Sylvester v. Jerome , 19 Colo. 128 ( 1893 )

Chibe Justice Hayt

delivered the opinion of the court.

It is contended that the facts stated in the complaint are not sufficient to authorize equitable relief.

The remedy by injunction was invoked for the purpose of restraining the defendants from running water in a certain reservoir, from whence it was escaping by seepage upon plaintiff’s land, flooding his building lots, and filling the cellars of his houses with water, as it is alleged.

As a general rule, injunctive relief will not be granted to stay a mere private nuisance, unless it appears that irreparable mischief will result from withholding the process. But where it appears that great and irreparable mischief will result from the wrongs complained of, and that a suit at law will be ineffectual as a protection against future acts of a similar character, the jurisdiction of equity is now firmly established. High on Injunctions, (3d ed.) secs. 802, 839.

It is urged by appellants that the rule is changed in this state by reason of the following provision of our statute: “ The owners of the reservoirs shall be liable for all damages arising from leakage or overflow of the waters therefrom or by floods caused by breaking of the embankments of such reservoirs.” Mills’ Ann. Stat., see. 2272. The foregoing is simply an affirmation of a common law principle. It was enacted in this state as part of an act with reference to irrigation. In this act the right is given for the construction of reservoirs for certain purposes, and the context indicates, we think, that the paragraph relied upon was inserted as a precautionary measure, under the apprehension that without it, it would be possible to place such a construction upon the act as would relieve owners of reservoirs from liability for leakage and overflow. It does not change the rule concerning injunctive relief. In order to have this effect, the remedy at law must be direct, certain and adequate. When the remedy is not adequate to a particular exigency, then a court of equity has jurisdiction. The remedy at law in this case is inadequate because the injuries that were being suffered by plaintiff were irreparable; and also for the reason that a suit at law would not prevent the inflicting of like injuries in the future. Story’s Eq. Pl., sec. 473; High on Injunctions, sec. 839; Sprague v. Rhodes et al., 4 R. I. 301.

The writ as issued commanded the defendants to refrain and desist from diverting water into the reservoir. Complaint is made on account of the scope of the writ. It is claimed that it should have simply enjoined the defendants from running water in the reservoir as then constructed. We do not think this contention of counsel is well taken. The writ did not prevent the defendants from repairing or changing the reservoir so as to prevent the injury to plaintiff complained of, and whenever the reservoir was so changed the defendants were at liberty to apply to the court to have the injunction modified or dissolved. They availed themselves of this right from the first, and from time to time made changes in the reservoir, and were allowed under the direction of the court to experiment by running watér into it. While, therefore, the injunction as framed was warranted by the facts, were it otherwise, the defendants are not in a position to complain because they were not injured thereby, having been allowed to make the necessary experiments from time to time, until the reservoir was properly constructed, when the injunction was promptly dissolved.

The refusal to allow facts occurring subsequent to the commencement of the action to be pleaded as an amendment to the original answer, was not error. By an amendment to the code of civil procedure, it is provided that, “ When facts occurring subsequent to the commencement of an action render it proper, the same may by leave of the court be presented by supplemental pleadings, and issue taken thereon as in ease of original pleadings.” Session Laws, 1889, p. 73. These facts were pleaded in the supplemental answer filed, and were given due weight by the district court. The defendants’ lights were in this manner fully protected, and the statute as to pleading observed.

Plaintiff’s premises are situate within the corporate limits of the city of Denver. By an amendment to the city charter in force at the time of the acts complained of, it is provided, “ That it shall be unlawful for any person or persons to plat or lay out into streets, alleys, blocks and lots any land, within the corporate limits of the city of Denver, and offer the same for sale, either publicly or privately, unless it be platted, and the plat be also accepted by the city council.” Session Laws, 1887, p. 83. The provision is relied upon to defeat this action. If plaintiff’s right to the relief sought rested upon the validity of his plat, or a right to sell the lots, there would be force in this contention. Until the premises are platted according to the statute and accepted by the city, they do not properly constitute an addition to the city, but this does not prevent the occupation or improvement of the premises by the owner or his grantees. It certainly gives the defendant no right to flood the lands with water, and render the same unhealthy, uninhabitable and worthless. The plaintiff’s right to maintain this action is in no way dependent upon the legality of the plat; it could be maintained were the laud ranch or acre property.

Upon the final hearing the court refused to allow defendants to show that the location of their reservoir was in a locality abounding in reservoirs, and utilized for the gathering and storage of ice, and this ruling is assigned for error. The evidence rejected was irrelevant to the issue. It is entirely immaterial whether or not the locality was so used. The defendant could not gain a right to maintain a reservoir and permit the water to seep therefrom to the damage of the adjoining lands, by showing that others had constructed reservoirs in the same locality, or that other lands in that vicinity were used for the ice business.

The ruling of the court refusing to allow the defendants to show that the plaintiff might make his cellar water tight by the use of cement must be upheld. Plaintiff was under no obligation, equitable, legal or moral, to make his. cellar water tight to avoid in part the consequences of the wrongful act of defendants. Aside from this, the flooding of the cellars with water was only a part of the injury complained of.

Upon the final hearing the argument was limited to forty-five minutes for each side, and this restriction is assigned for error. The fixing of a limitation upon arguments of counsel is a matter almost entirely within the discretion of the trial courts, and unless such discretion has been grossly abused this court will not be justified in interfering. The parties in the court below presented several applications for the dissolution of the injunction prior to the final hearing, and no doubt the questions involved were freely discussed upon these interlocutory applications, so that a lengthy argument upon the final hearing was not required. Be this as it may, however, we are not prepared to say that the time allowed was not sufficient to fully present the questions at issue.

The trial court seems to have proceeded with extreme caution in the determination of the issues presented. Prom time to time, upon application, the defendants were allowed to change the banks of their reservoir, and experiment therewith by turning water into the same. As soon as the court was advised that the reservoir was sufficient to prevent the seepage complained of, the injunction was dissolved. Under these circumstances we are unable to find that the defendants have any just ground of complaint. The judgment of the district court will therefore be affirmed.

Affirmed.