Winnipissiogee Lake Co. v. Worster

Eastman, J. As this case stands, the bill being taken pro confesso, after repeated appearances, the facts alleged by the complainants are all admitted to be true ; and all defects in the mere form and frame of the bill, and in the proceedings prior to the confession, are waived; and the only questions that can arise upon this motion to dismiss, are these — has the court jurisdiction of the parties, and does the bill state a case coming within the principles of equity jurisprudence. If the defect in regard to the parties is apparent upon the bill, and is vital to its character, the objection may be taken at any stage of the proceedings. Mitf. Eq. Pld. 180; Cooper’s Eq. Pld. 33, 185; Story’s Eq. Pld. § 236. But if not so apparent, it may be propounded by way of plea, or it may be relied on in a general answer. Mitf. Eq. Pld. 280; Cooper’s Eq. Pld. 289; Story’s Eq. Pld. § 236. And if the case made does not fall within equity jurisprudence the motion must prevail, for the court cannot assume any jurisdiction except upon cases and principles which clearly justify its interposition. Mitf. Eq. Pld. 44; Cooper’s Eq. Pld. 10, 11; Story’s Eq. Pld. § 34. And first, then, as to the parties. The complainants are represented as the Winnipissiogee Lake Cotton and Woolen Manufacturing Company. There is no further description given of them in the bill, and whether they are a partnership or a corporation, or where they are located, does not appear. But this defect, if material, is not fatal. If the complainants are a partnership, the court have jurisdiction — 443 — both of their acts and their rights, in all equitable matters ; or if they are a corporation established by the laws of this State, or legally doing business therein, the same kind of jurisdiction is extended to them, and over them. There is nothing in the bill which discloses any objection to the power of the court to exercise jurisdiction over them, or to entertain a bill in their favor; nor anything showing that a decree, either for or against them, might not be enforced. So far as we are to infer their residence or place of business from the bill, it would be in Belknap county, for there their property is admitted to be situated, which is the subject matter of the controversy between the parties. If there is any defect in a bill in giving the names or description of the parties, or any neglect properly to set forth their residences or places of doing business, it must be taken advantage of by demurrer or by plea in the nature of a plea in abatement. Story’s Eq. Pld. § 26, note 2, at close of the section ; 1 Danl. Ch. Prac. 625. And such is the defect, if it be one, which is presented here. It is not one which interferes at all with the jurisdiction of the court. With regard to the defendant — he is described as of Meredith, in the county of Belknap, which is a town and county of this State; a fact of which the court takes judicial notice, and of course the inhabitants dwelling therein are within our jurisdiction. But in addition to this, he appears here in court, answers to the action, and confesses that he is a resident of Meredith, in the county of Belknap, and that the charges set forth in the bill are true. The authorities cited by the defendant to sustain the position that a defective statement of the citizenship of the parties will be fatal at any stage of the proceedings, and may be insisted on by motion or otherwise, are not applicable to a case of this kind. Those authorities apply only to cases brought in the circuit courts of the United States. As is said by Story : “ There is a peculiar class of cases in America, which may give rise to an objection to the juris — 444 — diction, founded solely upon the limited powers of the court of equity over the parties, and altogether independent of the subject matter of the bill. Under the constitution and laws of the United States, the circuit courts have, with few exceptions, jurisdiction only in suits between citizens of different States, and this has been construed to require that all the parties on each side of the record should be citizens of different States ; and should be expressly averred to be so in the bill.” Story’s Eq. Pld. § 492. It is the class of cases and the courts mentioned by Story, to which the authorities cited by the defendant upon this point apply, and not to a case like the one before us. And so far as the parties to this bill are concerned, there can be no doubt that the court have jurisdiction of the case. Several objections to the bill are suggested by the defendant in his argument, which are not such as are open to him upon a motion of this kind, after the bill has been taken as confessed. Upon demurrer, or plea, they might be considered, but not after confession. The defendant objects, for instance, that the bill is not properly addressed to the court. But that is a matter of special demurrer only. He also objects to the verification. Now we do not propose to inquire to what extent, or with what degree of accuracy, bills of equity are required to be sworn to, for a defect of the kind complained of here can be of no avail, when the defendant admits that the charges of the bill are true. It is questionable whether, after such a confession, an entire want of verification would be fatal even in a bill requiring a strict formal oath by the party himself, for the confession may be treated as a substitute for the oath. The defendant likewise contends that the subject matter of the bill is not set forth to be within the jurisdiction of the court; the bill omitting to allege the State in which the property is situated; the towns and county being named, but not the State. But this exception is invalid for the reason already stated, in regard to the residence of the defend — 445 — ant. Had the defendant demurred or plead to the bill, these various exceptions might have been raised and considered, but they cannot be taken advantage of after the defendant has confessed all the allegations and charges of the bill. But we pass to the consideration of the second question, which is this: Does the bill state a case falling within the jurisdiction of this court, as a court of equity ? Do the facts set forth by the complainants, and confessed by the defendant to be true, make out a case for our interference by injunction? For if the court has jurisdiction of any substantial and essential part of the complaint, the bill may be sustained. Boston Water Power Company v. Boston and Worcester Railroad Corporation, 16 Pick. 512; Livingston v. Story, 9 Peters’ Sup. C. Rep. 633. A court of equity has jurisdiction in cases of rights recognized and protected by the municipal jurisprudence, where a plain, adequate and complete remedy cannot be had in the courts of common law. Cooper’s Eq. Pld. 128, 129; Mitf. Eq. Pld. 112, 113. The remedy must be plain ; for, if it be doubtful and obscure at law, equity will assert a jurisdiction. Rathbone v. Warren, 10 Johns. 587; King v. Baldwin, 17 Johns. 384. It must be adequate; for if at law it falls short of what a party is entitled to, that founds a jurisdiction in equity. And it must be complete; that is, it must attain the full end and justice of the ease. It must reach the whole mischief, and secure the whole right of the party in a perfect manner, at the present time and in future; otherwise equity will interfere, and give such relief and aid as the exigency of the particular case may require. The jurisdiction of á court of equity is sometimes concurrent with the jurisdiction of a court of law ; it is sometimes exclusive of it; and it is sometimes auxilary to it. 1 Story’s Eq. Jurisprudence, § 33. Such is a general description of the jurisdiction of a court of equity. But notwithstanding these general powers, courts of equity will not ordinarily assume jurisdiction — 446 — where the powers of the courts of common law are sufficient fox the purposes of justice. And where a plaintiff can have as effectual and complete a remedy in a court of law as in a court of equity, and that remedy is direct, certain and adequate, a demurrer will hold. But where the remedy is not adapted to the particular exigency, then a court of equity will maintain jurisdiction. Mitf. Eq. Pld. 123; Cooper’s Eq. Pld. 124; Story’s Eq. Pld. § 473. Wherever a plaintiff is entitled to equitable relief, if that relief consists in restraining the commission or the continuance of some act of the defendant, a court of equity administers it by means of the writ of injunction. Injunctions are issued to stay proceedings at law; to restrain vexatious suits; to restrain the alienation of property ; to restrain waste; to restrain nuisances; to restrain trespasses; and to prevent other irreparable mischiefs. These are among some of the instances in which this species of equitable interposition is obtained. 2 Story’s Eq. Jar. §§ 872, 873. Equity also interferes to restrain the assertion of doubtful rights, in a manner productive of irreparable damage, and to prevent injury to third persons by the doubtful title of others. Mitf. Eq. Pl. 111, 112; 1 Story’s Eq. Juris. § 32. But without further investigating the general powers of equity, we proceed to consider more particularly the defendant’s position, which is, that the threatened acts complained of was a trespass merely, and that equity will not interfere in such a case, inasmuch as there is a complete remedy at law. The defendant’s views are, to a certain extent, correct. An injunction will not be granted in cases of common trespasses, which are only contingent and temporary, and where there is only a mere diminution in the value of the premises ; and in all cases where the court can see that adequate compensation can be obtained at common law, courts of equity will not interfere. 2 Story’s Eq. Juris. §§ 925, 928; — 447 — Dana v. Valentine, 5 Met. 8; Coulson v. White, 3 Atkins 21; Jerome v. Ross, 7 Johns. Ch. Rep. 315; 3 Dan. Ch. Prac. 1859; Hart v. Mayor, &c, of Albany, 3 Paige 213. But if the trespass continues so long as to become a nuisance, or if the diminution of the value of the premises amounts to irreparable mischief, a court of equity will interfere. Coulson v. White, 3 Atkins 21; Hanson v. Gardner, 7 Vesey 305; Mitchell v. Dors, 6 Vesey 147; Courthope v. Mapplesden, 10 Ves. 290; Livingston v. Livingston, 6 Johns. Ch. Rep. 697; Gray v. Duke of Northumberland, 17 Ves. 281; Crookford v. Alexander, 15 Ves. 138; Jerome v. Ross, 7 Johns. Ch. Rep. 315; Attaquin v. Fish, 5 Met. 140; Hart & a. v. Mayor, & c. of Albany, 3 Paige 213; Earl Cowper v. Baker, 17 Ves. 128; Tworl v. Tworl, 16 Ves. 128; 1 Paige 97. Daniell says that an injunction will be granted, in some eases, where the parties have both legal titles and legal remedies, but irreparable mischief would be done unless they were entitled to more immediate relief than that which they would obtain at law; that it has, accordingly, been granted where the injunction amounted, in fact, to an injunction to stop a trespass; for if the court would not interfere against a trespasser, he might go on by repeated acts of damage, which would be absolutely irremediable. And he concludes his remarks, upon this particular point, by saying that unless there was a j urisdiction to prevent destructive or irreparable mischief, there would be a great failure of justice in the country. 3 Dan. Ch. Prac. 1853, 1854. Story says that courts of equity interfere, in cases of trespasses, to prevent irreparable mischiefs, or to suppress multiplicity of suits; and that there is not the slightest hesitation, if the acts done or threatened to the property would be ruinous or irreparable, or impair the just enjoyment of the property in future. 2 Story’s Eq. Jur. 928. In Livingston v. Livingston, 6 Johns. Ch. Rep. 497, it was held by the learned Chancellor Kent, that injunctions — 448 — will be granted to prevent trespasses as well as to stay-waste, where the mischief would be irreparable, and to prevent a multiplicity of suits. The doctrine of this case was reiterated in the case of The New York Printing and Dying Establishment v. Fitch, 1 Paige 97. And in Attaquin v. Fish, 5 Met. 140, it was also held that courts, with full chancery powers, might issue injunctions to restrain trespasses. The books also clearly show that injunctions will be granted to prevent the diversion of streams from mills, the back flowage on mills, and the pulling down of the banks of rivers and thereby exposing adjacent lands to inundation, from which the banks had protected them. Robinson v. Lord Byron, 1 Browne’s Ch. Rep. 588; Lane v. Newdigate, 10 Ves. 194; Agar v. The Regents Canal Company, Cooper’s Eq. Rep. 77 ; Finch v. Resbridger, 2 Vern. 390; Bush v. Western, Prec. in Ch. 530; Belknap v. Belknap, 2 Johns. Ch. Rep. 463; Van Bergen v. Van Bergen, 2 Johns. Ch. Rep. 272; Arthur v. Case, 1 Paige 447: Varick v. Corporation of New York, 4 Johns. Ch. Rep. 53; Van Bergen v. Van Bergen, 3 Johns. Ch. Rep. 282. In Gardner v. Village of Newburgh, it was held that chancery has concurrent jurisdiction with courts of law, in cases of the diversion of streams, and that a court of equity may issue an injunction to prevent the obstruction of an ancient water-course, though the plaintiff has not established his title at law. In Belknap v. Trimble & a. 3 Paige 577, where the complainants were the owners of mills which depended upon a particular use of the waters of a pond at the head of the stream, and they had been in the uninterrupted use and enjoyment of the water, in a particular manner, for more than twenty years; it was held that the court of chancery had jurisdiction to establish their right to such use of the waters of the pond, and to restrain the defendant from disturbing them in such enjoyment. In closing his opinion upon the — 449 — case, the learned chancellor makes these remarks.: “ The defendant probably supposed himself in the possession of a legal right to destroy the complainants’ mills, by interrupting the use of the water; and he hoped to be able to avail himself of it in such a manner as to make money out of their necessities. He interrupted them in the enjoyment of their rights, when it could not benefit him in any other way than by compelling them to buy their peace. Under such circumstances, if a party mistakes his legal rights, he has no particular claim to the favor of the court.” The solvency of a party committing the injury is also an important consideration upon the question whether an injunction shall be granted or not. Courts have interfered and granted injunctions where, from the irresponsibility of the defendants, relief could not be obtained at law. Hart & Hoyt v. Mayor, &c. of Albany, 3 Paige 213; 2 Story’s Eq. Juris. § 916; Hawley v. Clowes, 2 Johns. Ch. Rep. 122. The office of an injunction is either to require a party to do a particular act, or to restrain him from doing any such act. The process is, however, rather preventive than restorative. It seeks to prevent a meditated wrong more often than to redress an injury already done ; and the most common sort of injunction is that which operates as a restraint upon a party in the exercise of his real or supposed rights. 3 Dan. Ch. Prac. 1809; 2 Story’s Eq. Juris. §§ 861, 862. The general principle deducible from the authorities appears to be, that a court of equity will not interfere in cases of nuisances, trespasses and the like, where the parties can settle their rights in a court of law, unless it shall appeaii that irreparable mischief will be done by withholding the "process. But where it is shown that great and irreparable injury would follow, unless the party were entitled to more immediate relief than he could obtain at law, and that the action at law would give no protection against future acts, and the remedy by a multiplicity of actions, would furnish no substantial compensation, an injunction will be granted. — 450 — In cases of gross trespass, the principle is, not that the law does not give a remedy, but that it does not give a complete remedy, and that before the remedy can be applied irreparable mischief will be done. There are cases where the court must, undoubtedly, exercise its discretion in granting or withholding a preliminary injunction. The degree of inconvenience and expense to which granting the injunction would subject the defendant, in the event of his being in the right; and, on the other hand, the nature of the injury which the plaintiff may sustain, in the event of his complaint turning out to be well founded, and the court refusing to interfere, are matters to be considered. And if the injunction is granted, the court will see to it that proper restrictions and conditions are attached to it, so that the defendant may suffer no wrong, in the event of its finally appearing that he is in the right. This court, as a court of equity, has broad powers in regard to the issuing of injunctions. Express authority is given by statute to grant writs of injunction, whenever the same shall be necessary to prevent injustice. Rev. Stat. ch. 171, § 7; Piscataqua Bridge v. N. 11. Bridge & a. 7 N. H. Rep. 55; Watkins & a. v. Peck, 13 N. H. Rep. 360. The principles which we have endeavored to- state will, we think, be found to be uncontradicted by authority. If there are cases which appear to conflict with some of the views expressed, it will be found, upon close examination, that they are decisions made by courts with limited equity powers; but wherever the power is as extensive as that possessed by this court, as a court of equity, the positions will be found to be fully sustained. Applying these principles to the facts stated in this bill,” and confessed by the defendant to be true, and how does the case stand ? The complainants’ charge that they are seized and possessed of the water fall and privileges set up in their bill, and of the lands around the same, and of the mills at the fall; and that they also hold and possess the — 451 — right to flow the lake and bay to the extent to which they have flowed the same. That they and their grantors have, ever since the spring of 1830, being more than twenty years, claimed and exercised the right of keeping up the water by the dam, and that no owner of land in which the defendant claims to have an interest, ever complained in regard to it, until proceedings were had by the defendant, in April, 1853. That the dam does not, as the same has been used and is used, raise the waters higher than they had before stood and been kept, nor does it flow lands owned, if any are owned, by the defendant, more than they have been usually flowed for more than twenty years. The bill further alleges that the complainants are able to prove that the lands of the defendant, if any he has, are not flowed by the water’s'being set back or raised by the dam to any greater extent than the complainants have a right to do. Thus the complainants, by their bill, show a good title to their property and the rights which they exercise. They then set forth that they have at the falls a cotton factory, two woolen factories, a grist mill, two double saw mills, a machine shop, and other mills and machinery, driven by the water power made by the dam, and that the Boston, Concord and Montreal Railroad have a repair shop, and Cole, Davis and Company an iron foundry and a plough manufacturing establishment, driven by water, leased to them by the complainants, from the dam; and they allege that the defendant continually threatens that he wall destroy or remove the dam ; and, on the 14th of April, 1853, four days before the filing of the bill, gave notice to the agent of the complainants of his determination immediately so to do and that the complainants have reason to believe, and do believe, that the defendant intends to carry his threats into execution. And they aver that the consequence of carrying the defendant’s threats into execution would be to stop and prevent the operation of their mills or seriously retard the same, to carry away their logs and lum — 452 — ber, and subject them to a heavy expense in repairing or rebuilding the dam. And, also, that there is danger that great loss and destruction of property might be occasioned thereby, both to the complainants and to others owning property in the river below the dam. They also allege that whatever rights the defendant may have, if he has any, that they have been obtained for dishonest purposes; and they likewise charge that the defendent is insolvent. Now how these allegations and charges would have appeared, had the defendant answered the bill and full proof been taken, is not for our consideration at this time. As the case stands before us, the defendant has admitted the averments and charges of the bill to be true. He has confessed that the complainants have a good title to the property ; have a right to raise the water by the dam as they have raised it; that he has threatened to remove the dam, or a part of it, and intends to carry that threat into execution ; and that the consequence of such a removal would be the destruction of a large amount of property belonging to the complainants and others. And he has also admitted that whatever rights he has are contaminated by barratry and maintenance, and that he is insolvent. Upon these confessed facts, the court entertain no doubt of their jurisdiction over the case, and of their power to grant an injunction according to the prayer of the bill. They entertain no doubt, either, that a preliminary injunction was properly granted upon the complainants’ bill and affidavits. The defendant contends that the issuing of the injunction, ez parte, was illegal and unjust. But that is not a.matter to be considered now, after the defendant has confessed all the charges in the bill to be true. The injunction was issued under the express authority given by statute, with the precaution that large bonds should be given, so that the defendant’s rights could not, in any event, suffer. And if this power were not conferred upon some member of this court, or upon some other person clothed — 453 — with the exercise of equitable powers, there would be great danger that immense wrongs would, at times, be perpetrated. But even if the proper time to argue the propriety of granting an injunction ex parte, is upon a motion to dismiss a bill for want of jurisdiction, it would certainly seem to be a sufficient answer to the argument, that all the facts stated in the bill are subsequently admitted to be true, and that the whole court are of opinion that the defendant should be enjoined against doing what to them appears to be irreparable mischief. The motion to dismiss the bill for want of jurisdiction, is denied.