Wheeler v. Steele

Trippe, Judge. 1. The injunction was granted restraining the defendant from increasing the height of the dam. So far as it was made to appear at the hearing for the injunction, the mill-dam was completed, and there was no charge in the bill that the defendant had threatened or purposed to raise it higher. Nor was there even any affidavit showing such intention. On the contrary, the defendant denied, under oath, that any such intention existed. There was, therefore, nothing calling for the injunction on that point. If such an effort be made hereafter by the defendant, there will be time enough for complainant to move. The injunction also forbade the defendant to strengthen the dam, or to do anything to make it more permanent than it now is. This was denying to the defendant all right to protect any portion of the dam. If it be eight feet in height, it may be ascertained on the final hearing that a reduction of two or three feet may relieve complainant of- the damage complained of. The prayer of the bill is not that the dam be destroyed or totally removed, but that the proper height of it shall be determined and fixed by a decree. There is also a prayer for general relief, etc. Under these prayers, complainant can obtain security against future damage, and indemnity for what has accrued to the time of trial. • 2. We think the best direction to be given to the case is to [39] remit the parties to an adjustment of their rights at the final hearing, when the height of the dam can be fixed by a decree so as to prevent further damage trecomplainant. In the meantime, the owner of it should nob- be disabled from protecting it against destruction by high waters, or other accidents, as is done by the injunction granted. The defendant is not charged to be insolvent and incapable of responding to any recovery that may be obtained by complainant. It does not appear that the trespass is irreparable in damages, or that the injunction is necessary to avoid circuity and multiplicity of actions. Section 3002, New Code, provides, “where the consequences of a nuisance, about to be erected or commenced, will be irreparable in damages, etc., a Court of equity may interfere to arrest it before it is completed.” So, also, by section 3219, will a trespass be restrained where the injunction is necessary for the avoidance of multiplicity of actions. Here the damages can be ascertained in the pending suit, and one trial may finally adjudicate all rights. The order of the Chancellor, as granted, would be an indirect way of abating a nuisance already existing, by injunction, by leaving it to time and accident and decay to do the work of destruction. Judgment reversed.