CLIFFORD, Circuit Justice.
Inequality in the quantity of water flowing in the river by the premises of the complainant greater than what naturally arose from the ordinary changes of the season, or from the ordinary fluctuations in the head of water in the lake before the attempted regulation of the same by the respondents, constitutes the gravamen of the injury alleged to have been sustained by the complainant. His representation is that the water power of his privilege is damaged to the same extent as the equality of the supply of water at all seasons is disturbed for the use and improvement of his water power. He dees not allege that the quantity of water is too small or too great in his flume, nor does he p”ay for an increased or diminished quantity to flow into the same, or to be protected against back water, but prays that the respondents may be restrained from using and perfecting their improvements for regulating the flow and supply of water in the dam, solely upon the ground that his rights are damaged by such regulation. Accordingly he alleges that the respondents have seized upon and taken possession of the waters of the lake, and used the same as a reservoir to his hurt and damage, in the use, value, and capaptty for improvement of the water power at Meredith Bridge, and have extended and intend to extend their excavations so as to enable them to draw off the water from the lake six feet below its former low-water level. What he seeks to accomplish is, to restore the flow of water from the lake and in the river to its former state, and to preserve it in that condition. Looking at the answer of the respondents, it is obvious that they deny the whole case made in the bill of complainant. They deny that the complainant is seized and possessed of one twelfth part of the water power of the river on the Laconia side, and in fact deny that he owns any part of the dam, or any right in the water power, except a restricted easement authorizing him to draw and use a certain limited quantity of water equal to one half of the quantity sufficient to carry the wheels to operate a trip-hammer, grindstone, and bellows, or equal to one half the water in the flume described in the answer, and in respect to that easement they expressly deny that they have ever interfered with the same, or in any manner injured his mill privilege or water power. Beyond question, therefore, the case is one where the whole ground of relief set up in the bill of complaint is expressly controverted and denied by the answer. Under these circumstances, it is insisted by the counsel for the respondents that the case is not one where this court sitting as a court of equity can properly take jurisdiction, but that the jurisdiction must be declined for the want of equity in the bill. In regard to private nuisances, Judge Story says: “The interference of courts of equity is undoubtedly founded upon the ground of restraining irreparable mischief, or of suppressing oppressive and interminable litigation, or of preventing multiplicity of suits, and he well remarks that it is not every case that will furnish a right of action against a party for a nuisance which will justify the interposition of courts of equity to redress the injury or remove the annoyance. But there must be such an injury as from its nature is not susceptible of being adequately compensated by damages at law, or such as, from its continuance or permanent mischief, must occasion a constantly occurring grievance which cannot be otherwise prevented but by an injunction.” 2 Story, Eq. Jur. (7th Ed.) p. 230, § 925; Georgetown v. Alexandria Canal Co., 12 Pet. [37 U. S.] 98.
[On appeal to the supreme court, the decree • of this court was affirmed. 2 Black (67 U. S.) 545.] Free access — add to your briefcase to read the full text and ask questions with AI
CLIFFORD, Circuit Justice.
Inequality in the quantity of water flowing in the river by the premises of the complainant greater than what naturally arose from the ordinary changes of the season, or from the ordinary fluctuations in the head of water in the lake before the attempted regulation of the same by the respondents, constitutes the gravamen of the injury alleged to have been sustained by the complainant. His representation is that the water power of his privilege is damaged to the same extent as the equality of the supply of water at all seasons is disturbed for the use and improvement of his water power. He dees not allege that the quantity of water is too small or too great in his flume, nor does he p”ay for an increased or diminished quantity to flow into the same, or to be protected against back water, but prays that the respondents may be restrained from using and perfecting their improvements for regulating the flow and supply of water in the dam, solely upon the ground that his rights are damaged by such regulation. Accordingly he alleges that the respondents have seized upon and taken possession of the waters of the lake, and used the same as a reservoir to his hurt and damage, in the use, value, and capaptty for improvement of the water power at Meredith Bridge, and have extended and intend to extend their excavations so as to enable them to draw off the water from the lake six feet below its former low-water level. What he seeks to accomplish is, to restore the flow of water from the lake and in the river to its former state, and to preserve it in that condition. Looking at the answer of the respondents, it is obvious that they deny the whole case made in the bill of complainant. They deny that the complainant is seized and possessed of one twelfth part of the water power of the river on the Laconia side, and in fact deny that he owns any part of the dam, or any right in the water power, except a restricted easement authorizing him to draw and use a certain limited quantity of water equal to one half of the quantity sufficient to carry the wheels to operate a trip-hammer, grindstone, and bellows, or equal to one half the water in the flume described in the answer, and in respect to that easement they expressly deny that they have ever interfered with the same, or in any manner injured his mill privilege or water power. Beyond question, therefore, the case is one where the whole ground of relief set up in the bill of complaint is expressly controverted and denied by the answer. Under these circumstances, it is insisted by the counsel for the respondents that the case is not one where this court sitting as a court of equity can properly take jurisdiction, but that the jurisdiction must be declined for the want of equity in the bill. In regard to private nuisances, Judge Story says: “The interference of courts of equity is undoubtedly founded upon the ground of restraining irreparable mischief, or of suppressing oppressive and interminable litigation, or of preventing multiplicity of suits, and he well remarks that it is not every case that will furnish a right of action against a party for a nuisance which will justify the interposition of courts of equity to redress the injury or remove the annoyance. But there must be such an injury as from its nature is not susceptible of being adequately compensated by damages at law, or such as, from its continuance or permanent mischief, must occasion a constantly occurring grievance which cannot be otherwise prevented but by an injunction.” 2 Story, Eq. Jur. (7th Ed.) p. 230, § 925; Georgetown v. Alexandria Canal Co., 12 Pet. [37 U. S.] 98.
[On appeal to the supreme court, the decree • of this court was affirmed. 2 Black (67 U. S.) 545.]
Irreparable injury, actual or threatened, is not alleged in this case, and there is nothing in the nature of the grievance or the proofs exhibited to warrant the conclusion that any such consequences are likely to flow from its continuance. “Courts of equity will interfere by injunction,” says Shepley, J., in Porter v. Witham, 17 Me. 294, “where the party has long, and without interruption, enjoyed a right which has been recently injured, or which is in danger of being injured or destroyed;” and when, if it has not been established by long usage, it has been by a judicial decision, but it is not ordinarily to determine the right in the first instance that chancery hears the case, and then, if found to be established, exercises its extraordinary power to protect it. Chancery interference, in the first instance, rests on the principle of a clear and certain right to the enjoyment of the matter or thing in question, and an injurious interruption of that right, which on just and equitable grounds ought to be prevented. Morse v. Machias Water-Power & Mill Co., 42 Me. 119. Accordingly it has been well held that it must be “a strong and mischievous case of pressing necessity,” or the right must have been previously established at law, to entitle the party to call to his aid the jurisdiction of a court of equity. Van Bergen v. Van Bergen, 3 Johns. Ch. 282; 2 Eden, Inj. per Waterman, 269; Gardner v. Village of Newburgh, 2 Johns. Ch. 165; Reid v. Gifford, 6 Johns. Ch. 19; 2 Story, Eq. Jur. (7th Ed.) § 924a. If the thing sought to be prohibited, said Lord Brougham in Earl of Ripon v. Hobart, 3 Mylne & K. 169, is in itself a nuisance, the court will interfere to stay irreparable mischief without waiting for the result of a trial at law; but where the thing sought to be restrained is not unavoidably and in itself noxious, but only something which may, according to circumstances, prove so, then the court will refuse to interfere until the matter has been settled at law. Where the title or injury is doubtful or disputed, or where the injury is slight and inconsiderable, courts of equity are disinclined to interfere. Whittlesey v. Hartford, P. & F. R. Co., 23 Conn. 421; Adams, Eq. 487, note. Mr. Angelí concurs with Judge Story, that the interference of courts of equity by injunction in matters of private nuisance is founded upon the ground of restraining irreparable mischief, or of suppressing oppressive and interminable litigation, or of preventing a multiplicity of suits; and he affirms that they will interfere in those cases only, as a general rule where the right of the party complaining is clearly established, and the injury which he must necessarily sustain is of such a nature that no adequate compensation can be afforded by damages, unless when delay itself would be wrong. Ang. Water Courses, § 444; 3 Daniell, Ch. Prac. 1858; Wynstanley v. Lee, 2 Swanst. 334; Whitchurch v. Hide, 2 Atk. 391; Coalter v. Hunter, 4 Rand. [Va.] 58; Gates v. Blincoe, 2 Dana, 158. No remedy whatever exists in equity for a public nuisance, says Mr. Justice Woodbury, in Irwin v. Dixion, 9 How. [50 U. S.] 27, unless the individual has suffered some private, direct, and material injury beyond the public at large, as well as damages otherwise irreparable. In cases of injury to individual rights by obstructions or supposed nuisances, the same learned judge says that an injunction is still less favored, and finally adds that when the right or title to the place in controversy, or to do the act complained of, is doubtful and explicitly denied in the answer, no permanent or perpetual injunction will usually be granted till a trial at law is had, settling the contesting rights and interests of the parties. Where the thing sought to be prohibited is in itself a nuisance, or where from its position as exhibited in the proofs it is necessarily such, and there is no doubt or controversy about the right of the complaining party, or the nature and extent of the injury, a different rule prevails. Pennsylvania v. Wheeling Bridge Co., 13 How. [54 U. S.] 567. But where the evidence to establish the right is conflicting, and it is doubtful whether any appreciable injury has been suffered, chancery will not interfere until the rights of the parties are settled at law. Brown’s Case, 14 Ves. 415; Weller v. Smeaton, 1 Cox, Ch. 102; Attorney General v. Utica Ins. Co., 2 Johns. Ch. 371; Dana v. Valentine, 5 Metc. [Mass.] 14; Ingraham v. Dunnell, 5 Metc. [Mass.] 126. To authorize an injunction there should be not only a clear and palpable violation of the rights of the complainant, but the rights themselves should be certain, and such as are capable of being clearly ascertained and measured. Olmsted v. Loomis, 6 Barb. 160. All of these cases, or nearly all of them, proceed upon the ground that equity jurisdiction is not to be entertained in cases like the present, unless the right of the complainant is clear and well defined, nor unless there is danger of irreparable injury from the continuance of the nuisance, or unless where the right is clear, and the injury certain, an injunction is necessary to prevent a multiplicity of suits, or to suppress oppressive or interminable litigation. One suit at law will probably determine the nature of the complainant’s rights and the extent of his injuries, and if, when that determination is made, the respondents fail to respect those rights, it will then be competent for the complainant to seek the interposition of a court of equity. Having come to this conclusion, no opinion will be expressed upon the merits of the controversy, except to say that the facts of the case as well as the pleadings clearly bring it within the rule requiring the court to decline jurisdiction until the rights of the parties are settled at law. Bill dismissed.