Bitting's Appeal

Mr. Justice Gordon delivered the opinion of the court, March 24,1884. The effect of the demurrer was to admit all the material allegations of the plaintiff’s hill. Such being the case, the right of the plaintiffs to have and use, for the purposes of irrigation, the waters of Angelica Creek, through the race or faces on the north side thereof, every sixth and seventh day of the week, from the 1st of April until the 15th of August, in each and every year, as well as the right of entry on the lands formerly of Jacob Kurtz, now of the defendant, at the times mentioned, for the purpose of opening the gates or sluices necessary to turn the water upon their meadows, has been fully established. For the same reason, also, wé must take as admitted the fact that the defendant has prevented the exercise of the plaintiffs’ right refusing them the water, as.above described, and by adopting such measures as are intended to prevent such use in the future. There being thus no dispute over the facts of the case, or about the rights of the plaintiffs, we have for answer but the single question, whether *a court of equity will interfere to prevent a wrong of this kind, or whether the remedy is to be found only in a court of law? We are inclined to think that the answer to this proposition is not at all difficult, and for it we need go no farther than the 13th section of the Act “of June 13,1886, which Act, with the subsequent one of February 14, 1857, clothes the Courts of Common Pleas with equity powers. The 5th placitum of the section cited, empowers the courts therein mentioned to prevent or restrain the commission or continuance of acts contrary to law, and prejudicial to the interests of the community, or the rights of individuals. The power here conferred is very extensive ; it is, indeed, hard to conceive how it could be made [521] more general, and whilst we agree that it is nevertheless limited to those eases where there is no specific or adequate legal remedy, we must hold that the case in hand is one falling within both the letter and spirit of the statute. The plaintiffs have a valuable and continuing right in the use of the waters of Angelica Creek, which the defendant not only has obstructed, but continues to obstruct, and though his counsel most earnestly contended that an action at law would furnish the plaintiffs with a complete remedy, yet such is obviously not the case. As we have said, the right is continuing or perpetual, and measurable only by the duration of the flow of the waters in the stream, and an action at law must necessarily lie for every several disturbance of that right. It thus follows, that as there is no end to the right, so there can be no end to the common law actions which may be brought for its vindication, and as the right is immeasurable, so are the damages which may result from a continuance of its obstruction. It would be all very well if Frill could, by his own arbitrary act, compel the plaintiffs to resign to him their property in this privilege by paying to them what a jury might happen to say it was worth, but as this cannot be done, as the plaintiffs’ right cannot thus be forced into market, the defendant must be content to acquire that right by purchase, or, as an alternative, restrain his disposition to meddle with that which does not belong to him. The case of Scheetz’s Appeal, 11 Cas., 88, is in point. In this case there was a bill praying for an injunction to prevent the defendant from interfering with the plaintiff’s right to enter upon, clean and clear from obstructions, a stream called Sandy liun, flowing through the land of the defendant, to the use of which the plaintiff had a prescriptive right for the purpose of driving the machinery of his grist mill. The bill was sustained and the injunction granted. In the opinion of this court, delivered by Mr. Justice Thompson, it was said that in a case like this damages at law would be wholly inadequate to the vindication of such a right, and that successive suits for successive interferences, instead of redressing the wrong would, in the end, be worse than the wrong itself. The learned justice also calls attention to the fact, that equity will interfere to prevent acts of trespass and nuisance, where redress can be had only through a multiplicity of suits, or where the wrongful acts may become the foundation for an adverse right, such as the diversion of water. On similar principles, equity will interfere to compel the restoration of a violated right, as the closing of windows and other openings left in a party wall: Vollmer’s Appeal, 11 P. F. S., 118, and Milne’s Appeal, 31 P. F. S., 54. [522] ■It is true, as was said in Rhea v. Forsyth, 1 Wr., 508, a-court-of equity will not ordinarily interfere to prevent the disturbance of an alleged easement when the right of the complainant is doubtful or seriously disputed, until he' has established his claim by an action at law. But even in such case, the court may retain the bill until the plaintiff: has -had time to settle such right in a court of common law, and if, in the meantime, it appears to be necessary, the defendant may be enjoined from meddling with the easement; in other words, the chancellor may keep things in statu quo until he is in a-position to make a final decree. But in the case in hand, the right of the plaintiffs-was confessed, so that the court below had' nothing to do but to overrule the demurrer, order the defendant to answer over, and proceed to a final decree. The decree of the court below is now reversed and set- aside at the costs of the appellee, and a procedendo is awarded. • ■