, and were continuing to use, and threatening to use in the future, more water than they were lawfully entitled to; thereby depriving the plaintiffs of sufficient water to run their mill, and obliging them to shut down portions of it, and thus throwing out of employment some two hundred persons.

The injury claimed to have been thus received is considerable. But it does not appear to be of that permanent or irreparable character necessary to justify or require the interposition of a court of equity by way of injunction. It is not like the building of a dam or the digging of a ditch, by which the water would be permanently diverted from the plaintiffs’ mill. It seems to be no more than a temporary invasion of the plaintiffs’ right, and not likely to be continued, unless the defendants claim that they are entitled to the amount of water thus taken from the plaintiffs, in which case, the right should he tried and determined in an action at law before application is made for an injunction. Denison Man. Co. v. Robinson Man. Co. 74 Maine, 116; Jordan v. Woodward, 38 Maine, 423.

And there is another difficulty in this case. The defendants are not joint owners or occupants of the mills on the westerly side of the river; and, for aught that appears in the bill the wrong complained of may have been committed wholly by the owners or occupants of only one of these mills, the owners or occupants of the other mills being entirely innocent of using or threatening to usé more water than they are lawfully entitled to. And yet the court has no means of distinguishing between the innocent and the guilty. The bill charges that all the defendants, in the aggregate, are using more than half the water in the river. But it does not charge that each one of them is using more than he is entitled to. The effect of such an averment is to make it certain that some one of the defendants is guilty of using more than his share of the water, but not that each and every one of them is. Consequently, if the court should grant the injunction prayed for, it is by no means certain that innocent parties might not be enjoined, and be required to pay a portion of the costs of the suit.. Surely, the court ought not to be required to take such a risk as that. In this particular, it is the opinion of the court that the bill is too indefinite or general in its averments to found a decree for an injunction upon.

Demurrer sustained. Bill dismissed with costs.

Peters, C. J., Virgin, Libbey and Emery, JJ., concurred. Haskell, J., having been of counsel did not sit.