Webber v. Gage

Fowler, J.

The first position assumed by the defendants’ counsel in support of the demurrer is, that the complainant has made no case for the interference of the court, because he has stated no title in himself to the way whose obstruction and destruction are complained of. It seems to us that this position is untenable. The complainant alleges that he now is, and for more than forty yearsdast past has been, seized in his demesne as of fee, of an acre and a half of land, in Hopkinton, with a sawmill thereon, and of a certain way over and across the land of the defendants, for himself, his heirs and assigns, and their tenants, occupiers of said land and saw-mill for the time being, and their servants, and all persons having occasion to use said land, or draw lumber to or from said mill, to pass and repass, on foot and with their horses, cattle and carriages, to and from said mill, every year and at all times of the year, for the convenient use and occupation of said land and mill.

If this be not an allegation, in substance, that the complainant has for more than forty year’s owned, occupied and enjoyed the way described as appurtenant to his land and mill; or if this be not the fair, natural and necessary inference from the statements made, it is difficult to conceive what language could be employed to express a claim of that character. It seems to us clearly sufficient. It is not material for the purposes of the demurrer how the complainant acquired his title, whether by gift, grant, user, adverse possession or from necessity. He manifestly claims to possess it, and that is enough.

It is not essential that the title of the complainant to the subject matter of the bill should be directly and explicitly averred; it is sufficient, if facts are stated from which the court may infer a title. Stoiy’s Eq. PL, sec. 7S0, and authorities.

The second and third objections insisted upon in support of the demurrer are, that the right of the complain *186 ant to the way, as appurtenant to his mill, has not been established in a suit at law, and that the injury complained of, and which it is sought to prevent, is not irreparable.

The case of Coe v. The Winnepiseogee Lake Company, 37 N. H. 254, is cited and relied upon to sustain these positions, but we think without good cause. The facts in that case were almost precisely the reverse of those in the present. There the complainant sought the interposition of the court to prevent the defendants from flowing his land, as they had done for several years and claimed the right to continue to do. Here the defendants interfere by force to obstruct and destroy a way which is conceded by the pleadings to have been used and enjoyed by the complainant for more than forty successive years, and to be indispensable to the profitable use and continued existence of his mill. Had the defendants sought to restrain the complainant from the continued use of this way, there would have been some resemblance between this case and that of Coe v. The Lake Company. As it is, we can see none.

It is undoubtedly the correct rule, deducible from the authorities, that a court of equity will not interfere by injunction in the case of nuisances, trespasses and the like injuries to property, when the parties can settle their rights fully and obtain complete redress in a court of law, unless it shall appear that irreparable mischief will be done by withholding the process, or the rights of the complainant have been established in a suit at law. But where the injury is irreparable, not susceptible of being adequately compensated by damages, or such as, from its continuance or permanent mischief, must occasion a constantly recurring grievance, which cannot be otherwise prevented; as where loss of health, loss of trade or business, destruction of the means of subsistence, or permanent ruin to property may or will ensue from the wrong *187 .ful acts ; in every such ease a court of equity will interfere by injunction in furtherance of justice and the vioolated rights of the party. So, where an easement or servitude is annexed by grant, or covenant, or otherwise, to a private estate, the due and quiet enjoyment of it will be protected against encroachment, by injunction. Fishmongers’ Company v. East India Company, 1 Dick. 163; Attorney-General v. Nichol, 16 Vesey 342; Corporation of New-York v. Maher, 6 Johns. Ch. 46 ; Mohawk & Hudson R. R. v. Artcher, 6 Paige 83 ; Wynstanley v. Lee, 2 Swanston 335; Cherrington v. Abney, 2 Vern. 646; Earl Bathurst v. Burden, 2 Bro. Ch. 64; Nutbrown v. Thornton, 10 Vesey 163; Hills v. Miller, 3 Paige 254 ; Corning v. Lawrence, 6 Johns. Ch. 439 ; Trustees of Watertown v. Cowen, 4 Paige 510, 514 ; 2 Story’s Eq. Jur., secs. 925, 926, 927; Horson v. Gardner, 7 Vesey 305, and notes; Mitchell v. Dow, 6 Vesey 147; Kidder v. Jones, 17 Vesey 28; Lake Company v. Worster, 29 N. H. 433; 6 Johns. Ch. 19 ; 3 Paige 377 .

The present case seems to us very clearly to come within most or all of these various classes. By the demurrer, all the material allegations of the bill are admitted, to wit., that the complainant for more than forty years has owned and occupied a saw-mill and lot, with a way appurtenant thereto, and indispensable to their enjoyment,' over and aci’oss the land of the defendants, and that the defendants have obstructed and destroyed that way by plowing it up and. removing the bridge across Ordway’s brook constituting a part thereof, thereby rendering said mill and lot entirely useless for the purposes to which they have been for more than forty years devoted. Here is a clear admission of an absolute injury committed by the defendants to the complainant and his rights, which is threatened to be continued; not susceptible of compensation in damages; the continuance of which must occasion a constantly recurring grievance, causing loss of business and trade, destruction of the means of subsistence, and *188 permanent ruin of property, as well as an interruption of the quiet and long continued enjoyment of an easement annexed to the complainant’s private estate. There can be no doubt that the complainant is entitled to continue to hold and enjoy his mill and lot, and use the way connected with it, as he has done for more than forty years, peaceably and quietly, without the constantly recurring grievance to which the defendants have subjected him. He has a right to devote his time and services, his skill and industry, to the management of his mill, thereby obtaining employment and the means of subsistence, it may be; and no compensation in damages, to be recovered by a suit at law, can adequately compensate him for the injury sustained. That of which he has been deprived by these defendants might well possess a value to the complainant over and above all pecuniary benefit to be derived from it; at all events, it is his own, and he is entitled to be protected in its enjoyment against the wrongful acts of these defendants. They are not at liberty to say to him, Ve have ruined your mill, by destroying the way appurtenant to it, and shall continue the injury, in defiance of your rights, and your only redress is to recover, from time to time, such damages as you may be able to obtain through the judgment of a court of law, rendered upon the verdict of a jury. It would be a deep and lasting reproach to the administration of justice if it were so.

Entertaining these views of the various positions taken in its support, the demurrer must be overruled.

Demurrer overruled.