Society for Establishing Useful Manufactures v. Morris Canal & Banking Co.

The Chancellor. In tbe consideration of this case, I shall assume that both corporations have legal existence. As it regards the defendants, no objection can be raised against their existence as a body corporate by these complainants. They have brought them into court as a company; the direct object of the bill is to operate upon them as a company and in no other capacity, and so they must be considered by the court. So, on the other hand, the allegations of the defendants, that the Society is virtually dissolved ; that they are acting in direct opposition to the spirit of their charter; that they are speculating in perfect security on the very extensive privileges granted them, without incurring any corresponding risk, or embarking any of their capital in the manufacturing and making of such commodities as are mentioned in the act of incorporation, and therefore their charter rights are forfeited and gone, cannot avail them at this time, or before this court. The case of Slee v. Bloom, 19 Johns. 474, was cited and relied on by the defendants’ counsel, to show that a corporation might be considered in a court of equity as having forfeited or surrendered its charter, by doing or suffering acts to be done which destroy the end and object for which it was instituted. That case was decided by the court of errors, and reversed the decree of the chancellor as found in 5 Johns. C. R. The learned judge was of opinion, that the court of chancery was not the proper tribunal for calling in question the rights of a corporation, as such, for the purpose of declaring its franchises forfeited and lost; and this, as a general principle, I take to be correct. But without admitting or denying the authority of the particular case cited, it is enough to say that the present one is not within it. In that case it appeared, among other things, that the stockholders had come to the resolution to abandon the factory and corporation altogether. No such fact is before me in relation to this corporation. The charter granted to the Society for establishing useful Manufactures, was exceedingly liberal. It was intended to promote a great national object, and well calculated to afford extensive protection to exertion and enterprize. It was created in perpetuity, and the ordinary and natural effect of nonuser wras expressly provided against. How far the risk and en-terprize of the Society are commensurate with the privileges and — 187 — immunities conferred on them; how for the mode of operation lately adopted by them comports with the spirit and intention of the charter; and whether any of their acts or omissions may legally be construed to amount to a surrender, abandonment, or forfeiture of the charter, are questions that properly belong, as I conceive, to another tribunal. They are matters upon which it does not become this court to express any opinion. Considering, then, both parties as properly in court, I shall inquire, in the first place, what are the rights of the plaintiffs, as exhibited by the case made. The river Passaic, at the town of Paterson, is not a navigable stream. The tide does not ebb and flow, nor is the stream navigated by boats or craft of any kind. The Society, at the place selected as the seat of their manufactories, own the land on both sides of the river, and have had the possession for many years. They are the riparian proprietors, and upon plain and acknowledged common law principles they are entitled to the use of the stream. They have in it a property growing out of the ownership of the soil, which is ofttimes of more value than the soil itself, and at all times as sacredly regarded by the law. This being the case, they have a right to enjoy it without diminution or alteration. Lord Ellenborough, in the case of Bealy v. Shaw, 6 East. 208, says, “ The general rule of law, as applied to this subject is, that independent of an}f particular enjoyment used to be bad by another, every man has a right to have the advantage of a flow of water in his own land, without diminution or alteration: but an adverse right may exist, founded on the occupation of another.” This right, at all times valuable, is to the Society vital. Their hopes and expectations not only, but their very existence are dependent on it. The right is not confined to the use of so much water as may be necessary for their present purposes. They have appropriated to themselves the use of the stream. They have a right to take out the whole of it for the purposes of their manu-factories, provided it is again, after being used, restored to the bed of the river for the benefit of those below; and provided also that no one having prior rights is thereby injured. Such I take to be the common law rights of the Society, independent of any additional privileges that may be secured to them by their charter. — 188 — What they may be, if any exist, it appears to me unnecessary now to inquire. I propose now to consider the rights of the defendants, and how far, if at all, they interfere with those of the complainants ; and whether, in the exercise of those rights, any injury has been done to the plaintiffs ; and whether, in the further use of them, the plaintiffs will be so certainly and permanently injured, as to justify the interference of the court at this time by injunction. And first, as to the rights claimed by the defendants. I do not understand them as claiming a right to the ad libitvm or unrestrained use of the waters of the Passaic, or its tributaries, subject to the payment of a compensation or damages to the Society for establishing useful Manufactures. If such claim was set up, it would be necessary to inquire how far it could be supported ns against the chartered rights of the Society. But I consider that (uiis!ion not ¡nopeilv before the court. They claim, un-de: ¡no :¡'X (C oicoi po! ;■!: s. , ¡¡u: ri'.'ht to construct a navigable ouiíú foso u.., {}, O; ,v-, o; ho íi, u c. Tbev chum the use of ¡lie water- of ⅛⅛- > oioiuroo-:, air. oi ¡he extra, w ater of Green non-L Tiny rdeir. to bring the water from the Hopatcung into tie R rkaway 1 . niake use of that, river as a part of the canal, and to take out of it again wafer for the use of the canal— not thereby diminishing the ordinary and natural flow of the water at the great falls at Paterson. It dues not follow, that, because a person as riparian proprietor has a right to the flow of a stream, and to use it for the purpose of manufacturing, or any other purpose requiring the use of wa*er, that, therefore no other proprietor or person shall be at liberty to use for the same or like objects the water above him. This would be contrary to natural justice and the reason of things. Each one has a right to the use, provided that in the exercise of such right he does no injury to his neighbour: 2 Blac. Com. 403. Now if the Morris Canal and Banking Company make such use of the waters of the Passaic, or any of its tributary branches, as to occasion no diminution in the flow of the stream at the place where it is used by the complainants; and if in such use rq injury whatever is done to the complainants ; are they not ex — 189 — ercising an ordinary and well established right ? Does not the same privilege that is accorded to others belong also to them? It appears to me unquestionable that the defendants have such right as against the complainants, subject to the condition already stated. But the Morris Canal Company claim the further privilege of introducing into the Rockaway the waters of the lake Iiopatcung, and of one of the branches of the Raritan—and then of taking out of the Rockaway below so much water as may be necessary for the purposes of their canal; averring that the waters of the stream will be thereby in no wise diminished. The water thus taken out, it is admitted, is not to be returned until it shall have passed the great falls at Paterson. They say that the supply of water thus brought in, together with the extra, supply which they are authorized to take from Green pond, will in times of drought afford to the Society a more copious flow than they would otherwise have, and therefore that it will be a benefit. On the other hand, it is contended by the Society-, that the Calml Company have no authority thus to commingle different streams and diffeienl rights ; that they are entitled to the flow of the identical stream of water, not only without diminution, but without alteration; that if the claims of the Company in this behalf are sustained, the supply afforded by these substituted streams may in time diminish, and the property and immunities of the Company be jeoparded or ruined. This is supposed to present a question of novelty and importance. It certainly is not the case of a simple diversion of the stream for necessary purposes, returning it again to its natural channel when those purposes shall have been answered; but would seem to be rather a substitution of part of one stream for part of another. The principle that assigns to every tiling capable of ownership a legal and determinate owner, is wise and salutary, and promotive of* the great ends of civil society^ This principle, however, can only be applied to streams of water in a limited sense. There is no such thing as actual property in running water. It is transient in its nature, and must be permitted to flow for the common benefit. The interest is rather of a usufructuary kind, but not the less absolute or vested on that account. To say, then, that a — 190 — person entitled to the flow of a stream of water through his land) is entitled to the flow of the very identical substance that issued from the original source, is an assertion of right not easily sustained. It would be tantamount to the ownership of the particular water itself—which cannot be. I do not understand Lord Ellenborough, in Bealy v. Shaw, to carry the doctrine thus far. His principle is, that every man has a right to the advantages of a flow of water in his own land, without having its quantity diminished, or its quality altered, by the operations of those who might be above him on the same stream. It is not pretended that the quality of the water to be let in from the lake Hopatcung and other sources, is in any way different from the water of the Rockaway. If then the defendants take from the Rockaway no greater quantity of water than they bring in, (and they claim a right to do no more,) will not the Society enjoy their privilege without diminution or alteration, or can they in any wise be injured? But, while the right thus to take the water of the Rocka-way for the use of the canal, is accorded to the Company, I think it is easy to foresee that difficulties may arise in its exercise. Whatever these difficulties may be, and whatever may be the risk, and hazard, and loss attending them, they will have been sought by the defendants themselves, and not imposed by others. Their rights, whatever they may be, are subject to the prior rights of the Society for establishing useful Manufactures, and must be exercised in such manner as that the Society thereby sustains no injury. And, in fact, I understand this principle to be conceded. It was candidly stated in the argument by the counsel for the Company, that if in their future operations it became manifest that the Society was injured, the Company must either agree with them for the use of the water, or abandon their work. The next inquiry is, whether the complainants have already been injured by the drawing off’ of the water, and whether such injury is continued ; and if not, whether the apprehended danger is of that character as to justify the interference of this court by injunction. And first, as to the fact of the injury, and its continuance. The bill charges that the Company, about the middle of July, — 191 — and on the 27th and 28th of July, and in the latter part of August and fore part of September, caused large quantities of water to be drawn out of the Rockaway, sometimes for the purpose of trying their inclined planes, and at other times for the purpose of puddling their canal, by means whereof great, sudden, and unusual diminution and depression of the usual quantity of water was experienced at Paterson. There is no doubt, from the evidence, that water was drawn from the Rockaway for the purposes of the canal, in the month of July, as charged in the bill, and again let into the river. But whether the stream, in consequence of these operations, was sensibly diminished at the great falls, and whether in consequence of it any injury was sustained by the complainants, are matters not so clearly established. There is much contradiction in the evidence, and if it were necessary to settle the facts at this time, I should have strong doubts whether this would be the proper tribunal to weigh and determine upon the mass of conflicting testimony that has been presented to the court. Whether the water was let into the canal at the times when a depression of water is charged to have taken place at Paterson, and whether such depression of water, if it actually took place, was occasioned by the operations of the canal, are also matters of dispute—and I deem it unnecessary to look into the evidence with a view of arriving at any conclusion in relation to them. The question of damages is not now under consideration. If, however, injuries were sustained by the complainants at the particular times charged, those past injuries are in themselves no ground for an injunction. The province of the injunction is not to afford a remedy for what is past, but to prevent future mischief. The effect of the injunction is preventive. If the injuries were continued, or the right to continue them set lip and persisted in, this court would, if the facts were properly established, interfere, and effectually too, for the protection of the complainants. But the defendants make no such claim or pretence; and it is observable, that between the fore part of September and the filing of this bill in January, there is no complaint of any alleged violation of the rights and privileges of the Society. It appears further from the case presented, that at the times when the water was let into the canal, as complained of by the — 192 — Society, there was no water brought into the Rockaway from the lake, and that the water was let into a section of the canal, not for the purpose of navigation, but of making some experiments upon the works of the canal; that the use of the water was temporary, and the water itself, or what remained, was returned into its natural channel. It does not appear that the water of the Rockaway will in future be withdrawn! for these temporary purposes, preparatory to the navigation of the canal, without the waiter being brought at the same time from the lake Hopatcung into the Rockaway : nor, if it should, that the water of the river wall be sensibly diminished, or any injury sustained by the complainants. Seeing then that some doubt, to say the least of it, rests upon the allegation of the complainants in regard to the alleged injury already sustained ; seeing there is no certainty that the wTater will be in like manner again abstracted for the purposes of experiments ; and the right of thus abstracting it for the purpose of navigation, to the diminution of the stream or the injury of the complainants—or in other words, wnthout bringing in an equal supply, being disclaimed by the defendants ; it w'ould be, in my opinion, an indiscreet and injudicious exercise of power in this court to arrest, at this moment, brevi manu, the opera-rations of the Company, in the prosecution of this work they have expended among us a large amount of money : they have lately effected a loan, to relieve themselves from embarrassment, and enable them to complete their canal. It is a work in which a portion of the community is deeply interested, and which, if completed and in successful operation, may be of great benefit to the State. To grant an injunction against them now, in the manner and to tire extent prayed for, would be at once to prostrate their hopes, and might result in an injury which the power of this court could never repair. The power of the court to grant injunctions in cases of nuisance will not be questioned. There is a necessity for some preventive remedy, wrhen it is ascertained that great or immediate mischief, or permanent injury, is about to be done to private property; and this is the foundation of the jurisdiction. But the exercise of the power must always rest in the sound discretion of the court, to be governed by the nature of the case. — 193 — The case presented is peculiar ; but it does not satisfy me of that pressing necessity, or that certainty of mischief, which would authorize an interference in a matter of such magnitude. The Morris Canal Company are about completing their canal. The great problem, whether their means of supply will afford them a sufficient quantity of water, without causing any diminution of the water in the Passaic at the great falls, and of consequence injuring the complainants, must soon be solved. Important interests are involved in the solution. This court will afford to the Company its protection, so far as may be legally done, until the result shall be ascertained. .But the defendants must remember that they proceed upon their own responsibility, and at their peril. If there be any hazard or any danger, it is theirs to encounter and overcome it. The rights of the Society are clear, vested, and prior rights; and the enjoyment of them in their full extent will be secured. The injunction is refused.