Ballou v. Inhabitants of Hopkinton , 70 Mass. 324 ( 1855 )

Shaw, C. J.^*

The only questions in the present case are, whether this court have jurisdiction in equity, to restrain and prohibit the defendants from drawing off water from the plaintiffs’ reservoir, established for the purpose of supplying the several mills of the plaintiffs, on one and the same stream ; and whether it is a fit case for the court to exercise that jurisdiction, rather than leave the plaintiffs to their actions at law, to recover damages for the injuries done them respectively in diminishing the water at their respective mills.

The case comes before us on a general demurrer, and therefore we are to take the facts set forth by the plaintiffs to be true, for the purpose of the present inquiry. The case set forth in the bill is alleged to consist in an injury done by the defendants to the incorporeal hereditaments of the several plaintiffs, in wasting the water which would flow to their mills when it would be useful and beneficial to them, and thereby impairing and diminishing their water power. This is technically a private nuisance, the appropriate remedy for which, at law, would be an action on the case for a disturbance. In such action at law, the remedy would be a verdict for nominal damages for the disturbance of the plaintiffs’ right; but if actual damage were proved to have been sustained, as the natural consequence of such interruption, then for such sum as would be a compensation therefor up to the time of the verdict, or of the action brought. Being by the rules of law a nuisance, we have no doubt that it is within the Rev. Sts. c. 81, § 8, cl. 8, giving this court jurisdiction in equity, “in all suits concerning waste and nuisance.” Boston Water Power Co. v. Boston & Worcester Railroad, 16 Pick. 512.

The other question is, whether, taking the subject of the complaint as the plaintiffs have stated it, the bill shows that the plaintiffs have such a plain, adequate and complete remedy at law, that, according to the precedents and rules of equity, a bill ought not to be sustained, so that the demurrer is well taken to it on that ground.

Upon this question, the court are of opinion that the case shows no such adequate and complete remedy at law as to deprive them of the right of proceeding in equity, and that the demurrer ought not to be sustained. Some of the more prominent reasons for this determination are these :

Although the plaintiffs are several owners of separate and distinct mills, injured by the alleged stoppage, diversion and waste of the water of Mill River, and to recover damages for which each owner must bring his several action at law to obtain a remedy for his particular injury, yet they have a joint and common right in the natural flow of the stream, and in the reservoir by which its power is increased, and a joint interest in the remedy, which equity alone can afford, in maintaining a regular flow of the water of the reservón at suitable and proper times, so as best to subserve the equal rights of them all. The remedy in equity therefore would, by one decree in one suit, prevent a multiplicity of actions.

The remedy in equity would be more adequate and complete. At law, each plaintiff could recover only the damages then actually sustained, when the action is brought; whereas a decree in equity would look to the future, and prevent continuance of the injury and cause of damage, and thereby afford a more ample and complete remedy. Boston Water Power Co. v. Boston & Worcester Railroad, 16 Pick. 512. Bemis v. Clark, 11 Pick. 452.

In regulating the rights of mill owners and all others in the use of a stream, wherein numbers of persons are interested, equity is able, by one decree, to regulate their respective rights, to fix the time and manner in which water may be drawn, and within what limits it shall or shall not be drawn by all parties respectively ; and thus it is peculiarly adapted to the relief sought against such alleged nuisance and disturbance, and affords a more complete and adequate remedy than can be afforded by one or many suits at law. Bemis v. Upham, 13 Pick. 169. Bardwell v. Ames, 22 Pick. 333.

Demurrer overruled.

* Thomas, J. did not sit in this case.