Southard v. Morris Canal & Banking Co.

The Cx-iancelloR.

Can the injunction, as prayed for, be granted on either ground ?

First, As to the alleged waste.

There can be no doubt of the power of this court to stay the commission of waste by injunction. It is constantly exercised, and is necessary to the proper administration of justice. Even cases of trespass have, of late years, been favorably entertained, and the courts of equity have repeatedly held, that where the damage was great and irreparable, or by constant repetition calculated to do a lasting injury to the inheritance, they would interfere to prevent the evil: Flamang's case, 7 Ves. 308; Eden on Inj. 138; Stevens v. Beekman, 1 John. C. R. 318. In this last case, chancellor Kent held, that an injunction might be *522 granted, under very special circumstances, in a case of trespass; but that it would not be allowed merely to prevent the repetition of a trespass, where the parly had an adequate remedy at law.

The complainants’ bill presents, as I conceive, no matter for an injunction on the ground of waste. The injury complained of was committed more than a year before the bill was filed. The wood and timber have been removed from the premises. There is no allegation that the defendants are preparing to commit similar depredations, or that they have threatened to do it. There is, then, nothing to authorise an injunction. It cannot make reparation for past injuries; its province is to restrain those that are in contemplation or in progress. The object is strictly preventive.

The bill seeks compensation for the injuries charged, and that an account may be taken. Admitting this to be a proper tribu-,, nal for obtaining such redress, the allowance of an injunction can give no aid to the complainants or the court.

Secondly, Ought the injunction to issue to prevent the company from letting down the flood-gates, and raising the water above its natural height in the pond?

It appears by the eleventh section of their act of incorporation, that the company are expressly authorised to raise the waters in the Green Pond, and Lake Hopatcong, commonly called the Great Pond, by damming the same, and to use the surplus water thus obtained ; all loss and damage to the owners of said ponds and the lands flowed or otherwise used in obtaining water for the canal, being paid for agreeably to the previous provisions of the act. The company, in erecting their dam, have not exceeded their chartered powers; nor have they used them unnecessarily, for it is a matter of general notoriety, that without the waters of Lake Hopatcong, their canal would be worthless. The dam is represented to have been built, and the overflowing to have taken place, as early as November, 1826, upwards of five years ago. It is charged that the dwelling-house has been rendered almost uninhabitable, the meadows spoiled, and the garden and tan-yard greatly injured. And yet this is the first time an application has been made for an injunction. This protracted delay is decidedly unfavorable to the present motion. *523 The object of the injunction, as already stated, is preventive, and the application should be prompt. It is very unusual for party who has stood still, and seen his adversary erect a nuisance at great expense, and then permitted it to continue for a number of years without complaint, to come into this court for an order to prevent its continuance. To avoid this difficulty, the complainants set up, that the waters have been for some time permitted to escape, so that the lake is now restored to its natural level; and that the company are now about to raise the water to its former height. They insist, that this is a renewal of the nuisance, or an attempt to renew it, which ought to be prevented. It is to be remarked, however, that the defendants are about to do nothing more than they have formerly done. There is no charge that they are about to raise the water higher than formerly, or than it was when the map and valuation were made. The object of the dam was to raise the water in the lake to a certain height. It has been so raised for several years, and the complainants have submitted to it. They cannot now, because the water has been temporarily drawn off, take advantage of that circumstance, so as to place themselves in the situation in which they would have stood, if they had made this application five years ago. It is not sufficient to revive the right which might then have existed.

The complainants insist, however, that the lands of the infant heirs have not been appraised, or paid for in any way; that the sum awarded to Mrs. Ludlow has not been paid to her, and that the defendants should be restrained from raising the water until full compensation is made. The case shows, that appraisers were appointed under the act, and that a valuation took place. The whole damage sustained by this property was assessed by the appraisers, as the defendants contend, at five hundred and ten dollars and twenty cents. The complainants, Southard and wife, insist that this was the damage assessed to the dower interest of Mrs. Southard, and that they refuse to pay it to her. In the return of the appraisers, a copy of which has been exhibited, it appears there is an assessment made to Mrs. Ludlow of five hundred and ten dollars and twenty cents, as above stated : and the quantity of land occupied by the compa *524 ny, and for which an allowance is made, is twenty-eight acres and four hundredths, or not quite one third of the farm. If the appraisers intended this as a compensation for the injury done to the whole property, the injunction ought not to issue, because the company have offered to pay the money to the persons entitled, and they have offered to pay it into court. It is not proper for me, at this time, to express any definite opinion as to the intention of the appraisers, or the proper way in which the money should be distributed. The complainants may not choose to accept the sum awarded, and may take the legal remedy. I may say, however, that there is at least a probability, that the sum appraised was intended as a full compensation for all the injury sustained by the property, it then being in the possession of Mrs. Ludlow, in whose favor the award was made. While this probability remains, and the question is unsettled, T cannot consent that an injunction should go on the ground that no compensation has been made or offered.

There was another point raised by the complainants at the hearing, viz : that the defendants overflowed more land than had been described on the map or appraised by the commissioners. This presents a different question from any yet considered. The sum assessed by the appraisers can be no compensation for lands not described in the survey by which the appraisement was made. In view of this, it is proposed to give sufficient security for the amount of damages the complainants might be justly entitled to on that ground. I think this would be right, provided the complainants will signify their willingness to abide the decision of the court, in regard to the distribution of the money awarded by the commissioners. From what passed at the argument, I presume there will be no difficulty on this part of the case.

The injunction is refused, with costs.