State v. Sunapee Dam Co.

55 A. 899, 72 N.H. 114, 1903 N.H. LEXIS 28

• Court: Supreme Court of New Hampshire
• Decided: April 11, 1903
• Status: Published

Opinions

Bemick, J.

(Bingham, J., concurring.') Lake Sunapee is about ten miles in length and varies in width from one half mile to three miles, and is one of the leading summer resorts in the state. About 1821, the defendants, by authority of the legislature, constructed and have since maintained a dam at the outlet of the lake, by means of which they draw water from the lake to supply power to mills below. The complainants are the numerous riparian proprietors whose estates bound the lake; various owners of steamboats, launches, boats, wharves, landings, and boat-houses, employed in navigation of the lake; and the state, as owner of a fiah hatchery on its shores and trustee for the public of the right of fishery in its waters.

The bill was filed March 17, 1898, and charged, in substance, that the defendants had made, and were threatening to make, an unreasonable use of the waters of the lake, as against the plaintiffs ; and had thereby inflicted, and were threatening to inflict, irreparable injury upon the plaintiffs. The prayer was for an injunction and for general relief. The answer was, in substance, a denial of the unreasonable use alleged. The trial court ordered the case to a referee to find the facts. Upon the facts reported, the case was transferred to the supreme court. Upon the case thus transferred, the law governing the rights of the parties was declared. It was also decided that the plaintiffs were entitled to “ an assessment of compensatory damages ” on account of unreasonable use of the water in 1897. But the court, thinking, evidently, that a repetition by the defendants of the wrongs complained of was improbable after judicial declaration of the law of the ease, concluded, in the exercise of discretion, to withhold “ at this time ” equitable relief “ by way of injunction.” State v. Sunapee Dam Co., 70 N. h. 458, 463. There was, however, no order for the dismissal of the bill. The only order was “ Case discharged,” which left the bill in control of the superior court for such further proceedings, in conformity with the opinion, as should seem proper. Thereupon the defendants moved, in the superior court, that the bill be dismissed. The motion was denied, and the defendants excepted. The plaintiffs than moved (1) that a master be appointed to assess the damages to which the supreme court had declared them to be entitled; (2) that all persons claiming to have suffered by the unreasonable use of 1897 have leave to appear as plaintiffs; (3) that costs be awarded to the plaintiffs in the main action. The motion was granted, and the defendants excepted, lire case is before us upon these exceptions.

The difficulty encountered is over the order for a master to assess damages. Upon this question the court are equally 'divided. Bingham, J., and myself are of the opinion that the superior court committed no error in granting the plaintiff’s motion in this respect. The chief justice > and Chase, J., are of the contrary opinion. Walker, J., does not sit. Under these circumstances there can be no authoritative decision, except for the purposes of this case. But as the result of our attitude is to affirm the order of the superior court in the disputed particular as effectually, so far as concerns the present case, as if it were done by the concurrence of all the judges (State v. Perkins, 53 N. H. 435; Lathrop v. Knapp, 37 Wis. 307; Kolb v. Swan, 68 Md. 516; Durant v. Essex Co., 101 U. S. 555; Hartman v. Greenhow, 102 U. S. 672, 676), it is due to the parties and seems to be required bylaw (Laws 1901, a. 78, s. 4) that we should file an opinion.

It has been contended (1) that equity is without jurisdiction to assess the damages — that it must be done at law; (2) that if it can be done in equity, it is the constitutional right of the defendants to have it done by a jury; and (3) that in any event the motion for a master should have been denied and the assessment sent to a jury as a matter of discretion or practice, and that in this view, as weil as upon the ground of constitutional right, the action of the superior court in granting the plaintiffs’ motion should be reversed.

I. That damages may be assessed in equity, the court otherwise having jurisdiction, in order “ to do complete justice ” and accomplish “ filial determination,” is firmly established. Dennett v. Dennett, 48 N. H. 499, 503; Chartier v. Marshall, 51 N. H. 400; S. C., 56 N. H. 478; Carpenter v. Fisher, 68 N. H. 486, 493; Ellis v. Association, 69 N. H. 385, 389; Winslow v. Nayson, 113 Mass. 411, 421, 422; Cathcart v. Robinson, 5 Pet. 264, 278. The vital question then is: Did equity have jurisdiction of the present case at the time the assessment in question was ordered? It has been authoritatively declared that “ the present proceeding is to restrain an alleged infringement of public and private rights in and to the waters of the lake, through changes in the water level occasioned by the maintenance of the defendants’ dam and works, and is instituted under the general equity powers of the court, and particularly under section 3, chapter 205, of the Public Statutes.” State v. Sunapee Dam Co., 70 N. H. 458, 459. In form, at least, the proceeding is hi equity, and all that has been done to the present time has been according to the course in equity. That the proceeding is also one of equitable cognizance, not alone under the statute, but “ when tested by the general principles of equity,” is an irresistible conclusion from the facts and circumstances shown by the record before us.

The fundamental fact to be observed in this connection is that the parties, plaintiffs and defendants, all had rights in the waters of Lake Sunapee, which they could vindicate in a proper action. Clement v. Burns, 43 N. H. 609, 616; Conn. River Lumber Co. v. Company, 65 N. H. 290, 390, 392; Concord Mfg. Co. v. Robertson, 66 N. H. 1, 11, 18, 19, 20, 23; Aborn v. Smith, 11 R. I. 594; Cedar Lake Hotel Co. v. Company, 79 Wis. 297, 302; 1 Spell. Inj. & Ex. Rem., s. 518; Gould Wat. (2d ed.), ss. 148, 149. The defendants’ charter did not give them the exclusive right. The act contains no express terms to that effect, and a legislative intent to make absolute surrender of the public right of fishery and navigation, and of the riparian rights of the shore-owners will not be implied. Conn. River Lumber Co. v. Company, 65 N. H. 290, 291, 375, 379, 380 ; Commonwealth v. Essex Co., 13 Gray 239, 248; Commissioners v. Company, 104 Mass. 446, 450. The act in terms limits the power of the company to raise the waters of the lake, by restricting the height of the dam to low-water mark; and they are still further limited, by implication of law, to a reasonable use of the water, even within their charter limits. State v. Sunapee Dam Co., 70 N. H. 458, 461, 463. Another fact important to be borne in mind is that although the plaintiffs and defendants each had rights in the lake, their extent had not been defined and limited, nor the proper mode of exercising and enjoying them ascertained and determined, at the time the plaintiffs filed their bill. They lay in common and confusion, with no boundary but the law’s unapplied and indefinite boundary of reasonable use. Gardner v. Webster, 64 N. H. 520, 522, 523 ; Conn. River Lumber Co. v. Company, 65 N. H. 290, 291, 390, 392; Concord Mfg. Co. v. Robertson, 66 N. H. 1, 11, 18, 19, 20, 22, 23; State v. Sunapee Dam Co., 70 N. H. 458, 461, 463; Aborn v. Smith, 11 R. I. 594. As a result, the defendants had repeatedly encroached upon the rights of the plaintiffs and their grantors, inflicting upon them manifestly irreparable injury. The extent, character, and frequency of these encroachments and injuries will appear from the following extracts from the report of the referee: “ The natural variation of the level of the lake . . . was not perceptibly changed by the erection and maintenance or management of the defendants’ dam, prior to its reconstruction in 1851,” and the use of the dam by the defendants during that period was “ without any apparent objection on the part of those under whom the plaintiffs now hold or claim, or others, except when the height of the water was increased by the addition of fiashboards, which occurred about 1845, and resulted in the flowing of the land of shore-owners.” “The defendant corporation, in 1851, . . . reconstructed the dam. . . . The result of changes made at this time, and the addition of planks or fiashboards creating a higher level of the water, caused injury to property owners upon the shores, by the flowage of their lands.” Some of them subsequently brought suits therefor, and received compensation through an adjustment made with them by the defendants involving the “ acknowledgment of liability.” “ In 1859, one Gardner made claim for flowage. The corporation authorized the settlement of his claim. Aside from the records of the corporation in 1861, in which there was a recognition that other claims had been before made and adjusted, and occasional complaints which took no tangible form, there was no other complaint, or evidence of complaint, of the defendant corporation’s misuse or mismanagement of the water of the lake until about 1882.” In 1880 or 1881, “in consequence of . . . the negligence and the improper manner in which the servants of the defendant corporation managed the flow of the water through the dam, . . . the rights of the shore-owners . . . were impaired, and navigation upon the lake was rendered inconvenient and dangerous. This condition resulted in complaint ... by those having homes, cottages, and hotels upon the shores, and a steamboat upon the lake. . . . This complaint and the resulting agitation . . . resulted in an act of the legislature (chapter 145, Laws of 1883) authorizing the governor and council to appoint a commissioner to take evidence and report facts to the legislature. . . . As a result of this investigation, better management of the water from the lake through the dam was not only promised, but secured.” “Among the concessions made by the defendant corporation to the complainants ” at this time, were certain changes in the by-laws of the corporation, whereby it was provided “ that a member of the board of directors should be resident in the town of Sunapee, the location of the dams and works of the corporation,” and that “in controlling the gates the object shall be to hold back and draw out the waters of Sunapee lake in such manner as will equalize the flow of the water the year around (as near as it can be accomplished by man), . . . unless the said directors shall unanimously agree upon a more judicious manner to manage them.” “Mr. Flanders, a person acceptable to the company, the shore-owners, and steamboat proprietors, . . . was employed by the corporation to manage the water at the dam. . . . By the exercise of care and the necessary watchfulness, he secured a comparatively even level of the water, and avoided just ground of complaint.” In June, 1896, “he was superseded by Mr. Abbott, who was managing the dam for the defendant corporation at the time of the hearing before the referee.” About the time Flanders was superseded by Abbott, the by-law providing for a resident director and an equalized flow of the water was rescinded, “ in disregard of the arrangement entered into with those interested in the shores and waters of Lake Sunapee in 1886.” “During the spring and summer of 1897, especially in May and June, .... the level of the lake was . . . raised by putting additional plank upon the dam. . . . The effect of this management of the dam was to raise the water of the lake to such an extent as to submerge the wharves, . . . flood some cellars upon the shores, and wash and injure beaches upon the properties, respectively, of the plaintiffs Quackenbos and Hay, and injuriously affect the state’s fish hatchery on the shore of the lake. . . . The defendant corporation has ... at different times, by the management of its dam and gates, drawn the waters of the lake so low that navigation by steamers has been inconvenient and dangerous at certain points on established routes; and at low water, thus caused, the shores of the lake at occupied places have become unsightly and unwholesome; and, too, the lake when its level is thus.lowered is rendered much less useful for the propagation of fish by the state authorities.” In short, “Mr. Abbott, the agent selected by the defendant corporation in June, 1896, did not manage and control the waters of the dam in a reasonable and proper manner, especially during May and until June 12, 1897.” .

After such a record of recurring disputes and collisions concerning the measure and use of the rights of the parties, covering a period of about fifty years; after the futility of suits at law had been demonstrated by repeated actions and settlements, followed by repeated mismanagement; after the defendants had repudiated a basis of operation conceded as a result of the complaints and legislative inquiry growing out of the mismanagement of 1880 and 1881; after they had installed in place of Mr. Flanders, who “secured a comparatively even level of the water and avoided just ground for complaint,” Mr. Abbott, who “did not manage and control the waters of the dam in a reasonable and proper manner ”; after the defendant corporation had “ at different times, by the management of its dam and gates, drawn the waters of the lake so low that navigation by steamers ” was rendered “inconvenient and dangerous,” the shores of the lake unsightly and unwholesome, and the lake “much less useful for the propagation of fish by the state authorities ”; and especially after the mismanagement of May and June, 1897, the effect of which was “ to raise the water of the lake to such an extent as to submerge the wharves of the steamboats, as well as those of others, to injure and destroy some of those wharves, flood some cellars upon the shores, and wash and injure beaches upon the properties, respectively, of the plaintiffs Quackenbos and Hay, and injuriously affect the state’s fish hatchery on the shore of the lake,” — it hardly seems necessary to say that the action of the complainants in seeking a court of equity was neither premature nor inappropriate, particularly in view of the conclusion of the court that the defendants’ dam was being maintained “ two feet above the point authorized by their charter,” and the findings of the referee that “ injury to the plaintiffs and others with like rights . . . may be avoided by the exercise of reasonable care in the management of the defendants’ dam,” and, in effect, that a practically reasonable use can be secured to all by proper regulation. Patten v. Marden, 14 Wis. 473, 476. Jurisdiction of equity under such circumstances cannot admit of doubt.

(1) It rests primarily upon the well established ground of eqrrity jurisdiction “to determine, as between parties having admitted legal rights in bodies of water, the extent of their respective rights and the proper mode of exercising and enjoying them,” a ground of equity jurisdiction existing at and before the adoption of the constitution, and still existing. Burnham v. Kempton, 44 N. H. 78, 100; Ranlet v. Cook, 44 N. H. 512, 515; Bean v. Coleman, 44 N. H. 539, 542; Conn. River Lumber Co. v. Company, 65 N. H. 290, 291, 361, 390, 391, and authorities cited; Lyon v. McLaughlin, 32 Vt. 423, 426; Bemis v. Upham, 13 Pick. 169, 171; Ballou v. Hopkinton, 4 Gray 324, 328 ; Aborn v. Smith, 11 R. I. 594; Robinson v. Byron, 1 Bro. Ch. 588; Universities v. Richardson, 6 Ves. Jr. 689; Lane v. Newdigate, 10 Ves. Jr. 192; Gould Wat., s. 540.

The wisdom and propriety of such a jurisdiction are manifest; but after the adjudications to which attention has been called, and especially after the exhaustive briefs, arguments, and opinion in Conn. River Lumber Co. v. Company, which cover the whole subject with great thoroughness and ability, we do not feel called upon to defend the jurisdiction on fundamental grounds.

(2) But the jurisdiction of equity in the present case rests as firmly upon another ground — the prevention of a multiplicity of suits. Whatever may be said against this as an independent ground of jurisdiction in some cases and under some circumstances (Tribette v. Railroad, 70 Miss. 182, 190), in view of the subject-matter, the nature of the controversy, the character of the rights involved, the great number of parties affected by the defendants’ mismanagement of the dam, the impracticability of a separate suit at law in behalf of each, and the proven futility of such suits to accomplish the ends of justice, it cannot admit of doubt that this ground fully sustains the jurisdiction of equity in the present case. Nor is it a recently discovered ground of jurisdiction. It existed long before the New Hampshire constitution was adopted, when it was adopted, and still exists, and it is nowhere more distinctly recognized and firmly established» than in this jurisdiction. Walker v. Cheever, 35 N. H. 339, 351; Smith v. Bank, 69 N. H. 254; Carlton v. Newman, 77 Me. 408; Lockwood v. Lawrence, 77 Me. 297; Ballou v. Hopkinton, 4 Gray 324; Cadigan v. Brown, 120 Mass. 493, 495; New York etc. R. R. v. Schuyler, 17 N. Y. 592, 608; Supervisors v. Deyoe, 77 N. Y. 219; Chicago v. Collins, 175 Ill. 445, 451, 452, 453; Corey v. Sherman, 96 Ia. 114; Keese v. Denver, 10 Col. 112, 123, 124; Osborne v. Railroad, 43 Fed. Rep. 824, 826, 827; Cowper v. Clerk, 1 P. Wms. 155, 157; Mayor v. Pilkington, 1 Atk. 282; Tenham v. Herbert, 2 Atk. 483; Jesus College v. Bloome, 3 Atk. 262, 263; Sheffield Waterworks v. Yeomans, L. R. 2 Ch. 8, 12; 1 Pom. Eq. Jur., s. 243; Whitehouse Eq. Pr., s. 136 ; Black’s Pom. Wat., s. 169.

(3) Finally, upon the facts appearing in the record equity had jurisdiction, upon the ground of nuisance, — a ground of equity jurisdiction which has been distinctly traced back to the reign of Queen Elizabeth, and which was firmly established in the jurisprudence of the mother country at the time of the adoption of our constitution. State v. Saunders, 66 N. H. 39, 81, 82.

That the dam, two feet higher than the defendants’ charter authorized (State v. Sunapee Dam Co., 70 N. H. 458, 461), and used and managed in the manner and with the results alleged and found, was a nuisance, cannot admit of doubt. That its continuance was threatened on the day the bill was filed, was an unavoidable inference (1) from the fact that the dam -was still in use by the defendants, for the same purposes, under the same management, and at the same unauthorized height; (2) from the fact that the by-law, previously conceded by the defendants as a guaranty against future mismanagement and under which injury to the plaintiffs had been avoided, stood rescinded, “ in disregard of the arrangement entered into with those -’interested in the shores and waters of Lake Sunapee”; and (3) from the fact that at intervals throughout a period of nearly fifty years, and “at different times ” during the immediate administration of Abbott, including the summer of 1897, the defendants had so used the dam as to infringe upon the rights of the plaintiffs and their predecessors, and this in spite of repeated suits and settlements, “involving acknowledgment of liability.” That the injuries threatened were irreparable, sufficiently appeared from the character of the injuries already suffered, as detailed by the referee, including peril to life from endangered navigation and menace to health from unwholesome conditions. That the injuries were of periodic instead of constant occurrence, was no objection to the jurisdiction (Ross v. Butler, 19 N. J. Eq. 294; 1 Spell. Jnj. & Ex. llein., s. 392; Wood Nuis., s. 780), especially in view of their irreparable character and the demonstrated futility of suits at law and legislative investigations and adjustments to prevent their recurrence. That equity was not bound, under the circumstances of the present case, to await an action at la,w, is also clear. The plaintiffs having rights in Lake Sunapee in common with the defendants as an undoubted and unquestioned proposition of law, and the question of right involved in the case being a mere matter of partition and regulation, and not of title, “ there is no question of right or title in the sense in which those words are used when it is said that the legal right must be established at law before it is specifically enforced in equity.” Conn. River Lumber Co. v. Company, 65 N. H. 290, 392. Furthermore, if there was any legal right involved, in the sense material in this connection, it had been established by the suits at law, settlements, and “ acknowledgment of liability ” already referred to.

Finally, the multiplicity of actions necessary on account of the numerous parties concerned, and the irreparable nature of the injuries threatened, gave the court immediate jurisdiction, whatever legal right may have been involved. Smith v. Bank, 69 N. H. 254; Lockwood v. Lawrence, 77 Me. 297, 311, 314; Wheelock v. Noonan, 108 N. Y. 179, 185, 187; Tenham v. Herbert, 2 Atk. 432; 1 Harv. Law Rev. 126,127; 1 Spell. Inj. & Ex. Rem., ss. 402, 403; and numerous authorities already cited on the subject of multiplicity of actions as a ground of equity jurisdiction. Thus, in every view, equity had jurisdiction of the bill for the purpose of dealing with nuisance. To say that equity has jurisdiction to enjoin the owner of animals from permitting them to pass from his own land over the uninhabitated wood and pasture lot of another, as was done in Ellis v. Association, 69 N. H. 385, and to enjoin the claimant of a share in a campmeeting tent from repeated occupation of the same with the plaintiff during campmeeting seasons, as was done in Ford v. Burleigh, 60 N. H. 278, and yet deny the jurisdiction of the court hi a case like the present, where the rights of so many were involved and the injuries complained of so persistent, serious, and far-reaching, affecting not only property but life and health, would be to substitute caprice for established principles as the test of equity jurisdiction.

But it is suggested that if equity had -jurisdiction at the outset upon the ground of nuisance, the jurisdiction was ousted by the denial of the injunction. This would by no means follow, even if nuisance had been the sole ground of jurisdiction. It is apparent from the course of the trial and the findings of the referee, that the allegations as to nuisance and irreparable injury were made in good faith, and not for the mere purpose of tranferring the case from a court of law to a court of equity. Whipple v. Fair Haven, 63 Vt. 221; Milkman v. Ordway, 106 Mass. 232; Case v. Minot, 158 Mass. 577, 588; Morss v. Elmendorf, 11 Paige 277, 278; Thorne v. French, 4 N. Y. Misc. 436, 437; Jones v. Bradshaw, 16 Grat. 355; Walters v. Bank, 76 Va. 12; Waite v. O’Neil, 72 Fed. Rep. 348; Gormley v. Clark, 134 U. S. 338. Upon the facts reported, an injunction or some order regulating the use of the water as between the parties was clearly within the jurisdiction of the court. Conn. River Lumber Co. v. Company, 65 N. H. 290; Concord Mfg. Co. v. Robertson, 66 N. H. 1, 20; Aborn v. Smith, 11 R. I. 594; Lawson v. Company, 59 Wis. 393, 397; Cedar Lake Hotel Co. v. Company, 79 Wis. 297, 302; Webb v. Company, 3 Sumn. 189, 197, 198; 1 Spell. Inj. & Ex. Rem., s. 318; Gould Wat., ss. 510, 512. The fact that the court, in the exercise of its discretion (Bassett v. Company, 47 N. H. 426, 437; State v. Saunders, 66 N. H. 39, 60; Russell v. Farley, 105 U. S. 433, 438; Clark v. Wooster, 119 U. S. 322; Kerr Inj. 209, 210), believing, no doubt, that having declared the legal rights of the parties a regulating process might not be needed (Conn. River Lumber Co. v. Company, 65 N. H. 290, 392), chose to keep on the conservative side and withhold its restraining power, did not deprive it of jurisdiction of the bill for the purpose of affording relief by way of damages.

Jurisdiction, as spoken of with reference to the right of the court to administer full relief, does not depend upon the order of the court granting or denying the relief prayed (as that may proceed upon considerations entirely apart from the question of jurisdiction), but upon the essential character of the proceeding, as to being legal or equitable. When the case is one of equitable cognizance in its essential character, the right to grant full relief, legal as well as equitable, attaches with the jurisdiction, and is not defeated by denial of the specific relief asked. That the present case is one in equity in its essential character, the bill, answer, and referee’s report conclusively establish. Being so, the right to grant full and complete relief was not lost because the court, as a matter of discretion, thinking that a repetition of the wrongs complained of was improbable after the judicial declaration it had made concerning the rights of the parties, saw fit to deny the prayer for injunction. Pratt v. Law, 9 Cranch 456, 493; Cathcart v. Robinson, 5 Pet. 264; Watts v. Waddle, 6 Pet. 389; County v. Kimball, 102 U. S. 691, 706, 707; Clark v. Wooster, 119 U. S. 322; Omaha etc. R'y v. Company, 32 Fed. Rep. 727; Waite v. O'Neil, 72 Fed. Rep. 348, 354, 355, 356; Chartier v. Marshall, 51 N. H. 400; S. C, 56 N. H. 478; Carpenter v. Fisher, 68 N. H. 486, 493; Whipple v. Fair Haven, 63 Vt. 221; Milkman v. Ordway, 106 Mass. 232, 254; Thompson v. Heywood, 129 Mass. 401, 407; Woodbury v. Company, 145 Mass. 509, 512; Brande v. Grace, 154 Mass. 210; Case v. Minot, 158 Mass. 577, 578; Morss v. Elmendorf, 11 Paige 277, 278; Phillips v. Thompson, 1 Johns. Ch. 131, 149; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273, 286; Woodcock v. Bennet, 1 Cow. 711; Cuff v. Dorland, 55 Barb. 481, 496; Valentine v. Richardt, 126 N. Y. 272, 277; Thorne v. French, 4 N. Y. Misc. 436, 437, 438; Hart v. Brown, 6 N. Y. Misc. 238, 245; Domschke v. Railway, 74 Hun 442, 445; Masson's Appeal, 70 Pa. St. 26, 29; Stearns v. Beckham, 31 Grat. 379, 420, 421; Walters v. Bank, 76 Va. 12; Evans v. Kelley, 49 W. Va. 181; Aday v. Echols, 18 Ala. 353, 357; Atkinson v. Felder, 78 Miss. 83, 85; Brown v. Gardner, Harr. Ch. (Mich.) 291; Holland v. Anderson, 38 Mo. 55, 58; Hedges v. Everard, 1 Eq. Cas. Abr. 18, pl. 7; London v. Nash, 3 Atk. 512; Cleaton v. Gower, Finch 164; Denton v. Stewart, 1 Cox Ch. 258; Greenaway v. Adams, 12 Ves. Jr. 395; Gwillim v. Stone, 14 Ves. Jr. 128; 1 Beach Mod. Eq. Pr., s. 91; Pom. Cont., s. 474; 11 Am. & Eng. Enc. Law (2d ed.) 201.

Although, as shown, this was the rule in England at and prior to the adoption of our constitution, it was afterwards doubted. Todd v. Gee, 17 Ves. Jr. 273; Blore v. Sutton, 3 Mer. 257; Jenkins v. Parkinson,, 2 Myl. & K. 5, 12. To remove all doubt, it was enacted (21 & 22 Vict., c. 27) that “ in all cases in which the court of chancery has jurisdiction to entertain an application for an injunction against a breach of covenant, contract, or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract, or agreement, it shall be lawful for the same court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction or specific performance, and such damages may be assessed in such manner as the court shall direct.” “ This statute is held to apply only to cases which are of equitable cognizance in their essential character.” Durell v. Pritchard, L. R. 1 Ch. 244. It was uncalled for except to remove doubts occasioned by decisions rendered long after the adoption of our constitution. The same authority conferred by the act belonged to the court, “ as incident to its chancery jurisdiction and essential to the complete exercise of that jurisdiction.” Milkman v. Ordway, 106 Mass. 232, 257.

True, many of the cases cited were where damages were assessed upon a bill for specific performance, after denial of the prayer for performance. But it can make no difference in principle whether the bill is to restrain or compel action. If relief by way of damage is permissible in one case, it must be in the other. To hold otherwise would introduce a distinction wholly technical and arbitrary. No such distinction is recognized by the courts of this country (Whipple v. Fair Haven, 63 Vt. 221; Woodbury v. Company, 145 Mass. 509; Case v. Minot, 158 Mass. 577, 588 ; Thorne v. French, 4 N. Y. Misc. 436, 437, 438; Masson’s Appeal, 70 Pa. St. 26, 29; Brown v. Gardner, Harr. Ch. (Mich.) 291; Omaha etc. B’y v. Company, 32 Fed. Rep. 727) ; and the act of parliament to which reference has been made conclusively shows that while the courts of England may have disputed as to the fundamental question whether purely legal relief can be granted in any case where equitable relief is denied, no distinction is there recognized between bills for injunction and those for specific performance respecting the application of the rule under consideration. Both are put upon the same ground and made subject to the same rule. They are treated the same in this jurisdiction. Chartier v. Marshall, 51 N. H. 400; S. C, 56 N. H. 478; Carpenter v. Fisher, 68 N. H. 486, 493.

But if it were true that a bill for injunction, brought in however good faith, upon whatever state of facts, to restrain a nuisance, can afford no jurisdictional basis for relief by way of damages, after a denial, for whatever reason, of the prayer for injunction, the rule would have no application in the present case, because in this case after the denial of the injunction the jurisdiction was still supported by the two grounds first named. Having jurisdiction for the purpose of determining by specific decree the extent of the respective water rights of the contending parties, and the proper mode of exercising and enjoying them (Burnham v. Kempton, 44 N. H. 78, 79; Conn, River Lumber Co. v. Company, 65 N. H. 290, 390, 392; Concord Mfg. Co. v. Robertson, 66 N. H. 1, 20), and also to prevent a multiplicity of suits (Burnham v. Kempton, 44 N. H. 78; Smith v. Bank, 69 N H. 254), equity was not ousted of its jurisdiction upon these grounds merely because another distinct and independent ground of jurisdiction failed. Ror did denial of the specific prayer for injunction leave the court with a jurisdiction it was powerless to exercise. The general prayer for such further relief as may be just was sufficient for any decree appropriate to the case as presented by the bill, answer, and report. “ The rule is that if the complainant on the facts . . . is entitled to any equitable relief whatever, and there is a prayer for general relief, this may be granted, even if the special relief claimed be not warranted by the facts, or if he mistakes the principles of equity upon which his right to relief is founded.” Junior etc. Ass'n v. Sharpe, 63 N. J. Eq. 500. See, also, Treadwell v. Brown, 44 N. H. 551; Winslow v. Nayson, 113 Mass. 411; Hill v. Beach, 1 Beas. 31, 35; Rutherford v. Jones, 14 Ga. 521, 525; Watts v. Waddle, 6 Pet. 389; Omaha etc. R’y v. Company, 32 Fed. Rep. 727; Sto. Eq. Pl., s. 40; 1 Beach Mod. Eq., s. 91. If there is anything in Bassett v. Company, 43 N. H. 249, which forbids assessment of damages in equity under such circumstances as are presented in this case, it is contrary to Chartier v. Marshall, 51 N. H. 400, —S. C., 56 N. H. 478, Carpenter v. Fisher, 68 N. H. 486, 493, and the great weight of authority.

Whatever the court in its discretion saw fit to do as to granting or withholding the injunction prayed for, it is clear, not alone from the allegations of the bill, but from the facts found by the referee, that equity had jurisdiction of the case. Jurisdiction having attached, and the court having proceeded to determine every other question involved, it should now go forward and assess the damages ; in other words, in the language of Marshall, C. J., “ go on to do complete justice” (Cathcart v. Robinson, 5 Pet. 264, 278), or, in the language of Carpenter, C. J., dispose “of all questions the decision of which is necessary to its final determination.” Carpenter v. Fisher, 68 N. H., 486, 493. This course is so clear in principle and so reasonable in practice, the suggestion to convert the proceedings by amendment into several actions at law, in order to have the damages assessed, seems idle. Smith v. Bank, 69 N. H. 254.

II. But, it is said, assuming that the damages may be assessed in equity, nevertheless, the defendants, as against those plaintiffs who claim more than $100, have a constitutional right to an assessment by’jury trial.

That there is no constitutional right to a jury trial in equity was conclusively settled, so far as this jurisdiction is concerned, in Conn. River Lwmber Co. v. Company, 65 N. H. 290, 379, 391, and State v. Saunders, 66 N. H. 39, 71, 72, 78, 79, 80, 89, 90, 91, if, indeed, it was not previously settled. Copp v. Henniker, 55 N. H. 179, 210, 211; Perkins v. Scott, 57 N. H. 55, 81; Bellows v. Bellows, 58 N. H. 60; Sargent v. Putnam, 58 N. H. 182; Proctor v. Green, 59 N. H. 350, 352; Davis v. Dyer, 62 N. H. 231, 236; Parker v. Simpson, 180 Mass. 334; Shapira v. D'Arcy, 180 Mass. 377; Ward v. Farwell, 97 Ill. 593, 612, 613; Littleton v. Fritz, 65 Ia. 488; Barton v. Barbour, 104 U. S. 126; Gormley v. Clark 134 U. S. 338, 348, 349.

“ Of course, it would not be competent for the legislature to ■defeat the right of trial by a jury in common-law cases by simply declaring they might be tried in courts of chancery, and that the proceedings therein should conform to the proceedings in chancery ■causes. This would simply be an attempted evasion of the provisions of the constitution. Where a new class of cases are, by legislative action, directed, to be tried as chancery causes, it must appear that, when tested by the general principles of equity, they •are of an equitable character, and can be more properly tried in a •court of equity than in a court of law. And if of this character, when brought in a court of equity they stand upon the same footing with other causes, and the court will have the right, as in ■other cases, to determine all questions of fact without submitting them to a jury.” Ward v. Farwell, 97 Ill. 593, 613, 614; Gormley v. Clark, 134 U. S. 338, 347, 348, 349.

Assessment of damages in equity, the court otherwise having jurisdiction, stands no different with regard to the constitutional right of trial by jury than any ordinary issue in equity. “The ■cases are numerous in which the court of chancery has caused ■damages to be assessed, either by an issue or by a master.” Phillips v. Thompson, 1 Johns. Ch. 131, 151. “Chancery has directed damages to be assessed in either way, at discretion, for nearly two centuries, at least from 1660 to the present day.” Woodcock v. Bennet, 1 Cow. 711, 727. “The practice has been almost, if not quite, universal to regard the question of damages in equity cases .as so incidental to the principal relief demanded that it was wholly within the. discretion of the trial court to determine whether or not an issue should be framed to have it tried by jury. After a careful search, but one case has been found in which the claim was •directly made that such issue must be tried' by jury, and in that case it was denied.” 15 L. R. A. 287. See, also, Carpenter v. Fisher, 68 N. H. 486, 493, and numerous authorities already cited.

III. This brings us to the third contention, viz., that although the defendants may have no constitutional right to an assessment by jury, the court should, as matter of discretion or practice, have ordered an assessment by that method as to all claims in excess of $100. If it were the province of this court to revise the action of the superior court in matters of discretion, we should say, under the circumstances of the present case, that the discretion was reasonably exercised. Under the circumstances, a master or referee was deemed appropriate to try the fundamental issue of reasonable use, and no logical reason appears why a tribunal suitable in the judgment of the parties and the court to try this primary question of fact should be unsuitable for the purpose of merely assessing the incidental damages. Chase v. Lovering, 27 N. H. 295, 297; Carpenter v. Fisher, 68 N. H. 486, 493 ; Lynch v. Railway, 129 N. Y. 274, 283, 284. The idea of impanelling a separate jury and going through the expensive process of such a trial in each of the numerous claims' possible under the bill, merely to assess damages, does not appeal to the judgment and is condemned by authority. Carpenter v. Fisher, 68 N. H. 486; Smith v. Bank, 69 N. H. 254. Convenience, economy, and the practical administration of justice, all argue in favor of a master; and it does not appear how any substantial right of the parties can be prejudiced by this course.

But whether assessment by master would better serve the ends of justice than an assessment by jury, is not for us to decide. Presumably, the arguments for and against both methods of assessment were presented to the presiding justice in the superior court, lie has decided in favor of the former. It was his right to so decide. Sitting in equity, ho was the chancellor. From the earliest, down to the present time, it has been the province of the chancellor to determine according to liis own discretion how he would inform his conscience, whether by personal hearing, reference to a master, or by framing issues to the jury. Tappan v. Evans, 11 N. H. 311, 334; Proctor v. Green, 59 N. H. 350, 354; State v. Saunders, 66 N. H. 39, 78, 79; Briggs v. Shaw, 15 Vt. 78, 81; Parker v. Simpson, 180 Mass. 334; Phillips v. Thompson, 1 Johns. Ch. 131, 150 ; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273, 285; Smith v. Carll, 5 Johns. Ch. 118, 119; Dale v. Roosevelt, 6 Johns. Ch. 255; Woodcock v. Bennet, 1 Cow. 711, 713, 727, 755, 756; Candee v. Lord, 2 N. Y. 269,-51 Am. Dec. 294, 298, and note; Scheetz's Appeal, 35 Pa. St. 88; Keith v. Henkleman, 173 Ill. 137; Field v. Holland, 6 Cranch 8, 22; Barton v. Barbour, 104 U. S. 126, 133, 134; Idaho etc. Co. v. Bradbury, 132 U. S. 509, 515, 516; Kohn v. McNulta, 147 U. S. 288, 240; Hedges v. Everard, 1 Eq. Cas. Abr. 18, pl. 7; Cleaton v. Gower, Finch 164; Denton v. Stewart, 1 Cox Ch. 258; Bullen v. Michel, 2 Price 399; O'Connor v. Cook, 6 Ves. Jr. 665, 671; Warden of St. Paul's v. Morris, 9 Ves. Jr. 155, 166, 168; Pearce v. Creswick, 2 Hare 286, 297; Roskell v. Whitworth, L. R. 5 Ch. 459, 463, 464; 3 Gr. Ev., s. 261; Bisp. Eq. 17; 2 Am. Dig. (Cent, eel.) 1213.

That the chancellor’s discretion in ordering the damages to be assessed by a master instead of by a jury is not subject to exception is well established. Tappan, v. Evans, 11 N. H. 311, 334; Proctor v. Green, 59 N. H. 350, 354; Briggs v. Shaw, 15 Vt. 78; Ward v. Hill, 4 Gray 593; Crittenden v. Field, 8 Gray 621, 626 ; Candee v. Lord, 2 N. Y. 269,—51 Am. Dec. 294, and note 299; Brinkley v. Brinkley, 56 N. Y. 192; Sheetz's Appeal, 35 Pa. St. 88, 94; Hammond v. Foreman, 43 S. C. 264; Adams v. Munter, 74 Ala. 338, 342; Cook's Heirs v. Bay, 4 Miss. 485, 491; Maynard v. Richards, 166 Ill. 466; Weil v. Kume, 49 Mo. 158, 159; Lake v. Tolles, 8 Nev. 285, 286, 291; Idaho etc. Co. v. Bradbury, 132 U. S. 509, 516.

Tasker v. Lord, 64 N. H. 279, and State v. Saunders, 66 N. H. 39, decide nothing to the contrary. In neither of these cases was the court called upon to overrule the decision of the court below. In each case the question whether there should be a jury trial was presented for the first time in the law court. In neither was it suggested that there was a constitutional right to such a trial, or that it was not within the discretion of the chancellor to try the questions himself, or that the law court could overrule the chancellor’s discretion as to the mode in which he would inform his conscience. On the contrary, in State v. Saunders constitutional right is expressly denied, and nothing more than the propriety of a jury trial was asserted in either case. The true understanding of the court, as then constituted, as to its province in such case, is disclosed in Proctor v. Green, 59 N. H. 350, 354, and is in exact accordance with the views we entertain, viz., that the granting of jury trial in equity is a matter resting entirely in the discretion of the chancellor.

It was natural under the old system, when the law and trial courts were all one in personnel, that suggestions concerning the inode of exercising discretionary powers should emanate from the former for the guidance of the latter. Ellensohn v. Keyes, 39 N. Y. Supp. 774, 775. But instances of suggestion of this sort by the law to the trial court, under a system so interrelated, can hardly be regarded as precedents warranting this court in overruling the superior court in matters of pure discretion, under a system designed to secure the independence of each court within the sphere of its jurisdiction. Whatever liberty may have been taken by way of regulating discretion under the old system, under the present system we think that in matters of mere discretion the action of the superior court, unless reserved for our consideration, should be subject to revision for abuse only. Dale v. Roosevelt, 6 Johns. Ch. 255; Candee v. Lord, 2 N. Y. 269; Roskell v. Whitworth, L. R. 5 Ch. 463, 464, 465. Consistently adhered to, this policy will commend and justify itself, and conduce to the practical administration of justice. But if exceptions are made, it will be impossible to draw a satisfactory line; inconsistencies and contradictions will inevitably ensue, and the rule itself will come to be regarded as a makeshift. It should be consistently enforced, or altogether abandoned. As a rule calculated to promote practical administration, we think it should be enforced, and especially so in the present instance, where the question is not a mere question of practice in an isolated case, but a question involving the integrity of systems. While the right of trial by jury should be scrupulously preserved within its constitutional sphere, the province of the chancellor should not be invaded.

Certainly, the chancellor in the present case cannot be charged with abuse of discretion for adopting a mode of assessment in accordance with the established course in equity and permissible by the weight of authority.

IV. Finally, it is said that if equity had jurisdiction to assess the damages, still the court erred in not recommitting the report to the referee for this purpose, instead of ordering the assessment to a master. This was a matter entirely in the discretion of the trial court, — as much so as if it had itself found the primary facts, or caused them to be found by a jury upon issues framed. Its discretion in such case to refer the incidental matter of assessment to a master cannot admit of doubt. That the facts establishing the defendants’ liability to an assessment were found by a referee, instead of by the court or a jury, does not alter the discretion of the court in this behalf. The fact that the bill contained no prayer for damage, and that the referee gave no consideration to that subject, left the trial court peculiarly free to exercise its discretion in the pres.ent case.

The suggestion, doubtfully made, that by submitting to the reference the parties are estopped to object to a recommittal of the question of damages, is not pertinent, for the question before us is not whether the superior court might have recommitted the case to the referee to assess damages, but whether, having in its discretion ordered an assessment by master, this court can revise that discretion. No question of waiver or estoppel is involved.

While denying that there is any constitutional right to a jury trial in equity, and maintaining in full vigor the discretion of the chancellor in this regard, we are not to be understood as questioning the propriety of issues to the jury in equity whenever such course commends itself to the good sense of the presiding justice, nor as discouraging such issues in cases where their propriety has already been recognized. On the contrary, expressions of the supreme court, under the old system, as to the proper course in particular cases, may well be accepted by the justices of the ¡superior court for guidance in the exercise of their discretion. .Nor are we to be understood as abdicating in any degree the •authority conferred upon the supreme court by section 2, chapter '205, Public Statutes, to revise the orders of the superior court ¡sitting in equity, but only as exercising that authority in accordance with recognized principles in equity, and as the practical ■•administration of justice seems to require. Nor, in refusing to interfere with the general order of the superior court for a master •to assess damages in the present case, do we understand that the assessment is necessarily to be by some other person than the referee who has heard the case in its general features. On the contrary, if otherwise unobjectionable, there would seem to be strong reasons why the assessment of damages should be sent to him. ’ But this is a matter within the sound discretion of the superior court.

V. A question respecting costs is also raised by the defendants’ exception. “ Costs shall follow the event of every action or petition, unless otherwise directed by law or by the court.” P. S., c. 229, s. 1. This applies to a suit in equity the same as to an action at law. Clement v. Wheeler, 25 N. H. 361. The event of an action is that which happens to it in the end — the judgment that is rendered upon the issues of fact or law that finally disposes of the action. Terms are sometimes imposed upon one party or the other during the pendency of the action, but costs are not imposed until its termination. The order of the court in this suit relates to costs, and not to terms pertaining to some interlocutory order. It was premature. The question of costs should be delayed until the end. Equity may then require a different apportionment of the costs than it would now. Upon this point the court are unanimous.

VI. It will be in season to determine whether persons not already plaintiffs in this suit, who claim to have suffered damage as result of the high water of 1897 (if there are any such), should be made plaintiffs by amendment when they apply for leave. In this respect the court are also agreed.

The court being equally divided upon the exceptions to the refusal to dismiss the bill and to the order in so far as it relates to the assessment of damages, the action of tbe superior court in those respects, according to the well recognized rule of appellate practice, stands affirmed. Northern R. R. v. Railroad, 60 N. H. 166, 176, 177; State v. Perkins, 53 N. H. 435, 437, and cases cited; 3 Cyc. 405, and cases cited. The exception to the order so far as it relates to costs and parties is sustained by unanimous concurrence.