Haskell v. Thurston , 80 Me. 129 ( 1888 )

Emery, J.

The evidence seems to establish the following facts. There was a lawful dam across a non-navigable river. From this cross-dam, a wing- dam extended down the stream to conduct the water to the mills; on this wing dam was a cider mill, and below the cider mill, but on the same wing dam was a woolen mill. One Newell formerly owned both dams and both mills. In 1878 he conveyed the lower mill, the woolen mill, to the complainant. The bounds named in the deed did not include any part of the cross-dam, but the deed contained this language: "And the said Newell hereby conveys an equal privilege in the water power and dams, to the said Haskell, provided the said Haskell shall pay one-half of the repairs made and to be made on said dam and flumes and one-half of the purchase contemplated for the upper dam, so called. It is also hereby agreed that in case of drouth said Haskell is to have the first right to use the water to the amount of two hundred and twenty-five inches.”

The "upper dam ” alluded to was a reservoir dam, some distance above the main cross-dam, and does not appear to have belonged to Newell.

In 1884 Newell conveyed to the respondents the rest of the property, " excepting so much of said estate as was sold to B. F. Haskell, (complainant) January 5th, 1878, and all rights and privileges conveyed to said Haskell at that time. ”

There was a drouth in the summer and early fall of 1884, but beyond some disputatious talk, there was no conflict in the use of the water until October 11th; on that day the respondents purchased one-fourth interest in the upper or reservoir dam from one Shuman, taking a bond for a deed (and afterwards, October 21, taking a deed). The respondents upon making this purchase, claimed a right to use one-fourth of the water, without reference to the complainant’s claim to a prior exclusive 'use of two huudred and twenty-five inches. The respondents then began to use the water for fifteen minutes during each hour, although less than two hundred and twenty-five inches was flowing. October 19th the complainant began these proceedings in equity to restrain the respondents from using-even one-fourth of the water under such circumstances.

' There is some diversity of opinion among different courts as to when a.court of equity should interfere by injunction in matters of this kind, but this court has always been conservative in this respect. It has considered the remed}' by injunction, an extraordinary remedy, and only to be used when it is evident that the ordinary remedy at law will not afford adequate relief. It has required the plaintiff to show plainly that his right is clear, and that the anticipated injury is irreparable, — that is, not reparable by recovery of damages in an action at law, whether from need of numerous or successive suits, or from insolvency of the defendant, or from derangement of business, or from some other cause.

In this case, the question of right is over the respondents’ claim to one-fourth of the water under their purchase from Shuman. The respondents do not seem to make any other claim. If this question should be determined against them in an action at law, we have no reason to doubt they would acquiesce, and would refrain from making such use of the water against the complainant. We cannot apprehend a multiplicity of actions.

The operation of the complainant’s mill is likely to be hindered only during seasons of drouth, and then only for one-fourth of the time. He. has failed to convince us that his business would be seriously deranged. We do not see why he may not readily maintain an action at law and recover full compensation, if he is in the right.

There is no suggestion of any inability of the respondents to pay damages recovered.

The situation and circumstances are widely different from those in Lockwood Mills v. Lawrence, 77 Maine, 297, relied upon by complainant. They are more nearly like those in the following Maine cases, in which the injunction was denied. Porter, v. Witham, 17 Maine, 292 ; Jordan v. Woodward, 38 Maine, 423 ; Varney v. Pope, 60 Maine, 192; Denison M'f’g Co. v. Robinson Co. 74 Maine, 116; Westbrook M’f’g Co. v. Warren, 77 Maine, 437. We think this case is within the principle of those cases.

Lnjunotion denied. Bill dismissed with costs and without prejudice.

Peters, C. J., Walton, Danforth, Libbey and Haskell, JJ., concurred.