Maloon v. White , 1876 N.H. LEXIS 71 ( 1876 )

FROM ROCKINGHAM CIRCUIT COURT. The findings of the referee and of the circuit court, upon the subject of the threatened injury, are conclusive. This court has no jurisdiction to revise their findings on questions of fact. The referee has reported that no irreparable injury is likely to happen to the plaintiff's meadow-land by any of the reasons assigned in the bill; also, that the removal of the sand by the defendants would not expose the plaintiff's land to any overflow of tides to which it was not before subject.

The circuit court has also found, as matter of fact, a want of equity upon the merits of the bill. What ground, then, has the plaintiff for invoking the aid of a court of equity? Clearly none. The plaintiff claims that the town, even if it owned the locus in quo, would have no right to do, or threaten, such acts thereon as would expose the plaintiff's land to be overflowed and washed away. But it is an answer to this position that the case does not find that the defendants have done, or threaten to do, any such thing. On the contrary, it finds the reverse to be true, as matter of fact.

There is another reason why this bill cannot be maintained. So far as appears, the plaintiff's title to the locus in quo rests on possession merely. The defendants claim that the town of Newcastle has a right to take sand and gravel from the premises for the purpose of repairing the highways of the town. Before, therefore, the plaintiff can have a decree to restrain the defendants, he must establish his right in a suit at law. A suit in equity will not lie for relief against a trespass to lands, or for an injunction to restrain a continuance of it, unless it be in aid of a suit at law, when the plaintiff's title is disputed and has not been established at law, and no irreparable injury appears. Burnham v. Kempton, 44 N.H. 78. The order dismissing the bill was therefore correct.