Jerome v. Ross , 7 Johns. Ch. 315 ( 1823 )

The Chancellor.

This is the case of an appeal from an interlocutory decree of the Circuit Judge, for the third circuit, sitting in equity, pronounced on the 21st of July instant, and by which decree, the injunction, allowed on the 15th, instant, is continued until the hearing. The reasons assigned in the order, for the continuance of the injunction, are, that the injury complained of in the bill is irreparable in its nature, and the matter set up in the answer insufficient for the justification of the defendants.

Under the 15th section of the judicial act of the last session, (sess. 46. ch. 182.) an appeal lies from an interlocutory decree of a Circuit Judge, providedthe Judge certifies that such decree involves the merits of the cause, and that there may be ground for appealing. The requisite certificate was given in this case; and as the Chancellor is directed, by the act, “ to hear and decide such appeal in a summary manner,” I allowed the cause to be set down forthwith for hearing, upon what was deemed reasonable notice to the parties, under the circumstances of the case.

The order, continuing the injunction, overruled the two grounds, taken in support of the motion for dissolving the injunction, and which were,

1. The want of equity in the bilk

2. The sufficiency of the justification set up in the answer.

I. I have not been able to satisfy myself that the bill contains sufficient equity to warrant the injunction.

The bill contains a charge of trespass, by entering upon the land of the plaintiff, and digging, throwing up, and carrying away, large parcels of stone, from a ledge of stone and mass of rock on the premises. Several actions have been commenced in a Court of record to recover damages for this trespass; but it is not stated that any of these actions have been brought to trial. One action has likewise been instituted before a justice of the peace, and that action has been tried, and the plaintiff recovered damages to the amount of 25 dollars. The plaintiff has his complete and perfect remedy at law for the trespass, as often as it maybe repeated j and the only question is, whether the injury be so ruinous and irreparable as to call for the extraordinary interposition of a Court of equity. The bill does not pretend that the ledge of rock, upon which the trespass was committed, was of any particular use or value to the plaintiff, or that he ever did or ever intended to apply it to any valuable purpose. The plaintiff speaks of the injury as irreparable, because the loads of stone, taken from the mass of rock, cannot be replaced or restored; but as he does not state that the rock was of any use to him, as proper or fit for building, fencing, 8tc., or that it was even desirable as an object of ornament or taste, there was no need of having the same identical fragments of stone replaced, and the injury was not, in the sense of the law, irreparable. It was susceptible of a perfect pecuniary compensation. The case, therefore, seems to resolve itself into this single point, whether a Court of equity ought to interpose, by injunction, to restrain a trespass, when the injury does not appear to be irremediable and destructive to the estate, and when the ordinary legal remedy in the Courts of law can afford adequate satisfaction.

The English Court of Chancery is now in the habit of granting injunctions in trespass, when the case is peculiar and .special; and even this practice came into use long subsequent to the date of our revolution,/ As late as 1786, (Mogg v. Mogg, Dickens, 670.) Lord Thurlow directed a search to be made, to see if ever there was an instance of an injunction, where a mere trespasser entered upon land and cut timber ; and as no such precedent could be found, he denied it even in a case of trespass in cutting down timber. But since that time, the practice has been introduced, and justly and reasonably applied to special cases, where irreparable ruin would have followed the refusal to injoin the trespass. It was allowed by Lord Thurlow, in Fleming’s case, (cited 6 Vesey, 147.) where the defendant had worked from his own land into the coal mine of the plaintiff; and that case was followed by Lord Eldon, (6 Vesey, 147. 7 Ves. 307.) on the principle that irreparable mischief and ruin of the property, as a mine, would be the consequence, if the party was not stopped. On the same ground, the injunction is granted against diverting a water course from a mill; (1 Bro. 588.) against the destruction of timber; (10 Vesey, 290.) against the taking of stones of a peculiar value; (17 Vesey, 128.) or stones, from a quarry. (18 Vesey, 184.) Butall these are cases of ■ great and irremediable mischief, which damages could not compensate, because the mischief reaches to the very substance and value of the estate, and goes to the destruction of it in the character in which it is enjoyed. / The present case is, in no reasonable sense, analogous to those cases. The plaintiff does not aver, or show, that the “ ledge of stone and mass of rock,” on which the trespass is committed, is of any essential use, or that he does or can apply itto any valuable purpose. It is very possible that this “ ledge of rock” may be some precipitous, naked, barren hill, absolutely worthless for any other purpose than that to which the defendants apply it. j Is the case, then, to be compared to that of a lead or coal mine, or a quarry of marble, or a fine building, or precious stone, or a grove of timber, or a mill establishment, which the Court of Chancery has thought proper to protect from trespass and ruin, by the strong and menacing hand of an injunction ? Certainly not 5 and if the plaintiff is entitled to an injunction in this case, I do not see why every man, in possession of land, may not call for an injunction to protect him from his neighbour’s trespasses in every possible case.

The objection to the injunction, in cases ' of private trespass, except under very special circumstances, is, that it would be productive of public inconvenience, by drawing cases of ordinary trespass within the cognizance of equity, and by calling forth, upon all occasions, its power to punish by attachment, fine and imprisonment, for a further commission of trespass, instead of the more gentle common law remedy by action, and the assessment of damages by a jury. In ordinary cases, this latter remedy has beets found amply sufficient for the protection of property ; and I do not think it advisable, upon any principle of justice or policy, to introduce the Chancery remedy as its substitute, except in strong and aggravated instances of trespass, which go to the destruction of the inheritance, or where the mischief is remediless. This was the opinion and doctrine which I had occasion to declare in the case of Stevens v. Beekman, (1 Johns. Ch. Rep. 318.) and it appears to be the English doctrine, and the practice of this Court has been in conformity to it. I do not know a case in which an injunction has been granted to restrain a trespasser, merely because he was a.trespasser, without showing that the property itself was of peculiar value, and could not well admit of due recompense, and would be destroyed by repeated acts of trespass. In ordinary cases, the damages to be assessed by a jury will be adequate for a check and for a recompense. Every man is undoubtedly entitled to be protected in the possession and enjoyment of his property, though it may be of no intrinsic value. He may have on his land a large mound of useless stone or sand, which he may not deem worth the expense of enclosing, and yet it would be a trespass for any person to remove any portion of the stone or sand without his consent; and he would be entitled to his action, even though the damages were nominal. But would it be proper for this Court to assume cognizance of such a trespass, and lay the interdict of an injunction upon it ? I apprehend not.

The bill, to which I am still confining myself, does not, except in a very imperfect manner, disclose the pretences or claim of right under which the trespass has been committed. It only states, that the defendants are engaged in building a dam in Hudson’s river, near the north line of the city of Troy, and that the materials taken from the ledge of rock are applied to the dam; that one of the defendants acts as engineer in that operation, and that the defendants pretend that they are acting on behalf of this State, and by authority of the statutes, relative to canals. But admitting that the defendants do pretend to act by public authority in their commission of the trespass, it does not alter the principle; and the trespass itself must be of the character I have described, before a Court of equity can be called upon to interfere by injunction. All the cases referred to, were those in which the trespass went to the destruction of the property, as it had been held and enjoyed. In the case of Agar v. The Regent’s Canal Company, (Cooper’s Eq. Rep. 77.) the defendants were empowered by a private act of Parliament to cut a canal; the line of the canal had been prescribed, and they departed from that line, and were carrying the canal through a garden and rickyard, and Lord Eldon allowed an injunction. So in the case of Shand v. Henderson, (2 Dow, 519.) the Aberdeen Canal Navigation Company were charged with having taken and appropriated lands to their use, by unwarrantably deviating from the line particularly prescribed by statute, and an injunction to restrain the Canal Company within their limits, was admitted to be proper. But in both these cases, the companies were making a permanent appropriation of the land, and destroying the inheritance; and upon the acknowledged principle, in all the cases, it was necessary to restrain them. In the case, also, of Hughes v. The Trustees of Merton College, (1 Vesey, 188. and Belt’s Supp.) the commissioners of a turnpike company entered, took possession of, and were destroying, by digging for gravel, large garden grounds of the plaintiff, who was a gardener by trade. The turnpike act had specially excepted gardens, as well as orchards, planted walks, &c„$ and Lord Hardwiclce thought it a clear case of trespass, and of such a nature, that the plaintiff was entitled to seek his remedy by injunction, though he had his remedy at law. But he admitted, that if there had been any ground for doubt, whether or not the commissioners had authority, he would not have interposed until the doubt had been removed, and the matter finally determined at law. And it is to be observed, that here was the destruction of what a man was using as his trade or livelihood.

Several cases have occurred in this Court, in which public trustees have been restrained by injunction from acts of trespass, but the acts were such as went to destroy the enjoyment of valuable property and privileges.

Thus, in the case of Gardner v. The Trustees of Newburgh, (2 Johns. Ch. Rep. 162.) the trustees were going to divert a stream of water that had flowed immemorialiy,' and had supplied the brickyard, the distillery, and mill erections of the plaintiff; and the case not being deemed within the provisions of the act in favour of those trustees, an injunction was granted. Afterwards, in Belknap v. Belknap, (2 Johns. Ch. Rep. 463.) an injunction was allowed upon the same principle, of preventing a great and irreparable mischief. In that case, inspectors under an act of the Legislature for draining certain swamps and bog meadows, for the benefit of some individuals, un» dertook to lower a large pond of 400 acres, by cutting down the outlet, which would destroy the value of the pond and outlet as a source of water for the use of mills established on the outlet. It was considered to be an interference not warranted by the statute, and to be a great and special trespass, leading to lasting mischief, and the destruction of the estate. It was further observed, that it was not a case which concerned the public, but one of mere private convenience and profit, and the act ought to be strictly construed.

These cases all show, that, in respect to acts of trespass committed upon land, even by persons in a public trust, under colour of law, the Court has not interfered by injunction, unless where the trespass was permanent, as well as grievous, or went to destroy the value of the property to the owner. It is not sufficient that the act be simply, per se, a trespass; but it must be a case of mischief and of irreparable ruin to the property, in the character in which it has been enjoyed. In all other cases, the common law remedy is deemed to be adequate, and perfectly competent to give compensation, as well as to deter and prevent the repetition of the trespass, by the exemplary damages which it will inflict.

IA Court of equity will sometimes interfere, to prevent a multiplicity of suits, by a bill of peace. ] The principle is stated in Lord Tenham v. Herbert, (2 Atk. 483.) and in Eldridge v. Hill Murray. (2 Johns. Ch. Rep. 281.) But that is only in cases where the right is controverted by numerous persons, each standing on his own pretensions; and it has no application to the case of one or more persons choosing to persevere in acts of trespass, in despite of suits and recoveries against them. A troublesome man may vex and harass his neighbour, by throwing down his fences, and turning cattle upon his grounds, or by passing over ihem, or otherwise annoying him j but it is to be presumed, that repeated recoveries for damages, with the punishment of costs, and such smart money as a jury would naturally give, would soon effectually correct any such disposition.ji At any rate, i do not know that a Court of equity has ever interfered merely to correct such a practice; and it would certainly require very strong evidence of the inefficacy of the ordinary legal remedies for compensation, as well as for correction, before this Court would venture to assume a jurisdiction hitherto unknown.

For these reasons, I am of opinion, that the bill itself does not contain matter sufficient to warrant or sustain the injunction; and that the plaintiff ought to have been left to his remedy at law. ,

3. But, admitting that the injunction was warranted by the bill, the next question is, whether the answer does not contain a sufficient justification.

It appears by the answer, that the defendants are employed by the Canal Commissioners to complete a lock and dam in the Hudson river, and that the work is carrying on under the direction of one of the defendants, who is the principal engineer employed on the Champlain canal¡ and that by an agreement between the persons engaged to build the dam, and one of the Canal Commissioners, the materials for filling the dam were to be furnished from the rocky hill near the dam, and from which materials for that purpose had been previously taken without objection.

It further appears, that the erection and construction of the dam is absolutely necessary for the completion of the Champlain canal, because a part of the canal, upon the plan adopted by the Canal Commissioners, cannot be supplied with the necessary quantity of water in any other way; that the Commissioners have taken the possession and control of the dam, and the lock connected with it, upon the terms, and under the provision of the act, entitled, “ an act respecting the navigation of Hudson’s river between Tróy and Waterfordand that these works are an essential part of the canal. It further appears, that the defendant, Jerome, the principal engineer, and in the employment of the Canal Commissioners, entered upon, and located a sufficient quantity of the rocky hill near the dam, for the purpose of procuring good and substantial materials for filling in the timber cribs in the dam, and the location was seen and approved of by the acting Canal Commissioner on the Champlain canal; that the stone have been taken along the foot of the hill, penetrating its steep side for about thirty feet; that the stone and rock broken up and taken away, are useless for building or fencing; and that there is sufficient, or nearly sufficient, stone already broken up upon the premises to complete the dam, the expense of breaking up of which cost upwards of 800 dollars; that the rock is not above 60 rods from the river, and it furnishes the most suitable and convenient materials, and can be taken with less injury to the owners than any other upon that side of the river. They admit the recovery before the Justice, but they insist upon their authority under the statute to take the stone, and that the recovery is erroneous; and they have already brought a certiorari for the purpose of having the judgment reversed.

After the opinion which has been expressed upon the first point, it is not necessary, for the present disposition of the case, to give any decided opinion on the validity of the matter alluded to in the bill, and expressly set up in the answer by way of justification. It might, perhaps, be as well to avoid it altogether, inasmuch as the justification under the canal acts is a legal question, and which appears from the pleadings, to be pending at law. But as this second point was discussed and passed upon by the Court below, and as it has been raised and discussed before me, without objection, and is involved in the decree appealed from, and as the essential facts leading to that justification are founded on statute powers, and are not controverted, it cannot be improper to take it into consideration ; and it would be required, if I am to pass in review the whole merits of the decree.

The Canal Commissioners, in the erection of the lock and dam in question, have the same powers that are conferred upon them in respect to the Champlain canal. By the act referred to in the answer, (sess. 44. c. 78.) the Canal Commissioners were authorized to complete the lock and dam, “ in order to connect the Champlain canal with sloop navigation,” if they should deem it advisable, and should signify in writing their intention to do the samp. The answer avers that they have done so. It becomes, therefore, essentially part and parcel of the Champlain canal, and the real property appropriated for the site of the lock and its appendages, vests in the people of this State, on the completion of the lock and dam, and the Canal Commissioners are authorized to establish and collect tolls at the lock.

Assuming, then, as a clear and plain proposition, that the Canal Commissioners are vested with the same powers in the erection of this dam, as in the construction of works on any part of the line of the canals, they had a right to, .take possession of, and use the ledge of rock in question, for the construction of the dam. The 3d section of the act of the 15th of April, 1817, “ respecting navigable communications between the great western and northern lakes and the Atlantic ocean,” (sess. 40. c. 262.) declared, that it should be “ lawful for the Canal Commissioners), and each of them, by themselves, and by any and every superintendant, agent, and engineer, employed by them* to enter upon, take possession of, and use, all and singular any lands, waters and streams, neeessaKy for the proseeur tion of the improvements intended by this act; and to make all such canals, feeders, dykes, locks, dams, an;d other works and devices, as they may think proper for making said improvements, doing, nevñríhel^s.,. no -tiiinec.essary damage-.”

The case before us falls precisely within the words of this provision. The Commissioners, and those under them, may enter upon and use any lands necessary for the prosecution of the improvements intended by the act. The dam in question being connected with the Ch'amplain canal, is an improvement within the meaning of the act. What lands are necessary to be entered upon, and used, must rest in the judgment of the Commissioners, and all that can be required is, that they act with good faith, and with sound discretion. The word “ necessary” does not mean absolute and indispensable, or that without the use of the land, in the given case, the work could not possibly go on. That would be the same as extreme necessity. The Legislature used the word in a more reasonable and popular sense. It is sufficient that the land used, and the materials taken from it, are needful, and conducive to the object, and more convenient in the application, and less valuable, and the use of them less injurious to the owner, than any that might readily be selected. There must, from the reason of the thing, and the nature of the case, be great latitude of discretion in the selection of the land and the materials; and, in the present case, it is perfectly apparent, that the Canal Commissioner located the ground from which the materials for filling in the dam were to be taken, with judgment, and according to the spirit and letter of the act. He did take care, as the act required, to do no unnecessary damage. The materials must have been taken from some adjoining land, and from whence could they have been taken with more discretion ?

I cannot perceive any room for doubt, as to the power of the Commissioners to enter upon and use the ledge of rock in question^ for the purpose of making the dam. There is no avoiding this conclusion, unless we can maintain the construction, that the act only intended that the Commissioners might enter, use, and take possession of land, for permanent appropriation of the whole fee of the land, and not for temporary use.' According to this construction, if they wanted room adjoining the canal, for a temporary deposit of materials for locks and dams, or a right of way or passage to the canal, or the materials of stone, gravel, clay, 8¿c. from the adjoining lands, they could not use them, without at the same time appropriating the fee of the land. But why should the Commissioners be obliged to appropriate a greater interest in the adjoining land than is requisite for the public object; and what possible objection can there be to the construction, allowing them to make as much use of the adjoining grounds as should be necessary for the prosecution of the improvements, and no more ? The precaution enjoined upon them, to do no unnecessary damage, seems to imply, that they v/ere authorized to make a temporary use of the lands. The act of 1816 authorized the Commissioners to explore and examine the lands contiguous to the probable course of the canal, and to cause surveys and levels to be taken. This necessarily implied a right of entry upon lands for these purposes. The act of 1820 (sess. 43. c. 202. s. 3.) also authorized them to enter upon any lands contiguous to the canals, or the works connected therewith, “ and to dig for, work, get, and carry away, and use, all such stone, gravel, clay, timber, and other materials, as might be necessary or proper, in their opinion, for the reparation of the canals, or the works connected therewith, doing as little damage thereby as the nature of the case would permit.” The Commissioners would then be authorized to take the stone from the ledge of rock in question, to repair this dam in the Hudson; and can it be reasonably supposed, that the Legislature did not intend they should have this power for the necessary construction of the dam in the first instance ? The public utility is as much concerned in the exercise of the one power as of the other, and these several canal acts constitute a distinct code of statute law, and are to be taken and construed together, as being made in furtherance of one great, useful, and splendid public object, and which, in the language of the Legislature, in their act of 1817, will “ promote agriculture, manufactures, and commerce, mitigate the calamities of war, and enhance the blessings of peace, consolidate the union, and advance the prosperity and elevate the character of the United States.” Statutes made for the public good, and for general and beneficent national purposes, are to receive a very liberal construction, and to be expounded in such a manner, as that they may, as far as possible, attain the end. The rule is, that they are to be so construed, as not to advance a private and destroy the public interest, but always to advance the public interest, doing as little damage as possible to the private interest. (11 Co. 73. b. Str. 253. 2 Vern. 431.) So, it is a general rule of interpretation, that a greater will include a less interest; and a provision, as to more objects than one, includes a provision for one of those objects.

I have no doubt, therefore, that under the general authority to enter upon and use any lands necessary for the prosecution of the improvements, doing no unnecessary damage, the commissioners, and the defendants, by their authority, might lawfully enter upon and use the ledge of rock in question for the building of the dam; and that a contrary construction is not only against the words, but is too narrow and too rigid for the liberal spirit and enlarged policy of i the act, and the immense pressure of the public interest. If there was ever a case in the ordinary pacific operations of government, in which all petty private interests should be made subservient to the interest of an entire people, this is one. The canals were undertaken “ in full confidence that the Congress of the United States, and the States equally interested with this State in the commencement, prosecution, and completion of these important works, would contribute their full proportion of the expense.” We have not, as yet, realized the fruits of that confidence, and we are left to bear singly the whole expense, as well as to enjoy all the honour and glory of this stupendous undertaking. We have advanced too far to recede. The whole entire plan must and will be completed. All little impediments must be surmounted; and the powers of the Commissioners must be taken to be. as they were certainly intended to be, commensurate with the duties to be performed. In the language which I had occasion to use at the last session of the Court of Errors, in Rogers v. Bradshaw, and, as I presume, with the entire approbation of the Senate, “ we must take expressions in the most extensive sense, when it is probable the lawgiver had in view every thing pointed out by that extensive sense, and when we give to the expressions the sense most suitable to the subject, and best adapted to the facility and success of a great and generous scheme of public policy.”

There is an additional provision in the 3d section of the act of 1817, which declares, “ that in case any lands, waters, or streams, taken and appropriated for any of the purposes aforesaid, shall not be given or granted to the people of this State,” it shall be the duty of the Canal Commissioners to cause the loss and damage, if any, over and above the benefit and advantage to the owner, to be certified in the way pointed out, and the damages to be paid, and the fee simple of the premises so appropriated, shall vest in the people of this State.”

This provision applies only to lands taken and appropriated, and which, I should rather think, means lands permanently applied, so as to be entirely lost to the owner, and not lands affording a temporary use for passage and deposit, or for procuring materials for the locks, dams, 8cc. But there is no suEcient reason to consider this latter part of the section as qualifying and controlling the general powers given in the former part of it. The general power is, to enter upon and use all lands necessary for the proseen(ion of the improvements, and to make canals, feeders, locks, dams, fyc. doing, nevertheless, no unnecessary damage ; and then comes the provision, that any lands taken and appropriated for any of the purposes aforesaid, shall be paid for and vest in the State. There was no need that the fee of lands used only for a temporary purpose, should be vested in the public. If the owner is paid for the damage occasioned by the temporary use of his lands, it is all that he can justly require, and this compensation the State is bound to give him. If the act we are examining has omitted to make any provision for the assessment and payment of damages for such temporary use, it may have escaped the attention of the Legislature, or the case may have been deemed, at the time, immaterial and unimportant. The omission, however, if it be one, does not prevent the right of the commissioners to enter and use the land; nor prevent the just claim of the owner upon the commissioners or the Legislature for his reasonable compensation. The commissioners are not trespassers, when the act authorizes them to enter, if they enter before the damages are paid for. This was so understood and declared, in Rogers v. Bradshaw, already referred to. The claim for compensation arises after the use has been had; and the damages cannot,well be assessed before they have arisen. Whatever, therefore, may be the better construction as to the mode of ascertaining and enforcing the compensation, it does not affect the right of the commissioners to enter, nor justify the interference of a Court of equity to interdict their entry.

It is probable the Legislature considered that the Canal Commissioners had sufficient discretionary power to pay for all damages arising from the temporary use of lands, upon which they might enter for the prosecution of the improvements, and the appropriation of materials, which they might derive from such use. Their discretion, in the expenditure of the canal moneys, is very large. They are EE to cause the same to be expended in the most prudent and economical manner, in all such works as may be proper to make the canals.” And as they are to do no unnecessary damage, it was doubtless intended that all necessary damage should be paid for by them. The only difficulty in the case is, how to assess the damages when the parties cannot agree. If the lands are appropriated permanently by the transfer of the fee, or if materials are taken from adjoininglands for reparations of injuries to the canals, or the works connected therewith, the statute points out a specific mode of assessment. As all these canal statutes are to be taken and construed together, as being made in pari materia, the damages resulting from a temporary use of the land, fall within the equity of these provisions; and the Commissioners would be justified in adopting one of them, or the owner might, perhaps, by application to the Supreme Court, or to a Court of equity, enforce an assessment and payment, in the mode provided for in other cases.

But the question of compensation is distinct from the right of entry to take and use the land necessary for the purpose of the improvements ; and that right I hold tó he unquestionable, provided it be not abused in the exercise, through the want of good faith or due discretion. If the Commissioners enter to procure necessary materials, and they keep within the limits of a reasonable discretion, and do no unnecessary damage, they come within the range of the strong powers conferred upon them, and their entry is justified by the statute.

I am of opinion, therefore, on this second point, as well as on the other, that the injunction ought to be dissolved.

The case is interesting in every point of view; and I have examined it with all the care and diligence that the closing period of my office would permit. I regretted that the case pressed upon me at so late a moment; and I regret still more, that I should be obliged, in the very last act of my judicial life, to overrule one of the earliest decisions ic equity of one of my junior "brethren, for whom I entertain a sincere respect, and to whom I look forward with confident expectation, for an administration of justice, pure and intelligent.

I shall order that the interlocutory decree appealed from be reversed; that the injunction, issued by the Circuit Court,be dissolved) and that the cause be remanded, to the end that, such further proceedings may be had upon the bill filed in the Court below as shall be just.

Order accordingly.