Richard H. Dana & others vs. Charles Valentine, 5 Met. 8

Wilde, J. . [After stating the substance of the bill and answer.] The material facts alleged in the bill are satisfactorily proved. Indeed most of them are admitted in the answer. The charge, however, as to the unwholesomeness of the air is neither admitted by the defendant, nor satisfactorily proved by the plaintiffs.

But according to the view we have taken of the question, whether, upon the whole matter, the plaintiffs are entitled to the relief prayed for, we do not consider it necessary to discuss the conflicting evidence on this point, nor that in respect to the extent of the plaintiffs’ damages, about which the numerous witnesses do not entirely coincide. The facts admitted by the answer are abundantly sufficient to entitle the plaintiffs to relief, either jointly or severally, unless the defendant can show a sufficient defence. Two grounds of defence are relied on.

The first is, that the plaintiffs, if they have been injured, have a complete and adequate remedy at law. And in the second place, that the defendant has made out a good prescriptive right and justification. As to the first ground of defence, we are of opinion, that the several plaintiffs, who own vacant lots, on which there are no dwellinghouses, have a complete and adequate remedy at law , and that an action at law for the recovery of damages for the diminution of the value of their lands, by the nuisance alleged, is the only suitable and appropriate remedy.

Upon no principle of equity can the court interpose in their favor, by injunction on the defendant to desist from carrying on his trade ; there being no certainty that dwellinghouses will ever be erected on these premises : Or if there should be, it is uncertain when such erections may be made. To require this extraordinary relief, the injury complained of must actually exist, or the danger must appear to be certain and immediate, and not depending on auy contingency. We think it therefore very manifest, that tnese owners of vacant lots have made out no title to the interposition of a court of equity.

Attorney General v. Nichol, 16 Ves. 342. Fishmongers’ Co. v. East India Co. 1 Dick. 164. Wynstanley v. Lee, 2 Swanst. 336. Bonaparte v. Camden & Amboy Rail Road Co. 1 Bald. 231. 2 Story on Eq. § 925. On this ground the defendant’s counsel contends that the bill must be dismissed, and that by the rules of pleading and practice in courts of equity, it cannot, at this stage of the proceedings, be amended.

And several cases have been cited, in which it was decided that if a party, having an interest, joins with him, as a co-plaintiff, a party having no interest, the bill is demurrable, if the facts appear on the bill, and if not, that they may be well pleaded in defence. And as to the rule of amendments, V is well settled in the courts of equity in England, that no amendment generally is allowable, after the parties are at issue and witnesses have been examined. But there are some exceptions, when it is necessary to make new parties ; which may be done by special leave of court. Story Eq. Pl. § 332. Mitf.

Pl. (3d ed.) 262. Goodwin v. Goodwin, 3 Atk. 370. But on the question of amendments we are not bound by the English rules of practice. By our Rev. Sts. c. 100, § 22, “ the court, in which any civil action is pending, may, at any time before judgment rendered therein, allow amendments, either in form or substance, of any process, pleading, or proceeding in such action, on such terms as shall be just and reasonable.” Under this provision, we should not hesitate to allow an amendment of the bill- on reasonable terms, if by any amendment it could be maintained.

We are therefore to consider the second ground of defence, and to determine whether either of the plaintiffs, according to the rules and principles of equity, is entitled to the relief prayed for. The defence is, that the defendant, and those from whom he derives his title, have been in the possession of the buildings in which he carries on his trade, for more than twenty years ; during which time, he and they have carried on said trade without molestation or interruption, excepting for about two years, when the said buildings were not so used by them.

This, prima facie, is a good foundation for the presumption of a grant, unless the said non user is to be considered as breaking the continuity of the possession. The facts and circumstances in evidence are not sufficient to enable the court to give any decisive opinion on this point-; but such as the evidence is, it is not sufficient to show any relinquishment or abandonment, by the persons under whom the defendant claims, of any of their privileges ; and no interruption of their enjoyment of them by the plaintiffs is either proved or alleged.

The mere ceasing to enjoy an easement does not destroy a party’s right, unless it appears from the facts and circumstances that he intended to abandon and not to resume it. So it was decided in Moore v. Rawson, 3 Barn & Cres. 332. S. C. 5 Dowl. & Ryl. 234. In that case, the party’s right to • the easement had become perfect before he ceased to enjoy it, and in that respect it differs from the present case ; but the principle, we think, applies here.

The material inquiry in all such cases is, whether there was an intention to abandon the easement or privilege before enjoyed, or whether the non user is imputable to some other cause. See Gale & Whatley on Easements, (Amer. ed.) 262. Another objection to the defendant’s title by prescription is, that until lately the plaintiffs suffered no damage from the alleged nuisance, and therefore could not interpose to prevent its continuance. But it is very clear that where a party’s right of property is invaded, he may maintain an action for the invasion of his right, without proof of actual damage.

So it was decided in Bolivar Manuf. Co. v. Neponset Manuf. Co. 16 Pick. 247, and the principle is unquestionable. 2 East, 161. 2 Met. 469. 4 Met. 477. Some other objections were made to the defendant’s prescriptive right, which however it is not important to remark upon, for the most that can be urged is, that the defendant’s right is doubtful; and that is sufficient for him to show, as a defence, in the present suit.

It has been frequently decided that when works have been suffered to remain three years or upwards, that is considered such laches as to preclude the party from having relief in a court of equity, without going first to law. It was so decided in Weller v. Smeaton, 1 Cox, 102, and in Reid v. Gifford, 6 Johns. Ch. 19. In the present case, the defendant has been in the uninterrupted possession of his buildings and works ever since the year 1825, carrying on his trade and business during the whole time, without any objection made by the plaintiffs until recently.

And in addition he has proved a good prima facie title by prescription. Whether the plaintiffs may be able to impeach this title effectually, we do not know ; but that question is to be tried in an action at law. And before its determination, this court, as a court of equity, will not interpose. Nor is this a case in which the proceedings ought to be suspended until the trial and decision of the title at law.

That would be a proper course to pursue, where a temporary injunction becomes necessary to prevent irreparable damage ; but to justify such an interposition, the injury ought to be of such a nature as not to admit of delay. This is not such a case. And there seems to be no good reason to doubt, that if the plaintiffs can maintain an action at law, they may obtain an adequate remedy without any interposition of a court of equity. So if the nuisance complained of has become, or shall become, a public nuisance, the law has provided an effectual remedy. Bill dismissed.