Burden v. Stein

GOLDTHWAITE, J. There are cases to be found in the English books, to the effect that chancery will not interfere to quiet the possession by restraining a private nuisance, urn less the right of the party has been established at law, or the party has been in possession for at least three years. — Brown’s case, 2 Ves. Sen. 414; Vernon v. The City of Dublin, 4 Brown’s P. C. 128 ; Sapcote v. Newport, Carey, 47. But the doctrine as to the length of possession, as was said by Lord Hardwicke in the case first cited, is drawn from the statute as to forcible entries. It seems, also, to be the rule in relation to cases of this character, where the title has not been established at law, and the works have been permitted to remain as long as three years. — Weller v. Smeaton, 1 Cox, 102 ; S. C. 4 Brown’s C. C. 497 ; Reid v. Gifford, 6 Johns. Ch. 19. But it is doubtful whether this doctrine applies to cases where the plaintiff’s title is fully established upon the face of his bill. — Reid v. Gifford, 1 Hop. Ch. 416, 418-19. However this may be, it has no application in the present case, for the bill here is not in the nature of a bill of peace, but an application for the interposition of chancery to prevent an injury ; and in relation to the power and propriety of the interference of this court, in such cases, where the right of the plaintiff is clear, and the injury of such a character as would not admit of full reparation in a court of law, or of such a nature that its continuance would occasion a constantly recurring grievance, which might involve the necessity of interminable litigation, the law is, at the present day, well settled. In such cases, chancery will, by virtue of its inhe — 113 — rent powers, based upon the inadequacy of the legal tribunals to afford full and complete redress, do equity, so far as its preventive powers'will allow, by enjoining the wrong-doer from the continuation of his wrong. — Story’s Equity, § 925, and cases there cited. And in no cases, of late years, has this power been more frequently exerted, than for the purpose of averting injuries which would result to riparian proprietors from the unlawful diversion of the water to which they are entitled. — Story’s Eq. § 921, and cases there cited; Webb v. Portland Manufacturing Co., 3 Sumner’s R. 189. The jurisdiction of equity resting upon the defective powers of the courts of law, it follows that, in all this class of cases, where the title is clear, there is no necessity for establishing the right at law in the first instance. The case made by the bill falls directly within the principles to which we have adverted. The complainant alleges that he is a riparian proprietor, — that he owns the lands on both sides of the stream, on which he has erected a valuable grist mill, which he is at times compelled to stop working from the diversion of the water by the defendant; and that still greater injury will ensue, if he is allowed to divert the water in the quantity •which the additional works he is erecting will enable him to do. " We think that, under the rules which govern an action at law, when brought for a wrong of this character, the complainant could not, in a just and equitable sense, obtain full reparation in such an action ; but if it was fully adequate, as the act is continuous in its character, the jurisdiction of chancery may well be supported, on the ground that the injury might involve the necessity of a multiplicity of suits. From what we have said, it follows, that there was no necessity of alleging in the present bill either that the right of the plaintiff had been established at law, or that he had been in possession of the land for three years ; and that the action of the court, holding that the bill was defective for the want of one of these allegations, was erroneous. One of the grounds taken on behalf <3f the appellee, is, that the water now diverted by Stein was originally taken by one Page, who was the owner of the land where Burden’s mill now stands, to supply a mill on another tract of land — 114 — owned by bim ; and that the conveyance under which Burden claims, being made when the water was so used, must be held to convey only the water in its diminished flow at that time. But we cannot yield our assent to this position. The conveyance is an absolute one, without any reservation ; and as the water is as much the freehold as the soil over which it flows, it must pass by the deed, unless there is some principle upon which it can be excepted. There are, it is true, some easements in which the law implies a reservation in favor of the grantor, although not expressed ; but this is only where the easement is absolutely necessary to the enjoyment of the land retained; as where one has several distinct parcels of inclosed land, and he sells all but one surrounded by the others, and to which he has no way except over one of the lots he has sold : there the law creates the right of way as an implied restriction incident to the grant, upon the presumption that the grantor could not have meant to deprive himself of all use of his remaining land. — Packer v. Welsted, 2 Sid. R. 39 ; Clarke v. Cogge, Cro. Jac. 170 ; Dutton v. Taylor, 2 Lutw. 1487 ; Howton v. Fearson, 8 Term R. 50 ; Buckby v. Coles, 5 Taunt. 311; note 6 to 1 Saund. R. 323 ; 3 Kent’s Com. (5 edit.) 421-22-23. But _where there is no such necessity, the doctrine has no application, being founded on that alone; and in the present case, there is not the least pretence for the claim on the part of the appellant, as ho does not claim under Page, or his grantee, Anderson, but independently of them. It is also insisted on behalf of the appellee, that as the evidence shows that Stein commenced his works some years before Burden filed his bill, 'it is such laches as should deprive him of the right to the interposition of equity in his behalf. It is certainly true that the court of chancery, in granting injunctions to preserve the property, in cases where the right is not clear until established at law, will .refuse the exercise of this power in cases where it is shown that the plaintiff has boon guilty of any improper delay in applying to the court — where there has been acquiescence, not in the sense of conferring a right upon another party, but acquiescence in the sense of depriving him of the right to the interference of a court of equity, (Hilton v. The Earl of Granville, — 115 — Cr. & Ph. 283 ; Dan. Ch. Pr. 1859-60); and the case of tbe Birmingham Canal Co. v. Lloyd, 18 Ves. 515, means, as we understand it, nothing more than this. There can be no possible reason for the application of the principle, where the right of the plaintiff is clear, and the injury of a character which would entitle him to call upon the court to interfere without resorting to law in the first instance. If, indeed, the party has acted in such a manner as would estop him from the assertion of his right — if he has by his conduct induced the other party to alter his situation, under such circumstances as would render it inequitable for him to complain, the case would be different. But the answer sets up no such defence, nor does the evidence found in the record afford any reason to believe that, if set up, it could be sustained. We consider, then, that the right of the appellant is clear —that by the evidence 'he has established his right as riparian proprietor to the use of the water in its accustomed flow, by proving that he is the owner of the lands on both sides of the creek, and that Stein has diverted the water in pipes to the city of Mobile ; and this act, although not attended with actual damage, if done in violation of a right, was held by Judge Story, in Webb v. The Portland Manufacturing Company, supra, to be a sufficient ground to warrant the interference of a court of equity by way of injunction. Here, however, the evidence establishes that the diversion of the water was an actual injury to the appellant. It is true that one of the witnesses, who measured the volume of water in the spring of the year, found it at that time to be sixty times greater than the quantity diverted by the pipes ;■ and another, who measured it in January, states substantially the same fact. But this testimony is worth very little, if anything. None of the witnesses on the other side, who prove the injury, pretend that, at a high Stage of water, there is not enough to supply both the pipes and the mill. They speak of the quantity diverted at low water. The creeks are generally full in January and the spring ; and the stage of water at such times is no criterion whatever as to the quantity of water which flows in the summer and fall. The witnesses for the appellant, upon this point, most of whom have had peculiar opportunities, all agree that, when the creek is low, from one-fourth — 116 — to one-third of the water is taken off in the pipes, and that the diversion of this quantity is, at these times, greatly injurious to the mill; and they agree, also, that with the aid of the works which are in process of erection, double the quantity of water could be taken through the pipes. To be sure, the answer asserts that no greater quantity would in fact be drawn off than is required for the use of the city of Mobile, which the pipes already supply ; but we cannot shut our eyes to the fact, that the consumption might be greatly increased by the reduction of the price, and the growth of the city. But we do not regard this as material: If Stein has no right to take the water, and the diversion of it by him works an injury to another party who is entitled to its use, it is, as we have seen, good ground for the interposition of a court of equity. But it is insisted in argument for the appellee, that by virtue of his lease from the city of Mobile, and its ratification by the legislature (Acts 1841, p. 53), the act of 1820 (Toulmin’s Digest, p. 793), and the other acts in relation to the same subject, he is unqualifiedly entitled to the use of the water for the purpose of supplying the city of Mobile ; and the argument is attempted to. be rested on the right of eminent domain. We fully recognize this right in the assumption and appropriation by the sovereign of private property for public * uses ; but it can only be exercised on making just compensation to the owner. — Con. Ala. art. I, § 13. We fully admit that the affording to a city or town a supply of water is a public use, within the meaning of the constitution; but the acts under which the appellee claims do not, and could not, confer upon him the power to deprive other proprietors of the right they have in the water, which is indeed part of their freehold. This we held in Burden v. Stein, 24 Ala. Stein can obtain the right to the water by pursuing the course pointed out by the statute (Acts 1841, p. —); but until he does this, the rights of the owner are not divested, and he ’ may resort to any legal or equitable remedies which the law affords, to redress the injury, or prevent its continuance. In relation to the statute of limitations of six years, it is only necessary to observe, that it is no defence in cases of this character. If the suit was at law, for the temporary diver — 117 — sion of tbe water, it might be different; but when the application is to a court of equity to interpose its preventive powers against the continuance of an unlawful act, it cannot be set up. The water, as we have said, is a part of the freehold, and a right to it by prescription can only be acquired by the use of it for the same period of time which by the statute bars an entry on lands which, at the time of the filing of the bill, was twenty years. — Olay’s Dig. 327, § 83. The only remaining question is, whether the corporation of the city of Mobile should have been made a party. It may be true that Stein is the lessee of the corporation, but he can have no higher powers under the lease than his lessor. The statutes which have been referred to conferred no right upon the corporation to divert the waters of the Three-mile creek, without making compensation to the riparian proprietors. His acts, as charged by the bill and proved by the testimony, are entirely outside oí his lease ; and as to these acts, as he cannot be regarded as lessee of the corporation, it was not necessary that it should be before the court. Decree reversed, and cause remanded, the appellee paying . the costs of this court.