Elijah Ingraham vs. Jacob Dunnell & others, 5 Met. 118

Wilde,,J. This is a case of importance, as it concerns property of great value, in the lawful enjoyment of which each party is entitled to protection. But as the parties have opposite interests, and the free exercise of their rights and privileges, respectively claimed, is incompatible, it will follow that however the case may be decided, one or the other of the parties will be subjected to a loss of property, or other consequential damages, which may be very considerable.

We have, therefore, taken time to look into the authorities cited, and to consider the case with attention and deliberation, in the hope that we might come to a decision, which would terminate the present controversy, and so settle and establish the rights and privileges of the parties as to prevent future litigation. We have, however, met with difficulties in our way, which are not to be overcome, without disregarding some of the rules and principles of equity which seem to be well established, and which in their general operation are just and salutary.

These we are not at liberty to disregard ; for although courts of equity are invested with large discretionary powers, yet they are not to be exercised arbitra rily, but are to be governed and restrained by general rules' of decision, so that a uniformity of judgment may be preserved, and parties may know their equitable as well their common law rights and liabilities.

We are then to consider and determine whether upon the facts established by the evidence, or by the admissions in the pleadings, the plaintiff is entitled to the relief prayed for, according to the established rules and principles of equity ; or whether his appropriate remedy for the grievances complained of is not by an action at law. ■ The defendants are charged with the continuance of a nuisance to the plaintiff’s water mill and works for the manufacturing of cotton goods, from the 3d of March 1837, to the time of the filing of the bill, by polluting the waters of the stream on which the plaintiff’s mill was situate, and above the same, by impregnating the same with sundry noxious and unwholesome drugs, dye-stuffs, and other noxious preparations, whereby the water of the stream, running to the plaintiff’s mill, had become corrupt, unwholesome and unfit for use, and so that the plaintiff, with his workmen and tenants, and their families,- could not have the use of the same in so wholesome and beneficial a manner as he of right ought to have.

The plaintiff remained in the possession and occupation of his mill and works until the 1st of March 1839, when he demised the same to Horatio N. Ingraham for the term of three years ; and the first question is, whether the plaintiff is entitled, in this suit, to damages for the grievances alleged during this interval ; and we are clearly of opinion that he is not. Indeed oil this point there can be no doubt. For the recovery of damages the plaintiff has a complete and adequate remedy at law, and that is the proper and appropriate remedy.

Where an injury will admit of a pecuniary compensation, a court of equity will never interpose. And this principle is applicable to the alleged injury to the plaintiff’s reversionary interest after his demise to H. N. Ingraham. Numerous cases were cited at the argument, to establish a principle, which no one can doubt, namely, that an action may be maintained by a reversioner for an injury done to his reversion.

But his remedy is by an action at law, and a court of equity will not interpose its authority, unless it can be shown to be necessary to prevent future mischief, and such a mischief as ought to be prevented. The foundation of equity jurisdiction on the subject of nuisance is the probability of irreparable mischief; that sort of material injury by one to the comfort of another, or to his damage, which requires the application of a power to prevent as well as to remedy the evil. Jeremy on Eq. Jurisd. 310. 2 Story on Eq. § 925.

But to entitle the plaintiff to relief on this ground, the tenant must be joined as a co-plaintiff. A reversioner may have a separate action at law for an injury done to his reversion. Jesser v. Gifford, 4 Bur. 2141. But in a suit in equity, the tenant must unquestionably join. Indeed it may be doubted whether any such permanent injury appears to have been done to the reversion, as would maintain an action at law. The gravamen of the complaint is certainly of a transitory nature.

But it is not necessary to consider this question ; it being clear that this bill, as it is framed, without joining the tenant as a co-plaintiff, cannot be maintained. It is averred in the bill, that H. N. Ingraham, the tenant, threatens to abandon the mill and his lease, and to refuse to pay rent. But he has no right so to do; for if the defendants’ acts are unlawful, the tenant’s remedy is against them. The plaintiff’s covenant in the lease, that the tenant should quietly enjoy, free from all adverse claims, is only against lawful claims. 2 Saund. 178, note (8.) 6 Mass. 252.

The question then is, whether the plaintiff may have leave to amend the bill, by joining the tenant as a party. No motion for leave thus to amend has yet been made ; and at this stage of the cause there are obvious objections to its allowance, which it would be difficult to avoid or overcome. Objection was made for the want of parties, in the defendants’ first answer, and the plaintiff ought then immediately to have moved for the proper amendment, before issue joined and examination of the witnesses ; and most certainly, before a final hearing on the merits.

And now there are also technical difficulties and objections to the amendment. The lease having expired, there is no longer any necessity of joining the tenant"; for he has his remedy at law for damages, and has no right to the interposition of the court by injunction ; so that if the plaintiff should have leave to amend his bill by making his former tenant a party, he must then apply for leave to file a supplemental bill, stating the expiration of the lease, and thus to make and unmake a new party without any change of circumstances.

And unless this may be allowed, the bill cannot be sustained ; for the plaintiff must show a good right to maintain his suit at its commencement. But supposing these difficulties might he obviated by an amendment of the bill, another objection remains, on which the defendants’ counsel rely, which appears to be sustained by the authorities. The defendants’ counsel maintain that they have a good defence at law ; and they contend that they have a good title by prescription, and by estoppel under the indenture between Dwight Ingraham and Royal Sibley, from whom the parties respectively derive their titles.

And the defendants deny also, in their answer, that the impurity of the water in the stream, and the offensive exhalations therefrom, were caused by them, but that they arose from the stagnation of the water in the plaintiff’s ponds. Whether, upon the facts proved or admitted, the defendants could maintain this defence, in an action at law for the nuisance alleged, is a question upon which we give no opinion ; but the right is sufficiently doubtful to entitle them to a trial at law.

A court of equity is extremely unwilling, as Eden remarks, to interpose without a trial at law, especially where the alleged nuisance consists in the exercise of a manufacture. Eden on Injunctions, 236. More especially, it may be added, where the works complained of are of great value, and a perpetual injunction might be ruinous.

And in all cases, where the right is doubtful, the court will direct a trial, and in the mean time, if there be danger of irreparable mischief, or if there is any other good cause for granting a temporary injunction, it will be ordered, so as to restrain all injurious proceedings ; and when the plaintiff’s right is fully established, a perpetual injunction will be decreed. 2 Story on Eq. § 925. Mitf. Pl. (3d ed.) 111.

If then the present case depended solely on this last ground of defence, the question would be, whether the bill should be now dismissed, or the proceedings should be suspended until the plaintiff’s legal right and the defendants’ liability should be determined by a trial, on an issue to be framed for that purpose. This latter course might be proper, if there were no objections to the bill, and a ground appeared for a temporary .njunction to restrain the operations of the defendants’ works. But no such ground appears in the present case.

And when we consider the objections to the bill, and to the allowance of an amendment, at this late stage of the proceedings, (which, if allowed, ought not to be allowed without the payment of costs,) we are of opinion that the bill must be dismissed, leaving the plaintiff to seek his remedy at law, as he may be advised. And if he should establish his right, then an application may be made for an immediate injunction. In such a case, a temporary injunction would be ordered unless the defendants could show good cause against such an order. Bill dismissed.