The Chancellor.
The bill is filed to quiet the plaintiffs in the possession and enjoyment of their mills and other improvements, on the Passaic creek or outlet of the great pond, near Newburgh, and to stop the defendants from lowering the outlet. The proceedings complained of were instituted by the defendants, under the act of the 9th of April, 1804, relative to the draining of swamps and bog meadows in the counties of Orange and Dutchess; and the principal question in the case is, whether the act gives authority to interfere with the property of the plaintiffs, in the manner proposed.
[ * 469 ]
The design of the act was to enable any one or more of the proprietors of swamps and bog meadows to have them drained, at the joint expense of all the proprietors. Most of the provisions in the act apply, therefore, exclusively to the interest of those proprietors, and do not touch the plaintiffs. When application is made to the Court of Common Pleas to have inspectors appointed to determine on the expediency, the plan, and the expense of draining, and to *make a ratable assessment of the expense, the notice enjoined by the act is to be directed to the parties interested in the lands to be drained. The notice is to “ all persons interested therein,” that, is, in the swamp or bog meadow. No other persons are called on to take notice of the proceeding, or to have any concern in the appointment. And when the inspectors have made their return, the proprietors may meet and choose commissioners to act in the place and stead of the inspectors, and who are then to be clothed with their powers. There is but one section under which third persons, who are not interested in the lands to be drained, can be affected by these private and ex parte proceedings, and here they are affected only in what appears to have been considered as a mere incidental circumstance. The 6th section provides, that in case the inspectors shall find it [469]*469necessary “ to continue such ditch or ditches through lands adjoining any such tracts of swamp or bog meadow, for the purposes of draining the same more effectually, they are authorized to agree and settle with the owner or owners of such lands, for such damage as is likely, in their opinion, to be sustained by such owner or owners, by reason of such ditch, &c.; and if they cannot agree, the inspectors are to apply to the Court to appoint appraisers.” It is under this section that the present controversy has arisen.
[ * 470 ]
The inspectors have reported a plan for draining the swamps north and south of the great pond, and have, in their map, laid down the course of a main ditch through each swamp, and terminating at the pond. This pond, which is designated on the map as the great pond, is a mile and a half long, and one mile broad, and on an average, 13 feet deep, and covers 400 acres of land. The ditches terminating at the pond will not, it seems, answer the purpose of draining the swamps, on account of the elevation of the water ; and the inspectors accordingly propose to lower the pond very materially, by cutting down the outlet of it, *by a ditch 10 feet deep, and 16 feet wide. The plaintiffs allege, and have gone largely into proof to show, that this project of lowering the pond would destroy the value of the pond and outlet, as a source of water for the use of mills below. The defendants admit that the mill and dam at the outlet would be essentially affected ; but they insist, and have gone into proof to show, that the mills of the plaintiffs lower down on the outlet would not be injured. The witnesses differ essentially, in their opinion and judgment on this point. But the question of damage is not the one I am now considering. It is sufficient, for the discussion of the matter of right, that the mill and dam at the outlet must be injured, and that the lowering of the pond to the extent proposed, is an experiment deemed by many very hazardous, in respect to the future value of the outlet to all the mills that are seated upon it. The important question is, Have the defendants authority, under the 6th section of the act, to cut down this outlet ? Can this properly be deemed a continuation of the main ditch through lands adjoining the swamp ? The inspectors, in their report, so consider it; for they say, “ we find it necessary to continue the first-mentioned main ditch through lands adjoining said tract of swamp or bog, for the purpose of draining the same more effectually, viz. through what is called the outlet of the great pond;” and yet it appears that this outlet is at the distance of one mile from the termination of the main ditch above alluded to.
From the best consideration that I have been able to be[470]*470stow on the subject, it appears to me that the inspectors have given too extended a construction to their powers under the act.
[ * 471 ]
To continue a line or ditch, does not, in the ordinary or grammatical sense, admit of any intervening substance to break the continuity. . It implies uninterrupted connection; and the ditch cannot properly be said to be continued, by terminating it at the north end of the pond, and *by deepening the outlet of that pond at the southeast corner. We cannot suppose it without indulging in the same poetical fiction by which the river Alpheus was continued from Greece to Sicily: occultas egisse mas subter mare. The ditch was to be continued through lands adjoining, that is, through lands next to, and which touched, the swamp or bog meadow; but none of the lands of the plaintiffs adjoin the great swamp where the main ditch terminates, though they may adjoin the small or pine swamp at the south end of the pond.
[ * 472 ]
If the operation of cutting down the outlet is not within the letter of the permission under the act, we are certainly not warranted, in this case, to construe the power liberally, and to extend it by equity. It is not a case that concerns the public, but one of mere private convenience and profit. The preservation of the great pond and its outlet, may be as useful to the plaintiffs as the draining of the swamps would be to the defendants, and the interest of each party has an equal claim on the protection of the government; one interest ought not to be made subservient to the other. This permission to continue the ditch through adjoining lands, without the consent of the owner, ought to be strictly construed, and not carried beyond the plain letter of the act. It is an invasion of the rights of property; and it is evident that the act could only have had in view cases of the most immaterial and trifling consequence, or the power would never have been granted with so little check. We have seen that the plaintiffs could not have had any legal notice of the application to the Common Pleas, nor any agency in the appointment of the inspectors, and that the decision of the inspectors, as to the necessity and course of the ditch, is, at once, conclusive upon them. We are, therefore, required, by justice and policy, and the soundest rules of interpretation, to confine the inspectors and their operations, as they may affect strangers who have no interest in the swamps, within the strict precise limits prescribed *by the statute. How cautiously and guardedly are powers given, even to public officers, to lay out highways for the use of the public, over private property. They are not to be laid out over cultivated grounds, without the certificate of twelve freeholders, that the road is necessary, nor through any or[472]
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The Chancellor.
The bill is filed to quiet the plaintiffs in the possession and enjoyment of their mills and other improvements, on the Passaic creek or outlet of the great pond, near Newburgh, and to stop the defendants from lowering the outlet. The proceedings complained of were instituted by the defendants, under the act of the 9th of April, 1804, relative to the draining of swamps and bog meadows in the counties of Orange and Dutchess; and the principal question in the case is, whether the act gives authority to interfere with the property of the plaintiffs, in the manner proposed.
[ * 469 ]
The design of the act was to enable any one or more of the proprietors of swamps and bog meadows to have them drained, at the joint expense of all the proprietors. Most of the provisions in the act apply, therefore, exclusively to the interest of those proprietors, and do not touch the plaintiffs. When application is made to the Court of Common Pleas to have inspectors appointed to determine on the expediency, the plan, and the expense of draining, and to *make a ratable assessment of the expense, the notice enjoined by the act is to be directed to the parties interested in the lands to be drained. The notice is to “ all persons interested therein,” that, is, in the swamp or bog meadow. No other persons are called on to take notice of the proceeding, or to have any concern in the appointment. And when the inspectors have made their return, the proprietors may meet and choose commissioners to act in the place and stead of the inspectors, and who are then to be clothed with their powers. There is but one section under which third persons, who are not interested in the lands to be drained, can be affected by these private and ex parte proceedings, and here they are affected only in what appears to have been considered as a mere incidental circumstance. The 6th section provides, that in case the inspectors shall find it [469]*469necessary “ to continue such ditch or ditches through lands adjoining any such tracts of swamp or bog meadow, for the purposes of draining the same more effectually, they are authorized to agree and settle with the owner or owners of such lands, for such damage as is likely, in their opinion, to be sustained by such owner or owners, by reason of such ditch, &c.; and if they cannot agree, the inspectors are to apply to the Court to appoint appraisers.” It is under this section that the present controversy has arisen.
[ * 470 ]
The inspectors have reported a plan for draining the swamps north and south of the great pond, and have, in their map, laid down the course of a main ditch through each swamp, and terminating at the pond. This pond, which is designated on the map as the great pond, is a mile and a half long, and one mile broad, and on an average, 13 feet deep, and covers 400 acres of land. The ditches terminating at the pond will not, it seems, answer the purpose of draining the swamps, on account of the elevation of the water ; and the inspectors accordingly propose to lower the pond very materially, by cutting down the outlet of it, *by a ditch 10 feet deep, and 16 feet wide. The plaintiffs allege, and have gone largely into proof to show, that this project of lowering the pond would destroy the value of the pond and outlet, as a source of water for the use of mills below. The defendants admit that the mill and dam at the outlet would be essentially affected ; but they insist, and have gone into proof to show, that the mills of the plaintiffs lower down on the outlet would not be injured. The witnesses differ essentially, in their opinion and judgment on this point. But the question of damage is not the one I am now considering. It is sufficient, for the discussion of the matter of right, that the mill and dam at the outlet must be injured, and that the lowering of the pond to the extent proposed, is an experiment deemed by many very hazardous, in respect to the future value of the outlet to all the mills that are seated upon it. The important question is, Have the defendants authority, under the 6th section of the act, to cut down this outlet ? Can this properly be deemed a continuation of the main ditch through lands adjoining the swamp ? The inspectors, in their report, so consider it; for they say, “ we find it necessary to continue the first-mentioned main ditch through lands adjoining said tract of swamp or bog, for the purpose of draining the same more effectually, viz. through what is called the outlet of the great pond;” and yet it appears that this outlet is at the distance of one mile from the termination of the main ditch above alluded to.
From the best consideration that I have been able to be[470]*470stow on the subject, it appears to me that the inspectors have given too extended a construction to their powers under the act.
[ * 471 ]
To continue a line or ditch, does not, in the ordinary or grammatical sense, admit of any intervening substance to break the continuity. . It implies uninterrupted connection; and the ditch cannot properly be said to be continued, by terminating it at the north end of the pond, and *by deepening the outlet of that pond at the southeast corner. We cannot suppose it without indulging in the same poetical fiction by which the river Alpheus was continued from Greece to Sicily: occultas egisse mas subter mare. The ditch was to be continued through lands adjoining, that is, through lands next to, and which touched, the swamp or bog meadow; but none of the lands of the plaintiffs adjoin the great swamp where the main ditch terminates, though they may adjoin the small or pine swamp at the south end of the pond.
[ * 472 ]
If the operation of cutting down the outlet is not within the letter of the permission under the act, we are certainly not warranted, in this case, to construe the power liberally, and to extend it by equity. It is not a case that concerns the public, but one of mere private convenience and profit. The preservation of the great pond and its outlet, may be as useful to the plaintiffs as the draining of the swamps would be to the defendants, and the interest of each party has an equal claim on the protection of the government; one interest ought not to be made subservient to the other. This permission to continue the ditch through adjoining lands, without the consent of the owner, ought to be strictly construed, and not carried beyond the plain letter of the act. It is an invasion of the rights of property; and it is evident that the act could only have had in view cases of the most immaterial and trifling consequence, or the power would never have been granted with so little check. We have seen that the plaintiffs could not have had any legal notice of the application to the Common Pleas, nor any agency in the appointment of the inspectors, and that the decision of the inspectors, as to the necessity and course of the ditch, is, at once, conclusive upon them. We are, therefore, required, by justice and policy, and the soundest rules of interpretation, to confine the inspectors and their operations, as they may affect strangers who have no interest in the swamps, within the strict precise limits prescribed *by the statute. How cautiously and guardedly are powers given, even to public officers, to lay out highways for the use of the public, over private property. They are not to be laid out over cultivated grounds, without the certificate of twelve freeholders, that the road is necessary, nor through any or[472]*472chard or garden of four years’ growth, without the owner’s consent. Can we suppose that this act intended that these inspectors should carry their ditches where they pleased, without any regard to the improvements of others ? I am entirely persuaded, that the project of draining this little lake, and thereby destroying one mill, and affecting, more or less, all the others which are supplied by its waters, is a stretch of power never within the contemplation of the act. It would be an unreasonable and dangerous construction. The power given was supposed to be harmless. It was never intended to touch and materially injure valuable improvements on adjoining lands; much less was it intended to break up useful ancient streams, and the natural and capacious reservoirs which fed them. It is most fit, therefore, that this power should be kept within the words of the act.
If I am right in the construction of the act, then the jurisdiction of the Court, and the duty of exercising it, are equally manifest. The title of the plaintiffs to the use of the outlet is undisputed, and they, and those under whom they hold, have been in the enjoyment of that right for a great number of years.
[ * 473 ]
In Finch v. Resbridger, (2 Vern. 390.) a bill was filed to-quiet the plaintiff in the enjoyment of a water-course running to his house and garden, through the ground of the defendant, and the right and long enjoyment of the plaintiff appearing, the lord keeper gave effect to the bill. Again, in Bush v. Western, (Prec. in Ch. 530.) the plaintiff had been in possession of a water-course for 60 years, and *the defendant interrupted it, by making a cut or channel through his own lands, and a perpetual injunction was awarded ; and it was agreed, in that case, to be usual to have such bills in this Court, in the first instance.
These- cases relate to acts of interruption by private individuals ; but there are other cases still more applicable, because they relate to the proceedings of persons acting under a statute.
[473]*473[ * 474 ]
[472]*472Thus, in the case of Hush v. The Trustees of Morden College, (1 Vesey, 188.) Lord Hardwicke allowed an injunction to restrain turnpike commissioners from entering on the land of the plaintiff to dig gravel, as it was not a case within their authority. The lord chancellor said he should not interpose in a doubtful case, until that doubt was removed, and the matter determined at law; but there the case was plain, and if the commissioners went beyond their jurisdiction, they were as much trespassers as private persons ; and though they might be responsible at law, that would be only for a particular wrong, and the remedy would not be equal to the remedy in this Court. In the late case [473]*473of Shand v. The Aberdeen Canal Company, (2 Dow. 519.) which was a Scotch case, determined, on appeal, in the house of lords, Lord Eldon said, that if the canal commissioners exceeded their powers, they became trespassers, but chancery would restrain them by injunction, and keep them strictly within the limits of their power. The case of Agar v. The Regent’s Canal Company, (Cooper’s Eq. Reports, 77.) is still more recent, being as late as 1815, and it shows that the jurisdiction of chancery on this subject is well settled, and in constant exercise, and that the cases maintain the most steady uniformity in their doctrine and belief. The bill, in that case, was filed by the plaintiff, as owner of an estate through which the defendants proposed to make a canal, under a private act of parliament. The prayer of the bill was to *restrain the defendants from carrying the canal through his garden and brick-yard, and the injunction was allowed so far as to restrain the defendants from deviating, in cutting their canal, from the line prescribed. The lord chancellor admitted that the plaintiff might have lain by and rested on his legal rights, and then brought trespass, but he was, also, at liberty to come into chancery, in the first instance, for a preventive remedy; and if there was any dispute as to the fact, which course the defendant ought to pursue, he would direct an issue.
These cases remove all doubt on the point of jurisdiction, and the observation of Lord Hardwicke alludes to its .preeminent utility. This is not a case of an ordinary trespass impending, but one great and special, leading to lasting mischief, and the destruction of the estate, and tending to multiplicity of suits. There is no fact in this case to be ascertained. The whole case turns upon the construction of the act, and, considering it in the light that I do, the prayer of the bill ought to be granted.
Let the injunction, therefore, against any proceedings on the part of the defendants, touching the outlet in the bill mentioned, be made perpetual.
Injunction continued.
N. B. The question of costs being afterwards agitated, the Court decided, that neither party should have costs, as against the other.