Woodruff and Stocking vs. Fisher and others, 17 Barb. 224

Hand, J. A few preliminary objections have been made on both sides, which should be first noticed. If the plaintiffs showed sufficient cause, a judge in the fifth judicial district had authority to grant the injunction.

Although the estimate of expense was to be presented, and the commissioners to appraise damages, &c. appointed by the court in the fourth judicial district, that does not affect the question of jurisdiction, in a suit brought in relation to the subject matter of the act. (And see Code, § 401.) It is said the venue ought not to have been laid in Jefferson county; because the commissioners of appraisal were of officers and residing in, the county of St. Lawrence ; but that question does not arise now.

If the place of trial designated is wrong, the defendants should demand a change. {Code, § 126.) The verification is in the ordinary form. An injunction, as a general rule, will not be allowed upon mere information and belief. (Campbell v. Morrison, 7 Paige, 160. Bank of Orleans v. Skinner, 9 Id. 305. 1 Barb. Ch, Pr. 617.) But in this case the allegations relied upon as sufficient grounds for granting the injunction, are stated positively in the complaint, and not on information and belief. The verification is, therefore, also of hiá own knowledge as to those matters. Nor was a separate affidavit necessary.

The positive verification of a complaint is tantamount to an affidavit; and it would be merely supererogatory to repeat the same matter in the form of an affidavit. There has been some difference of opinion upon this point. (Whitt. Pr. 680, 1.) But I think the true construction of sections 219 and 220 of the codeis, that if the motion for an injunction is for causes existing at the commencement of the suit, arid those are fully set out in the complaint, under positive allegations, and an injunction demanded therein, the ordinary verification of the complaint is sufficient.

If the cause for an injunction arise during litigation, then, as a general rule, there must be an affidavit. The obj ection of the plaintiffs, that this motion should have been first made to a judge, is also untenable. Such was not the old practice, and sec. 225 of the code authorizing an application to a judge out of court, is merely permissive and does not abridge the general jurisdiction of this court.

A motion to dissolve an injunction, made directly to the court, was the former practice 5 and, although it was usual to apply to the-judge granting certain orders in suits at law, to vacate them, this court has power, both in suits at law and in equity, to vacate any order made in a cause by a judge out of court. (1 Barb. Chan. Pr. 637. Minturn v. Seymour, 4 John. Ch. 173. Newbury v. Newbury: 6 How. Pr. R. 182. 3 Danl. Pr. 1895. Gould v. Root, 4 Hill, 554. Hart v. Butterfield, 3 Id. 455. Ryckman v. Parkins, 9 Wend. 470. Barney v. Keith, 6 Id. 555. 1 Burr. 350. 3 Chit. G. Pr. 33. Lindsay v. Sherman, 5 How. Pr.

R. 308. Blake v. Locy, 6 Id. 108. Code, § 324. Jud. Act, § 16.) Counsel on the argument relied upon the case of Snyder v. Olmstead, (1 How. Sp. T. R. 194.) It is there reported, that the court refused to hear an application to revoke an order to deposit books, &c., because it should have been first made to the officer granting it, notwithstanding the express provisions of the statute. (2 R. S. 199.) But I have no doubt the court may, in the first instance, in its discretion, hear motions to vacate orders.

And if there were doubts, as to some kinds of orders, I find no statute, rule or decision; abrogating the old practice in this respect, as to motions to the court to dissolve an injunction. This brings us to the merits of the motion. I am inclined to think, if the suit can be sustained upon other grounds, that the plaintiffs have such an interest as entitles them to sue.

It is true the commissioners are to assess the expense and damage upon the lands to be drained, in proportion to the benefit to those lands ; and the amount that may be assessed upon the lands of the plaintiffs, depends upon the judgment of the commissioners as to the amount of that benefit, and must as yet Be altogether uncertain. But the plaintiffs aver that they own large tracts of the land to he drained, and are bound to pay the largest share of the assessment, which last allegation, for the purposes of this motion, must be taken as true, so far as it is possible for them to know that fact.

If the object to be accomplished by this statute may be considered a public improvement, the power of taxation seems to have been sustained upon analogous principles. (People v. Mayor of Brooklyn, 4 Comst. 419, 607, et seq. and cases there cited by court and counsel. Thomas v. Leland, 24 Wend. 65. Livingston v. Mayor of N. York, 8 Id. 101.) But if the object was merely to improve the property of individuals, I think the statute would be void, although it provided for compensation.

The water privileges on Indian river cannot be taken or affected in any way, solely for the private advantage of others, however numerous the beneficiaries. Several statutes have been passed for draining, swamps, but it seems to me that the principle above advanced, rests upon natural and constitutional law. The professed object of this statute is to promote public health.

And one question that arises is, whether the owners of large tracts of land in a state of nature, can be taxed to pay the expense of draining them, by destroying the dams, &c. of other persons away from the drowned lands, and for the purposes of public health ?- This law proposes to destroy the water power of certain persons against their will, to drain the lands of others ; also, for all that appears, against their will; and all at the expense of the latter, for this public good. If this taxation is illegal, no mode of compensation is provided, and all is illegal.

If all is void, the plaintiffs cannot complain unless some act is done by which they actually suffer damage. The owners of these lands could not be convicted of maintaining a public nuisance because they did not drain them; even? though they were the owners of the lands upon which the ohf structions are situated.

It does not appear by the act or the complaint, that the sickness to be prevented prevails among inhabitants on the wet lands, nor whether these lands will bo benefited or injured by draining; and certainly, unless they will bo benefited, it would seem to be partial legislation, to tax a certain tract of land, for the expense of doing to it what did not improve it, merely because, in a state of nature, it may be productive of sickness. Street assessments are put upon the ground that the land assessed is improved, and its value greatly enhanced.

However, it is by no means clear that this case does not,come within the reasoning of the opinion delivered in the People v. Mayor, &c. of Brooklyn, (supra.) And, perhaps, after such

an act of the legislature, we are to presume the work will be beneficial to the owners of the lands. This suit is an equitable one, and although legal and equitable actions are, to a degree at least, blended as to form, principles remain the same; and this court will not interfere by injunction where our former court of chancery would not, unless expressly authorized to do so by statute. At the last general term in this district, we decided that we had no power to receive from the commissioners a second estimate, under the 4th

section of the act; that one having been presented to the court and the commissioners of appraisal appointed, we had no further jurisdiction over the matter. It is not important whether we act as commissioners or as a court, in these special cases. (Embury v. Conner, 3 Comst. 523. Sriker v. Kelly, 2 Den. 323. In re Beekman-street, 20 John. R. 269. Stafford v. Mayor of Albany, 7 John. Rep. 541. Matter of Mayor of New-York, 6 Cow. 571. Matter of Canal-street, 11 Wend. 154. Matter of Mount Morris Square, 2 Hill, 14.) All the authorities agree that, whether we act-as commissioners, or as a court of law in a

summary way, our powers are wholly derived from the statute, and our acts must be treat-5 ed in many respects like those of a court of limited and special ¡¡jurisdiction. (Id.) Our interference is not by common law process, *but by a mode given by statute; and that does not provide for the presentation of a second estimate. (Matter of Mount Morris Square, 2 Hill, 14. Stafford v. Mayor, &c. of Albany, 7 John. R. 541. Matter of Mayor, &c. of New-York, 6 Cow. 571.

Matter of Beekman-street, supra.) And it is equally well established, that the commissioners; also have no power,.except what is conferred by the statute; which they1 must .strictly pursue. (Mayor of Brooklyn v. Meserole, 26 Wend. 132. Belknap v. Belknap, 2 John. Ch. R. 463. Squire v. Campbell, 1 My. & Cr. 459. Matter of Mount Morris Square, 2 Hill, 14. Speer v. Crawter, 17 Ves. 216; 224. Trewin v. Lewis, 4 My. & Cr. 255. Matter of Beekman-street, 20 John. R. 271. And see Kendall v. U.

S.,12 Pet. 524.) The object to be accomplished under the act, As- appears By its provisions, is to drain certain "wet lands, to remoje the cause of sickness, so far as may be; ^hereby, For this, purpose the act provides, that all the obstructions .to a free course of the water through or below these wet lands, that are above, and. three-fourths of a mile below, the ledge at the'.

Smelting works, are to be removed; and the "ledge itself to the depth of five'féet, the whole width of the river, and the dam at Dayton Falls ; if, in the opinion of the commissioners appointed- by the act, it should be necessary for that purpose.' • The commissioners had a discretionary power, at least, as to the.ledge and the dam.

They were also to cause to be..made and filed, maps of sp much of the river and low lands as they found it ‘necessary to .enter upon, and proposed to dram; "and to",.cause to-be made and presented to- this court in the fourth -district, a careful' estimate of the costs of removing the. ledge and other obstructions.

And ■after the court, should have-received the. return of the commissioners appointed by it to estimate the.damage of the owners of property, and a copy thereof "should have been furnished to the said first commissioners; the letter.wire to assess, those damages and costs of removing the obstructions, upon the lands in Jefferson county drained by such removal, in proportion to the, benefit received thereby. This'assessment-was' also a matter of discretion and .judgment. '•«" . : •; .

The counsel for the plaintiffs; in, his. points, admits that the commissioners to appraise the" damages were right in adopting the principle of. assessment upon, the’basis of a-removal of the dam; and insists the fault is with the* first commissioners and the other defendants ; and the." complaint states'-that the court had not, before filing that estimate, caused the proper examination tp be made, but had since done so ; and have ascertained that a partial removal of the dam, which will produce much less damage, will be sufficient; and asks to have the estimate or plan so corrected by the commissioners.

The commissioners to appraise damages must be informed of what the commissioners, appointed by the act have resolved to do ; and I agree with the counsel of the plaintiffs, that in the absence of any other evidence of that resolution, the maps and the estimate of expense of removal, are to be the guide. The plaintiffs ask for an injunction to prevent the appraisal until the further order of the court. But what can be gained by an injunction 1 The commissioners, deriving their po.wers from the statute, and having made and filed the maps and presented the estimate, are so far functus officio.

Equity cannot raise their powers. It is alleged that the plaintiffs may have to pay §1,000 for a needless and useless destruction of property, in consequence of this mistake or neglect of duty; and that the constitution will not permit private property to be taken unnecessarily. Perhaps these public agents, in some cases, may be liable to indemnify persons injured. (Speer v. Crawter, 17 Ves. 216.) But in this suit we are not authorized to inquire into the facts. The commissioners have once acted, and it seems admitted that they cannot now revise their estimate. If they can, the remedy is not in equity.

They must do it voluntarily, or be compelled by a different proceeding. If they say or admit that they have been negligent, or have changed their opinion, still chancery cannot interfere. Indeed, their discretion cannot be controlled or aided, at law or in equity. (King v. Poor Law Com., 6 Ad. & E. 1. Same v. Same, Id. 36. Same v. Same, Id. 54. Walker v. Devereux, 4 Paige, 229. Matter of Mount Morris Square, supra. 3 Dan. Pr. 1881. Wiggin v. Mayor of New-York, 9 Paige, 20. King v. Mayor of London, 3 B. & Ad. 255. Att'y General v. Southampton R. Co., 9 Sim. 86. Philips v. Wickham, 1 Paige, 590. Patterson, v.

Mayor, &c. of New York, Id. 114.) It seems that in those cases, where the statute points out the duty of this court (as a court of law) in relation to persons so clothed with special powers, a court of equity has no jurisdiction. (Mayor, &c. of Brooklyn v. Meserole, 26 Wend. 139. Mooers v. Smedley, 6 J. C. R. 28. Van Doren v. Mayor, &c. of New- York, 9 Paige, 388. Frewin v. Lewis, 4 My. & Cr. 249. And see Kerrison v. Sparrow, 19 Ves. 449. Le Roy v. Corp. of New-York, 4 J. C. R. 352. Champlin v. Mayor, &c. of New-York, 3 Paige, 573. Brower v. Jackson, 7 Wheat. 218.) Mayor of Brooklyn v.

Meserole was decided in the court of errors, and settles the law in this state. Some of the cases appear to have gone further. (Frewin v. Lewis, supra ; S. C., 9 Sim. 66. Speer v. Crawter, 17 Ves. 216. Note to Kerrison v. Sparrow, supra. Couch v. Ulster & O. Tur. Co. 4 J. C. R. 26. 2 Stor. Eq. Jur. § 955, a. Rooke’s case, 5 Rep. 100.) But the question is at rest here. And Couch v. Ulster & O. Tur. Co. was against a corporation, and in its nature private ; and Frewin v. Lewis yielded to the cases in Adolphus & Ellis.

If the commissioners usurp powers not given by the act, they may become trespassers ; and if the act they are about committing will produce great and irreparable injury, they may be restrained as other trespassers. (Mayor of Brooklyn v. Meserole, 26 Wend. 140. Belknap v. Belknap, 2 John. C. R. 463. Clowes v. Beck, 7 Eng. A. Eq. 42.) And so, it is said, if they so execute what they conceive to be their duty, as to occasion a public nuisance, they maybe restrained. (Attorney General v. Forbes, 2 My. & Cr. 132 et seq.) Though they Will not be guilty of a public nuisance, if they do not go beyond their authority.

And equity may be invoked to prevent a multiplicity of suits. (Mayor, &c. of Brooklyn v. Meserole, supra. Sutton Harb. Imp. Co. v. Hitchins, 9 Eng. L. and Eq. 41.) But none of these exceptions cover this case, and whatever may have been formerly considered the 1'ule, now I think it is quite clear, that this injunction cannot be sustained.

Considering how little courts can control the action of such public agents, it would be singular if any person, fearing he may be aggrieved, may, upon their admission that they had been negligent, sue them and-.put'-a stop’id, the "public improvement placed under their supervision.. .» . .’ ' [St. Lawrence Special Term, February 21, 1853. Hand, Justice.] • The injunction "'must be dissolved with costs. Order'ed-accordingly.