Switzer v. McCulloch

Lewis, J., delivered the opinion of the court. — 784 — The controversy in this case grows out of the erection and maintenance by the appellant of a certain dam across Mill creek, in Botetourt county, a stream' flowing through -the lands of the appellee, and upon which stands the mill •of the appellant. The prayer of the bill is for an injunction to restrain the appellant, the defendant below, from further repairing and maintaining said dam, and also that he may be required to remove the same. Both parties derive title from John Beale, who died .about the year 1810. Soon after his death, his land was partitioned among his heirs by commissioners appointed by the county court of Botetourt county, and was divided into four parcels. Lot No. 1, the uppermost on Mill creek, •containing 171 acres, was allotted to Robt. Beale; lot No. 2, containing 182J acres, the next below, to George Beale; lot No. 3, the next, containing 231J acres, to Mary Beale; and the next, lot No. 4, containing 3 acres, with mill and .appurtenances, was reserved to be held in common by the widow and heirs of John Beale. The head of the race through which the water flows .-from the creek to the mill is on the tract allotted to Robt. Beale, and before reaching the mill passes through the other tracts just referred to. In their report to the county •court, which was adopted, the commissioners say: “ It is our opinion, and we direct, that the water in the race be not under the control of the different proprietors of the land, but be considered as part of the property held in common.” By successive conveyances the tracts allotted to Robt. and Geo. Beale, respectively, are now owned by the appellee,-and lots Nos. 3 and 4 are now owned by the appellant. In the year 1818, the widow conveyed her interest in the mill property, “ together with her right to the use of the water, the dam and race.” — 785 — About tbe same time, all the heirs of John Beale, except Kobert, conveyed their interests in the mill property and their right to “ the ditch which conducts the water to the mill and the entire and exclusive use of the water and the dam by which the water is raised from the creek to the ditch.” Afterwards, in 1825, Kobt. Beale conveyed his interest in the same property, together with “his interest in the ditch, dam, and water appurtenant to said mill.” By the words quoted from the report of the commissioners and the said conveyances, the easement on the lands of the appellee was created and defined. At the time those conveyances were made, and in fact before the death of John Beale, the dam by which water from Mill creek was supplied for the mill was at a point on the creek (designated in the record as the rock and willow) about 50 yards distant from the head of the race. It was built on a solid limestone rock foundation, was easily kept in repair, and furnished an ample supply of water for the operation of the .mill. Its foundation is the only solid foundation for a dam on appellee’s lands, and is superior to any location above. At a point between 80 and 100 yards above this dam the natural flow of water in the creek makes a detour, somewhat in the shape of an irregular horse-shoe, near the lower heel of which is the head of the mill-race. In the year 1860, C. C. Spears, the grantor of the appellee, in order to straighten the channel of the creek, cut a ditch through which the water flowed in a straight line from the upper end of the curved channel to the dam referred to. The result was to greatly increase the velocity of the flow of water in the creek, and thereby often to cause the bed of the dam to fill up in large measure with mud, gravel, and stone. This greatly interfered with and at times prevented a sufficient flow of water into' the race for the operation of the appellant’s mill, and thereby occasioned him in — 786 — convenience, labor and expense. In course of time the dam itself was swept away. Accordingly, about the year 1870, the appellant, in order to restore the flow of the creek into its original crooked channel, erected a dam at the head of the Spears’ cut, and about the same time another darn across the channel just at the head of the mill-race. Thereupon the appellee, complaining that his lands were injured in consequence of the erection of the dam last referred to, sued the appellant at law to recover damages; but judgment in that suit went against him. The parties, then, in order to finally settle their differences, entered into a compromise agreement. The appellant claimed that he had been injured by the change made in the channel of the creek by the appellee’s grantor, Spears, and claimed compensation for the injury, and also for the restitution of the channel and flow of the water as it was before the change was made. It was, therefore, agreed that the appellee should pay the appellant $500, and the costs of the suit at law, and the sum of $200 for counsel fees; the appellant agreeing in consideration thereof, at his own cost, to restore the flow of water as it originally was. It was expressly stipulated that the appellant’s rights to the water should remain as they were before the change was made by Spears in 1860, and unaffected thereby. The dam erected by the appellant at the head of the ditch is on an alluvial foundation. It is constructed by placing logs across the creek, penetrating each bank, and then lined with brush and covered and packed with alluvial earth taken from the appellee’s land at that point. It is built obliquely across the channel of the creek, is higher than was the original dam, 50 yards below, at the rock and willow, and is higher than is necessary to turn into the race a supply of water for the mill, and often turns into the race a quantity of water greater than its capacity will convey to the mill. — 787 — The consequence is that the land of the appellee is freqently overflowed and injured by the water that escapes over the banks of the race. Moreover, the appellee complains, and the testimony shows, that he is subjected to annoyance and his land to further injury by the frequent hauling over it by the appellant of materials for the repair of the dam, which, being constructed in the manner and of the material described, is often out of order and in need of repairs. In repairing it, the soil of the appellee is shovelled upon the dam, often in large quantities, which causes the banks to wash, and thus occasions damage, and threatens still further damage to the appellee. The appellant demurred to the bill; and in his answer he insists that he had the entire and exclusive right to the water of Mill creek passing through appellee’s lands; that he ought not to be restricted to a dam at the rock and the willow as it originally stood; and that he has not invaded the rights of the appellee. He insists that the judgment at law and the said compromise agreement constitute a full and final bar to the maintenance of this suit against him. Upon the hearing the court below overruled the demurrer, and being of opinion that the appellant had no right to raise water from the creek into the race, except by means of a dam as it originally was at the rock and willow, ordered that the appellant remove the dam at the head of the race within a certain .time, and all obstructions placed by him in the original channel above the old dam, but decreed that he be allowed to rebuild the dam at the old site, and of the heighth of the old dam, and no higher. From this decree an appeal was allowed by one of the judges of this court. In the petition for an appeal there are three assignments of error: 1. That the court erred in overruling the demurrer, as the case is not within the jurisdiction of a court of equity. — 788 — 2. That the court erred in ignoring and failing to pass on the plea of “former judgment.” 3. That the court erred in construing the appellant’s muniments of title to the easement of the water power of Mill creek and his rights thereunder. These assignments will be noticed in the order in which they are presented. 1. The jurisdiction of a court of equity to interfere by injunction, in the case of nuisance, trespass, and the like, to restrain irreparable mischief, to suppress oppressive litigation, or to prevent a multiplicity of suits, is too well established to admit of doubt. In the case of Hanson v. Gardener, 7 Vesey, 305, an injunction was granted where the defendent claimed common of pasture and estovers; and in that case Lord Eldon observed that the law as to injunctions had changed very much, and that they had been granted much more liberally than formerly; that they were granted in trespass when the mischief would be irreparable, and to prevent a multiplicity of suits. In High on Injunctions, § 516, it is said that where an injunction is sought to prevent interference with the enjoyment of property by the erection of a dam, equity will not be governed by the mere value of the property, nor will relief be denied because complainant’s title has not been established in an action at law, since the modern doctrine of courts of equity is much more liberal than the ancient. * * * Therefore a bill to enjoin the further construction and maintenance of a mill dam is not demurrable for want of equity, in that it contains no allegation of complainant’s right having been established in a suit at law. In the case of Burwell v. Hobson, 12 Gratt. 322, this court decided that it was within the jurisdiction of a court of equity not only to enjoin the further erection of a dyke, the effect of which was to overflow the lands of the plaintiff, but to cause an abatement to be made of the dyke al — 789 — ready constructed, or so much thereof as had the effect of injuring the land of the plaintiff. In the case of Hanna v. Clark and others, 31 Gratt. 36, in which the controversy grew out of the right of the parties to the use of the water in a certain dam for the operation of their respective mills, this court reversed the decree of the circuit court, because, instead of turning the parties out of a court of equity (as it did), in which their controversy was pending and might have been settled in a single suit, and leaving them to their remedy at law, it ought to have proceeded, according to the prayer of the bill, to ascertain, define and settle the rights of all parties to the use of the water, and to grant such other and further relief as the nature of the case required, &c. See also opinion delivered by Judge Burks in Sanderlin v. Baxter, supra, p. 299. The case of the appellees here comes within the rule laid down by these authorities, and the demurrer to the bill was, therefore, properly overruled. 2. As to the second assignment of error, it is sufficient to say that the compromise agreement between the parties was entered into after the judgment at law referred to was rendered. And the effect of that agreement was to remit the parties to their original rights as they existed before the change in the channel of Mill creek was made by Spears, in 1860. 3. The court did not err in construing the appellant’s muniments of title to the easement in the water power of Mill creek. The easement was created and defined by the terms of the report of the commissioners of the county court in 1810, and by the subsequent conveyance of the widow and heirs of John Beale, to which reference has already been made. At that time the dam was at the rock and willow, and the grantees of John Beale’s heirs acquired the right to the mill race and the entire and exclusive use of the water, which could be raised into the ditch by means — 790 — of the dam as it then stood. Nothing more was conveyed, and nothing more was intended to be conveyed. The appellant, therefore, has no right to erect other dams at other points on the creek, or otherwise than by a dam at the original sire to raise water from the creek into his mill race. The testimony in the cause is voluminous, covering an hundred pages of printed record, and much of it is conflicting. It is unnecessary to review it. We have examined it carefully, and are satisfied with the conclusion to which we have arrived. There is no error in the decree of the circuit court, and the same is affirmed. Degree affirmed.