Nesmith, J.
On or about the first day of April, A. D., 1861, the plaintiffs filed their original bill of complaint against the defendants, containing sundry allegations duly set forth in the same, and closing with a prayer for relief as therein stated. At the June Law Term in this district, the defendants appeared and filed a demurrer to said original bill, and contended that plaintiffs were not entitled upon said bill to the relief therein prayed for :
1. Because the plaintiffs had a plain, full, ample and adequate remedy at law, and all the injuries complained of in said bill might be fully compensated thereby.
2. Because the injuries complained of are neither imminent nor irreparable, nor is there any danger of their becoming so, either in their nature, or as matter of fact.
8. Because the right of the plaintiffs to enjoy the land free from the molestation complained of had not been determined by any action, suit, or other proceeding at law.
In A. D. 1862, at the December Law Term in this district, this demurrer was overruled by the court, and the defendants obtained leave to withdraw their said demurrer, and file their answer to the bill. In the meantime plaintiffs had leave to file a supplemental bill, which was afterwards duly filed on the 27th of May, A. D., 1863. At the subsequent June Term, defendants furnished their answer to the original bill, as well as to the supplemental bill. This answer sets out the title and rights claimed by the party, and suggests that plaintiffs should join certain other interested persons as defendants, admits some of the facts as charged in plaintiffs’ bills, and alleges many other facts and arguments as explanatory of their case, and, in general, negatives many of the charges in plaintiffs’ bills. Plaintiffs’ supplemental bill states, among other things, that since the filing of their original bill, the action [76]*76at law named therein, brought by the plaintiffs against the defendants, on the 21st day of October, 1859, for damages to plaintiffs’land before that time, by them sustained by reason of said dam and flashboards, then pending in the Supreme Judicial Court in this county, was heard and tried-on the first Tuesday of January, A. D., 1862, and a verdict rendered for the .plaintiffs for the sum of $206.08 damages. And at the Law Term of said court holden at Concord, on the first Tuesday of December of the same year, judgment was rendered upon said verdict and for costs taxed at $496.59, which said judgment is in full force; and plaintiffs further say that the defendants have continued, from the filing of said original bill, and up to the time of filing this supplemental bill, and still continue, to maintain said dam and the flashboards named in said original bill, and to maintain and keep the water upon the land of the plaintiffs at the full height at which it may be maintained and kept by the use thereof, in the same manner, that said dam and flashboards and water were maintained and kept up from the 3d day of July, A. D., 1856, to the 21st day of October, 1859, being the time described in the declaration in said action at law, in which said judgment was rendered, as herein before stated, and that they believe the defendants intend to continue to keep up their said dam and flashboards, '■ at the full height, as heretofore. Plaintiffs allege that by the aforesaid trial, verdict, and judgment at law, their right to possess and enjoy their land free from any flowage, easement, or servitude whatever, by reason of any dam or flashboards, or other obstructions of said river by the defendants has been maintained. Wherefore, the plaintiffs pray, that the defendants, their agents, and officers, may be restrained by the writ of injunction of this court, from continuing, or maintaining upon said dam the said flashboards, and that it may be definitely ascertained, in such manner as said court shall order, how much of said dam is injurious to the plaintiffs, and that the defendants may then be ordered to remove such portion thereof as is adjudged to be injurious to the plaintiffs, and that the damages sustained by these plaintiffs, by reason of said flash-boards and by such portion of said dam, as is so adjudged to be injurious to the plaintiffs, since the commencement of said last named action at law, by the plaintiffs against said defendants, may be ascertained, and decreed to be paid by the defendants to the plaintiffs, and that the defendants may be perpetually enjoined and restrained by a decree of this court from ever replacing or maintaining said flashboards on said dam, or from replacing, rebuilding, or maintaining such portion of said dam as may be so adjudged to be injurious to the plaintiffs, and for such other relief as may be just. Both parties, since the filing of the supplemental bill and answer aforesaid, have proceeded to take and prepare a large amount of testimony to be used in said case. The titles of the respective parties, their testimony, pleas, and learned arguments have been examined, heard, and considered by the court, and our conclusions upon the case have been formed, and we state them briefly as follows : The chief injury complained of by plaintiffs, is to about three acres of their land, located on the eastern bank of Merrimack river, and between said river and the track of the Concord Railroad, extending for [77]*77the whole width of their land, embracing for this distance, what is well known as the bank of said river, and that in consequence of the defendants’ dam and dashboards on the same, situate about half a mile below said land, extending across the river, the current of the river has been so changed, and the past and present action of the water has been such, by*abrasion and otherwise, as to wear away the land of plaintiffs, to undermine and destroy the plaintiffs’ trees, designated as ornamental or shade trees, there growing, and otherwise materially tending to diminish their quantity and to lessen the value of plaintiffs’ property. Plaintiffs purchased their lands in July, 1856, and their title to the lands embraced in their deed, for the purposes of this case, may be conceded to be good; also the existence of plaintiffs’ suits at law, as alleged in their bill, may be conceded because admitted by defendants as well as the verdict and judgment in the first case at law; and it is also shown by the defendants, from the clerk’s records and certificate, that this first suit has been in due time renewed by the defendants’ writ of review; and that both suits at law are still pending on the docket of the Trial Term of the Supreme Judicial Court in this county; and we think, also, that under the proof offered by defendants, it may be assumed, that, so far as the present plaintiffs are concerned, the said defendants have the right to have and maintain a dam, where their present dam is located, with or without flashboards, and to hold back or flow the water in the river, as high and to the extent, as it was customary to maintain and keep up said dam twenty years prior to July 9, 1859, being the time when these plaintiffs first requested or notified the defendants to remove their dam. And that so far the rights of these parties may be considered as settled by law, because there is no evidence in the case, that the plaintiffs, or those under whom they claim their title, ever complained of any injury to their land, or other property, in consequence of any flowage, or obstruction occasioned by any claim, at the privilege of the defendants, at any time before July, A. D., 1859.
Free access — add to your briefcase to read the full text and ask questions with AI
Nesmith, J.
On or about the first day of April, A. D., 1861, the plaintiffs filed their original bill of complaint against the defendants, containing sundry allegations duly set forth in the same, and closing with a prayer for relief as therein stated. At the June Law Term in this district, the defendants appeared and filed a demurrer to said original bill, and contended that plaintiffs were not entitled upon said bill to the relief therein prayed for :
1. Because the plaintiffs had a plain, full, ample and adequate remedy at law, and all the injuries complained of in said bill might be fully compensated thereby.
2. Because the injuries complained of are neither imminent nor irreparable, nor is there any danger of their becoming so, either in their nature, or as matter of fact.
8. Because the right of the plaintiffs to enjoy the land free from the molestation complained of had not been determined by any action, suit, or other proceeding at law.
In A. D. 1862, at the December Law Term in this district, this demurrer was overruled by the court, and the defendants obtained leave to withdraw their said demurrer, and file their answer to the bill. In the meantime plaintiffs had leave to file a supplemental bill, which was afterwards duly filed on the 27th of May, A. D., 1863. At the subsequent June Term, defendants furnished their answer to the original bill, as well as to the supplemental bill. This answer sets out the title and rights claimed by the party, and suggests that plaintiffs should join certain other interested persons as defendants, admits some of the facts as charged in plaintiffs’ bills, and alleges many other facts and arguments as explanatory of their case, and, in general, negatives many of the charges in plaintiffs’ bills. Plaintiffs’ supplemental bill states, among other things, that since the filing of their original bill, the action [76]*76at law named therein, brought by the plaintiffs against the defendants, on the 21st day of October, 1859, for damages to plaintiffs’land before that time, by them sustained by reason of said dam and flashboards, then pending in the Supreme Judicial Court in this county, was heard and tried-on the first Tuesday of January, A. D., 1862, and a verdict rendered for the .plaintiffs for the sum of $206.08 damages. And at the Law Term of said court holden at Concord, on the first Tuesday of December of the same year, judgment was rendered upon said verdict and for costs taxed at $496.59, which said judgment is in full force; and plaintiffs further say that the defendants have continued, from the filing of said original bill, and up to the time of filing this supplemental bill, and still continue, to maintain said dam and the flashboards named in said original bill, and to maintain and keep the water upon the land of the plaintiffs at the full height at which it may be maintained and kept by the use thereof, in the same manner, that said dam and flashboards and water were maintained and kept up from the 3d day of July, A. D., 1856, to the 21st day of October, 1859, being the time described in the declaration in said action at law, in which said judgment was rendered, as herein before stated, and that they believe the defendants intend to continue to keep up their said dam and flashboards, '■ at the full height, as heretofore. Plaintiffs allege that by the aforesaid trial, verdict, and judgment at law, their right to possess and enjoy their land free from any flowage, easement, or servitude whatever, by reason of any dam or flashboards, or other obstructions of said river by the defendants has been maintained. Wherefore, the plaintiffs pray, that the defendants, their agents, and officers, may be restrained by the writ of injunction of this court, from continuing, or maintaining upon said dam the said flashboards, and that it may be definitely ascertained, in such manner as said court shall order, how much of said dam is injurious to the plaintiffs, and that the defendants may then be ordered to remove such portion thereof as is adjudged to be injurious to the plaintiffs, and that the damages sustained by these plaintiffs, by reason of said flash-boards and by such portion of said dam, as is so adjudged to be injurious to the plaintiffs, since the commencement of said last named action at law, by the plaintiffs against said defendants, may be ascertained, and decreed to be paid by the defendants to the plaintiffs, and that the defendants may be perpetually enjoined and restrained by a decree of this court from ever replacing or maintaining said flashboards on said dam, or from replacing, rebuilding, or maintaining such portion of said dam as may be so adjudged to be injurious to the plaintiffs, and for such other relief as may be just. Both parties, since the filing of the supplemental bill and answer aforesaid, have proceeded to take and prepare a large amount of testimony to be used in said case. The titles of the respective parties, their testimony, pleas, and learned arguments have been examined, heard, and considered by the court, and our conclusions upon the case have been formed, and we state them briefly as follows : The chief injury complained of by plaintiffs, is to about three acres of their land, located on the eastern bank of Merrimack river, and between said river and the track of the Concord Railroad, extending for [77]*77the whole width of their land, embracing for this distance, what is well known as the bank of said river, and that in consequence of the defendants’ dam and dashboards on the same, situate about half a mile below said land, extending across the river, the current of the river has been so changed, and the past and present action of the water has been such, by*abrasion and otherwise, as to wear away the land of plaintiffs, to undermine and destroy the plaintiffs’ trees, designated as ornamental or shade trees, there growing, and otherwise materially tending to diminish their quantity and to lessen the value of plaintiffs’ property. Plaintiffs purchased their lands in July, 1856, and their title to the lands embraced in their deed, for the purposes of this case, may be conceded to be good; also the existence of plaintiffs’ suits at law, as alleged in their bill, may be conceded because admitted by defendants as well as the verdict and judgment in the first case at law; and it is also shown by the defendants, from the clerk’s records and certificate, that this first suit has been in due time renewed by the defendants’ writ of review; and that both suits at law are still pending on the docket of the Trial Term of the Supreme Judicial Court in this county; and we think, also, that under the proof offered by defendants, it may be assumed, that, so far as the present plaintiffs are concerned, the said defendants have the right to have and maintain a dam, where their present dam is located, with or without flashboards, and to hold back or flow the water in the river, as high and to the extent, as it was customary to maintain and keep up said dam twenty years prior to July 9, 1859, being the time when these plaintiffs first requested or notified the defendants to remove their dam. And that so far the rights of these parties may be considered as settled by law, because there is no evidence in the case, that the plaintiffs, or those under whom they claim their title, ever complained of any injury to their land, or other property, in consequence of any flowage, or obstruction occasioned by any claim, at the privilege of the defendants, at any time before July, A. D., 1859.
This peaceable, continued, unmolested, well known adverse enjoyment by the defendants, and those under whom they claim, of the right to flow or detain the waters of the river above their dam, as it was during the twenty years prior to the time of said notice, may be regarded as now having become perfected, or ripened into a perfect legal right. It is the adverse enjoyment of a stream of water for a period of twenty years, which affords of itself presumptivé evidence of a grant. Gilman v. Tilton, 5 N. H. 231; Burnham v. Kempton, 44 N. H. 88; Odiorne v. Lyford, 9 N. H. 502. It is claimed on the part of the defendants, that the old dam, with its flashboards, as it existed prior to 1837, and as it was then kept, was as high as the present stone dam, which was built or finished in 1840. This fact is strenuously denied by the plaintiffs. Upon this point much conflicting testimony was offered by the respective parties. Sitting as a court of equity, we do not now feel called upon to establish the legal rights of the parties, nor to decide whether a private nuisance here exists, where that fact is controverted, but will require the party asking for the interference of the court first to establish his right by law. Burnham v. Kempton, ante.
[78]*78It is now understood to be the practice in this State and many other jurisdictions, that a court of equity will not interfere in this class of cases, where the parties have a plain and adequate remedy at law. Burnham v. Kempton, 44 N. H. 88; Bean v. Coleman, 44 N. H. 539; Hodgman v. Richards & al., 45 N. H. 29; 1 Daniel’s Ch. 609; Eden on Injunctions, 270; Angell on Water Courses, 174. And that the right has been established at law must now be regarded as a material averment in plaintiffs’ bill before the court of equity will take jurisdiction of the same. We are aware, that the fact is stated in plaintiffs’ supplementary bill, that the title of the plaintiffs has been established by a verdict of the jury, and a judgment of this court thereon, in a suit at law, involving the right of the defendants to keep up their dam to the height as claimed by the defendants.
In answer to this averment, the defendants, under the power of the statute law, have brought their writ of review of said action at law and it has been entered at the Trial Term of this court, and is there still pending and undecided. Of course the former judgment is in doubt and legal uncertainty, for upon another trial it may be reversed. A review is a new trial of the issues originally tried. Knox v. Knox, 12 N. H. 357; Avery v. Holmes, 10 N. H. 574. Hence, it is the final judgment allowed by law, which must be regarded as concluding the rights of the parties in such cases. Therefore the proof offered to sustain the fact, that the plaintiffs have legally sustained or established their right at law, falls short of what is expected and necessary in cases of this kind.
Again, it is doubtless true, that courts of equity, in this State, have by law and practice, a large power and jurisdiction conferred upon them to issue writs of injunction whenever the same shall become necessary to prevent injustice. To justify our interference here, the request being made to issue our final writ of injunction in restraint of the defendants, and the consequences of the exercise of such power being considered important by the defendants, as affecting large pecuniary interests, the plaintiffs should of course show by their proof a case of strong and clear injustice, of pressing necessity and imminent danger, of great and irreparable damage, and not of that nature for which an action at law would furnish a full and adequate indemnity. Damesville v. Dupont, 18 Ben. Monroe 800; Hood v. New York & New Haven R. R., 23 Conn. 609; Bolster v. Callerline, 10 Indiana 117; Whittlesey v. Hartford & Fishkill R. R., 23 Conn. 421; Gray v. Ohio & Penn. R. R., 1 Grant’s Cases, 411 Penn.; 3 California 238; Jordan v. Woodward, 38 Maine 423; Morse v. Machias Water Power Co., 42 Maine 119; Hilliard on Injunctions, sec. 9, ch. 1, secs. 16, 17, 18, 21, 22, 23, 31, ch. 1; also sec. 43 upon the subject of Delay, also sec. 86, ch. 27, subject, Easements, page 448, and subsequent thereto.
On application for an injunction to restrain the defendant from building a new mill for grinding and sawing for the public, on the ground that the construction of the dam would injure the land of plaintiff and the health of his family; testimony being heard by the court: held by the court, that it is not every slight or doubtful injury that will justify [79]*79the use of the extraordinary power of injunction to restrain a man from using his property as his interest may demand, especially, if the injury apprehended may rest in doubt, and the complainant may resort to law to recover his damages. Wilson v. Strickland, 2 Jones’Equity, 386.
The practice in our State corresponds with the aforesaid leading authorities, subject to some modifications, varying with the leading circumstances in each case, viz. : Burnham v. Kempton; Coe v. Lake Company, 37 N. H., and other cases, ante; Wason v. Sanborn & als., 45 N. H. 169.
Again, in Hilliard upon the law of Injunctions, sec. 39, ch. 1, the principle or law is stated, that where either party may suffer, by the granting or withholding of an injunction, the rule in equity requires the court to balance the inconveniences, likely to be incurred by the respective parties, by means of the action of the court, and to grant or withhold the injunction, according to a sound discretion. Where an injunction might cause irreparable injury to the defendant, in the event of the plaintiff not being exclusively entitled, and the damage sustained by the plaintiff in the event of establishing his title allows of compensation, the injunction will be refused.
In the aforesaid law of Wason v. Sanborn, this court has to some extent defined our power, and has claimed for ourselves a suitable and liberal exercise of this discretion, in granting writs of injunction; and that the court will not grant such writs as a matter of course, in the case of private nuisance, even where damages substantial have been recovered, and the plaintiff has established his legal title. It will consider whether the complainant be entitled to equitable relief, and, moreover, will not grant it where an injunction will not restore the party to his former position. Wood v. Sutcliffe, 2 Simons N. S. 163; Attorney General v. Nichols, 16 Vesey 333; Tucker v. Carpenter, 1 Hemphill 440; Adams’ Equity, 211; Fishmongers' Company v. East Ind. Company, Dick R. 161.
In a recent English case, it is said, the jurisdiction of this court over cases of nuisance, by injunction at all, is of recent growth, and has not till lately been much exercised, and has at various times found great reluctance, on the part of learned judges, to use it, even in cases where the thing or act complained of was admitted to be directly and immediately hurtful to the complainant. See Lord Brougham, Ripon v. Hobart, 3 Mylne & Keen 169. So where damages can compensate the injury or loss suffered from a nuisance, equity will not interfere; nor if the evidence is conflicting, and the injury doubtful, eventual, or contingent. Laughlin v. President, &c., 6 Indiana 223; Butler v. Rogers, 1 Stockton 487; vide secs. 1 and 2 Hilliard on Inj. against Nuisance, pages 269, 270.. The amount of the injury is sometimes a material consideration, the court refusing to interfere where the damages were trivial. Attorney General v. Sheffield Gas Company, 19 Eng. Law and Equity, 639.
Again, it is objected by the defendants, that the plaintiffs decline to give this court full jurisdiction of their case. They bring forth their [80]*80two suits af law and no final judgment is obtained in either of them. They then bring their bill in equity, and ask this court for the writ of injunction, and among other things, for damages, since the last or second suit at law. We approve of the plaintiffs prosecuting one of these suits at law to final judgment, so that their legal right be fully established, and they have doubtless the right to resort to another suit at law. But when a party brings forth his two suits at law before he appeals to the equitable tribunal, we think the presumption may be fairly entertained, that he has elected a favorite remedy and must abide by it, and should not ask for equity while inflicting a multiplicity of suits at law upon his opponents.
As before intimated, we think it would be inconsistent with the ends of justice and the approved practice in equity, to permit the plaintiffs to proceed in this court, and at law at the same time for the same claims, to ask for a remedy in a court of equity. Sawyer v. Wood, 4 Johns. Chanc. 416; Story’s Eq. sec. 746, and note ; and the authorities quoted by defendants in second brief. The plaintiffs, having obtained compensation in one suit at law, and without, however, bringing it to final judgment, and not proposing to abandon their second suit at law, ask the court for other adequate damages, and for the writ of injunction, and otherwise to prescribe for them full and ample redress for all their grievances, without giving us control of their whole case.
In the recent English case of Prothers v. Phelps, 35 Eng. Law and Equity Rep., 518, the question of practice is discussed, and it is there settled, that a plaintiff, who comes to this court for its aid, is bound to put under their control his legal rights relating to the whole subject matter of litigation. As the present case is now situated, we must regard it as quite clear, that we have not full or complete jurisdiction over plaintiffs’ suits at law. We can exercise at best only a doubtful or divided jurisdiction, and for this reason we may now properly decline to act at all.
Since the plaintiffs purchased their lands in 1856, they do not show, allowing all they claim, the loss of but a small amount of their land, and perhaps a few trees by means of the water in the river. Defendants say that the loss or damage claimed by plaintiffs, is to be attributed to other causes than to defendants’ dam, more especially to the cutting away the trees on the banks, for the purpose of using their lands as rolling-ways for stones and logs, and to the natural, common, and usual effects of freshets, particularly to ice freshets, which break down the little trees on'the banks of the river, and wear off the soft banks of the river in seasons when the frost is coming out of the ground, and from filling in of the river above plaintiffs’ land by the Concord Bail-road with rubble, also by digging away the river bank, thereby changing the natural current of the stream, and to the prejudice of the plaintiffs’ land, and some other causes fully set forth in the arguments of the counsel, other than defendants’ dam, contending, that defendants’ dam has a tendency to protect the bank of the river bordering on the plaintiffs’ land rather than to injure it. Now, without going into the examination of all the causes in detail which may affect more or less plain[81]*81tiffs’ land, yet when looked at in the aggregate effect produced, giving the evidence on both sides such consideration as we think it entitled to, but not intending, however, on this point to conclude the plaintiffs, or to prejudice their legal rights, we come to the conclusion that their damages are slight or inconsiderable, and may well be compensated by suits at law, and that, for the reasons assigned, the bill should be dismissed.