McCann v. Chasm Power Co.

Houghton, J.: We think this case comes within the principle applied by this court in Loukes v. Payne (140 App. Div. 776) and in Whalen v. Union Bag & Paper Company (145 id. 1), and that the injunction granted against the defendant maintaining its dam at its present height should he suspended until the plaintiffs are able to show some substantial injury therefrom. The defendant’s dam is at the. lower end of a chasm on the Chateaugay river. The walls of the chasm are perpendicular and consist of bare rock. The defendant owns flowage rights up the chasm for a certain distance. When its dam is full the water backs up the chasm 420 feet beyond defendant’s upper line and makes the water deeper in that part of the chasm belonging to the plaintiffs. No land or timber is overflowed. The water is simply raised up the sides of the rock, which extend more than 50 feet above the heightened water surface. The learned trial court found that no actual damage had been sustained by the plaintiffs and awarded only six cents damages, hut adjudged that the plaintiffs’ rights had been invaded and granted an injunction against the defendant maintaining its dam to such a height as would flow the water back upon their lands. A compliance with' this direction would necessitate a lowering of the defendant’s dam about eight feet, greatly impairing its efficiency and in the dry season would make the water power practically useless. The defendant company is engaged in the generating of electricity and some of the plaintiffs are owners of its stock. While some of the plaintiffs deny that they had said their only wish was to put the defendant into bankruptcy, it is perfectly plain that they are actuated by some ulterior motive and desire to harm the defendant without obtaining any particular benefit to themselves. Some of them helped build the dam, knowing that the water would flow back in the gorge beyond the defendant’s lands, and then they subsequently purchased the lands off the upper riparian owners with the manifest intention of making trouble for the defendant. Their excuse now is that they , desire to develop a water power above the defendant’s lands. It does not appear how far up the river the gorge extends [306] except that it does extend further than the water flows hack when the defendant’s dam is full. While the plaintiffs could huild a dam in the gorge at their line there would be no mill site, at that point, the bank on which it could be built being-fifty feet above the water, and they could not carry the water downstream through a water trunk to any place where a mill might be located without interfering with the defendant’s dam. If they desire to develop a water power they must go further up the chasm where a site for a mill can be found. That part of the chasm, therefore, which is flowed by the maintenance of .the defendant’s dam is utterly useless to the plaintiffs, except perhaps as a tailrace for a water power which they may develop further up the river. As the situation now exists the plaintiffs are not in the least harmed by having the water a little higher than it naturally would be in that part of the chasm owned by them, while if the defendant is compelled to lower its dam. it will be very seriously' injured. Where an injunction cando no good to a plaintiff and will greatly harm a defendant it should not be granted. Although technically one’s legal rights may be invaded equity is not necessarily compelled under all circumstances and at all hazards to grant injunctive relief. Such legal rights can be preserved by granting such relief as the present situation demands and suspending the injunctive relief until such time as substantial damage shall be suffered by ■ the plaintiff or shall be impending. - The judgment for six cents damages preserves the title of the plaintiffs and prevents the defendant from obtaining any prescriptive right of flowage, and that part of the judgment should be affirmed. That part of the judgment granting an injunction' should be modified by suspending its present operation and providing that the plaintiffs may at any time apply at the foot of the judgment, upon showing substantial injury from any cause to them hereafter occurring, for an injunction substantially as provided in the present judgment, or as the court may direct, or at their election the plaintiffs may bring such separate action for such or other relief as they may be advised on [307] account of any injury to their property hereafter occurring, and as so modified the judgment appealed from should he affirmed, without costs to either party. All concurred, except Betts, J., dissenting in opinion.