Attorney General v. Cohoes Co.

6 Paige Ch. 133, 1836 N.Y. LEXIS 226, 1836 N.Y. Misc. LEXIS 47

• Court: New York Court of Chancery
• Decided: August 2, 1836
• Status: Published

Opinion

The Chancellor.

The fact is not denied by the answer, that the embankment in question is a part of the Erie and Champlain canals, and as such belongs to the people of the state. The question is not properly presented in this stage of the suit whether the several matters set up in the .answer by way of avoidance, form any defence to the suit. The matters thus set up are not strictly responsive to the information ; and even if they were they are not sworn to in such a manner as to authorize a dissolution of the injunction thereon without further proof, or until the Attorney General has had an opportunity to introduce proofs on the part of the state. A mere denial upon information and belief is not sufficient to authorize a dissolution of an injunction which is sustained by the allegations in the bill. (2 Robin. Pr. 243 and cases there referred to.) The answer in this case is sworn to by the agent of the company, who swears to his belief merely, but does not pretend that he has any knowledge as to these matters. The decision of the questions arising upon this part of the answer must be postponed until the hearing, when all the facts will be properly before the court by the testimony in the suit.

As the case now stands it would not be proper to permit the defendants to proceed and make an opening in the caiial embankment, for the purpose of taking any part of the water therefrom, without the consent, and contrary to the wishes of those officers of the state; who have, by law, been specially entrusted and charged with the duty of protecting and preserving these canals, and the uninterrupted use thereof, for the public» This court has jurisdiction to restrain any purpresture or unauthorized appropriation of the public property to private uses, which may amount to a public nuisance or may injuriously affect or endanger the public interest. And where the officers entrusted with the protection of such public interests, acting under the sanction of their official oaths, believe theintendedencroachmentwillprove injurious to the navigation of the canals, private persons should hot be permitted to interfere with the waters or embankments of the canals contrary to law, upon a mere opinion# although under the sanction of an oath, that the intended trespass upon the public rights would not be an injury to the public. Lord Eldon proceeded on this principle in refusing to dissolve an injunction restraining a purpresture in the Thames river, by Earl Grosvenor and others, although there were affidavits on the part of the defendants that the public would not be injured by the intended encroachment; .the proper officer of the crown having examined the case and expressed his opinion that the relator was entitled to the assistance of the Attorney General in preventing such encroachment. (The Attorney General v. Johnson and others 2 Wils. Ch. Rep. 87.)

The injunction in this case must therefore be retained until the hearing.