WASHINGTON, Circuit Justice.
It must be admitted that the bill, taken by itself, makes out a case which would warrant this court in granting the equitable relief which it seeks. It states a title in the plaintiffs to an ancient mill, together with the pond and waters flowing into it, and a long, uninterrupted possession of the said mill and waters by those under whom the plaintiffs claim. The complaint is, that the defendants have threatened, and, at the time the bill was filed, were preparing, to divert the waters of certain springs which flowed into the said mill-pond from their natural course; which waters, it alleges, are essential to the value and enjoyment of this property. To such a case, the many authorities relied on by the plaintiffs’ counsel strongly apply; and if it stood uncontradicted, the court could not refuse to grant the injunction prayed for. The only question upon this motion, is, whether the court can regard the statement made by the answer, so far as it contradicts the allegations of the bill; the answer being put in, not upon oath, but under the common seal of the corporation? The question is not whether the answer of an aggregate corporation, under its common seal, would avail the defendants at the hearing, in like manner as the answer of an individual under oath would; but whether such an answer, when it denies the equity of the bill, is not sufficient to prevent the granting of an injunction, and even to dissolve it after it has been granted? No cases upon this point were cited on either side, nor are any recollected by the court. But I am strongly of opinion, upon principle, that such an answer is sufficient ■ to produce either of the consequences which have ' been mentioned. The corporate body is called upon, and is compellable, to answer all the allegations of the bill, but can do so under no higher sanction than its common seal. A peer of the realm, in England, answers upon his honour, the oath being dispensed with. In like manner the plaintiff may. in ordinary cases, dispense with the oath to an answer; and, if [159]*159.he do so, the court will order the answer to be taken without oath. Now if, in these cases, the answer, denying the equity of the bill, cannot avail the defendant as an answer under oath would do, to prevent the .granting of an injunction, or to dissolve it when granted, the legal impossibility to take an oath in the first case, the privilege of the peer in the second, and the dispensation extended to the defendant in the last, would place ea'ch of those defendants in a situation infinitely more disadvantageous than that of ether defendants, whose answers cannot be received otherwise than upon oath. Such then cannot be the practice of a court of equity. 1 shall now proceed to consider the case which the answer presents, disregarding altogether the affidavits taken to support it; as they were taken, not before one of the judges of this court, or one of the commissioners appointed by this court to take affidavits, but by a person unauthorized by any act of congress to perform this duty.
The material facts stated in the answer are: (1) That in November, 1799, the defendants were by law constituted a body corporate, with power to construct an aqueduct to convey water into Morristown for the use of its inhabitants; and that in that month and year the aqueduct was so far completed as to divert the waters of the springs referred to in the bill from their natural and accustomed course to the mill now owned by the plaintiffs, and to conduct them into Mor-ristown. (2) That the water of those springs, which thus supplied the aqueduct, continued to flow therein, and thus to be withdrawn from its natural course to the mill from November, 1799, to the year 1821 or 1822. (3) That, by the decay of the pipes, the aqueduct became useless, and ceased in the year 1822 to conduct the water of those springs; the consequence of which was, that it returned to its natural course, and again flowed into the stream that supplied the mill pond. (4) That the defendants never, for an instant, abandoned, or intended to abandon, the use of the waters of those springs for their aqueduct; but after an interval of about three years, when they recovered the ability to commence their operations, they made preparation to reconduct the aqueduct, and actually laid down pipes in the same direction as formerly, to receive and conduct the water to Morristown. (5) That at the time when the plaintiffs purchased this mill, the contested water had been in the quiet, undisputed, and adverse possession and enjoyment of the defendants for upwards of twenty years. (6) That such use and possession by the defendants had, during all that time, been acquiesced in by those under whom the plaintiffs derived title to this mill, not only silently, but, as to one of the proprietors, by acts of an unequivocal character. Lastly. That during all this long possession and diversion of the waters of these springs by the defendants, no perceptible injury was experienced by this mill, and that in truth the injury now anticipated by the plaintiffs will be trifling.
Taking these facts for the present to be true, they do, in the opinion of the court, deprive the plaintiffs of all ground of equity to ask its aid to restrain the defendants from renewing their aqueduct. The objection which meets us in limine is, that the plaintiffs never did acquire a right to the easement to which they now assert a claim, without which they could not recover damages at law for the alleged nuisance, and consequently they can have no pretence for asking the interposition of a court of equity. If the plaintiff’s title be apparently good, the court will, in general, send the plaintiff to law to establish his title there; and will grant an injunction in the mean time. But if by the plaintiff’s own showing, or by the answer, the plaintiff appears to have no title at all, a court of equity will not do a vain thing, by requiring him to establish it at law; and much less will that court grant an injunction in the mean time. Now it appears by this answer, that in the year 1821, when the plaintiffs purchased this mill with its appurtenances, the water of the springs which supplied the plaintiffs’ aqueduct had been for more than twenty years in the quiet, undisturbed, and adverse possession and enjoyment of the defendants, with the knowledge and the tacit, if not the express, acquiescence of the legal proprietors of the mill, with all the easements and appurtenances belonging to it. This length of possession affords, at law, a conclusive presumption of right in the person who has enjoyed it, insomuch that the court would be bound to direct the jury to presume a grant. It affords a complete .bar to. an action on the case against the party, who has, for so long a time, used and enjoyed the easement. Even a possession short of twenty years may afford such a presumption, according as it may be attended by circumstances to support the right The cases upon this subject at law and in equity are both numerous and uniform. Bealey' v. Shaw, 6 East, 20S, is conclusive. If then the right of Tuttle to the water of these springs, so far as they had been used and diverted from his mill by the defendants, was divested out of him and vested in the defendants by virtue of this long and uninterrupted possession and enjoy'ment; his administrator had no l>ower to grant them as an easement or appurtenance to the mill sold and conveyed by him to the plaintiffs.
But it was contended by the counsel for the plaintiffs, that they had regained and retained the possession of this water for the last three years, which they' insist is sufficient to warrant the interposition of this court; and they cited a number of cases to support, as they supposed, this proposition.
Free access — add to your briefcase to read the full text and ask questions with AI
WASHINGTON, Circuit Justice.
It must be admitted that the bill, taken by itself, makes out a case which would warrant this court in granting the equitable relief which it seeks. It states a title in the plaintiffs to an ancient mill, together with the pond and waters flowing into it, and a long, uninterrupted possession of the said mill and waters by those under whom the plaintiffs claim. The complaint is, that the defendants have threatened, and, at the time the bill was filed, were preparing, to divert the waters of certain springs which flowed into the said mill-pond from their natural course; which waters, it alleges, are essential to the value and enjoyment of this property. To such a case, the many authorities relied on by the plaintiffs’ counsel strongly apply; and if it stood uncontradicted, the court could not refuse to grant the injunction prayed for. The only question upon this motion, is, whether the court can regard the statement made by the answer, so far as it contradicts the allegations of the bill; the answer being put in, not upon oath, but under the common seal of the corporation? The question is not whether the answer of an aggregate corporation, under its common seal, would avail the defendants at the hearing, in like manner as the answer of an individual under oath would; but whether such an answer, when it denies the equity of the bill, is not sufficient to prevent the granting of an injunction, and even to dissolve it after it has been granted? No cases upon this point were cited on either side, nor are any recollected by the court. But I am strongly of opinion, upon principle, that such an answer is sufficient ■ to produce either of the consequences which have ' been mentioned. The corporate body is called upon, and is compellable, to answer all the allegations of the bill, but can do so under no higher sanction than its common seal. A peer of the realm, in England, answers upon his honour, the oath being dispensed with. In like manner the plaintiff may. in ordinary cases, dispense with the oath to an answer; and, if [159]*159.he do so, the court will order the answer to be taken without oath. Now if, in these cases, the answer, denying the equity of the bill, cannot avail the defendant as an answer under oath would do, to prevent the .granting of an injunction, or to dissolve it when granted, the legal impossibility to take an oath in the first case, the privilege of the peer in the second, and the dispensation extended to the defendant in the last, would place ea'ch of those defendants in a situation infinitely more disadvantageous than that of ether defendants, whose answers cannot be received otherwise than upon oath. Such then cannot be the practice of a court of equity. 1 shall now proceed to consider the case which the answer presents, disregarding altogether the affidavits taken to support it; as they were taken, not before one of the judges of this court, or one of the commissioners appointed by this court to take affidavits, but by a person unauthorized by any act of congress to perform this duty.
The material facts stated in the answer are: (1) That in November, 1799, the defendants were by law constituted a body corporate, with power to construct an aqueduct to convey water into Morristown for the use of its inhabitants; and that in that month and year the aqueduct was so far completed as to divert the waters of the springs referred to in the bill from their natural and accustomed course to the mill now owned by the plaintiffs, and to conduct them into Mor-ristown. (2) That the water of those springs, which thus supplied the aqueduct, continued to flow therein, and thus to be withdrawn from its natural course to the mill from November, 1799, to the year 1821 or 1822. (3) That, by the decay of the pipes, the aqueduct became useless, and ceased in the year 1822 to conduct the water of those springs; the consequence of which was, that it returned to its natural course, and again flowed into the stream that supplied the mill pond. (4) That the defendants never, for an instant, abandoned, or intended to abandon, the use of the waters of those springs for their aqueduct; but after an interval of about three years, when they recovered the ability to commence their operations, they made preparation to reconduct the aqueduct, and actually laid down pipes in the same direction as formerly, to receive and conduct the water to Morristown. (5) That at the time when the plaintiffs purchased this mill, the contested water had been in the quiet, undisputed, and adverse possession and enjoyment of the defendants for upwards of twenty years. (6) That such use and possession by the defendants had, during all that time, been acquiesced in by those under whom the plaintiffs derived title to this mill, not only silently, but, as to one of the proprietors, by acts of an unequivocal character. Lastly. That during all this long possession and diversion of the waters of these springs by the defendants, no perceptible injury was experienced by this mill, and that in truth the injury now anticipated by the plaintiffs will be trifling.
Taking these facts for the present to be true, they do, in the opinion of the court, deprive the plaintiffs of all ground of equity to ask its aid to restrain the defendants from renewing their aqueduct. The objection which meets us in limine is, that the plaintiffs never did acquire a right to the easement to which they now assert a claim, without which they could not recover damages at law for the alleged nuisance, and consequently they can have no pretence for asking the interposition of a court of equity. If the plaintiff’s title be apparently good, the court will, in general, send the plaintiff to law to establish his title there; and will grant an injunction in the mean time. But if by the plaintiff’s own showing, or by the answer, the plaintiff appears to have no title at all, a court of equity will not do a vain thing, by requiring him to establish it at law; and much less will that court grant an injunction in the mean time. Now it appears by this answer, that in the year 1821, when the plaintiffs purchased this mill with its appurtenances, the water of the springs which supplied the plaintiffs’ aqueduct had been for more than twenty years in the quiet, undisturbed, and adverse possession and enjoyment of the defendants, with the knowledge and the tacit, if not the express, acquiescence of the legal proprietors of the mill, with all the easements and appurtenances belonging to it. This length of possession affords, at law, a conclusive presumption of right in the person who has enjoyed it, insomuch that the court would be bound to direct the jury to presume a grant. It affords a complete .bar to. an action on the case against the party, who has, for so long a time, used and enjoyed the easement. Even a possession short of twenty years may afford such a presumption, according as it may be attended by circumstances to support the right The cases upon this subject at law and in equity are both numerous and uniform. Bealey' v. Shaw, 6 East, 20S, is conclusive. If then the right of Tuttle to the water of these springs, so far as they had been used and diverted from his mill by the defendants, was divested out of him and vested in the defendants by virtue of this long and uninterrupted possession and enjoy'ment; his administrator had no l>ower to grant them as an easement or appurtenance to the mill sold and conveyed by him to the plaintiffs.
But it was contended by the counsel for the plaintiffs, that they had regained and retained the possession of this water for the last three years, which they' insist is sufficient to warrant the interposition of this court; and they cited a number of cases to support, as they supposed, this proposition. It will be seen at once by an examination of those cases, that they are confined to a possession of the easement which is opposed by [160]*160no superior adverse possession in another. If, for example, the defendants were now, for the first time, about to disturb the plaintiffs’ right to the flow of those waters to h’s mill; the court, which requires of the plaintiff seeking the injunction to show, not only a title to those waters, but a possession of them, would be satisfied if that possession should extend to the term of three years. But when the defendant sets up a superior right to the easement, by showing an undisturbed adverse possession and enjoyment of it for twenty years, it would be very extraordinary if a subsequent possession for only three years should be sufficient to defeat such better right, either at law or in equity. It may indeed be well made a question, whether the plaintiffs have ever, for a moment, had an adverse quiet possession of this water, since it is plain that the flow of it, in its natural course to the mill, was suffered, not under an intention to abandon the use and possession of it, but from the necessity of the case, arising from the decay of the old pipes, and the difficulties which were in the way of the defendants in replacing them with new. But be this as it may, there is nothing more clear than that a mere non-user of the water for a period short of that which would create a presumption of title, will not avail the plaintiffs, either at law or in equity. The next objection to the interference of this court, which I consider to be insuperable, is, the acquiescence of those under whom the plaintiffs claim in the construction of this aqueduct originally; and in their subsequent use and enjoyment of the water by which it was supplied: which circumstance, though unaccompanied by long possession, would be sufficient to close the doors of a court of equity against this application. In such a case, that court will not only refuse to interpose in favour of the party who has thus acquiesced, or been guilty of inexcusable negligence, but will even grant injunctions, to restrain actions brought at law for the nuisance. In the case of Birmingham Canal Co. v. Lloyd, 18 Ves. 515, the court refused an injunction after an acquiescence of only two years. Now, in this case, the owners of this mill stood by and suffered the defendants to apply for, and obtain an act of incorporation without objection, as far as appears; and, at a great expense, to construct this aqueduct, and to use the water which supplied it: and now. when an attempt is making by the defendants, not to cut a new aqueduct, or to divert from the plaintiffs’ mill water which had not for upwards of twenty years been used, and enjoyed by the defendants, but to repair the old aqueduct, by laying down new pipes for again conducting the water which supplies that aqueduct to Morristown;, this application is made to arrest their proceedings. Were it to prevail, the court, would, in my humble judgment, give its countenance to something very much like a fraud; for I cannot distinguish this case from that, where the owner of land stands by and sees another innocently expending his money by making improvements on that which the other side believes to be his' own, and is silent as to his title; or where a mortgagee sees another advance his money on the same security, and fraudulently conceals his prior incumbrance; in which case equity will postpone him in favour of the second mortgagee.
There are other objections raised to the relief asked for by this bill, which would deserve much consideration, if the ease stood in need of it It might, in the first place, be a subject of serious inquiry whether the exercise of the right, or privilege, granted to the defendants by an act of the legislature of this state, can be treated by courts of justice as a private nuisance, although it should operate injuriously to the rights of the plaintiff, provided he had any, in the subject of this controversy. The omission to provide a compensation for injuries which might result from the grant, would, in all cases, mark the act with manifest injustice towards the party aggrieved; but if such a provision be not required by the constitution of the state, which, it is not in this, it may admit of a very serious doubt, whether a remedy can be afforded by judicial interposition. I wish it, nevertheless, to be understood, that I mean to give no opinion upon this point; and I have noticed it chiefly because it was one which engaged much of the attention of the counsel on both sides. It may well be doubted, in the next place, whether this is one of those cases of irreparable mischief, in which the court will exercise the extraordinary power which this bill prays for. That no injury was sustained by this mill during the space of twenty years, on account of the loss of the water which then supplied the aqueduct, may fairly be presumed from the acquiescence of the former proprietors of the mill, without the aid of positive evidence, and the answer states, that the defendants contemplate using, in future, a smaller portion of water than they did formerly. It further alleges, that the anticipated injury which forms the grounds of the present complaint, will be of the most trifling nature. On the other hand, the effect of the injunction would be in the highest degree mischievous to the defendants. In such a case a court of equity, it would seem, ought not to interfere, but leave the plaintiffs to their remedy at law, if they have any. Injunction denied.