Opinion
11-27-1903
HARPER, HOLLINGSWORTH & DARBY CO. v. MOUNTAIN WATER CO. et al.
C. A. Reed, for complainant. Adrian Riker and Frank Bergen, for defendants.
Suit by the Harper, Hollingsworth & Darby Company against the Mountain Water Company and others. Pinal hearing on bill, answer, cross-bill, replication, and proofs. Decree for complainant.
C. A. Reed, for complainant.
Adrian Riker and Frank Bergen, for defendants.
EMERY, V. C. Complainant's bill is for an injunction to restrain defendants' interference with its rights in the waters of a stream or natural water course by the diversion or abstraction of the waters of the stream, and of the springs and rivulets which in part supply it. These rights and the defendants' interference with them have, as complainant claims, been already established by a suit at law brought by its predecessors in title against two of the defendants, under whom the third defendant claims by title or right acquired after the suit at law. In its general aspect, therefore, the bill is tiled in aid of a legal right claimed to be sufficiently established, and to restrain by injunction the continued interference with the right. Defendants deny any interference with complainant's rights, set up alterations in the operation of their works since the judgment at law, and dispute the conclusiveness of that judgment on the question of interference. The substantial facts relating to the water rights claimed, the alleged interference with them, and the issues in the suit at law, are as follows: Complainant is the owner of a mill property, to which is attached or appurtenant a right to a supply of water from a stream called "Green Brook," flowing through a valley between the First and Second Mountains, lying west of Summit, sometimes called the "Feltville Valley." Complainant's mill is not located on the stream, but water is supplied to it by means of a raceway beginning at a dam in the brook, called the "Upper Feltville Dam," and running about 2,400 feet to the mill. Complainant's right, or that of its grantors, to the water of the stream for use at their mill, by means of this raceway, was established by the suit at law referred to, and has not been contested in this suit. About a mile and a half above the dam the defendants have constructed a water plant, which is now used to supply the city of Summit with water. The water supplied is derived altogether by pumping from wells which have been sunk in the neighborhood of the stream, and in the suit at law it was claimed by plaintiffs, as it is now claimed here by complainant, that by the operation of their pumping plant the defendants abstracted the water from the stream, and from the rivulets and springs which supplied it, thus reducing the flow of water in the stream to which complainant's mill was entitled. As the defense in this suit is based mainly on the contention that the verdict and judgment which were obtained in the suit at law are not conclusive in this suit, because of the alterations or changes in the operation of their plant since the verdict, it is necessary to make a statement in some detail of the location and character of the different parts of the plant, in connection with the stream and its operation, at the time of the trial at law, as well as at the present time. The works of the water company consist of an artesian well, two open wells, called the upper and lower well, and an infiltration gallery, from which water issupplied to the upper well. About 20 feet from the upper well the pumping plant is located, and from this pumping plant pipes 15 to 18 inches in diameter connect with three shafts, sometimes called wells in the evidence, located at the two ends and the center of the infiltration gallery. The upper and lower wells are connected by a pipe about 1,600 feet long, and, at the time of the trial at law, water was supplied from the lower to the upper well; a siphon being constructed in the pipe, as the wells were at different levels. The lower well is farther down the stream than any of the other structures, and is about a mile and a quarter above the dam, measuring along the bed of the stream. It is 30 feet in diameter, about 25 feet deep, and is located about 50 feet south of the stream, whose general direction is from northeast to southwest, through the center of the valley. On the north side of the stream, about 1,600 feet above the lower well, and about 350 feet from the stream, the upper open well is located. This is 30 feet in diameter and 30 feet deep. Between the upper well and the bed of the stream, the infiltration gallery, about 500 feet long, is constructed of pipes from 15 to 18 inches in diameter, laid with open Joints to admit passage of the water into it, and laid about 20 feet below the surface of the ground. Three shafts, one from each end and one at the center, run from the surface of the ground to the gallery. This infiltration gallery runs in the same general direction as the banks of the stream, but as it is laid on an angle, and not straight, the end shafts are about 200 feet, and the center shaft about 300 feet, from the north bank of the stream. The upper well is located nearly opposite the center of the infiltration gallery, and about 20 feet from it. The north end of the infiltration gallery is the portion of the plant which is located farthest up the stream. The upper and lower wells are open at the bottom, but constructed with cement walls, which are intended to be water-tight. The artesian well sunk near the upper well is a water-tight tubing, extending 200 feet down into the rock, and its operation is not claimed to affect the water supply of the stream. The entire works are constructed near the head of the Feltville Valley and the sources of Green Brook, and the ponds, rivulets, and springs about the works are thus described or located in the evidence: About 200 yards up the stream, above the pumping well, there is a pond called the "Frog Pond," one of the sources of the stream, into the upper end of which a small rivulet, apparently the source of the stream, flows, and at the lower end of which is an outlet into the stream. The first supply below the frog pond is a rivulet or stream running into Green Brook from the south, and called the "Faitoute Spring Run," which takes its rise from a spring on the rise of ground toward the south. Another run or rivulet, about 350 feet further south, also runs in upon the same tide. These runs are opposite the infiltration gallery. The next stream is one south of the pumping station, and about 300 yards further down the brook, but running into it from the north, and from what is called the "Ballantine Spring," located about 400 yards north of the stream. Into the Ballantine Spring run, before it reaches Green brook, another small stream, originating apparently in a small pond, between the Ballantine spring and the pumping station, runs into the Ballantine Spring run. The lower well is located nearly 600 feet down the stream from the Ballantine Spring run, and, as I have stated, is the structure farthest down the stream. In the suit at law it was claimed by the plaintiff that this lower well was located over a spring known as the "Boiling Spring," and evidence tending to prove the existence of a spring at this place at the time of the location of the well was produced by the plaintiff, and submitted to the jury. Defendants in the suit at law denied its existence at that time, and produced evidence tending to prove this claim. The question of the existence of the spring was left to the jury. After judgment in the suit at law, the defendants ceased pumping water from the lower well through the pipe, and the present contention of the defendants is that this change in the operation of their plant has so materially changed the condition which existed at the time of the trial, upon which the verdict was based, that the judgment cannot be taken as conclusive upon the question of the interference at the present time. And the defendants now claim to have produced evidence that by their plant, as at present operated, no water to which complainant is entitled is abstracted from the bed of the stream above the lower well, or from the frog pond, or from the spring runs that run into the stream above the lower well. They contend, therefore, that, on the case as now presented, they have the right to show, and have shown, that no waters to which complainant is entitled are abstracted by them. Complainant, on the other hand, claims that this evidence upon which the defendants now rely to support their, claim that they are not abstracting water by the use of the plant, other than the lower well, is evidence of precisely the same character as that submitted by them in the trial at law as to the abstraction of waters by the works above the lower well, and that such abstraction of these waters (other than that of the lower well) was an issue tried in that case, and adjudged against the defendant. It is not claimed on behalf of the defendant that their disuse of the lower well has had the effect of increasing the supply of water to the complainant's mill, or that the nuisance to its rights by the abstraction of water, other than from the lower well, has ceased or been at all affected or changed byreason of the disuse of the lower well The real claim is that neither at the time of the trial nor at the present time were the defendants drawing water from the stream or its sources above the lower well. In this respect the case differs from the class of cases where, after the judgment at law for nuisance, it is claimed on the application for injunction that, by reason of subsequent alteration, the nuisance itself has been abated. In such cases the court will, as a general rule, on the application for permanent injunction, settle the question as to the effect of the alteration, and determine the rights of the parties, without sending the parties to law for another trial as to the effect of the alteration. Carlisle v. Cooper, 21 N. J. Eq. 576, 598 (Err. & App. 1869); Imperial Gaslight & Coke Co. v. Broadbent, 7 H. of L. C. 600, 609, 614 (1859). But where, as here, the nuisance to complainant's rights, if it ever existed, still continues, the preliminary question on this application for injunction is really a question as to the effect of the verdict in the suit at law upon the question of the present existence of the nuisance there complained of.
Upon the point now mooted, viz., the question of fact whether the defendants' plant (pumping from the lower well being discontinued) does abstract from the stream, and from its natural supplies, waters to which complainant's mill is entitled, the precise questions to be decided are, first, is the verdict to be considered a decision that these works (other than the lower well) did then abstract waters from the stream to complainant's injury; and, second, if it is to be so considered, is it now, and tor the purposes of this application, to be taken as conclusive upon this question of fact? In my judgment, both these questions must be answered in the affirmative.
The record of the former suit, including the evidence taken, and the arguments of counsel on the application for a new trial, have been put in evidence; and, by agreement, the evidence taken in that suit has been considered as taken in this suit. The declaration contains two counts—the first, for a diversion or abstraction of the waters of the stream by inclosing springs which supply it, and by the erection of a plant (particularly described) which abstracted the waters of the stream and springs; and the second, a general count for the diversion or abstraction of the waters of the stream by the defendants by their mill, etc. In the second count, abstraction from the springs was not specially charged. To this declaration the general issue was pleaded, and a general verdict for the plaintiffs, assessing their damages at $430.95, was rendered.
An examination of the evidence shows that both parties submitted a large amount of evidence as to the effect of the operation of defendants' plant upon the stream and its ponds, springs, and runs above the lower well. The evidence of the plaintiff showed, or tended to show, that since the construction of defendants' plant the flow of water into the brook had been materially lessened all the way down from the frog pond, and that the bed of the stream below the frog pond and above the lower well, and also the bed of the rivulets from the springs above this well, were dried up, and at different places the streams disappeared. Evidence was also introduced by the plaintiff showing or tending to show the effect of the operation of defendants' pumping plant upon the stream, ponds, and runs within what was called the "scope" or "cone" of its influence, and that the appearances on the surface indicated an abstraction of water by such operation of a pumping plant. As to the lower well, the further and additional claim was made by the plaintiffs, and their evidence tended to show, that the well was located over a spring then existing, called the "Boiling Spring," whose waters ran down into the stream, and that the waters of this spring were directly drawn away from the stream and into defendants' works. Upon the part of the defendants, evidence was offered that any diminution in the water supply to the mill was due to natural causes, such as diminished rainfall, due to clearing of woods and other causes; and, as to the abstraction of any water by their works located above the lower well, evidence was offered showing, or tending to show, that the entire bed of the valley at this point, from above the frog pond to the lower well, and across the valley, under the stream, was underlaid by a bed of clay, 2 feet or more in thickness, entirely impervious to water. Upon this point, Mr. Bassett, called as the manager who built the works, as well as an expert engineer, testified that, besides the excavations made for the purpose of constructing the works, he had made other excavations in the valley, to the depth of 6 or 7 feet, which indicated the character of the earth, and that there was discovered in all these excavations a vein of close-grained yellow clay at least 2 1/2 feet thick, and that in the lower part of the valley he had never discovered any place where there was not this layer of clay near the surface. He also says that he knows this layer of clay extends from beyond the frog pond as far down as the lower well, and that he believes it extends for a considerable distance below, and that it extends across the valley. Another engineer, Mr. James Owen, who examined the ground for the purpose of considering the direction of the underground flow of water, says that from near the road above the frog pond to a point below the lower well he found the bottom of the brook almost entirely black muck, resting on an impervious clay; that this clay formation extended over the valley from near the Baltus Roll Road to a point below the lower well, and was impervious to water. It wastestified by both of these witnesses that none, or practically none, of the water above this bed of clay was drawn into defendants' wells, and that the sole source of their supply was the water percolating through the layers or deposits of gravel underneath the clay. The bed or banks of the stream are about 2 feet in depth, and the stream, with the spring runs which supply it (other than the boiling spring, if this existed), laid above the clay bed; and it was therefore claimed that as to these no water that would otherwise have come down to complainant's mill was abstracted. As to the lower well, it was claimed by defendants, and evidence of witnesses was admitted to show, that the spring was not in existence when the well was located.
Mr. Chief Justice Magie, the trial justice, gave to the jury, in his directions, the instructions which are, as between these parties, and for the purpose of the present application, the law of the case. He charged the jury that while the defendants might strike underground streams, and abstract underground water that might come to the surface, and might carry this percolating water off and sell it, yet if, by their works, they abstracted the water, or reduced the level of springs or streams that had come to the surface, it was an actionable wrong, if any appreciable quantity was taken. As to the evidence of such abstraction by underground pumping, he charged the jury that a diminution in the water supply of the stream after the erection of the works was evidence to some extent, and that the evidence of experts as to the contour and formation of the ground, the condition of the soil, and the effect of pumping at the upper station, was corroborative evidence. As to the lower well, he charged the jury that the case was different; that if there was such a spring, which continued down to the time when defendants located their lower well upon it, then they were liable, if an appreciable quantity of water was taken; and, as to the lower well, he also charged the jury that if there was no spring there, but the well was so situated and operated as to draw water from the stream from the pond formed above the dam when this pond came up around the well, then the defendants were liable to the same extent as for abstracting waters from the stream and springs above the lower well. As to the effect to be given to the evidence offered by the defense, if believed, he charged the jury, that if it had been established to their satisfaction that there was an impervious bed of clay, without break, stretching from one side of the valley to the other, so that the water in the frog pond, the springs, and in the streams would not penetrate it, and that if defendants had taken nothing but water under an impervious bed of clay, so that the water in the streams, springs, and ponds was not taken, then defendants were not liable. The jury were finally directed that if it was shown by a preponderance of evidence that the defendants had abstracted an appreciable quantity of water which had come to the surface, in a pond, spring, or stream, so as to diminish the flow at plaintiff's mill, and had done this either by the operation of their pump at the pumping station, or by their lower well, or by both, then plaintiffs were entitled to damages for the diminished power and costs to replace it, but, if not, defendants were entitled to a verdict. Neither party requested a special verdict or finding as to damages resulting from the operation of the lower well. The entire damages claimed by plaintiff for the six years before commencing suit was $577, and the verdict of the jury was for $430.95.
On the rule for a new trial (reserving exceptions) argued before the Supreme Court, the conclusion handed down was (1) that the defendant had no ground to complain of the law laid down by the trial judge as to its liability; (2) that there was proof of an injurious diminution of flow, by abstractions such as were properly held to be actionable; and (3) that the amount of abstraction not being determinable with mathematical precision, the mill owner was entitled to compensation upon the best obtainable evidence, and the amount awarded could not be said to be excessive. The rule was discharged, and judgment entered on the verdict, and no writ of error was taken. The law as laid down by the trial judge, thus approved by the Supreme Court, establishes, therefore, the law of this case.
On this application for injunction, complainant, on its part, introduces evidence showing that, as to the flow of water in the stream to the mill, the same condition exists as at the time of the trial at law, and that the defendants are now pumping from the upper well more water than at the time of the trial was drawn from both wells. Expert evidence of the same character produced at the trial at law is produced here, on the part of the complainants. Defendants, on their part, show that the lower well is no longer operated, and as to the operation of the pumping plant and other works, the ultimate fact or defense claimed to be established is the same as the fact or defense set up at law, viz., that the frog pond, the bed of the stream, the springs, and the rivulet are underlaid by an impervious bed of clay, extending down the valley from above the frog pond to or below the lower well, and across the valley to near the sides of the hills inclosing it. The evidence to prove this ultimate fact is in some respects different from that produced in the trial at law, and it is claimed to be conclusive. Shortly before the hearing on this suit, defendant had the Paitoute Spring run and the run below it, and also the bed of the stream itself below the frog pond, dug out and cleaned; and, as a result of this, it is claimed that a continuous unbroken bed of impervious clayis disclosed. Samples of the clay are produced as in the trial; and the evidence of expert witnesses, Mr. Bassett and Mr. Sherrerd, that the bed of clay under the waters in question is continuous, is also given. No fact different from or other than the fact relied on as the defense at law to the claim of the abstraction of the waters of the stream above the lower well is now set up, and the only difference between the case here and at law is as to the precise character of the evidence to prove the fact. In the suit at law, the defendants went to the jury without producing the additional evidence now produced, but which could have been then produced, had they desired. In my judgment, the effect of the verdict cannot be avoided by the production now of evidence of this character. The verdict and judgment, considered in their bearing as estoppels in subsequent actions, are, according to the authorities on this subject, conclusive, not only as to the actual fact or matter decided, but also as to facts or matters which it was necessary to decide as grounds for the decision given by the verdict or judgment. Notes to Duchess of Kingston's Case, 2 Smith, Lead. Cas. (8th Am. Ed.) 640; Phillips v. Pullem, 45 N. J. Eq. 830, 834, 18 Atl. 849 (Err. & App. 1889); 24 A. & E. Ency. (2d Ed.) p. 710.
On this application the verdict is to be examined rather with the view of determining whether the fact now contested was really an issue tried by the parties, and whether the determination of the jury on the fact is to be taken as a sufficient establishment of complainant's legal right, and of its violation by defendants. Examining the entire evidence, I conclude that the verdict of the jury must fairly be taken as deciding that the defendants did commit the nuisance now complained of, and unlawfully abstracted these waters of the stream, by the operation of their plant above the lower well, and, as included in this, did decide also that the alleged impervious bed of clay did not exist. Cases might occur where evidence subsequently discovered, and not obtainable at the trial, might demonstrate that the verdict of the jury was a mistake, and justify the court in sending the case back to another jury for trial, to determine the continuance of the nuisance, before granting a perpetual injunction; but in the present ease the evidence is substantially of the same character as the evidence in the trial at law, and is in effect a second trial, with the introduction of additional evidence which could have been produced at the first trial. I have no right to deprive the complainant of the benefit of the trial at law by reason of the production of this additional evidence. So far as the form of the verdict is concerned, the general verdict, in the absence of anything to show that it was applicable only to one cause of action, viz., the abstraction of water from the lower well, must be taken to have been rendered for all causes of action included in the declaration, and to include the abstraction from the stream and ponds above. Duchess of Kingston's Case, 2 Smith, Lead. Cas. (8th Am. Ed.) 928. Defendants would not have been precluded from showing by extrinsic evidence that the abstraction of waters above the lower well was not in fact an issue, and was not tried. Id. But if the evidence and charge and verdict be considered for the purpose of now determining whether the damages were intended to include damages for the abstraction of waters, other than from the lower well, I think the conclusion must be that they were included, and that the jury decided that the abstraction of these waters now in question was not prevented by the existence of an impervious bed of clay.
Complainant, having thus sufficiently established by trial at law its legal right and its violation, and the injury being a substantial one, affecting permanently the use and the value of their property, is, under the general rule applicable to such cases, entitled as of course to a perpetual injunction to prevent the recurrence of the wrong. Kerr on Injunctions, *42; Imperial Gas. Co. v. Broadbent, 7 H. L. Cases, 600, 609, 612. In Higgins v. Flemington Water Co., 36 N. J. Eq. 538, 546 (Err. & App. 1883), it was held that where the court of equity itself settled the question of right and its violation, in such cases an injunction should be granted to protect the continued violation of the right, and that the circumstances that the water was withdrawn for the purpose of a public water supply was not ground for withholding the injunction. Upon this point, the doctrine of Imperial Gas Co. v. Broadbent, supra, was approved. The same rule was applied by Vice Chancellor Pitney in Hennessy v. Carmony, 50 N. J. Eq. 616, 25 Atl. 374 (1892), to protect the ownership of land against a continuing injury appreciably affecting its value. The defendants have filed a cross-bill praying a condemnation of complainant's right, and an assessment of damages by way of compensation. At the hearing, the right to have such assessment was denied by complainant; and it was agreed by the parties that the hearing upon the cross-bill should await the determination of the issue of fact as to the continuance of the injury to complainant, and its right to an injunction, on the strength of the verdict and judgment at law. I will therefore now hear counsel on the application in the crossbill, withholding any decree for Injunction upon compainant's bill until such hearing or until further application.