Brown v. Ashley , 16 Nev. 311 ( 1881 )

UPON REHEARING.

By the. Court,

Hawley, J.:

We granted a rehearing in this case, in order to give appellant an opportunity to re-argue the questions whether the court erred in granting the injunction and in allowing costs. A re-examination of the authorities has strengthened our conviction that the former opinion was correct in every particular.

Thorn v. Sweeney, 12 Nev. 251, upon which appellant relies, has no special application to the facts of this case. The principle therein announced, that a court of equity will not issue an injunction in cases of mere trespass where the injury complained of is not committed under any general claim of right or title in the defendant, -and where there is no appreciable damage, and the remedy at law is ample, is well settled.

But it is equally as well settled by the authorities, that where the act complained of is committed by the defendant, under a claim of right, which, if allowed to continue for a certain length of time, would ripen into an adverse right, and deprive the plaintiff of his property, the plaintiff is not only entitled to an action for the vindication of his right, but also for its preservation. This is especially true of actions for the diversion of water where there is, as in the present case, a clear violation of an established right and a threatened continuance of such violation.„ (Goddard on Easements, 423-4; Ang. & Ames on Watercourses, 135; Barnes v. Sabron, 10 Nev. 247; Parker v. Griswold, 17 Conn. 302-5; Stein v. Burden, 24 Ala. 148.)

In such cases it is not necessary to show actual damages, or a present use of the water, in order to authorize a court to issue an injunction and make it perpetual. (Webb v. The Portland Manufacturing Company, 3 Sum. 197; Holsman v. Boiling Springs B. Co., 14 N. J. Ch. 343; Corning v. Troy I. & N. F., 34 Barb. 491-2; 40 N. Y. 191; 39 Barb. 326-7; Crosby & Sons v. Lightowler, 3 Eq. Cas. (L. R.) 296-8; Lyon v. McLaughlin, 32 Vt. 425; Kerr on Injunctions, 393 (34); 226 (2); Ang. on Watercourses, sec. 449; High on Injunctions, sec. 556.)

In Webb v. Portland M. Co., the court, in discussing this question, said: “If, then, the diversion of water complained of in the present case is a violation of the right of the plaintiffs, and may permanently injure that right, and become, by lapse of time, the foundation of an adverse right in the defendant, I know of no more fit cas.e for the interposition of a court of equity, by way of injunction, to restrain the defendants from such an injurious act. If there be a remedy for the plaintiffs at law for damages, still that remedy is inadequate to prevent and redress the mischief. If there be no such remedy at law, then, a fortiori-, a court of equity ought to give its aid to vindicate and perpetuate the right of the plaintiffs. A court .óf equity will not in-' deed entertain a bill for an injunction in case of a mere trespass fully remediable at law. But if it might occasion irreparable mischief, or permanent injury, or destroy 'a right, that is the appropriate case for such a bill.”

In Corning v. Troy I. & N. F., 40 N. Y. 206, tbe court saicl: “No man is justified in withholding property from the owner when required to surrender it, on the ground that he does not need its use. The plaintiffs may do what they will with their own. Upon established principles this is a proper case for equity jurisdiction. First, upon the ground that the remedy at laiv is inadequte. The plaintiffs are entitled to the flow of the stream in its natural channel. Legal remedies can not restore it to them and secure them in the enjoyment of it. Hence, the duty of a court of equity to interpose- for tbe accomplishment of that result. A further ground requiring the interposition of equity is to avoid multiplicity of actions. If equity refuses its aid, the only remedy of the plaintiffs, whose rights have been established, will be to commence suits from day to day, and thus endeavor to make it for the interest of the defendant to do justice by restoring the stream to its channel. If the plaintiffs have no other means of recovering their rights, there is a great- defect in jurisprudence. But' there is no such defect. The right _ of the plaintiffs to the equitable relief sought is established by authority as well as principle.”

The court did not err in taxing the costs of this suit against defendant. (Brown v. Ashley, 13 Nev. 252.)

The judgment of the district court is affirmed.