Citation Numbers: 5 N.J. Eq. 126
Filed Date: 9/15/1845
Status: Precedential
Modified Date: 7/25/2022
The nature of the case presented by this bill, as well as the prayer of the bill, shows that the permanent relief sought by the complainants is, that the owners and occupants of the premises be confined, in their use of water thereon, to the quantity that will run through an aperture of twelve inches square; and to that end the bill prays that this court may direct in what manner the said twelve inches square of water shall be taken from the canal on Boudinot street, and in what way the same shall be guaged or measured; and that the owners and occupants be injoined from taking more water, or from taking the quantity in any other manner, or by any other mode of measurement, than shall be directed by the court.
The relief sought is resisted on one main ground, from which .two positions of defence are taken by the answer of the widow and administratrix and guardian of the minor children.
That ground is, that the quantity of water now drawn from
This ground is relied upon, first, as evidence of right to the ■quantity drawn, even as against.the deed, if it should appear .that more than the quantity mentioned in the deed is drawn ; and second, as evidence that.the particular mode used of taking the water was adopted and assented to as a sufficiently accurate mode of drawing the quantity of water .mentioned in the deed.
These positions involve so much for consideration and decision, that it will hardly be expected that the court will finally decide upon them on .the bill and answer. If I were willing •now to say, that a new mode of drawing the water should be adopted, there is not enough in the bill and answer to enable me to direct the proper mode of drawing the specified quantity. This belongs to the permanent relief sought by the bill, if the complainants finally prevail.
From the nature of the element we are to deal with, and the want of .any mode prescribed in the deed for taking the specified quantity, it is clear that the court will need, for the guidance of its judgment, facts and scientific information which the bill and answer do not give, and which can be furnished .only by the testimony of witnesses.
If, as the complainants contend, the -water should be drawn from their canal through an aperture of a foot square, where should the aperture be?—in what part of the wall, in reference to the line of the current?—under what head of water? Is the water to flow through the aperture against the resistance of water in the channel to the mill at the same level with the water in the canal; or is it to flow without other resistance than that of the air? What was the height of water in the canal when the grant was made?
It is clear that a final decision of the controversy cannot now be made ; a perpetual injunction could not now be asked.
But the complainants ask that an injunction be now granted, to be hereafter made perpetual, or be dissolved, as the case shall
I' forbear entering at' this time' into an examination of the principal points of controversy in the case. I am satisfied that a state of affairs which has existed for thirty years, and in reference to which the remedy is such as must be applied if the complainants succeed, should not be disturbed by a preliminary1 injunction. No alteration of that state of affairs is threatened, or- impending, and by the complainants’ own showing, the same state of affairs has continued for eighteen years oi" thereabouts; since they gave notice tb Daniel Holsman to confine himself to'the foot square, and since they received his answer that he was not using more; to say nothing of the right claimed from’ long user, if the quantity used’ should turn out to be more.
The late leases' or agreements to lease, ot sales, by the company, stated in their bill, are not' considered as making any such alteration in the state of affairs between the complainants and the defendants, as can be regarded on this motion;
The injunction is denied.