Burnham v. Kempton , 44 N.H. 78 ( 1860 )

Sargent, J.

It appears that as early as 1784, and perhaps before, a mill-dam was erected across the Contoocook river, substantially where the present dam now stands, abutting upon the north bank, and forcing the whole water of the river to run over the dam or through the mill gates on the south side of the river. The evidence tends to show that until 1825, or about that time, there was no mill, bulk-head', gate, or opening of any kind in the north half of the dam, excepting a fish-way, which was opened and kept open under the laws of the State on that subject. There is no evidence of any grant of the right to maintain this dam, or any consent of the owners of the land on the north bank to the erection or maintenance of the dam, until the agreement of 1832, except that which results from an undisturbed possession of moi-e than forty years.

It is, of course, a well settled doctrine of our law, that an adverse, exclusive and uninterrupted enjoyment for twenty years of an incorporeal hereditament, such as the right of maintaining such a dam would be, affords a conclusive presumption of a grant or right, as the case may be, which is to be applied as a presumpiio juris et de jure, wherever by possibility a right can be acquired in any manner known to the laws ; provided such enjoyment is under a claim of right, with the knowledge and acquiescence of the owner, and uninterrupted. Wallace v. Fletcher, 30 N. H. 434; Bow v. Allenstown, 34 N. H. 374. If the evidence should be found to establish this right, the result will of course be, that the owner of the north bank is for ever precluded to interfere with or impair such dam in any manner, independent of the agreement of 1832, unless he has, since 1825, acquired a right to do so by a like possession of a right to take away a part of the dam at the north end, and to place in it and maintain there a bulk-head, or other right restricting and limiting the right of the owners of the dam.

A period of thirty-five years and more has now elapsed since 1825, when, as the defendants’ evidence tends to prove, one Rodney Towne took away a part of the dam at the north end, and erected a flume, and a few years after permitted one Flanders to erect a small building over this bulk-head, and to place in it a clapboard machine, which seems to have remained till after the Perkins dam was built, when it was reynoved and placed upon the canal supplied by the Perkins dam. The Burnham dam, having become- ruinous and decayed, was rebuilt in 1881, from the flumes on the south side to the bulk-head erected by Towne on the north side, which was then in good condition, and was not disturbed; but the new dam was secured to it.

The Perkins dam was built in 1835, under an agreement between Perkins and certain owners on the south side, connecting at its south end with the old dam, and from that pioint stretching, like an oblique' wing dam, to the north side, at a point about a dozen rods below the north end of the old dam. The answers and the defendants’ evidence tend to show that this bulk-head in the Burnham dam remained there twenty years and more, when it washed away, and the dam was continued to the north shore, but that Perkins has placed new ones there since. The evidence tends to show that no objection was made to the erection or continuance of this bulkhead ; and the same principle of law to which I have adverted may be again applied, and may, if the evidence is satisfactory, have given to the defendant (Perkins) the right to have and maintain a bulk-head in the plaintiffs’ dam, of the same form and dimensions and in the same place as the old one.

But the right to maintain a dam on the one side, or a bulk-head on the other, are by no means identical, necessarily, with the right on either hand to use the water. A dam is an instrument for turning the water of a stream to the use of a mill, as a bulk-head is the means of drawing the water from a dam; but neither may, in fact, have been used for either purpose at all, or if at all, in such a way as to change or affect the original rights of the riparian owners on either hand.

The evidence tends to show that, from the erection of the earliest dam at this place, there was a grist and saw-mill at the south end of the dam, and soon after 1784 (it does not appear from the evidence precisely when) a fulling-mill was erected, and the same substantially have been continued there to the present time, and the rights acquired by the owners of these mills prior to 1825, unless they have since been lost by prescription, are now owned by these plaintiffs, but in what proportions does not distinctly appear, nor is it now material. It would seem from the evidence that, prior to 1825, these owners on the south side had acquired the exclusive use of all the water then necessary to carry the grist-mill and fulling-mill at all seasons of the year, and the saw-mill at such seasons, as saw-mills were, at that time, usually run, but subject to keep open a fish-way at the top of the dam, eight feet long by one foot deep. Statutes of N. H. (1797) 407, and Statutes of N. H. (1830) 243 ; Statutes of June Session, 1831; 21.

Assuming such condition of the rights of the parties in 1825, has Perkins acquired or lost any rights to the use of the water since? This will depend mainly on the evidence hearing on the use of the mills and the water, since the building of the new Burnham dam, in 1831, and the new Perkins dam, in 1835, as it would seem that all the mills had been erected and were in use prior to the last .mentioned date. The plaintiffs’ evidence tends to show that during the seasons when the water in the river was abundant, more than enough for all the mills on both sides, the bulk-head or opening in the Burnham dam might sometimes have stood open for considerable lengths of time; but it also tends to show that Perkins’ mill-pond was filled, and his mills carried by the water that flowed over the top of the Burnham dam; that some of his mills were operated during the season when the water of the river was low, and that when the water ceased to run over the dam, all the outlets were closed, and the whole water of the river was turned toward the south side of the river, to drive the mills there; that it was not until 1852 that Perkins began to claim that he was entitled to any part of the water in the Burnham dam, but that this claim was never yielded to, or in fact so exercised as to interfere with any rights of the owners on the other side. But the evidence on all these points is uncertain, as might be expected, from the distance of time, and conflicting, because of the different positions of the witnesses, their interests and leanings, when their observations were made, as well as since.

The claim of the plaintiffs (if that is their claim) that the erection and maintenance of their dam for twenty years and upward gives them a right to the whole water-pow^r created by the dam, does not seem to us to be well-founded. That question substantially arose before the Supreme Court of Massachusetts in Bliss v. Rice, 17 Pick. 23 ; and it was there held that where the evidence justifies the jury in making the presumption that the owner of the bank of a river has granted to the owner of the opposite bank a privilege of abutting a dam on his shore, he is to be thereby presumed to have granted all the benefit, water-power and privilege, which would arise from or be created by the erection of the same; that the extent of the grant presumed is to be measured by the capacity of the dam, and not by the rise actually made of the water. We find ourselves unable to assent to this doctrine. To us it seems that twenty years’ maintenance of a dam in a particular mode is evidence of a grant or right so to maintain it, and twenty years’ use of the water in a particular way is evidence of a right thus to use the water.

The same proof of user which establishes the right is equally conclusive in establishing the limitations of that right. Twenty years’ accustomed flow and use of a certain stream or pond of water is as good evidence of right to the one party as to the other. Twenty years’ support, subject to the qualifications before stated, of a mill-dam, is evidence of a grant to build and maintain just such a dam, constructed and used substantially in the same manner. Twenty years’ use of the water raised by such a dam, to drive a grist, saw, and fulling-mill, at all seasons, or at certain seasons, is evidence of a grant to use so much of such water as shall be necessary at those seasons to drive those mills or similar ones. It necessarily implies, also, a grant by the owner of the right to obstruct the stream by the dam, and to force all the water not used by these mills over the dam, and of course necessarily to limit the right of the riparian owner to such use as he may make of the water after it has passed over the dam.

In the case before us, if the owners on the south side had acquired the right to put their dam across the river, and to use all the water required to carry certain mills, this left Perkins at liberty to do precisely what he did in this case, that is, to erect a dam across the river as far as he could, without infringing on the rights of the owners on the south side, as high as he chose, and to turn the water to supply such mills as he chose to erect; and he had, to commence with, the same right to insist that the half of the water belonging to him as riparian owner, not required to supply those mills on the south side, should be allowed to run over the dam for his use, as they had to require the residue to run to their mills. 3 Kent Com. 442; Balston v. Burstead, 1 Camp. 463; Bealy v. Shaw, 6 East 208, 219; Stiles v. Hooker, 7 Cow. 266; Ang. on Water-Courses, sec. 224, and cases cited; Watkins v. Peck, 13 N. H. 360.

The evidence here tends to show that the amount of power required to drive the mills on the north and south sides at the present time is about equal; and it would also seem that there is, during a very considerable portion of the yeai’, an ample supply of water for all. If that be so, then at all such times the water to which the proprietors on the south side are entitled as riparians, is more than all they use, and they do not then interfere in any way with the water to which the defendants are entitled as riparians, except in this, that they force it all to run over the top of their dam (excepting such part, if any, as the defendants may have the right to draw through a bulk-head, fish-way, or other opening in the dam). But in that stage of the water it is of little consequence whether the water runs over the dam or through a bulk-head, since it can only be available by means of the dam below. It is only dui'ing the low stages of the water, when the water is insufficient for all the mills, that any question can arise between the owners upon the two sides, as to their rights.

The owners on the south side claim that whenever the water becomes insufficient for all, they are entitled to ’draw from their dam water for all their mills, whether the mills on Perkins’ dam get any or not, and that they have the right to close all openings in the dam, and make it as tight as possible, in order to secure it all, and thus, at such seasons, to use the whole water of the river for the benefit of their mills. The owners on the north side claim not only the rght to maintain a bulk-head in the Burnham dam at the north end of it, and to have it stand open in high water, but at low stages of the water, when there is not sufficient water for the mills on both sides, they claim the right to draw from the Burnham dam whatever water will run through this bulk-head, whether it leaves sufficient water in that dam for the mills on the south side or not; and the only question now before us on the evidence is, as to the defendant’s right thus to maintain his bulk-head, and thus to use the water in the Burnham dam.

The defendants object, that whatever the case may have been originally, as stated in the bill, and as admitted by the demurrer, in the first instance ; whatever questions then arose that vrere proper subjects of inquiry in a court of equity; now, as the ease stands here, upon the answers and proofs, it is not one where this court, acting upon the settled principles of equity practice, will decide-the facts, or grant the relief prayed for. This objection is properly taken at this stage of the case. Want, of equity is not only good ground of demurrer to a bill, but is a good ground of defense, when the case is established upon the merits; and this includes cases where the plaintiffs’ right proves to be one at law, and not in equity. Adams Equity 331, and cases cited.

As the case now stands, no question is raised concerning the revocation of any license to the plaintiffs to maintain and continue their dam on the north bank of the river. It does not appear that the defendants have done or threatened to do any acts which could tend to weaken or endanger the connection of the plaintiffs’ dam with the north bank of the river; nor does it appear that the plaintiffs tiffs ever had, or now have any reason to apprehend, or that they in fact apprehended any danger from any such cause. The allegations, therefore, that here was irreparable injury done or threatened, which could not be compensated in damages, are not proved, and upon that ground the bill can not be sustained. Neither, as the case stands, can any injunction be now granted, for on which side soever the evidence may seem to preponderate on.any of the points raised, still the plaintiffs have not proved the allegations in the bill in relation to their rights to use all the water in the upper, or Burnham dam, so as to warrant this court now to interfere by the summary process of a perpetual injunction, according to the prayer of the plaintiffs’ bill, and thus undertake to settle and establish the rights of the parties in this summary way. “ To support a decree for a perpetual injunction, the court requires that there should be nothing like a doubt in the case.” 3 Dan. Ch. Pr. 1700.

Though a court of equity has the necessary power to restrain a party in the use of water in a manner injurious to another, yet the court will not exercise this necessary authority where the right is doubtful, or the facts not definitely ascertained; it being the duty of ■ the court rather to protect acknowledged rights than to establish new and doubtful ones. Booth v. Driscoll, 20 Ct. 555. We have not been asked in terms to grant any temporary injunction, so that the specific relief pi’ayed for can not now be granted.

But it may be claimed that under the prayer for general relief, the court may take jurisdiction of the case, may settle the facts, or frame issues and send to a jury, so that they may settle all the disputed facts, if necessary; and that this court may, by a final decree, fix and establish the rights of all parties to their legal and proper share of the water at the place in question.

Let us examine and see whether this court can properly exercise jurisdiction of this case for that purpose. The plaintiffs claim the exclusive use of all the water in the Burnham dam. Now if they have any such right, it has been acquired by prescription. But whether they have such right or not depends upon facts and principles over which equity has no peculiar jurisdiction. These rights, if they exist, may as well be established at law as in equity. There is nothing in the agreement of 1832 which can affect the right to use the water here, either at law or in equity; and the question in regard to the rights of maintaining the plaintiffs’ dam, and continuing it upon the north bank of the river, or the right of the defendant to unite his dam with the plaintiffs’ dam near the south end thereof, and of maintaining its attachments to it, are not now in issue. If the plaintiffs showed that they had acquired the right to the use of all the water in the upper dam, prior to 1825, then the question, arises, whether the defendant has not, in the same way, that is, by prescription, since 1825, acquired the right to draw water from the upper dam through the bulk-head, or some kind of an opening, as he claims; and there is nothing about this right, in the proof necessary to maintain or to disprove it, which would prevent that question from being as properly and as fully tried at law as in equity.

Indeed, it would seem that if jury trials are to be had to settle any questions of fact, there would be a peculiar propriety in submitting to their decision questions'like these, where the testimony must necessarily extend through long periods of time, where it is most likely to be conflicting and uncertain, where the acts of all parties, 'whether of aggression or acquiescence, through many years, and their claims and their admissions are all to be weighed, •where the testimony is voluminous, and wdiere the result is to be arrived at by balancing conflicting testimony, and weighing conflicting claims.

But Perkins claims still another right, that is, to draw two hundred and fourteen inches of water from any part of the upper dam, and by this bulk-head at the north end. There is nothing in the terms or character of this grant from Abraham Brown to Ephraim Eisk which makes that peculiarly a subject of equity jurisdiction. That deed can as well be construed in a court of law as of equity; in fact it is to be construed every wdiere according to well established legal principles. “ It is not the peculiar province of a court of equity to construe contracts and conveyances of wrater powers.” Fisk v. Wilber, 7 Barb. S. C. 395. This deed conveys “ a piece of land, with the building and water-power thereon, bounded,” &c., “ including in said water-power the privilege to draw two hundred and fourteen inches of water-power.” Now it would seem, from the wording of that grant, that it limited the two hundred and fourteen inches to the water-power on the land as an existing privilege. But if it did not, but was an independent grant of so much water-power, giving the grantee the right to elect where he would draw it, is not the right fixed by Eisk’s having once elected where to take it ? Haven v. Cram, 1 N. H. 94. But however that might be, upon the plan furnished us in this case, one of the mills at the south side of the river is marked and designated as “Perkins’ clapboard-mill.” It would seem evident that he can not draw this two hundred and fourteen inches of water at two different places at the same time, or at one place at one time, and at another place at another time, retaining the right to change back and forth at his pleasure. There is nothing in the case showing that Perkins has ever abandoned the right to draw this whole quantity of water from the south end of the dam, or that he is not now constantly drawing it there. So that, although a court of equity will look into the title, and examine the respective claims, if any are shown, and -will give the proper construction to deeds, when necessary, still, as this case stands, Perkins is in no position here to claim his right to draw this two hundred and fourteen inches of water-power at the north end of the dam, so that this claim may be laid out of the case, here. But if there should be any questions of fact necessary to be considered in giving construction to this deed, or especially if there should be disputed facts, necessary to be settled in order to its proper construction, it would only tend to show the greater propriety of submitting these questions of fact, with all others in the case, to the consideration of a jury.

Only one act of the defendants is complained of — the opening of one space in the dam — and it is alleged that the defendants threaten to open it again, though the plaintiffs have closed it. It might be doubtful whether this one act would constitute more than a simple trespass; but it is claimed to be a case of a private nuisance, and as that is the most favorable light in which to view it for the plaintiffs, let us consider it as such, and see whether then this court will assume jurisdiction. It is said that courts of equity have a concurrent jurisdiction with courts of common law, in cases of private nuisance. This is true in a class of cases, and for certain purposes, but is not a truth of universal application. In Attorney General v. Nicol, 16 Ves. 338, Lord Eldon said, there were private nuisances which would support an action on the ease, but which would not support an injunction. He put the jurisdiction of the court upon the ground of material injury, and of that special and troublesome mischief which required a preventive remedy as well as a compensation in damages. The interference of courts of equity to restrain such nuisances is founded upon the ground of restraining irreparable mischief, of suppressing interminable litigation, or of preventing a multiplicity of suits. 2 Story Eq. 925; Eden on Injunctions 286.

There is a jurisdiction in equity to enjoin an existing private nuisance, if the fact of the nuisance be admitted or established at law, whenever the nature of the injury is such that it can not be adequately compensated by damages, or it will occasion a constantly recurring grievance. Adams Equity 211.

We have already seen that in this case there is no foundation for an equitable jurisdiction on the ground of irreparable injury, nor is there any more foundation for it on the ground of suppressing inter-min able litigation, or preventing a multiplicity of suits. Equity jurisdiction is to be entertained, when, upon the facts presented, there is danger of irreparable injury, or of damage of such a nature that adequate compensation can not be recovered at law, or where, the plaintiff having established his right, to decline the jurisdiction would subject him to oppressive and interminable litigation. One suit between the parties to determine the rights of each can not be oppressive. A trial of that kind must be liad if the bill is entertained, and no more is required at law. The multiplicity of suits and the vexatious litigation arise when the plaintiff having established his right by one suit at law, is driven, by repetitions of the wrong, to bring afresh suit for every fresh injury. Coe v. Lake Co., 37 N. H. 265. So that equity will not ordinarily assume jurisdiction merely for the purpose of suppressing litigation and preventing suits, until the right has been established by one suit whenever that right is doubtful, and there is an .attempt to repeat the wrong and to compel the plaintiff to bring a multiplicity of suits to redress these repeated wrongs. There is no evidence before us tending to show danger of multiplicity of suits. The only question is one of right: Does the defendant possess the right to draw water from the Burnham dam, which he asserts, and which the plaintiffs deny?

The only threat proved or pretended in this case, is to assert what the defendants claim as a right. If the question of right were settled against them, there is no. reason to believe the injury "would ever be repeated. Should the rights be settled in their favor, there would probably be no difficulty in adjusting those rights between the parties. The parties evidently came here to have their rights at law settled, for there is nothing in the controversy now here but their legal rights; nor can there be any pretense that a single suit at law will not only settle the right, but if the plaintiffs’ rights have been disturbed, they can recover full and adequate damages for all the wrongs they have suffered.

Ordinarily a court of equity will not take upon them to decide the fact that a nuisance exists, but will require that the party first establish his right at law. There are exceptions to this rule, as where the right is admitted, or the facts are all admitted, so that the court can determine, fromfhe admitted facts, whether it is a case of nuisance or not. There could, of course, be no occasion for a trial at law in such a case. So in some cases where a party has been long in the quiet and uninterrupted enjoyment of a right, another party will be restrained from interfering with that right, until he proves his right at law.

But it is said there is a class of cases involving an inquiry into the rights of the owners of water-power, where courts will exercise their equitable powers without driving parties to an action at law. But let us see if that class of cases stands upon any different grounds from other cases, and if so, what is the difference. Bardwell v. Annis, 22 Pick. 353, is cited as a leading case in favor of this position, and was a case between persons claiming rights in the same water privilege. It is there said, that “the proceeding in equity is peculiarly fitted to ascertain, settle and adjust the relative rights and obligations of parties so situated, and to secure and enforce them,, and that an action at law which could only look to the past, and inquire into the damages actually sustained, and for these could only award a sum of money, without protection for the future, would be neither adequate in its nature nor complete in its effect.” Bemis v. Upham, 13 Pick. 171, is to the same effect. But in the first of these cases the right of all. the parties was fixed and established by the deed conveying their several water-powers, each proprietor being entitled to draw what water -would run through a certain number of gates of certain fixed dimensions; and it was alleged that some had drawn more water than their share, in which case a discovery was necessary, in order that it might be ascertained what water the defendants had used, and where, in the end, their rights would all be regulated and adjusted by a decree of the court. It -was not a case where the light was in question.

So in the other case, Bemis v. Upham, the nuisance complained of had been decreed to be a nuisance to the plaintiff', in an action or proceeding at law, and this bill was filed for its abatement. On demurrer it was held that the biH could be maintained; that equity had a jurisdiction to abate nuisances, or to regulate them after the rights had been settled at law, and that the party was not compelled to resort to his statute remedy to abate the nuisance — a remedy peculiar to that State. So in the first ease cited, the court say, “the complainants set forth that they are mill-owners ; that, as annexed to their mills they had certain definite rights and privileges in the flow of the water, in certain quantities, to and from their respective mills, and that the defendants have certain definite rights in the same stream, but that the defendants have disturbed them in the enjoyment of their rights, &c.; and upon the evidence, and on examination of the deed under which they all held, the facts were found to be as stated. The rights of each and all were fixed by deed. The only thing to be done was to regulate the use. In both these cases, it will be observed that equity jurisdiction is conferred upon the court in that State, by express statute; but probably their statute does not confer any greater power in that respect, upon their court, than that which has usually been exercised in this State, by our courts, under the general provisions of our law.

Ballou v. Hopkinton, 4 Gray 324, stands substantially upon the same ground. There the bill alleged that the plaintiffs were owners of certain real estate, mills, and water privileges, for the manufacture of cotton goods, and that they were the owners, with others, of a certain reservoir, created by a dam upon Mill river, in said Hopkinton, &c., by means of which the waters of said river were kept in reserve, for their use in the dry season ; that the defendants had threatened to draw off1 a part of this water, and were actually drawing it oft’, claiming that the plaintiff’s had no right to keep it at its present height, whereby the plaintiffs would sustain great loss and damage when they should need the water the coming season. But the bill further alleged that the plaintiffs had the right to raise the water to its present height, and that the defendants had no right to let it off, &c. The defendants demurred to this bill, thereby admitting all tbe facts stated in tbe bill. The court held that they had jurisdiction of the case under their statute, and the plaintiffs’ rights being admitted, one decree in equity would prevent a multiplicity of suits, and would regulate the respective rights of the plaintiffs; and the demurrer was overruled. This case might perhaps have been put also upon the ground of preventing irreparable mischief.

If this was a case whei’e it could clearly be seen, from the subject matter of the alleged injury, and the nature of the wrongs complained of, that such irreparable mischief may be wrought, there would be no doubt of the propriety of entertaining the bill. In a case of that character the court will take cognizance of it, and, if the case requires it, direct a trial by jury, to try the plaintiffs’ right, in the mean time restraining the defendants, by injunction, from all nefarious proceedings, and when the right is established making the injunction perpetual. Story Eq., sec. 927; Coe v. Lake Co., 37 N. H. 264; Mohawk Bridge v. Utica Railroad, 6 Paige 563, where it is held that the court of chancery has jurisdiction to interfere by injunction to prevent the erection of a nuisance which will produce serious or irreparable damage; and, if the thing sought to be prohibited, is clearly a nuisance, and the complainant’s right is not doubtful, the court will grant an injunction without waiting the result of atrial at law. But where the thing sought to be restrained is not in itself a nuisance, but only something which may, according to circumstances, prove to be so, the court will not interfere until the matter has been tried at law.

The same rule is substantially laid down by Lord Brougham, Ch., in Earl of Ripen v. Hobarts, Cooper Select Cases 333, cited in the last case; so in Weller v. Sweaton, 1 Cox Cases 102, where it is said that in all such eases of alleged or pretended irremediable mischief or damage, an^ injunction may be issued, but that in all cases, in fact, in which doubt exists as to the legal right, a court of equity will compel the parties to go to trial at law without delay, either dissolving the injunction, or maintaining it until such trial has taken place, as the justice of the ease and the interests to be affected by the determination appear to require.

So in Belknap v. Trimble, 3 Paige 601, where a motion was made to dismiss, on the ground that the plaintiff’ had not first established his right at law. But the court say, “ the complainants and those under whom they claim were, and for a long time had been, the owners of several mills which depended upon the waters of Great Pond for support, for a considerable part of the year, and upon the use of this water the principal value of their mill property depended. Under these circumstances the defendant undertook to control the use of the water in such a way as to prevent the using of the mills. 'To establish their rights at law each of these several mill-owners would be compelled to bring a separate suit against the defendant, leaving their mills to stand still in the mean time. And even this multiplicity of suits would afford them no adequate remedy for their continually recurring damages dui’ing the suspension of their rights. This is a sufficient answer to the objection, that the complainants’ bill should have been dismissed,” &c., thus showing in that ease that the mischief threatened would be irremediable, and not susceptible of being adequately compensated by damages, and such as, from its continuance and permanent mischief, must occasion a constantly recurring grievance, which could not otherwise be prevented; which are sufficient reasons for a court of equity exercising jurisdiction and granting the injunction. The case also shows that the complainants had been for twenty years and more in the undisturbed use and possession of the right.

Webber v. Gage, 89 N. H. 182, is a case of this kind. In Belknap v. Trimble it is also said that where several mill-owners have a common right to an artificial use of water for their respective mills, a court of chancery has jurisdiction so to regulate the common use of the water as to preserve the rights of each. That is, where the rights are established or admitted, the use may be regulated by a court of chancery. ¥e have no occasion here to disapprove of this latter doctrine, as there is nothing to show that in this case there is any need of any such interference to regulate the. use of water among those whose rights are not in controversy.

In Arthur v. Case, 1 Paige 447, it is said there is no doubt of the jurisdiction of the court in this case, as the new dam (the nuisance threatened) would in a great measure destroy the complainant’s valuable mills, which have been in operation many years. If the owner of the mills on either side has been in the quiet enjoyment of the water privilege, and the other attempts to deprive him of it, and thus destroy his mills, a preliminary injunction is proper, as the injury might be irreparable. But upon looking into the answer in that case, which stated the defendant’s right, it was found, by the grants and title there stated, that the parties were entitled to participate equally in the use of the water. There was no chance for any controversy about the rights, and the motion to dissolve the injunction was denied. The doctrine is there reiterated, that in such cases, where the rights are established, the court would regulate the use of the water so as to give each the proportion to which he was entitled.

Olmstead v. Loomis, 6 Barb. S. C. 152, was a petition for an injunction upon the defendant from diverting water from the plaintiff’s mill, and setting forth that the plaintiff had the right to as much water from a certain dyke as was necessary to carry a. forge and two blacksmith’s bellows, and the defendant had the right to the remainder; and that the plaintiff’s right had been admitted by all former owners of the defendant’s privilege, but that the defendant had deepened the race running to his mill, so as to draw all the water when it was low, to the great injury of the plaintiff’s mills. The bill also prayed that the rights of the parties might be decreed. The Supreme Court dismissed the bill, on the ground that there was no irreparable damage alleged in the bill as done or threatened, and that a court of equity would not interpose except in case of strong and imperious necessity, or the right must have been previously established at law. Fish v. Wilber, 7 Barb. S. C. 395, was a similar case, decided by the same court upon the same ground.

In the Court of Appeals, 5 Seld. 423, the decision in Olmstead v. Loomis is overruled; and tbe court say (Ruggles, J.), “ In regard to tbe point on which the case turned in the court below, I am compelled to differ in opinion from that court. The bill was dismissed on the ground that the court of chancery had not concurrent jurisdiction with a court of law in a case like the present, and that no relief in equity could be granted until the right had been first settled at law. The right of the plaintiffs to use the quantity of water specified in the deed of 1802, for the purpose of driving tlieir paper-mill, is entirely clear, especially when connected with the long and uninterrupted use of it for that purpose. The only real difficulty between the parties, after settling the construction of the deed, arises from the want of some satisfactory mode of determining, not only for the present but the future, what quantity of water the parties are respectively entitled to, and to fix it by actual measurement.” “ The true and proper remedy was in a court of chancery, and the mode by which the controversy can be determined with the least expense and the greatest certainty of doing justice, is by reference to one or more suitable referees, one of whom should be a capable engineer or mill-wright. This course of proceeding enables the court to exercise its power of preventing future litigation.” He placed his opinion, as it would seem, upon the case óf Belknap v. Trimble, that where there is a common right to the use of the water, which is not in dispute, that court might properly regulate this common use of the water so as to preserve the rights of each. But Parker, J., places the decision upon stronger grounds, and says, “ It is well settled that courts of equity have concurrent jurisdiction with courts of law in cases of private nuisance of this character. The plaintiff need not set forth in the complaint all the reasons why an injunction should be granted. It is enough that it appears that the plaintiff’s right is unquestionable, and has been recognized by ancient use and enjoyment, and that the diversion, being a recent act, has the effect to prevent the plaintiffs from carrying on business at their mills. It is not necessary to allege in terms that the threatened injury will be great or irreparable, if it is apparent from the facts set forth that such must be its effects. In such a case it is not necessary first to establish a right at law.” He then quotes Belknap v. Trimble, and repeats the language there used in regard to regulating the common use where there is a common right. He thus places the decision, in the first instance, upon the ground that it W'as a case where irreparable injury or mischief was being done and threatened; that a temporary injunction should have been issued; and that then, upon examining the answer and finding that no question of fact was in controversy about the parties’ rights, but only a controversy about whether each was actually using more or getting less than thus belonged to him, the use should have been regulated by the court so as to give to each his rights.

I find the same doctrines held in a recent case in Vermont, Lyon v. McLaughlin, 32 Vt. 423, where it was agreed that both parties had a right to the privilege of water contained in a certain dam ; and the only question was as to the mode and means by which the defendant was entitled to take the water from the dam, which water, it was conceded, he had a right to use. The right depended upon the construction of a deed under which the defendant held. It was held that a ease of equitable jurisdiction was made in the bill, because, it being admitted that the parties had common rights in the water-privilege, equity might regulate and fix the extent of their respective rights as tenants in common, and also because the use which the defendant tkreatened and was intending to make of the water would have caused irreparable mischief to the plaintiff; and the injunction was granted.

¥e conclude, then, that there is no difference between the rights of the owners of mills and water-power and the rights of any other persons in any other property, so far as the jurisdiction of a court of equity is concerned, when these rights are interfered with or threatened by private nuisance, unless it may be (1) that any interference, either actual or threatened, with these rights, from their importance as connected with the great manufacturing and mechanical interests of the State and country, and from the maimer in which mills and other similar improvements are usually and necessarily affected in value by affecting the supply of water-power, and the effect which any such interference has upon the business and profits of the owner, perhaps oftener produces irreparable mischief or threatens irremediable damage than an interference with other rights or classes of rights would be likely to do; and a court of equity would, on that ground, assume jurisdiction to grant injunction and decide the case oftener than in other classes of cases ; and (2) that courts of equity have jurisdiction of that class of cases where there is an admitted common right among several owners of the same privilege, to regulate the common use, to determine the extent of their respective rights and the proper mode of exercising and enjoying them, as tending to prevent litigation, and as affording a more complete and perfect remedy than could be obtained at law, and as furnishing, in fact, the only adequate means of ascertaining and determining the respective rights of the parties. Lyon v. McLaughlin, supra.

But these principles have no application to the present case, because here the plaintiffs, instead of admitting the defendants’ right, or that they have any right in common with them in the Burnham dam, or the water in the same, deny such right altogether; and while the defendants claim a right to draw water from it through a bulk-head, yet that right has never been established by the defendants at law, nor has the plaintiffs’ right to the whole water in that dam been settled at law; and the primary question here is, whether the defendants have any right in common with the plaintiffs to draw water from the Burnham dam. Nor do the plaintiffs seek any adjustment of their common rights, for they deny that the defendants have any right in common with them to be adjusted; and a court of equity will not assume jurisdiction of a case under any pretense of adjusting rights in common to water-power, when it is perfectly apparent that all that is sought or needed by the parties, or either of them, is the settling and establishing of a disputed right, which depends entirely upon the application of legal principies, and where, from the character of the right in question, and the evidence upon which it must be established, it is evidently a case peculiarly appropriate for the consideration of a jury, and for a decision in a court of law.

In a case where no irreparable damage or mischief is done or threatened; where no multiplicity of suits is to be avoided, or any interminable or oppressive litigation prevented; where there can probably be no need of any injunction upon either party, when their legal rights are once established; and where as yet there has been so little occasion for a temporary injunction that none has ever been asked for; there would seem to be no good reason why the court should retain the ease until the right at law shall be settled, or why any issue should be sent to the jury to determine the right at law, upon any sound principle of equity jurisdiction or equity practice.

"We can see no reason why a court of equity should entertain jurisdiction to grant an injunction in this case, any more than in a case of ordinary trespass to real estate, which is never done where adequate compensation can be obtained in an action at law; 2 Story Eq., see. 928; though, under our present practice, courts of equity will grant injunctions in cases of timber, ornamental trees, monuments, coal, ores, and quarries, where the party is a mere trespasser, or where he exceeds the limited rights with which he is clothed, upon the ground'that the acts are or may be an irreparable damage to that particular species of property. 2 Story Eq., sec. 929; Smith v. Pettingill, 15 Vt. 82; Jerome v. Ross, 7 Johns. Ch. 315.

But even treating it as a ease of private nuisance, this case stands no better. The obtaining of redress for past injury, or relief from future mischief, on account of an alleged nuisance, as the direct and primary object of the bill, is not of itself a branch of equity jurisprudence. Coe v. Lake Co., supra. It must be a strong and mischievous case of pressing necessity, or the right must have been previously established at law, to entitle the party to call to his aid the jurisdiction of a court of equity. Van Bergen v. Van Bergen, 3 Johns. Ch. 282. Courts of equity will, as a general rule, interfere in those cases of private nuisance only, where the right of the party claiming is clearly established, and the injury which he must necessarily sustain, if the work be allowed to proceed, is of such a nature that no adequate compensation can be afforded by damages only. Ang. on "Water-Courses, sec. 444. The jurisdiction of chancery, though said to be concurrent with courts of law in cases of private nuisance, will ordinarily be exercised only in aid of the common law courts, and is designed to prevent immediate and irreparable injury, and to 'preserve the subject matter of controversy from destruction until the right can be settled. When the right is fully settled at law a bill may be sustained fully to carry into effect the judgment, and thereby prevent endless controversy. But a court of chancery will never sustain a bill in such case, to adjudge and settle the legal rights of the parties to a water-course, when in dispute. That must be done by a court of law, or by a long, uninterrupted and undisputed user. Prentiss v. Larnard, 11 Vt. 135. To the same effect is 3 Dan. Ch. 1859, 1860, and cases cited; Adams Eq. 211, and cases cited; White v. Booth, 7 Vt. 131; Hart v. Mayor of Albany, 3 Paige 213 ; Reid v. Gifford, 6 Johns. Ch. 19 ; Eden on Injunctions 274, and cases cited; Porter v.Witham, 17 Me. 292; Russ v. Wilson, 22 Me. 211.

The case of Coe v. Lake Co., before cited from our own reports, is bi’oad enough in its principles to cover the present one; and if the law of that case is to be sustained, we think it must be decisive of this. That is evidently a well-considered opinion. We think its legal positions are sound, and we see no occasion to depart from them. The bill is therefore

Dismissed with costs.