Bruce vs. The President &c. of the Delaware and Hudson Canal Company, 19 Barb. 371

Harris, J. If the defendants were authorized by their charter to enlarge their canal, they were also authorized to raise the dam in the Eondout creek so as to make that part of their canal navigable for their enlarged boats. The ninth

section of their charter authorizes them to enter upon, take possession of, and use all such lands, real estate and streams as should be necessary for the purposes for which they were incorporated, and provides for ascertaining the damages to which the owner of ,any property so taken" might be entitled. By the next

section it is declared that “ if any person or persons shall be injured, by means of any dam or dams being erected under the provisions of this act, or the land of any person shall be inundated by swelling the water, by means of any dam or dams, or any mill or other water works injured by swelling the water into the tail race of any such mill or other water works which may have been erected on any stream, that the corporation hereby created may use for the improvements authorized by this act, the same proceedings prescribed in the” preceding

section might be had for the purpose of ascertaining the compensation for such injury. If, therefore, the defendants had the right, under their charter, to enlarge their canal, and of course, to increase the depth of water in the Eondout creek, they would be liable to the plaintiff for any injury sustained by him by “ swelling the water of the creek into the tail race of his mill.” The compensation for such injury might be ascertained in the manner prescribed in the act, or, if neither party should apply for such appraisement, the defendants would probably be liable in action adapted tp the case. But the plaintiff’s right to erect and maintain the dam would be unquestionable. Nor has the 22d

section of the act, which requires that the company should give security &c. before taking possession of or exercising any control over any private property &c. any application to the cases specified in the tenth section. In all cases of taking property without the consent of the owner, the constitution requires that compensation shall first be made to the owner. But this principle has never been deemed applicable to a case of merely consequential damages, like that in hand. The plaintiff’s property has not been taken or occupied; all that he complains of is, that it has been injured by means of

an act done by the defendants elsewhere. For this injury, he may or may not have a right to recover damages; but, if the act itself was- authorized by law, the defendants could not be restrained from doing it because it would result in an injury to the plaintiff. He must be confined to his action for damages, or the proceedings prescribed by the tenth

section of the act. Thus, it will be seen the question whether the plaintiff was entitled to restrain the defendants from raising the water of the Bondout creek is made to depend upon another question, and that is whether they were authorized by their charter to enlarge their canal. If they had such authority, the act of raising the creek by the means described in the complaint, was a lawful act, and cannot be restrained.

If ón the other hand, they had no such authority, it was an unlawful act, and as it would produce injury to the plaintiff, he might have the defendants restrained by injunction. • To authorize a temporary injunction, it must appear from the complaint that the act sought to be restrained is unlawful, and that to allow such act to be committed or continued, during the litigation, would produce injury to the plaintiff. That the act sought to be prevented, in this case, would produce injury to the plaintiff, may be assumed. Then it remains to inquire, whether such act is unlawful.

Thus, again, we are brought back to the question whether the defendants are authorized by the charter to enlarge the dimensions of their canal. The defendants are authorized to construct and forever maintain a canal. That canal is to be of suitable width, depth and dimensions; and, of the question what width, depth and dimensions are suitable, the defendants are "made the judge. The question is to be determined, I suppose, in reference to the object which the legislature contemplated when they granted to the defendants their charter. That object is declared, in the

preamble, to be the opening of a channel through which the city of New York and other parts of the state might receive a supply of stone coal found in the interior of the state of Pennsylvania. For the purpose of opening such a channel the defendants were incorporated. They were to construct and forever maintain a canal whose capacity should be “ suitable” to this object. It is matter of history that upon opening this channel, it was soon found inadequate, to the supply contemplated. The defendants, not long afterwards, enlarged the capacity of the canal by deepening its bed.

Still it was ascertained that its increased “ dimensions” were not “suitable” to the object contemplated; a supply of coal. The defendants then entered upon the project of enlarging the canal to its present dimensions. Of necessity the execution of that project must have involved very great expenditures. The defendants, it cannot be doubted, entered upon it in good faith, believing they had authority in their charter for making such an improvement. They have been permitted, undisturbed, to prosecute the work to its completion. By its completion, the public, not less than the defendants, are benefited.

It is now more nearly suited to the accomplishment of the object which the legislature contemplated when it incorporated the defendants, than ever before. Under these circumstances, I cannot say that the defendants have transcended their authority in constructing their enlarged canal.

There is nothing in the language of the charter which leads me to suppose that the legislature intended that the defendants should determine, once for all, the size of their canal, and that, having constructed it of the limited dimensions first adopted, they should not be at liberty, whatever the necessity, subsequently to enlarge it.

It seems to me far more in accordance with the avowed purpose of the legislature, to hold that, as the defendants were to maintain their canal forever, for the purpose of furnishing to the city of New York and other parts of the state a supply of coal, it was intended, when it was referred to the company itself to determine the size of its canal, that.it might determine to enlarge that size whenever, in its judgment, the demand for the

article it was to supply, required such enlargement. Certainly, there is nothing in the terms of the charter which precludes this construction. Nor will any one deny that where the defendants, acting- in good faith and with direct reference to the object for which they were endowed with legal existence, have constructed a work of great public utility at so great expense .to the company, they are entitled to a liberal

interpretation of the terms from which they supposed they derived their power to enter upon that work. Guided by such a rule of

interpretation, there is no great difficulty in finding, in the defendants’ charter, sufficient authority for them to make their enlargement. If they had this authority, it has already been seen that they had the legal right to raise, by a dam, the water of the Rondout creek, so as to make that portion of it used by them as a part of their canal, navigable for their boats of the enlarged size. The only remedy left to the plaintiff would then be an action to recover damages for the injury he had sustained, or proceedings, under the provisions of the tenth

section of the defendants’ charter, for the appraisal and payment of such damages. But, upon a motion like this, it is not necessary to determine affirmatively, that the defendants had authority to make their enlargement. To entitle the. plaintiff to a temporary injunction it was for him to make it appear, satisfactorily, that the defendants were doing an illegal thing. It must appear by the complaint, that the plaintiff is entitled to the relief demanded. This cannot appear in the case under consideration, unless it is shown that the defendants acted without legal authority in raising the dam at Bddyville.

If that question is left in doubt, by the complaint itself, the plaintiff has failed to make a proper case for an injunction. • Before a party can claim the

summary interposition of the court to restrain

an act which, if committed, will result in injury to him, he must show clearly that the act itself is illegal. But, conceding, even, that it is clear that the defendants had no right to raise the water of the Rondout creek so as to cause it to flow back upon the plaintiff’s water wheel, it does not follow as a matter of course, that the plaintiff was entitled to an injunction.

It is not every case, even of a clear violation of the plaintiff’s right, that entitles him to an injunction to restrain such violation. “ It is not every case,” says Story, “ which will furnish a right of action against a party for a nuisance, which will justify the interposition of courts of equity to redress the injury, or remove the annoyance.

But there must be such an injury, as from its nature, is not susceptible of being adequately .compensated by damages at law, or such as, from its continuance or permanent mischief, must occasion a constantly recurring grievance, which cannot be otherwise prevented, but by an injunction.” (2 Story's Eq. Jur. § 925.) And again, in the same

section he says “ A mere diminution of the value of the property by the nuisance, without irreparable mischief, will not furnish any foundation for equitable relief.” Upon these principles the plaintiff was not entitled to an injuction. The injury of which he complains is susceptible of adequate compensation in damages. He will suffer no mischief which a sufficient amount of damages will not repair. Concede that the effect of raising the dam is all that he alleges it to be, still ample compensation can be made by damages in law.

It is true, that, even in such cases, a perpetual injunction is sometimes awarded as the final judgment of the court, determining the rights- of the parties. Such an injunction is awarded upon the principle that it is .the office of a court of equity to suppress litigation by preventing a multiplicity of suits. But it is only granted in connection with a decree declaring the rights of the parties, or after such rights have been established at law. There is yet another reason why I think the injunction ought not to have been granted. The provisions of the 219th

section .of the code are permissive, not imperative. It is not in every case in which a plaintiff brings himself within the letter of that section, that a temporary injunction should be allowed. Some regard should be had to the nature and extent of the injury which the plaintiff would suffer if the injunction should be withheld, and also to the • consequences to the defendant, if it be granted. This extraordinary power of the court should only be exerted when it is necessary for the furtherance of justice, and the protection of the plaintiff’s rights.

In this case, assuming that the plaintiff is right in asserting that the defendants had no legal authority to raise the dam, the injury he was likely to sustain, as the consequence of this violation of his rights, would be very trifling and easily compensated in damages, while the consequences of an injunction, pending the litigation, might prove disastrous to the defendants beyond the power of the plaintiff to make compensation. Under such circumstances, the plaintiff, if right, could afford to wait until his rights should be declared .by the judgment of a competent tribunal.

Then, indeed, he would be entitled to protection in the enjoyment of those rights, of however little value they might be, and however much the defendants might suffer as the consequence of such protection. [Albany Special Term, July 26, 1853 Harris, Justice.] In any view that I have been able to take of the case, the result is the same. The injunction was improperly allowed. It must therefore be vacated, with costs to abide the event of the suit.