Morse v. Whitcher

The plaintiff seeks, by bill in equity, to enjoin the defendant from dropping sawdust from his mill into the brook and through that casting it upon her land, and from occupying her land with a building and lumber, and for a decree for damages. A referee has found that the defendant, against the plaintiff's consent, has occupied and continues to occupy a small portion of her land with a building used in connection with his saw-mill upon his own land, and also for the purpose of piling lumber there, and has found the damages she has suffered by the unreasonable deposition of sawdust upon her land from the plaintiff's mill.

The defendant has an unsatisfied mortgage against the plaintiff's land. Having the right of entry and possession against the plaintiff under his mortgage, no injunction can be granted against the mere entry upon the land by the defendant and his occupation of it with a building and lumber. But the mortgagee's right of entry under his mortgage is limited to the case of protecting and availing himself of his mortgage security. Although he may not be liable in an action of trespass for an unlicensed entry upon the land (Chellis v. Stearns, 22 N.H. 312), he cannot justify a needless waste or destruction of the property; and for the mortgagee's acts, resulting in a devastation, destruction, or permanent injury, the mortgagor or tenant in possession has a remedy. Morse, Adm'r, v. Whitcher, post 591.

The plaintiff has established the fact of injury to her land by the defendant's unreasonably depositing sawdust there by means of his saw-mill operated on his own land and not for any purpose of protecting his mortgage security. For this injury she is entitled to damages. It is not always that an injunction will be granted in case of a nuisance, although the plaintiff's right has been established. Wason v. Sanborn, 45 N.H. 169. But when, as in this case, the acts of the defendant, if continued, will permanently lay waste the plaintiff's land and destroy it for any useful purpose, and a remedy at law can be had only by repeated suits for damages with continuous and mischievous litigation, the defendant will be restrained by injunction. Against the unreasonable deposition of sawdust upon her land from the defendant's mill the plaintiff is entitled to an injunction, with a decree for the damages found.

Decree for plaintiff.

BLODGETT and CARPENTER, JJ., did not sit: the others concurred.