Lehigh Valley Railroad v. McFarlan , 31 N.J. Eq. 730 ( 1879 )

The opinion of the court was delivered by

Depue, J.

The Morris Canal & Banking Company was incorporated in 1824. In 1828, it constructed its canal from the river Delaware to the Passaic. In 1871, the canal and all the franchises and property of the company were leased to the Lehigh Valley Railroad Company. The summit level of the canal is near Lake Hopatcong, which furnishes the principal 'supply of water for the eastern division of the canal. At Dover, in the county of Morris, the canal crosses the Rockaway river’. The crossing is effected by discharging the waters of the canal into the river by means of a lift-lock, and admitting, through a guard-lock on the other side, safficient water into the lower level to maintain the water therein at a height sufficient for the navigation thereon. To accomplish that purpose, the company placed a dam across the river. The dam, as a permanent structure, was erected when the canal was built, in 1828. In 1845, the company enlarged its canal, and increased its capacity, so as to admit the passage of boats requiring a greater depth of water; and, in order to obtain a suitable depth of water at the place of crossing, and in the lower level, the company placed, on the top of the dam, flash-hoards, held in position by iron pins or bolts, to he kept there, as necessity might require, during the boating season. The controversy which has given rise to this litigation, relates to the company’s right to the use of these flash-boards.

McFarlan is the owner of a rolling-mill, situate on the Rockaway river, above the canal company’s dam. His mill is driven by the waters of the river, which, after passing his water-wheel, are discharged into the river above the canal dam. The Halseys and Mrs. Beach are the owners of a grist-mill, saw-mill and forge and bloomary, situate on the Rockaway river, below the canal company’s dam, which works are also driven by the waters of the river. The other defendants, Van Winkle and Iloaglaud, were lessees of the Halsey mills and forge.

McFarlan, conceiving himself to be injured by hack-water upon the wheel of his rolling-mill, sued the complainants to recover his damages. The Halseys and their tenants also brought suits to recover damages for the diversion of the water from the mills and forge, below the canal dam. Thereupon the complainants filed this, a bill of peace, to enjoin the prosecution of.said suits, and for a determination of the rights of the parties respectively in one suit, to he prosecuted under the direction of the court of chancery. Upon the filing of the bill, a temporary injunction was granted.

The Halseys demurred to the bill for multifariousness. MeEarlan filed an answer, in which the objection to the bill for multifariousness is also expressly taken.

The chancellor, upon hearing upon bill, answer and demurrer, dissolved the injunction, and dismissed the complainant’s bill.

The particulars connected with the institution of the said several suits are fully stated in the chancellor’s opinion. They need not be repeated here. Suffice it to say that, at the time this bill was filed, eight suits were being prosecuted—two by MeEarlan, two by the Halseys, and two by each of their tenants. These suits were all brought in the supreme court of this state. The first of them, brought by MeEarlan, was commenced December 30th, 1876, and claimed damages from April 1st, 1872, to the commencement of the suit. The first of the Halseys’ suits was begun September 21st, 1876, and, on the same day, the first of the suits of Van Winkle and Iioagland were begun. All these suits the complainant (it being a foreign corporation) removed to the circuit court of the United States for the district of New Jersey. Thereupon, each of the plaintiffs in the said actions brought a new suit, in the supreme court of this state, for damages accruing after the time of the commencement of the first suit.

Eor the duplication of these actions the complainant is itself responsible. If the suits first commenced had been allowed to remain in the state courts, and fresh suits had been brought by the same parties for damages accruing subsequently, and arising from the same cause, the defendant in such actions could have obtained a consolidation of all the actions brought in the name of the same plaintiff, by application to the court, under sections 121 and 289 of the practice act (Rev. pp. 867, 898). And although the several suits be prosecuted in different courts, a court of law may, in virtue of its control over its own proceedings, in its discretion, order a stay of proceedings in suits pending before it, until the rights of the parties are settled by the result in one action. The appropriate relief against successive suits by the same plaintiff for damages arising from an injury which is continuous, is, by application for the consolidation of actions, or for a stay of proceedings, and not by bill in chancery, unless the right in controversy has once been determined adversely to the plaintiff. Eldridge v. Hill, 2 Johns. Ch. 281; Thompson v. Engle, 3 Gr. Ch. 271.

The question, then, will be, whether four suits pending (one by McFarlan, one by the Halseys, one by Van "Winkle and one by Hoagland) will, under the circumstances of this case, justify resort to a bill of peace.

A bill of peace, enjoining a litigation at law, is allowable only when the complainant has already satisfactorily established his right at law, or where he claims a general and exclusive right, and the persons who controvert it are so numerous that the endeavor to establish the right by actions at law would lead to vexatious and oppressive litigation, and renders an issue under the direction of the court indispensable to embrace all the parties concerned, and to avoid multiplicity of suits. Tenham v. Herbert, 2 Atk. 483; Eldridge v. Hill, ubi supra.

The object to be attained by resort to a court of equity, in such cases, is, to obtain a final determination of the particular right in controversy, as between all the parties concerned, by a single issue, instead of leaving the right open to litigation by separate suits brought by each of the parties in interest. To justify a bill of peace, therefore, there must be in dispute a general right in the complainant, in which the defendants are interested, of such a character that its existence may be finally determined in a single issue. It is not indispensable that the defendants should have a co-extensive common interest in the right in dispute, or that each should have acquired his interest in.the same manner, or at the same time, but there must be a genera] right in the complainant, in which the defendants have a common interest, which may be established against all who controvert it, by a single issue.

A reference to a few of the prominent cases will illustrate the principles on which bills of peace are founded. In Sheffield Water Works v. Yeomans, L. R. (2 Ch. App.) 8, a bill was filed by the complainants against Yeomans and five other defendants, and all other persons interested in certain ■certificates, which the bill prayed might be decreed to be void. The bill stated that a reservoir, belonging to the ■complainants, had burst, occasioning an inundation, whereby many persons lost their lives, and the property of very ¡numerous persons was damaged; that, by act of parliament, commissioners were appointed to inquire into the ■damages occasioned by the inundation, and, where any claim of damages was assented to by the company, or .assessed by the commissioners, the costs of the claimants were to be paid by the company, and the commissioners were to certify accordingly, for which costs, if not paid ■within a limited time, judgment might be entered against the company. The commissioners made out fifteen hun•dred certificates, which they lodged with Yeomans, who was town clerk. These certificates the complainants alleged to be invalid. The bill was filed to enjoin the delivery of the certificates, and for a decree that they should be delivered up to be cancelled. The defendants demurred. In ■overruling the demurrer, Vice-Chancellor Eindersley said: ■“ There were in this case a number of persons, each alleging that he was entitled, as against the company, to be.paid a certain sum, to be ascertained, in respect of costs; each claim was founded on the same state of circumstances, and what would be successful in one case, would be so in all; each insisted that he was entitled to have out of the custody of the town 'clerk these documents, in order to adopt the process under the act to recover the costs, that is, to go to the taxing-master and get judgment entered up, and issue •execution; it was, therefore, the case of one body against a number of separate individuals, each claiming, as against the one body, a certain right, the right being the same in all, and the same reasons and arguments applying to all; now, the question was, whether this was not precisely a case for a bill of peace, quoad the form and nature of the bill: where there were a number of persons" claiming as against one, or one person against a number, and where all were claiming .alike, that was a case for a bill of peace.” On appeal, the decree of the vice-chancellor was affirmed, for the reason that the rights of the numerous claimants all depended upon the same question—the validity of certificates sealed under the circumstances stated in the bill.

The case of The N. Y. & N. H. R. R. Co. v. Schuyler, 17 N. Y. 592, is another apt precedent on the same subject. The complainant was a coi’poration, whose capital stock was limited by its charter to $3,000,000, represented by thix’ty thousand shares of stock. The bill charged that Schuyler, the president and transfer agent of the company, had fraudulently ovex’-issued certificates of stock for his own private purposes, amounting to neaxdy $2,000,000. Thx’ee hundred and twenty-six persons were joined in the suit as defendants, for the reason that they were holders of certificates of stock fraudulently issued. It was alleged that some of the defendants took these certificates knowing they were fictitious ; some with reason to believe so; some on usui’ious coxxtracts; many xxxxder circumstances which should have put them on inquii’y, and many others under circumstances and upon considerations unknown to the complainants. Some of the defendants had brought suit, and other suits were threatened. The bill joined Schuyler and all the alleged owners and holders of this over-issued stock as defendants. It prayed that the certificates might be decreed illegal and void, and be suxTendered up and cancelled, and that those who had sued the company might be enjoined from further proceedings therein; and that those who had not sued might be enjoined from bringing actions. On demurrer by one of the defendants, who was the holder of some of the spurious stock, the bill was held to have been properly filed against all the defendants, for the reason assigned by Comstock J., in pronouncing the judgment of the court, that there was a.single interest in the complainants directly opposed to the interests of all the defendants. The common point and center of the litigation was the stock, property and franchises of the corporation in which the defendants claimed specific shares and proportions, as holders of the. false certificates. The rights claimed by the defendants were distinct, because they rested upon separate instruments as the evidence thereof; but they were of precisely the same nature, as they turned upon the same question, and were a cloud upon the same estate. Each certificate was a false muniment of the holder’s title to a particular interest in the corporate estate vested as a unit in the corporation, but equitably belonging to the.holders of its actual stock. And all the parties could be united because there was such a unity in the controversy with them all as to render it proper that they should be joined in a single suit.

Fellows v. Fellows, 4 Cow. 682, is a case possessing the same characteristics as the one last cited. It was a bill against the several holders of property fraudulently transferred in separate parcels to each, and the bill was sustained because there was one connected interest in all the defendants centering in the point in issue in the case, one common subject of litigation on which the several titles of the defendants depended, which could be determined, and the whole litigation disposed of in the one suit, the result of which would settle the rights of all the parties.

On the other hand, where the interests of the several defendants are entirely distinct and unconnected, and do not present one common subject of litigation, though they relate to the same claim of right in the complainants, such defendants cannot be joined in the same suit. Thus, a bill will not lie against the several tenants of a manor for quit-rents, for the reason that no one issue could have tried the cause between any two of the parties, and no principle would justify the bringing in of two different tenants of distinct estates to hear each other’s rights discussed. Bouverie v. Prentice, 1 Bro. C. C. 200. If a copyright be infringed by different booksellers, the owner of the copyright can not join ail the wrong-doers in the same bill,- as the rights of each of the parties stand upon a distinct ground. Dilly v. Doig, 2 Ves. 486.

In Rayner v. Julian, 2 Dick. 677, Kenyon, M. R., puts the case of the sale of an estate in lots to different persons, and says that the vendor could not include all the purchasers in one bill for specific performance, as each party’s case would be distinct, and depend on its own circumstances. And in Brookes v. Lord Whitworth, 1 Madd. 85, a demurrer for multifariousness on that precise ground, was allowed.

Whaley v. Dawson, 2 Sch. & Lef. 367, is a case where a demurrer was allowed, although the complainant had grounds for relief against all the defendants, with respect to the same estate ; for the reason that there was no common subject matter of litigation in which all the defendants were interested, and one set of defendants could not be involved in the litigation of a question that related exclusively to the other.

Indeed, the rule with regard to multifariousness, whether arising from the misjoinder of causes of action, or of defendants therein, is not an inflexible rule of practice or procedure, but is a rule founded in general convenience, which rests upon a consideration of what-will best promote the' administration of justice without multiplying unnecessary litigation on the one hand, or drawing suitors into needless and unnecessary expenses on the other. Story’s Eq. PI. § 539. Enough has been said to show that, in allowing or disallowing objections of this kind, the courts are guided by the consideration whether there is a subject matter in dispute, in which all the defendants are interested, which is capable of being determined in a single issue, and the determination of which, in that method, would not involve the defendants severally in the needless expenses of the litigation of matters in which they have no concern. The authorities on this subject are quite numerous. A citation of a few of them, in addition to the cases already referred to, is all that is proposed. Mayor of York v. Pilkington, 1 Atk. 282-4 ; Ward v. Duke of Northumberland, 2 Anst. 469; Weale v. West Middlesex, 1 Jac. &. W. 358, 369; Campbell v. Mackay, 1 Myl. & Cr. 603; Powell v. Earl of Powis, 1 You. & Jer. 159; Com’rs of Sewers v. Glasse, L. R. (7 Ch. App.) 456: Same v. Gellatly, L. R. (3 Ch. Div.) 610-615; Brinkerhoff v. Brown, 6 Johns. Ch. 139 ; Story’s Eq. Pl. §§ 271-286, 530-539 ; Milford’s Eq. Pl. 182; Cooper’s Eq. Pl. 182.

The question has generally arisen on demurrers to bills in causes of purely equitable cognizance. But in this respect there is no difference between such bills and bills of peace. A bill of peace which shall draw within equitable cognizance causes of. action which are purely legal in their character, must conform to the rules and principles of ordinary equity pleading, and, in addition thereto, must possess another element arising from the number of the parties interested and the multitude of actual or threatened suits. In such cases there must be such a unity of interest on the one side or the other, as would justify a joinder of the parties in causes of purely equitable cognizance. 17 N. Y. 608, Comstock, J.

Passing by the small number of persons who appear to be in anywise interested in this controversy, and regarding only the substance of the bill upon its merits, it is plain that this bill can not be maintained.

In considering whether there is a subject matter in dispute in which the defendants are interested, that is common to all the parties, and upon which their several suits at law hinge, their actions must, for the purposes of this record, be grouped into two classes, those brought by McEarlan being placed in one class, and those by the Halseys and their tenants in the other. The only fact that is common to the suits of the parties respectively is, that the company erected its dam, and placed flash-boards upon it, and that the parties respectively claim that an injury resulted therefrom which gave to them severally a legal cause of action. But the right of the company to erect its dam, and place flash-boards upon it, and thereby appropriate the waters of the Rockaway river to its use for its canal, to the injury of private individuals, is not a matter in actual dispute. The company, in virtue of the terms of its charter, had authority to construct its dam and appropriate the waters of the river to the uses of its canal, without being wrong-doers, subject only to compensation for injuries to individuals, to be recovered by appropriate actions at law. Lehigh Valley R. R. Co. v. McFarlan, 4 Stew. 706. Ho issue at law is necessary to determine that question, nor could its determination, one way or the other, affect the right of the defendants to prosecute their actions. The company's charter, which authorizes the appropriation of private property to its use without compensation first made, also gives individuals who are injured, a right of action to recover compensation for their injuries. Whether the actions brought by the defendants are in proper form, and the principles upon which damages are to be assessed in case the issues are brought to trial, and a good cause of action shown, are questions of law to be decided by the courts in which the actions are pending.

Ror does there appear, by the pleadings, to be such a unity, either in the grounds on which the actions of the defendants are rested, or in the defences proposed, as would make a bill of peace and an issue thereunder, the appropriate method of settling the questions involved. McRarlan claims that he was injured by back-water arising from the increase in the height of the water in the pondage of the dam. The Halseys, and those who represent them, claim that their injuries were caused by the diversion of the waters of the river for use on the lower level of the canal. The Halseys suffered no injury from the increase in the height of water above the dam, and McRarlan’s injury is in nowise attributable to the abstraction of water from the river for use upon the lower level of the company’s canal, and which may, to some extent, have been caused by the mode in which the lock and gates at the other extremity of the level were managed. The causes from which the injuries to the parties respectively resulted, instead of being coincident, are divergent. Holding the water at an increased height in the dam, or even in the lower level of the canal, would occasion no injury to the Halseys as the owners of water rights lower down on the stream, and McEarlan is not, in any manner, interested in the quantity of water abstracted from the river which flowed through the lower level, and was discharged into the company’s canal beyond. If the flash-boards should be removed, and the back-water be thus withdrawn from McEarlan’s premises, that might not prevent the diversion of which the other defendants complain. And, if the guard-lock at the outlet from the river, or the lock and gates at the other end of the level, should be so managed as to avoid the diversion from the river of more water than is brought into it by the canal from above, and thus the grounds of complaint by the Halseys should be removed, the injury to McEarlan by back water would still continue, if the dam was maintained at its present height. The trial of an issue in which McEarlan and the Halseys were the parties on one side, involving the causes of their injuries respectively, would necessarily lead to the introduction of evidence and the investigation of issues pertinent to the complaint of the one party, and wholly irrelevant to that of the other; and in some respects their interests would necessarily clash. On the trial of such an issue, it would be to the interest of McEarlan to show the great volume of water discharged over the dam, as bearing on the height to which the water was held above the top of the dam, and the interests of the Halseys would be promoted by showing precisely the reverse.

The proposed defence to the McEarlan suit is, that the dam was originally erected by the license and consent of McEarlan’s ancestor, from whom he derived title, and that McParlan was himself a director of the Morris Canal & Banking Company in 1845, when the canal was enlarged, and was fully cognizant of the affairs of the company, and participated in the actions of the company in increasing the capacity of its canal, and the reconstruction of the locks and planes whereby an increase of the height of the water at the crossing of the canal, over the Rockaway river, by the use of flash-boards on the top of the original dam, became necessary; and that he is equitably estopped from complaining that the use of flash-boards, and the consequent flooding of his mill by back-water, was without his consent. On the other hand, to the Halseys’ suits, and those of their tenants, the defence is, that no more water was taken from the river than was brought into it by the canal from its supply at Lake Hopateong, and that the company obtained from Joseph Jackson and John D; Jackson, who were formerly the owners of the premises, a grant in the nature of a perpetual license to maintain said dam and flash-boards, which grant or license, by lapse of time, has become lost. The defendants have no common interest in any of these defences, nor is the other defence of a prescriptive right, which the complainants propose to make to all the suits, one in which the defendants have a common interest. The theory on which title by adverse possession or prescription rests is, that there has been a possession or enjoyment for the full period of twenty years, continued and uninterrupted, adverse to the interest of the true owner, in which he has acquiesced, on which the law presumes a grant which has been lost. A claim of title or right derived from such a source is individualized and personal as against the owner of each separate parcel of land to which such a claim of title or right is made. The possession may have been permissive, and, therefore, not hostile to the owner of one parcel and not as to the other. It may have been interrupted by the owner of one parcel so as to destroy the continuity of possession and enjoyment of one parcel and not of tlie other; and personal disabilities may have suspended the operation of the statute as to the one and not as to the other. It is manifest that the trial of all three distinct issues in one issue, under the direction of the court of chancery, 'would be impracticable.

The decree of the chancellor, dissolving the injunction and dismissing the bill, should be affirmed.

Decree unanimously affirmed.