Ridgely, Chancellor.
This is a case which comes within the exceptions to the rule, and in principle is the same as the case of Robinson vs. Lord Byron cited in argument. By the overflowing of the land the complainants [16] are deprived of the use and enjoyment of it. They cannot build on it while it is covered with water. It may possibly go to the irreparable destruction of it. At any rate, it obstructs all the alleged motives of the complainants in purchasing, by preventing them from building. Let the affidavits be read.
Before the case had proceeded further the defendants applied for leave to produce counter affidavits ; whereupon, at the Chancellor’s suggestion,it was agreed to postpone the hearing, with leave to take affidavits on both sides.
Afterwards, on the 30th August 1816, the motion for an injunction came again before the Chancellor, upon the bill and answer, and upon affidavits exhibited on both sides: whereupon the following order was made, viz : “It is order- “ ed by the Court, that a writ of injunction be issued to “ restrain the defendants,their agents, &c., from damming “ up or penning back the waters of the Brandywine creek, “ above the natural or ordinary level of the said creek,at the “ line dividing the land of the complainants from the land “ of the defendants, by the dam lately erected by the de- “ fendants, or by any other obstructions to be made or “ erected, so as to overflow the land of the complainants, ‘‘ until this Court shall make further order to the con- “ trary.”
From the above order an appeal ’was taken, pending which, at the April Term 1817, the complainants filed an affidavit showing that the defendants had, since the last Term, dammed up the waters of the Brandy wine above the natural level of the creek, and had overflown the land of the complainants, contrary to the order of the Chancellor heretofore made; and thereupon McLane, for the complainants, moved for an attachment, notwithstanding that an appeal had been prayed and allowed.' Mo writ of injunction had as yet been issued.
McLane and Van Dyke, for the complainants.
The question is whether the appeal suspends the order, made in the cause, for a writ of injunction. That depends upon the construction to be given to Art VII. of the Constitution,touching appeals. (1 Vol. Delaware Laws, p. xliv, Digest of 1829, p. 27.) Jurisdiction is there given to the High Court of Errors and Appeals, “ to receive and deter- “ mine appeals from interlocutory or final orders or decrees “ of the chancellor.” An interlocutory order is one which ascertains some right, or determines some matter or thing, on which the final decree depends,—something essential to the determination of the cause ; such as an order for an account. An injunction is not an interlocutory order within the meaning of the constitution. It decides no fact, fixes no right, and is not at all necessary to the final determination of the cause. It is mere process of the Court, issued to hold in statu quo the subject matter upon which the decree is to operate, until the Court shall be enabled to ascertain and adjudge the rights of the parties. It is a process collateral to the suit, and is often issued upon petition before any bill filed. To give to an appeal the effect of suspending orders of this nature would practically annihilate chancery jurisdiction for many of its most important ends; as, upon an injunction to stay waste or to prevent other irreparable mischief, the defendants would need only to appeal and then utterly destroy the timber, or commit the very mischief which it was the object of the suit to prevent. So, upon a bill to perpetuate testimony, if the order to take the testimony can be suspended by an appeal, the witness may die before his evidence can be secured. So in the casé of a writ of ne exeat regno: upon taking an appeal the party would be left free to go away and thus defeat the jurisdiction. The security taken upon an appeal affords no adequate remedy for injuries of this nature, but only for eases [18] of debt or damages. Further, it may be noticed that to hold all proceedings between the commencement of a suit and the final decree subject to be suspended by an appeal would render a chancery suit perpetual. The clause of the Constitution giving an appeal must receive such a construction as will preserve and not destroy the necessary powers of a court of equity. The Constitution and laws of this State, (1 Vol. Delaware Laws, 130, Digest of 1829, p. 102-3) defining equity jurisdiction, meant to give the power to award injunctions as it is exercised in England. Under the English practice, an appeal lies only from a final decree, or, from an interlocutory order made for some purpose necessary to a final decree, 3 Blk. Com. 454 : 1 Harrison’s Ch. Pr. 454 : not from orders of this nature. An appeal was disallowed in the case of an order to show cause only. 1 Brown’s P. C., 439-40 : so from an order for a commission of lunacy. 1 Brown’s P. C. 450. In Young vs. Grundy, 6 Cranch 51, an appeal was held not to lie from an interlocutory order or decree dissolving an injunction. The present is the first attempt in this State to suspend the order for an injunction by appeal. The practice heretofore shows the sense in which the Constitution has been understood.
Bead, Broom and Wales, for the defendants.
Upon two grounds, we insist that the Court cannot now interfere.
1. Whether this be an interlocutory order or common process, is not now to be questioned. The appeal has been allowed and security given. The case is taken from this jurisdiction. If the appeal is irregular, application must be made -to the Court above. But,
2. This is an interlocutory order. An injunction never issues but by special order of the Court. It is collateral to the cause,and it is interlocutory or it is nothing : and the [19] Constitution gives an appeal from all interlocutory orders. The right of appeal in this State is constitutional, and different from that to the House of Lords; therefore no decisions in England can control this right. With respect to the case in this country, cited from 6 Cranch 51, the laws of the United States forbid an appeal except from final decrees. Hence, that case does not apply here.
Ridgely, Chancellor.
My only doubt is, as to the power of this Court to act after appeal prayed and allowed. I have no idea that this order is an interlocutory order. It has been frequently intimated to me that appeals would be taken from orders for writs of injunction made at the time of filing bills. I have often considered the subject, and never supposed such an order to be an interlocutory order, from which the party could appeal. An interlocutory order is an order made upon a point whereby some right or principle is established in the cause, on which a final decree depends ;' or, it determines or directs some matter or thing which is necessary to the making of the final order or decree. Such is an order to account on a bill filed by one partner against another ; as in a case from Sussex County, where an appeal was properly taken from such interlocutory order. For the order to account settled the principle ; the rest was mere matter of fact and calculation.
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Ridgely, Chancellor.
This is a case which comes within the exceptions to the rule, and in principle is the same as the case of Robinson vs. Lord Byron cited in argument. By the overflowing of the land the complainants [16] are deprived of the use and enjoyment of it. They cannot build on it while it is covered with water. It may possibly go to the irreparable destruction of it. At any rate, it obstructs all the alleged motives of the complainants in purchasing, by preventing them from building. Let the affidavits be read.
Before the case had proceeded further the defendants applied for leave to produce counter affidavits ; whereupon, at the Chancellor’s suggestion,it was agreed to postpone the hearing, with leave to take affidavits on both sides.
Afterwards, on the 30th August 1816, the motion for an injunction came again before the Chancellor, upon the bill and answer, and upon affidavits exhibited on both sides: whereupon the following order was made, viz : “It is order- “ ed by the Court, that a writ of injunction be issued to “ restrain the defendants,their agents, &c., from damming “ up or penning back the waters of the Brandywine creek, “ above the natural or ordinary level of the said creek,at the “ line dividing the land of the complainants from the land “ of the defendants, by the dam lately erected by the de- “ fendants, or by any other obstructions to be made or “ erected, so as to overflow the land of the complainants, ‘‘ until this Court shall make further order to the con- “ trary.”
From the above order an appeal ’was taken, pending which, at the April Term 1817, the complainants filed an affidavit showing that the defendants had, since the last Term, dammed up the waters of the Brandy wine above the natural level of the creek, and had overflown the land of the complainants, contrary to the order of the Chancellor heretofore made; and thereupon McLane, for the complainants, moved for an attachment, notwithstanding that an appeal had been prayed and allowed.' Mo writ of injunction had as yet been issued.
McLane and Van Dyke, for the complainants.
The question is whether the appeal suspends the order, made in the cause, for a writ of injunction. That depends upon the construction to be given to Art VII. of the Constitution,touching appeals. (1 Vol. Delaware Laws, p. xliv, Digest of 1829, p. 27.) Jurisdiction is there given to the High Court of Errors and Appeals, “ to receive and deter- “ mine appeals from interlocutory or final orders or decrees “ of the chancellor.” An interlocutory order is one which ascertains some right, or determines some matter or thing, on which the final decree depends,—something essential to the determination of the cause ; such as an order for an account. An injunction is not an interlocutory order within the meaning of the constitution. It decides no fact, fixes no right, and is not at all necessary to the final determination of the cause. It is mere process of the Court, issued to hold in statu quo the subject matter upon which the decree is to operate, until the Court shall be enabled to ascertain and adjudge the rights of the parties. It is a process collateral to the suit, and is often issued upon petition before any bill filed. To give to an appeal the effect of suspending orders of this nature would practically annihilate chancery jurisdiction for many of its most important ends; as, upon an injunction to stay waste or to prevent other irreparable mischief, the defendants would need only to appeal and then utterly destroy the timber, or commit the very mischief which it was the object of the suit to prevent. So, upon a bill to perpetuate testimony, if the order to take the testimony can be suspended by an appeal, the witness may die before his evidence can be secured. So in the casé of a writ of ne exeat regno: upon taking an appeal the party would be left free to go away and thus defeat the jurisdiction. The security taken upon an appeal affords no adequate remedy for injuries of this nature, but only for eases [18] of debt or damages. Further, it may be noticed that to hold all proceedings between the commencement of a suit and the final decree subject to be suspended by an appeal would render a chancery suit perpetual. The clause of the Constitution giving an appeal must receive such a construction as will preserve and not destroy the necessary powers of a court of equity. The Constitution and laws of this State, (1 Vol. Delaware Laws, 130, Digest of 1829, p. 102-3) defining equity jurisdiction, meant to give the power to award injunctions as it is exercised in England. Under the English practice, an appeal lies only from a final decree, or, from an interlocutory order made for some purpose necessary to a final decree, 3 Blk. Com. 454 : 1 Harrison’s Ch. Pr. 454 : not from orders of this nature. An appeal was disallowed in the case of an order to show cause only. 1 Brown’s P. C., 439-40 : so from an order for a commission of lunacy. 1 Brown’s P. C. 450. In Young vs. Grundy, 6 Cranch 51, an appeal was held not to lie from an interlocutory order or decree dissolving an injunction. The present is the first attempt in this State to suspend the order for an injunction by appeal. The practice heretofore shows the sense in which the Constitution has been understood.
Bead, Broom and Wales, for the defendants.
Upon two grounds, we insist that the Court cannot now interfere.
1. Whether this be an interlocutory order or common process, is not now to be questioned. The appeal has been allowed and security given. The case is taken from this jurisdiction. If the appeal is irregular, application must be made -to the Court above. But,
2. This is an interlocutory order. An injunction never issues but by special order of the Court. It is collateral to the cause,and it is interlocutory or it is nothing : and the [19] Constitution gives an appeal from all interlocutory orders. The right of appeal in this State is constitutional, and different from that to the House of Lords; therefore no decisions in England can control this right. With respect to the case in this country, cited from 6 Cranch 51, the laws of the United States forbid an appeal except from final decrees. Hence, that case does not apply here.
Ridgely, Chancellor.
My only doubt is, as to the power of this Court to act after appeal prayed and allowed. I have no idea that this order is an interlocutory order. It has been frequently intimated to me that appeals would be taken from orders for writs of injunction made at the time of filing bills. I have often considered the subject, and never supposed such an order to be an interlocutory order, from which the party could appeal. An interlocutory order is an order made upon a point whereby some right or principle is established in the cause, on which a final decree depends ;' or, it determines or directs some matter or thing which is necessary to the making of the final order or decree. Such is an order to account on a bill filed by one partner against another ; as in a case from Sussex County, where an appeal was properly taken from such interlocutory order. For the order to account settled the principle ; the rest was mere matter of fact and calculation.
This is not an interlocutory order ; it is an original process. By an Act of Assembly injunctions to stay waste and suits at law may be awarded and issued before the bill is filed. This is in the nature of an injunction to stay waste. It determines nothing ; it only saves the complainant from injury until the matter is finally heard and decided.
However, as the appeal has been allowed, the case is out of this Court, and now I cannot proceed in the cause in any manner until it returns from the High Court of Errors and Appeals.
The motion for an attachment is denied.
McLane, Van Dyke and Rodney, for the appellees
Read, for the appellants.
The motion to dismiss was very fully argued, but upon no new' points, except that on behalf of the appellant the further ground was taken that the Chancellor’s order went beyond the purpose of holding the matter in statu quo ; that it was retrospective in depriving the defendants of the use of their dam, as it already stood and had long before been enjoyed, and was rather in the nature of an execution than a suspensive order ; that for this reason, in addition to those before urged, an appeal should lie.
This cause came before the High Court of Errors and Appeals, at the June Term 1817, and the question whether, an appeal lies from an order of the Chancellor directing an injunction to be issued, came before that Court, upon a rule to show cause why the injunction should not be dismissed.
Johns, Chibe Justice,
announced the following as the conclusions of the Court upon the points argued :
1st, That the words “ interlocutory order or decree ” in the Constitution must be taken in' a technical sense, and that the right of appeal is not enlarged but secured by the Constitution.