Powers v. Bald Eagle Boom Co. , 23 W.N.C. 485 ( 1889 )

Opinion,

Mr. Justice Williams :

fThe maxim of the common law, that wherever there is a right there is a remedy for its infraction, has never been adopted by courts of equity. A party whose right is clear may sleep upon it until his demand becomes stale. He may look on while valuable structures are erected, when he might successfully object, and remain silent until large sums have been expended or important intervening interests have grown up. In such eases the fact that he might have objected at the outset will not avail him. A suitor must not only appear in a court of equity with clean hands, but he must come with reasonable promptness, in good faith, and with a just and equitable demand; otherwise the conscience of the chancellor will not be moved. If an injunction is prayed for where upon a consideration of the whole case it ought not in good conscience to issue, a mere legal right in the plaintiff will not move the chancellory

An application of these well settled principles of equity jurisdiction to the plaintiffs’ case is fatal to it. The Bald Eagle Boom Company was incorporated in 1859. Its boom was constructed soon after. In 1868 and 1869, the addition to the boom complained of by the plaintiffs was built, and a shear boom hung to turn the logs from the north shore of the stream into the main structure. The boom as extended has been in constant use since 1869. It is in an important sense a public improvement, in the maintenance and use of which the lumbermen and owners of timber lands on the Bald Eagle creek and its tributaries are interested. Thousands of dollars have been invested in it and in mills that are made accessible by it, and many millions of feet of timber are annually caught in it and rafted out to be manufactured at the mills in Lock Haven and other places down the stream. During all this time the plaintiffs have not been heard to object to the work of construction, but have applied for and secured an assessment of their damages on account thereof; and on one or more occasions, since, have recovered damages resulting from an overflow of their land when the boom was filled with logs.

The plaintiffs now assert that the boom company had no right to build the piers of the extension of the boom where they were built in 1869, and ask that the corporation be “restrained by injunction from continuing and maintaining their booms erected in said creek and forever hereafter from the erection and maintenance of like illegal structures in the same.”

This denial of the right of the boom company, coming after so many years of acquiescence, after the boom has become a necessity to the mills that have grown up in its neighborhood, and after the damages sustained by the plaintiffs in consequence of the construction of both the original boom and the enlargement in 1869 have been assessed at their instance and paid by the boom company, comes too late to be conscionable. There is no equity in the plaintiffs’ case, and the court below would have been fully justified in dismissing the bill for that reason. But if we turn now to the question of construction presented by the first and second assignments of error, the plaintiffs are equally without solid ground on which to stand.

The act of 1859 authorized the Bald Eagle Boom Company to “ erect and maintain on the south side of Bald Eagle creek such boom or booms with piers as may be necessary for the purpose of stopping and securing logs, masts, and spars or other lumber floating upon said creek, and such piers, side branches, or shore booms as may be necessary for that purpose,” with a proviso that the boom should be so constructed as “-not to impede the navigation of said creek or the branches thereof.” The plaintiffs insist that the words “ on the south side of Bald Eagle creek” require the boom company to build on the south side of the middle line of the creek, or at most to include only the south half of the stream. But what is a boom ? It is an inclosure or artificial harbor for logs and lumber, of which one side is furnished ordinarily by the natural bank of the stream and the other is provided by the piers and the timbers or other obstruction to the passage of logs which connect them together. An act authorizing the construction of a boom on the south side of a stream is authority to use the shore on that side as part of the inclosure and to erect in connection therewith the piers necessary to complete the inclosure on the other side.

Where these shall be located may be settled by the statute by words of direction, as “ to be built along the middle of the stream” or “not to approach the opposite shore nearer than one hundred feet,” or other expression indicating the purpose of the legislature to confine the exercise of the power granted to certain definite limits. In the act before us the only limitation is found in the proviso which declares that the piers shall be so built as “ not to interfere with the navigation of the said creek or its branches.” The boom is to be so built that the south shore shall be occupied for that side of the inclosure. The open channel for navigation is to be on the north side, and is to be sufficient for the purposes of navigation. Subject to the restriction in the proviso, the boom company may so locate their piers as to enable them to meet the purposes for which their incorporation was intended.

It follows from what has now been said that the ruling complained of in the third assignment was entirely proper so far at least as this case is concerned.

The plaintiffs’ remedy is not in equity but at law. Whether that remedy is under the act of incorporation or whether, upon the facts of this case, an action can be maintained, is not before us, and we are quite willing to wait until it is presented before expressing an opinion upon it.

The decree of the court below is affirmed at the costs of the appellants.