Van Bergen v. Van Bergen , 3 Johns. Ch. 282 ( 1818 )

The cause stood over for consideration to this day.

The Chancellor.

There are two objections to the plaintiff’s title to a decree, and both of them appear to be well founde;.

1. The remedy of the plaintiff (if any) ought to be sought at. law, by an action on the case, or by an action upon the covenants contained in his deed of Decernber, 1808. The cases in which chancery has interfered by injunction, to prevent or remove a private nuisance, are those in which the nuisance has been erected to the prejudice or annoyance of a right which the other party had long previously enjoyed. It must be a strong and mischievous case of pressing necessity, or the right must have been previously established at law, to entitle the party to call to his aid the jurisdiction of this court. In Brown's case, (2 Vesey, 414.) Lord Hardwicke intimated that the title must have been established at law, or the party have been in the previous enjoyment of the subject, for at least three years, before he would interpose by injunction in the case of a private nuisance. In the case of The Attorney General v. Nichol, (16 Vesey, 338.) Lord Eldon said, there were private nuisances which would support an action on the ease, but which would not support an injunction. He put the jurisdiction of the court upon the ground of material injury, and of that special and troublesome mischief which required a preventive remedy, as well as a compensation in damages. I have had occasion frequently, since I have been sitting in this court, to allude to this very doctrine, and to consider it as sound. (Gardner v. Village of Newburgh, 2 Johns. Ch. Rep. 164, 165. Attorney General v. Utica Insurance Company, id. 379.)

When a statute authorizes commissioners or others to interfere with private property, and it is charged and shown that they are about to exceed their powers, the case seems not to be governed by the ordinary rule; the interference of the court is more prompt, and is called for by greater necessity. (Belknap v. Belknap, 2 Johns. Ch. Rep. 463.)

jn this case the plaintiff erected his mill after the defendánt had erected his dam. It is like the case of a person building his house against an ancient wall, and then complaining that his windows are darkened. Whether the defendant had a remedy at law, prior to the erection of his present mill, for the overflowing of his land, by the means of the dam in question, it is not for me to say. But, perhaps, he might have tested the legality of the dam, in that way, or after he had erecte'd his mill, he might, by an action on the covenant in his deed, have tried the question. It is a proper legal question, and the plaintiff had his legal remedy. It does not strike me that he has shown that species of nuisance required by the cases, to entitle him to call to his assistance the power of this court.

But if the merits of the case were properly before me, I should consider the plaintiff as having failed.

When the parties executed their mutual releases, in December, 1808, there was an artificial dam on the spot where the present dam stands, still higher than the present dam. Of this fact the proof is abundant. There has been an artificial dam there for upwards of 20 years, and always higher than the present dam. The mill belonging to the defendant, and to.which this dam is auxiliary and necessary, is also of long standing. All this was known to the parties when they released to each other; yet the plaintiff releases “ the grist mill, and the land thereby covered, and appertaining, as fully and amply as the said mill with its appurtenances, is now actually possessed by the defendant, by his tenant, and also the water, mill dam, and ground thereby covered, with all and singular the rights, privileges, fyc. unto the said mill belongingIt appears to me, that by the true and obvious construction of this deed, the defendant is secured in the title, use, and enjoyment of the mill, and mill dam, as it then existed. Nor does the release to the plaintiff of the land and water, and the water fall, further up the creek, destroy the operation of the deed to the defendant. They may exist consistently together. The plaintiff is entitled “ to the fall of water in the said creek, and the privilege of the water of the same, and the free me of any mill or mills which may thereafter be erected upon the said creek and fall of water; and the defendant shall not so raise the mill dam now erected below the said falls, as to make back water to impede any mill which may be erected by the plaintiff”

The prohibition in this deed, is against raising the mill dam then erected. The defendant was entitled to preserve the dam at the then existing height, and to enjoy unimpaired the mill and all its privileges as it was then, and for a long time had been enjoyed. The plaintiff was entitled to build what mills he pleased on his own ground; but then he must so exercise that right, as not to interfere with the established and existing right of the other party. He must so construct his mill, or erect it in such a place, as that he may enjoy it, consistently with the defendant’s enjoyment of his dam and water. If his new mill is to interrupt the enjoyment of the prior dam and mill, the proposition would be reversed, and his erection would become the nuisance.

My opinion, accordingly, is, that the plaintiff has shown no right to sustain his bill, and that it must be dismissed with costs.

Decree accordingly.