Outcalt v. George W. Helme Co. , 42 N.J. Eq. 665 ( 1887 )

The opinion of the court was delivered by

Dixon, J.

The complainant is the owner of the “Railroad Mills,” situate in Middlesex county, on the Mill brook, near its entrance into the Manalapan river. The defendant, who appeals, is the occupant of the Outcalt Mills, situate on the Manalapan river, about a mile below the junction of the brook and river. Both mills use water-power.

The bill was filed in April, 1884, and its ground of complaint is that in 1872 the dam at the Outcalt Mills was raised by appellant to such a height, and has since been so maintained by him, as to throw the water of the river and brook back upon the tail-race and wheel of the complainant’s mills. It prays a decree that the dam may be lowered to a specified level, and that the defendant may be restrained from holding the water of the •streams back upon the complainant’s tail-race and wheel.

The appellant in his answer avers that he and those under whom he holds have a prescriptive right to maintain the dam at Outcalt Mills at its present height, denies that the dam erected in 1872 was raised higher than the dam had theretofore been, and asserts that if the complainant’s tail-race is flooded, the -causes are, not any change at the Outcalt Mills, but these facts: first, that between 1866 and 1872 the complainant’s predecessors in title turned into Mill brook the waters of Bennet brook and •Cedar brook; second, that the mill-pond of complainant, and other mill-ponds on the Manalapa'n river, above Mill brook, have been enlarged, so that an increased accumulation of water is let down during working hours; third, that between 1870 and 1873 the course of Manalapan river was straightened by a cutoff just above the mouth of Mill brook, whereby the waters up the stream were poured into the bed of the river below the brook more rapidly than before, which three causes have choked the channels of the brook and river below complainant’s mill with water much beyond their capacity to discharge; fourth, that these changes in the currents have resulted in deposits at and below the mouth of Mill brook, which have tended still further to raise the surface of the water; and fifth, that the complainant and its predecessors have not taken proper pains to remove snags and other obstructions which hinder the flow of the streams.

The answer also insists that the complainant is not entitled to the aid of a court of equity, and prays the same benefit of this defence as if it had been made by plea or demurrer.

It is evident that the issues raised by these pleadings are such as should be tried at law. The ground of suit is an alleged invasion of the complainant’s legal estate in land, by means of a structure, said to be unlawful, on the defendant’s land. The defendant contends that his structure is lawful, denies that it creates any interference with complainant’s estate, and asserts the existence of several facts which tend to show him free from responsibility for the damage which the complainant suffers. Every question to be decided is, therefore, one of mere legality or one of fact. The complainant’s right to relief is not admitted, neither can it be made clear until the defendant’s averments are overthrown, nor is there in the case any other circumstance which, according to Hart v. Leonard, 15 Stew. Eq. 416, would warrant the interposition of a court of equity before the right is established at law.

The complainant’s counsel urges that the injury sustained is of the sort which equity deems irreparable; but it consists only of the diminution of water-power in the mill, and was endured for twelve years before bill filed, and we think that the law prescribes reasonable rules for giving adequate compensation for-such a loss, and that they are no more difficult of application by a jury than are the rules for estimating damages in other cases-which undoubtedly pertain to the legal tribunals alone.

The complainant’s claim must be supported by a judgment against the defendant at law before it can successfully invoke the-aid of a court of equity.

On this decision being made known, the complainant moved that our decree should provide for the retention of the bill until, a trial could be had at law, to the end that if the trial resulted in favor of the complainant the injunction asked for might be granted in the present suit.

When the object of a bill is to secure affirmative equitable-relief, and one of the grounds upon which the right to such relief rests is a legal title, as in suits for partition, for assignment of dower, for an account upon the infringement of a patent, then,, if the legal title is disputed, the usual course is to retain the bill until the title is settled at law. Wilkin v. Wilkin, 1 Johns. Ch. 111 ; Manners v. Manners, 1 Gr. Ch. 384; Palmer v. Casperson, 2 C. E. Gr. 204; Bacon v. Jones, 4 M. & Cr. 433. The-reason is obvious, since, after the legal title is ascertained, the-necessity for the intervention of equity remains, and the dismissal of the bill would only multiply costs and delay. But when the real gravamen of the bill is the unconscientious refusal of the defendant to yield to-the complainant the enjoyment of his legal •estate, as it is in bills like the present, for nuisance or for trespass, then (in the absence of other recognized grounds of equitable jurisdiction) a condition precedent to the right of the complainant to bring his adversary into the court of conscience is that the latter’s misconduct shall be admitted or shall have been established at law against' him, for only such misconduct can be •deemed unconscientious as well as illegal. The reason for appealing to the court of equity is that the necessity of several suits against a defendant whose perverseness is manifest may be obviated. 1 Pom. Eq. §§ 858. ' When a bill of such a nature is filed before the disputed claim is settled in the proper tribunal, it should not ordinarily be retained, pending the legal litigation, with the view of thereafter making a decree against the defendant, because it is to be assumed that he will submit to the final judgment at law and regulate his conduct accordingly, ■and therefore that such a decree will be unnecessary and would burden him with the costs of a suit which should not have been brought against him. In the present case the inequity of retaining the bill is strengthened by the fact that the objection to the jurisdiction of the court rvas promptly taken in the .answer, and yet the complainant never suggested the bringing ■of an action at law until this appeal was decided against it. First National Bank v. Bininger, 11 C. E. Gr. 345; Bacon v. Jones, 4 M. & Cr. 433.

The decree against the appellant should be reversed, and the bill as to him should be dismissed for want of jurisdiction, and without prejudice to a suit at law.

Decree unanimously reversed.