State v. Sunapee Dam Co.

After the former decision in this case (70 N.H. 458), the defendants moved in the superior court for the dismissal of the bill and for costs. The plaintiffs moved that the damages be assessed by an auditor, commissioner, or master, or by the court; that all parties claiming damages have leave to appear as parties plaintiff; that costs to that time be awarded the plaintiffs; and that subsequent costs abide the result of the action. The court denied the defendants' motion and granted the plaintiffs', subject to exception.

While the court are agreed that the granting of the plaintiffs' motion as to costs and admitting additional parties cannot be sustained, the justices sitting in the cause are equally divided upon the question presented by the defendants' exception to the orders denying their motion to dismiss the bill and granting the plaintiffs' motion for the assessment of damages.

Under the practice in this state during the last twenty years, it is not usual to take time to consider whether the relief applicable to the facts can or cannot be awarded in the particular proceeding. If upon a trial at law it is shown that the plaintiff is entitled to equitable relief instead of the relief sought, the form of action is changed by amendment and appropriate relief is decreed. Wilcox v. Busiel, 70 N.H. 626; Tripp v. Company, 69 N.H. 233; Brooks v. Howison, 63 N.H. 382, 389; Metcalf v. Gilmore, 59 N.H. 417, 431. Similarly, if misconceiving his remedy the plaintiff seeks it in equity instead of at law, an amendment changing the form of the proceeding removes the difficulty. Walker v. Walker,63 N.H. 321, 326; Cushing v. Miller, 62 N.H. 517, 527. It has been repeatedly said that time spent in considering whether the form of action is appropriate is wasted. Fowler v. Owen, 68 N.H. 270, 271; Gage v. Gage,66 N.H. 282, 296; Peaslee v. Dudley, 63 N.H. 220. When the objection can be obviated by amendment, it is ordered without considering its necessity. Peaslee v. Dudley, supra; Sleeper v. Kelley, 65 N.H. 206; Morse v. Glover,68 N.H. 119, 120. The avoidance of the objection is regarded as a sufficient reason for making the order. Roulo v. Valcour, 58 N.H. 347; Metcalf v. Gilmore, supra. "When on a full and fair trial the merits of a controversy have been determined, and the only objection is to the form of procedure, the prevailing party is permitted to file any amendment of his pleadings that may be necessary to obviate the objection, and thereupon to take judgment." Carpenter, C. J. in Johnson v. Association, 68 N.H. 437, 439; Holman v. Manning, 65 N.H. 228, 229; Peaslee v. Dudley, Cushing v. Miller, and other cases above cited. These cases are only a few of the cases in which the rule has been approved and applied. The practice has been followed in many other cases which did not reach the law term. It has received the approval of the bar, and been specially authorized by the legislature. Laws 1879, c. 7, s. 1; P. S., c. 222, s. 8.

In this case the facts in controversy have been fully and fairly tried, and the law respecting the rights of the parties has been settled. It has been decided that the plaintiffs are not entitled to equitable relief, but are entitled to compensatory damages. Whether the damages can properly be awarded in equity is of no importance, because if not, the defect can be obviated by filing counts in trespass. Such amendment would render the defendants' contention, that the bill should be dismissed for want of jurisdiction in equity to proceed farther, immaterial; because, assuming their contention to be sound, the action would proceed at law.

The plaintiffs have not asked for such an amendment, and as a majority of the court do not agree that it should be ordered, the questions raised respecting the assessment of damages cannot be disposed of in that way. Although the law cannot be settled, because of the equal division of the court, we feel called upon to state the reasons for our position. They are founded in part upon an understanding of the pleadings and facts of the case and the decision already rendered, which differs materially from that of our associates as disclosed in the opinion prepared by Judge Remick, and in part upon a different understanding of the law applicable to the facts.

The plaintiffs are the state, a corporation which navigated the lake with steamboats, and six owners of land upon the shores of the lake. They allege in the bill, filed March 17, 1898, that the lake is a "large natural pond" in which the public have the rights of fishing, boating, bathing, etc., and in which the plaintiffs as owners of land upon its shores have the rights of littoral proprietors; that "for several, to wit, five years past" both the public and private rights have been infringed by the defendants, by wrongfully, unlawfully, and unreasonably raising the water above and lowering it below its natural level by means of the dam maintained by them at the outlet of the lake; that the defendants claim the right to raise and lower the lake to suit their convenience; that they intend and have threatened to exercise the right, regardless of the rights of the public and the plaintiffs; and that such course will cause irreparable injury to the plaintiffs. The prayer is for an injunction to restrain the defendants from changing the natural level of the lake by means of the dam, and for such other relief as may be just. Apparently, the only equitable relief that was in the contemplation of the plaintiffs was that specifically invoked — the restraint of a nuisance whose continuance would cause them irreparable injury.

The answer sets forth the defendants' charter and alleges that they have the rights conferred by it, and that they built the dam and lowered the channel at the outlet of the lake, and have maintained the same in the exercise of those rights. It denies that they have infringed public and private rights by raising and lowering the water, and that they intend or have threatened to exercise their rights regardless of the rights of the public and the plaintiffs.

The case was referred to a referee, without objection by either party so far as appears. He reported facts of which the following are material to the present inquiry: A charter was granted to the defendants December 7, 1820, by which they were empowered "to sink the outlet of said lake at the source of said Sugar river to the depth of ten feet below the low-water mark of said lake, and to erect and maintain a dam there with suitable gates and flumes to the height of said low-water mark, for the benefit of the mills and mill privileges" on Sugar river, provided the defendants should make or tender reasonable compensation to those who should suffer damage by the erection of the dam. The defendants organized under the charter in 1821, and soon built a dam at the outlet of the lake of a height that has never been changed. Since 1851, the dam has consisted of upright timbers located at some distance from each other, having grooves on the sides into which plank are dropped. The plank are removable at pleasure. In that year, the defendants sunk the channel near the dam two and one half feet or more, but never to the limit specified in the charter. In 1880 or 1881, — an extremely dry year, — and perhaps in other years, they lowered the water to such an extent as to affect the enjoyment of the estates of littoral proprietors on the lake, and to render navigation inconvenient and dangerous. In 1845, 1851, 1859, and perhaps other years, they put additional plank or flash-boards on the dam and flowed the lands of littoral proprietors, some of whom brought suits. The defendants settled the suits, not merely to purchase peace, but acknowledging their liability. In the settlement with Pike (a predecessor in title of one of the plaintiffs), made in 1855, they agreed not to raise the water to a higher level than the point indicated by the figures "10" upon the gauge at the dam, and since then they have not claimed the right to raise it above that level. So far as stated in the report, there were no complaints of flowage between 1859 and 1897. Prior to the latter date changes were made in the by-laws of the corporation relating to the control of the dam, and a person to manage it was substituted for one previously employed. During the spring and summer of 1897, especially in May and June, an exceptionally large quantity of rain fell, and the water of the lake was extremely high, and its level was further raised by putting plank upon the dam. It did not appear who put the plank there, but the defendants' agent knew of it "and permitted them to remain until June 12, thus continuing the level of the water at an unusual height for an unreasonable length of time." His management of the dam was not reasonable and proper. On that day, the defendants, upon complaint of parties whose rights were affected by the flowage, ordered their agent to lower the water. The plaintiffs, or some of them, suffered damage at this time.

In the former opinion, the court, after deciding that the defendants' charter is valid, say "that the mere lowering of the lake by the defendants to the charter point can afford the state and the public no well founded ground of complaint, if done in a reasonable manner; and a fortiori, much less can the lowering of it only about two and one half feet, which is the extent of the defendants' acts in that regard, so far as appears. And certainly the littoral proprietors, as such, can have no better ground of complaint, because as is well understood, in public waters there is no private ownership in the soil below ordinary high-water mark. The primary ground of their grievance, and the one from which all the others follow, is the uncovering of a portion of the land underlying the water between the high and low-water mark. . . . . If this affords some inconvenience to the plaintiffs in reaching the water, or lessens the enjoyment of residences upon or nest the lake shores, there is no legal ground of complaint; it is purely damnum absque injuria." State v. Sunapee Dam Co., 70 N.H. 458, 460,461. After referring to the requirement that the defendants shall exercise their right to lower the lake in a reasonable manner, in view of the rights of others having interests in the waters and shores of the lake, and reviewing the defendants' acts in this respect, the court say: "We are of opinion that no case is established by the reported facts which entitles the plaintiffs, or any of them, to equitable relief." In other words, the plaintiffs failed to sustain the allegations of their bill in respect to the lowering of the water. So far, at least, as this matter is concerned, the defendants are entitled to an order dismissing the bill. In fact, the plaintiffs are not entitled to any remedy, legal or equitable, on this account.

It is further said in the former opinion that the charter limits the height of the dam to low-water mark, and that the defendants originally built it to high-water mark, or two feet higher than the charter authorized. But by the Pike agreement, made in 1855, the defendants limited the height to which they might raise the water to the point indicated by the figures "10" upon the gauge at the dam, which is understood to. be in the line of the natural high-water mark of the lake. Since that date they have not claimed the right to raise it higher; and the dam is so constructed that it can be readily adjusted to the capacity required for raising the water to this height. It is not a permanent structure of a given height, but a structure whose height is variable according to the number of plank in use for the time being. The court say, that upon the reasonable construction of the Pike agreement, "no violation of it by the defendants appears until 1897." After rehearsing the findings of the referee in relation to the flowage of May and June, 1897, the court state their conclusion as follows: "While the foregoing findings leave no room for doubt that the right to an assessment of compensatory damages in favor of those he plaintiffs who may be legally entitled thereto is established in the particular instance referred to, — yet, in view of the circumstances attending it, as detailed by the referee, the improbability of its repetition, and the unquestioned ability of the defendants to respond in damages, we do not think a case is made which at this time calls for the restraining power of equity by way of injunction." It could not be justly held that the dam, constructed as it was and used as it had been for more than forty years, without claim of right to use it otherwise, was a nuisance. Town v. Faulkner, 56 N.H. 255. The plaintiffs having failed to prove the existence of a nuisance that flowed their lands or infringed their rights to their irreparable injury, the injunction they prayed for was denied.

This disposed of the entire case made by the bill and answer, and the facts found thereunder. Ordinarily, under such circumstances the bill would be dismissed. But in this case the referee found facts which entitled the plaintiffs, or some of them, to "an assessment of compensatory damages," arising from the defendants' negligence in the management of the dam in May and June, 1897. Although this was a matter for the determination of a court of law, instead of a court of equity, the referee could assess the damages with less delay and expense to the parties and less expense to the public than any other tribunal. If he was not selected by the parties and appointed in accordance with their agreement, none of them objected to him or his appointment, so far as appears. If they could have objected, they waived their right to do so by going on with the hearing before him without objection. His report shows that he understood the question of damages was included in the reference. He says: "The question of damages, if any, to which the plaintiffs, or either of them, are entitled, has not been determined by the referee; that question having been deferred until the measure of the plaintiffs' rights and the defendants' duties and obligations to them, upon the foregoing facts, is determined by the court." The plaintiffs also so understood it. They say in their brief, "that the plaintiffs at the trial raised the question of damages, and the grounds upon which the referee refused to consider it are clearly stated in the report," referring to the portion of the report above quoted. They have no just ground to complain of a denial of their motion to have the damages assessed by an auditor, commissioner, or master, provided the matter is recommitted to the referee. There is evidence tending strongly to show that the defendants have so far committed themselves to the reference that they have waived their right to a trial by jury, if they would otherwise be entitled to the right. Presumably, it was in view of these facts that the court discharged the case before it, instead of 'dismissing the bill.

But suppose the conduct of the parties was not such as to require the recommittal of the question of damages to the referee; or suppose the presiding justice could properly deny a recommittal: the question arises whether he, as a court of equity in the exercise of his discretion, had authority to try the question himself, or to commit it to a master or a jury for trial, in view of the fact that equitable relief was denied. This question is of grave importance, inasmuch as an erroneous decision may deprive the parties of the right of trial by jury guaranteed to them by the constitution. Whether before our constitution went into effect there were, in equity, any "controversies concerning property" which were usually tried by jury, and which fall within the guaranty of the bill of rights, is a question that need not now be considered. Undoubtedly, the chancellor had authority to try most questions arising in equity suits, himself or by a master or a jury, according to his discretion; and parties now have no constitutional right to a trial of them by a jury. But in this state, at least, the chancellor's discretion is liberally exercised in favor of submitting such questions to a jury. Tasker v. Lord, 64 N.H. 279; State v. Currier, 66 N.H. 622; S.C. 19 Atl. Rep. 1000, where the case is more fully reported than in the state report; State v. Saunders, 66 N.H. 39. As was said in the latter case, "in our present practice there is a jury trial in many cases in which it is not a constitutional right." If the court had jurisdiction to assess the damages in this case according to his discretion, it would be in accordance with our practice to do it by a jury; and there is authority for sustaining the defendants' exception on this ground. Clough v. Fellows, 63 N.H. 133; Pearson v. Railroad, 63 N.H. 534.

But we are unable to agree that the court, sitting as a court of equity, has jurisdiction to assess these damages, or that they can be properly assessed in this suit except by a recommittal of the question to the referee, as above suggested. As a general rule, a court of equity does not have jurisdiction to assess damages for the breach of a contract or for a tort, in the absence of some equitable ground for such relief. Baily v. Taylor, 1 R. M. 73; 1 Pom. Eq. Jur, s. 112; 2 Sto. Eq. Jur, s. 799. If the court has jurisdiction of the subject-matter and decrees equitable relief, it may consider and adjust the plaintiff's damages for past injuries as an incident to the relief afforded. Coe v. Company,37 N.H. 254, 266; Bassett v. Company, 43 N.H. 249; Dennett v. Dennett,43 N.H. 499, 503; Eastman v. Bank, 58 N.H. 421; Milan Steam Mills v. Hickey, 59 N.H. 241; Gale v. Sulloway, 62 N.H. 57, 60. In the Bassett case, Bell, C. J, after stating the general principles on the subject, says: "It results from these principles, that any defence which goes to the whole ground of the relief by injunction is fatal to the bill, and such defence being sustained, the court will not retain the bill for any purpose of settling the damages." See, also, Baily v. Taylor, supra, a case directly in point; Parrott v. Palmer, 3 Myl. K. 632; McCone v. Courser,64 N.H. 506.

Courts of equity also assess and award compensation in some cases in which such action is not incidental to the relief afforded. In bills for the specific performance of contracts, if it appears that the defendant has disabled himself from performing the contract during the pendency of the suit, the court, although it cannot decree specific performance, will afford alternative relief by compelling the defendant to make compensation for his breach of the contract, and will retain the bill for the purpose of having the amount of such compensation ascertained. Denton v. Stewart, Cox. Ch. 258; Greenaway v. Adams, 12 Ves. Jr. 395; Gwillim v. Stone, 14 Ves. Jr. 128; Todd v. Gee, 17 Ves. Jr. 273; Blore v. Sutton, 3 Mer. 237, 248; Morss v. Elmendorf, 11 Paige 277, 288; Woodcock v. Bennet, 1 Cow. 711, 755; County v. Kimball, 102 U.S. 691. The same course is pursued when the defendant's disability occurs before the suit is brought, provided the plaintiff had no knowledge of the fact when he began the suit, but supposed in good faith that he was entitled to specific performance. Hatch v. Cobb, 4 Johns. Ch. 559; Kempshall v. Stone, 5 Johns. Ch. 193; Morss v. Elmendorf, supra; Milkman v. Ordway, 106 Mass. 232; Chartier v. Marshall, 51 N.H. 400; S.C., 56 N.H. 478. It has furthermore been held that where a vendor has contracted to convey a tract of land, and the title to a part of it fails, the vendee may have specific performance of the contract as to the residue of the land, and compensation and damages for failure to convey the part of which the defendant has no title. Morss v. Elmendorf, supra; Cleaton v. Gower, Finch 164; Pratt v. Law, 9 Cranch 456. In all these cases the plaintiff would have a decree for specific performance were it not for the fact that performance is rendered impossible by the acts of the defendant or some other fact. As performance is impossible, damages are awarded in place alternative relief.

The doctrine of these cases was doubted at first. In Greenaway v. Adams, supra, the court appears to have reluctantly followed the decision in Denton v. Stewart, supra. The master of the rolls, Sir William Grant, says: "If the court does not think fit to decree specific performance, or finds that the contract cannot be specifically performed, either way I should have thought there was equally an end of its jurisdiction; for in the one case the court does not see reason to exercise the jurisdiction; in the other, the court finds no room for the exercise of it. It seems that the consequence ought to be, that the party must seek his remedy at law." Denton v. Stewart is also questioned, but followed, in Gwillim v. Stone, supra, and in Todd v. Gee, supra. In the latter case, Lord Chancellor Eldon says: "My opinion upon the question, which depends on the three cases cited [the three last mentioned], is confirmed by reflection; that, except in very special cases, it is not the course of, proceeding in equity to file a bill for specific performance of an agreement, praying in the alternative, if it cannot be performed, an issue or an inquiry before the master, with a view to damages. The plaintiff must take that remedy, if he chooses it at law; generally, I do not say universally, he cannot have it in equity . . . . In Denton v. Stewart, the defendant had it in his power to perform the agreement; and put it out of his power pending the suit. The case, if it is not supported upon that distinction, is not according to the principles of the court." The doctrine, however, has become more or less firmly established in the practice of courts of equity — firmly and generally so far as it relates to cases where the defendant voluntarily disables himself from performing the contract during the pendency of the suit.

The cases cited in Judge Remick's opinion were decided either upon an application of the above mentioned principle, or upon a consideration of some supposed special equity involved in the case. of the latter class is Phillips v. Thompson, 1 Johns. Ch. 131, in which an issue of quantum damnificatus was awarded, "as the plaintiff had sustained an injury for which he ought to be compensated, and for which he had no remedy, or, at best, a doubtful and inadequate one, at law." Similar reasons were given for the decisions in Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273, Aday v. Echols, 18 Ala. 353, 357, and Jackson v. Stevenson, 156 Mass. 496. In London v. Nash, 3 Ark. 512, the plaintiff, by laches, had suffered the defendant to place himself in a position in which he would be subjected to great loss and hardship if specific performance were enforced. See, also, Brande v. Grace, 154 Mass. 210. If the form of the bill is such that a demurrer to it would be sustained on the ground that the plaintiff has an adequate remedy at law, and the defendant yields to the jurisdiction without objection, he will be bound to submit to the jurisdiction throughout, and to have damages awarded against him as if incident to other equitable relief. Creely v. Company,103 Mass. 514; Woodbury v. Company, 145 Mass. 509. "Where the bill alleges proper matter for the jurisdiction of a court of equity (so that a demurrer will not lie), if it appears on the hearing that the allegations are false, and that such matter does not in fact exist, the result must, be the same as if it had not been alleged, and the bill should be dismissed for want of jurisdiction." Jones v. Bradshaw, 16 Grat. 355. Stearns v. Beckham, 31 Grat. 379, is not inconsistent with this case or the views expressed in this opinion. See, particularly, page 420 of the report. The New York authorities cited by Judge, Remick have no weight here. "As the courts of the [that] state are now constituted, they apply legal and equitable rules and maxims indiscriminately in every case." New York etc. Ins. Co. v. Company, 14 N.Y. 85, 90; Despard v. Walbridge, 15 N.Y. 374; Phillips v. Gorham, 17 N.Y. 270; New York Ice Co. v. Company, 23 N.Y. 357.

Story's statement of the result of the authorities upon this point requires no modification when the cases cited by Judge Remick are taken into consideration. In fact, the statement is strengthened thereby. Story says: "In the present state of the authorities, involving, as they certainly do, some conflict of opinion, it is not possible to affirm more than that the jurisdiction for compensation or damages does not ordinarily attach in equity, except as ancillary to a specific performance or to some other relief. If it does attach in any other cases, it must be under very special circumstances and upon peculiar equities, as, for instance, in cases of fraud, or in cases where the party has disabled himself' by matters ex post facto from a specific performance, or in cases where there is no adequate remedy at law." 2 Sto. Eq. Jur., s. 799. "Compensation or damages (it should seem) ought, therefore, ordinarily to be decreed in equity only as incidental to other' relief sought by the bill and granted by the court; or where there is no adequate remedy at law; or where some particular equity intervenes." Ib., s. 794; Gould Wat., ss. 223, 561; Coe v. Company, 37 N.H. 254, 266.

Carpenter v. Fisher, 68 N.H. 486, is also cited in Judge Remick's opinion to sustain the views there expressed. It was held in that case that the question of the amount of damages caused to a prevailing defendant by a preliminary injunction issued against him in the suit was incidental to the principal issues, and might be determined in the suit upon equitable principles. Such damages are an incident of the suit, — arise from its prosecution, — and the court has authority to measure them and leave the parties as it found them, although they grant no relief. It does not fall within the general rule, but is an exceptional case, the "special circumstances" and "peculiar equities" of which justify a departure from general principles.

There is a New Hampshire case that singularly resembles the present case — Coe v. Company, 37 N.H. 254. The plaintiff owned lands upon the shores and islands of Squam lake. The defendants built a dam across the outlet of the lake and lowered its channel. By these means they raised and lowered the water of the lake, causing the plaintiff, as he alleged, irreparable injury, and threatened to continue the wrongful acts. The prayer of the bill was for an injunction to restrain the defendants from drawing off the water to a greater extent than it naturally flowed, and from throwing back the water by means of the dam. The defendants' demurrer to the bill was sustained, and the bill was dismissed with costs. The court say: "Upon looking to the facts alleged, they present nothing of a peculiar or extraordinary character, either in a subject-matter or nature of the injury threatened. The destruction of the plaintiff's grass and timber, the deterioration of his land, the throwing it open to cattle thus rendering additional fences necessary, and the obstruction to the passage of logs [by the dam], assuming that all these are the necessary consequences of the proceedings of the defendants, are the usual consequences of direct trespass to land, or of torts, for which consequential damages may be recovered, and for which adequate compensation may be given at law." In speaking of damages occasioned by nuisances of this kind, they say (p. 266): "For this, the remedy at law is in all respects as full and complete, and as efficacious and prompt, as in equity. Indeed, as to past damages thus sustained, equity affords no remedy when they are disconnected from all other grounds for its interposition."

Assuming that the only ground of equity jurisdiction in the present case is the abatement of a nuisance that threatens irreparable injury to the plaintiffs, the examination of the authorities and reflection upon the question that we have been able to make, lead us to the conclusion that the superior court, sitting as a court of equity, had no authority to assess the plaintiffs' damages for the torts committed in May and June, 1897, it having been determined that the plaintiffs were not entitled to an injunction. It must, we think, be admitted by everybody that a court of law furnishes an adequate and complete remedy for such torts. The plaintiffs attempted to show that the defendants' acts and threats constituted a nuisance and would cause irreparable injury, and so afforded ground for equitable jurisdiction and relief; they failed in the attempt, and the ground for equitable relief has gone out from under them. They have shown that they are entitled to relief in a court of law; a court of equity cannot afford them this relief, any more than a court of law could afford them equitable relief if it turned out upon the trial of the case in such court that they were entitled to that relief instead of the relief they sought in the action at law. The distinction in the jurisdictions of the two courts continues so far as these matters are concerned, and is very important. A loose practice in the observance of it will seriously endanger the constitutional right which parties have to a trial by jury when their property rights are in controversy. The cases in this state show that the court have been very particular not to encroach upon this right. When there is a doubt whether a party is entitled to the right or not, the provision of the constitution is given the benefit of the doubt.

There is nothing that brings the case within an exception to the general rule. The specific relief sought has not been rendered impossible by any acts of the defendants, either before or since the commencement of the suit, except so far as the inherent nature of the defendants' acts themselves rendered such relief impossible under the rules of law. The acts of May and June, 1897, were not the result of fraud, but of negligence; they were ordinary torts. We discover no special circumstances or peculiar equities calling for an assessment of the damages. The plaintiffs are not entitled to an assessment as ancillary to other equitable relief, for no such relief is afforded; nor are they entitled to it as taking the place of, or "alternative to," other equitable relief, for it does not take the place of such relief, but if granted will simply afford the relief of an action at law.

The opinion also places the jurisdiction upon another and independent ground of equitable jurisdiction — that of determining the extent of the respective rights of parties in water and water privileges, and the proper mode of exercising and enjoying them. It is a sufficient answer to this position that the bill sets forth no such case and asks for no such relief. It is true that the defendants' charter has been construed, but that was merely an incident the proceeding. If the action at law brought by Quackenbos against the defendants were tried, it would no doubt be necessary to construe the defendants' charter upon the trial The construction of the charter is a pure question of law, and in no sense an equitable question. When the case was formerly before the court, no attempt was made to specifically prescribe how the respective parties should exercise and enjoy their rights. No one has asked for a decree of that kind. It would be very difficult, if not impossible, to set forth in a decree the particular manner in which the dam shall be managed under all the varying conditions affecting the control of the level of the water, so as to afford the defendants a reasonable exercise of their rights and not trespass upon the rights of the plaintiffs. The boundary between the rights of the parties is that which is reasonable in view of all the circumstances. The circumstances are so variable and uncertain that it would seem to be impracticable to define or set up a more definite boundary in advance. The case differs from cases in which the rights of mill-owners upon a dam may be measured out to them by limiting the size of the orifices in the dam through which they take water, or limiting the number of cubic feet per second that they may draw. It differs from Conn. River Lumber Co. v. Company, 65 N.H. 290, in which it was suggested that the form, dimensions, and place of a sluice, in which the public should exercise their right of running logs over a dam across a river that was a public way, might be prescribed by a decree in equity. This seems a much less difficult problem than it would be to set forth the steps that shall be taken under all the varying conditions of water to insure to all the parties in interest their several rights. In Burnham v. Kempton,44 N.H. 78, 100, it is said: "A court of equity will not assume jurisdiction of a case under any pretence of adjusting rights in common to water-power, when it is perfectly apparent that all that is sought or needed by the parties, or either of them, is the settling and establishing of a disputed right, which depends entirely upon the application of legal principles, and where, from the character of the right in question, and the evidence upon which. it must be established, it is evidently a case peculiarly appropriate for the consideration of a jury and for a decision in a court of law." It appears from the decision already rendered in this suit that all the parties needed was a decision as to the validity and interpretation of the defendants' charter.

Nor is the equitable jurisdiction invoked in the case that of preventing a multiplicity of suits. It is true that several parties having a community of interests join in the suit; but they do not seek relief on that ground. They say that each of them suffers irreparable injury from the maintenance of a nuisance, and they pray for an injunction to abate the nuisance. They do not seek to recover the damages they have severally suffered by the defendants' wrongful acts, on the ground that equity has jurisdiction to assess and award the damages to prevent a multiplicity of suits at law. If equity has jurisdiction on this score, it does not need other grounds to support the jurisdiction. If this were sufficient ground, a bill could be maintained by the plaintiffs if their sole object was to obtain compensation for the injuries done to them by the high water of May and June, 1897. If the principle applies to this case, we do not see why it would not apply to any case in which a number of independent persons are injured by the same wrongful act or negligence, as, for example, a case where a number of persons are injured in a railroad accident, or by a fire set by sparks from a locomotive. See Tribette v. Railroad, 70 Miss. 182. Such a doctrine would take away the right of trial by jury in numerous cases in which it has heretofore been regarded as an absolute right. We are not prepared to give assent to the doctrine. It should be borne in mind that if the damages are assessed on this ground, it must be on this ground only; that the jurisdiction will not be exercised incidentally to that of other equitable jurisdiction, for no other equitable relief will be afforded.

Smith v. Bank, 69 N.H. 254, is cited as an authority sustaining the position taken on this point in Judge Remick's opinion. The defendants in that case were trustees of property held for the benefit of the plaintiffs. The prayer of the bill was for a discovery and accounting, and for a determination of the damages caused by the defendants' negligence in the management of the trust estate, and a decree that the defendants should pay the same. The damage was a single sum depending upon the nature and extent of the negligence and its injurious effects upon the rights of the beneficiaries. When determined and recovered, it would be a trust fund in which the plaintiffs would be entitled to share according to the amount of bonds severally held by them — a matter that could be readily determined by computation. If the plaintiffs had brought several actions at law, not only the question of the defendants' negligence would necessarily be determined upon the same evidence, but the damages would be assessed upon the same principle, and necessarily ought to be the same sum. It would be useless litigation and a multiplicity of needless suits to have these questions tried seventy-nine times (there being seventy-nine plaintiffs), when a single trial would settle them. It should be noticed, also, that no question was raised as to the rights of the parties to a jury trial; they have had two jury trials covering numerous issues of fact that arose in the case, both having all the characteristics of, and being treated in all respects as if they were, the common-law jury trials guaranteed by the constitution. Smith v. Bank, 70 N.H. 187; S.C. ante, p. 4. In the present case, the assessments of damages must of necessity be several. The nature and extent of the injury suffered by the plaintiff Quackenbos depend upon the location, nature, and extent of his particular land and its appurtenances, while those of the plaintiff Hay depend upon the extent and peculiarities of his property. It would be very inconvenient, if not impracticable, to assess the damages each plaintiff's injury on a single trial.

As the court are equally divided upon these questions and as to the propriety of ordering an amendment, the question arises what action can be taken in the case. This question was exhaustively considered in Northern R. R. v. Railroad, 50 N.H. 166, and the conclusion was reached that in that case nothing could be done except to continue the case for further advisement. In a later case, State v. Perkins, 53 N.H. 435, it is said that, as a result of the former case, a rule was adopted by which in civil cases and cases for misdemeanors verdicts depending upon questions of law reserved should generally be sustained when the court were equally divided, in the absence of a good reason for a different course. Diligent search has failed to discover a record of this rule. Inasmuch as, if now in force, the rule leaves open the question whether it should be applied in a particular case, it cannot be effective to dispose of a case unless a majority of the court shall agree that the case is one in which it should be applied. In this case, there is no question of sustaining a verdict or ordering judgment. Upon exception to certain interlocutory orders, the superior court reserved the question of law for the determination of this court. The court is unable to determine the question. The result is that this portion of the order cannot be set aside nor be affirmed; it stands, — without any decision as to its legality, — for such further action as the superior court shall see fit to take.

Case discharged.

WALKER, J., did not sit, having been of counsel.