Summary
In Bailey v. Schnitzius, 45 N. J. Eq. 178, which appears to be an accepted authority, it is said that a preliminary mandatory injunction will be ordered only in cases of extreme necessity; and in Rogers Locomotive Works v. Erie R. R. Co., 20 N. J. Eq. 379, and Wakeman v. N. Y. L. E. & W. R. R. Co., 35 N. J. Eq. 496, it is said preliminary mandatory injunctions will be ordered only in cases of obstruction to easements or rights of like nature.
Summary of this case from Rockaway Rolling Mill Corp. v. Del., L. & W. R. Co.Opinion
03-19-1888
SCHNEITZIUS v. BAILEY.
John W. Westcott, for complainant. Thomas E. French, for defendant.
Injunction by Katherine Schneitzius, complainant, against William T. Bailey, defendant, to enforce the removal of an obstruction to a certain ravine which forms the outlet to a water-course running over complainant's land.
John W. Westcott, for complainant. Thomas E. French, for defendant.
BIRD, V. C. The parties to this suit own adjoining lands. There is an ancient highway called "Lee's Lane" running over the line between them. This highway is now, and it is alleged has been for a long period of time, crossed by one or two water-courses during a considerable portion of the year, if not all the year. The line between them and this lane runs nearly north and south. The complainant's lands are to the east, the defendant's to the west, of the lane. One of these alleged water-courses passes over the lands of the complainant, crosses the lane or highway, and so over the lands of the defendant, to a large stream of water called "Newton Creek." The defendant has undertaken to improve his lands, during the last year, more extensively than formerly, by grading them, and platting and dividing them up into city lots, streets, and highways. In doing this he found it convenient, if not necessary, to obstruct by filling up a small ravine, being the last-named watercourse. Soon after this filling up and obstruction, rains came, the road was flooded, and serious damage threatened to the lands of the complainant, and she was prevented from using the highway. A bill is filed stating the rights of the complainant to the land in question, the existence of an ancient watercourse in the place designated, the obstruction thereto, and the mischief threatened to her; with a prayer for an injunction.
Many witnesses have been examined on both sides. It is established to my satisfaction that when the defendant took title to the land that he now is improving, and upon which he has cast up the obstructions named, there was a well-defined water-course over them from the place where the complainant alleges that the water flowed, from her land, over the said highway. Indeed, several of the witnesses produced by the defendant unmistakably testify that they have known the lands of the defendant for many years, and that there always was what some call a "gully," what others call a "ravine," distinctly marked upon the surface of the soil. They say that they farmed the land on either side of it, but that this ravine or water-way was never farmed,—never broken up. One witness, who was in the employ of a former owner, remembers distinctly that, in order to get from one side of it to the other with a loaded wagon, they had first to go to the highway, and there cross the stream in order to do so; that there were such evidences, and that they have beenclearly and distinctly established before me, admits of no possible question in my judgment; but the important inquiry is, was there upon the lands of the complainant such a water-way, or such a collection of waters, whether they flowed into a channel or not, as to give it or them the character of running water. Upon this point I have not a shadow of doubt. If the testimony of the aged and respectable witnesses—witnesses who have been acquainted with the premises 20, 30, 40, and 50 years—is to be credited, and is to influence the mind of the court, there is no room for any other conclusion than that during the longest period named there has been a well-defined watercourse over the lands of the complainant, and crossing the road called "Lee's Lane" at the point named in the bill of complaint. It is equally conclusive that this water-course has not been the receptacle and conduit of surface water only, in the just and proper sense and ordinary understanding of the term, but of running water; running water having its origin in springs or in wet and marshy lands, forming for long periods of time during the year, a stream of sufficient size and force to carry it over the land of the complainant, and beyond the road in question. It is true that the flow does not continue during the dry seasons of the year, but that is not essential to the application of the legal principles upon this subject; for, if it were, a great majority of the small brooks or rivulets, or what are known as such, would be deprived of their titles, and those who claim the benefit of them in the law would be deprived thereof; for innumerable brooks and rivulets, and springs also, are known to leave no traces of their existence during droughts, except their rugged beds.
Since the application is for an injunction, and since the case is not upon final hearing, it is sufficient for me at this stage to indicate my reasons for advising that an injunction do issue. I will advise that a mandatory injunction issue; and my reason for that is the fact that the complainant as a citizen suffers peculiar and extraordinary hardships and damage because of this obstruction in the highway, supposing that she only suffered such damage or loss to her lands as might be recoverable in an action of trespass on the case hereafter. The damage consists in the complainant being obliged to travel several miles out of the ordinary and usual course because of this obstruction, and the damage thereby done to the road by volumes of water being cast upon it, and running over its course for several hundred feet, so washing it out as to make it impassable. This fact, plainly to my mind, gives the complainant such a hold upon equity as should move the court to secure to her immediate relief by this extraordinary remedy. This view is still more reasonable and commendable, when it is considered that the defendant well knew beforehand the consequences of his course, and saw by his first and second attempts what burdens he would impose on the complainant. To my mind he ought to restore things to their former status. It is true that this is not on final hearing, but the defendant has filed his answer; witnesses have been fully examined before me,—over 40 for the complainant, over 30 for the defendant,—presenting in all about 300 pages of printed evidence; so that I do not see how it is reasonably to be expected that the material facts upon which I have relied can very well be overcome; especially when many of them, of great value, came from the witnesses of the defendant. I will advise that a mandatory injunction do issue.