Ballantine v. Town of Harrison.

the town of Harrison, from extending a street over this dock down to the high-water line. It appears that such contemplated street would embrace only a part of the dock constructed by the appellants, and the bill further states that the city authorities purpose to use the part so taken as a public wharf. The answer of the respondent controverts the title of the appellants, and sets up, in addition, a paramount right to lay the street as contemplated, arising from a dedication by a former owner of the land. The bill is a pure injunction bill, and the case was heard before Vice-Chancellor VAN FLEET, on final hearing upon the pleadings and proofs.

This bill seems to me to lack all semblance of equitable substance. On the admission that the appellants are the owners of the premises, as they assert, and that the respondent intends to do everything that is laid to its charge, an injunction is not, upon familiar principle, the remedy apt to the occasion. The gravamen of the complaint is made up out of an ordinary trespass. The question whether the respondent has the right to run the street in dispute to the water line is one purely of law, and is entirely unconnected with any matter of equitable cognizance, so that the only possible ground on which an injunction could be demanded would be that the act threatened to be done would result in injurious consequences that could not be reasonably recompensed in damages. When an injunction is asked for as auxiliary to the maintenance of a legal, in contradistinction to an equitable right, the rule is entirely settled that such preventive process will never be issued except to preclude irreparable damages. Legal rights are to be asserted and decided in the legal forum, and until so established, a court of equity will not interfere except in case of absolute necessity. And even when such intervention occurs, equity will not take to itself jurisdiction over the legalities of the controversy, but will content itself with conserving the subject of dispute, pending the litigation at law, and will sometimes (and it appears to me that such is the proper course) grant its aid on the condition that the matter in controversy be put promptly for investigation before a legal tribunal. This was the measure taken by Lord COTTENHAM in the case of Hilton v. Earl of Granville, 1 Cr. & Ph. 284, in which the question involved was, whether the defendant had the right to so work his mine as to jeopard the house of the complainant; the course adopted being a refusal of a preliminary injunction, but a retention of the bill accompanied with a requisition that the parties should

Ballantine v. Town of Harrison.

put the matter, at the earliest possible time, before a court of law.

It will be observed that unless the imminence of irreparable damage be the test of the right of equitable cognizance over cases which involve simply legal rights, the result must be that such cognizance exists in every case of a continual invasion of the land of another. If a tortious taking and holding of real property lay the ground for such jurisdiction, then necessarily the equitable and the legal power to take such matters in charge is concurrent. Such a doctrine is unknown to the law; and the opposite doctrine is that which has always, in theory, at all events, been maintained in this State. No case can be found in the volumes of our reports that purports to hold that the mere taking possession of lands and holding them vi et armis will form a basis for the arrest of the doing of such wrong by the arm of equity. All the authorities cited in the brief of counsel from our own reports, with the exception of such as involve the act of railroad and similar corporations entering without right on lands owned by other persons, and which class rests upon a well-known principle peculiar to themselves, repudiate such a right of equitable jurisdiction. In both the cases cited of Southmayd v. McLaughlin, 9 C. E. Gr. 181, and Johnston v. Hyde, 10 id. 454, the court expressly declares that its action is based on the ground of threatened irreparable injury. As the ratio decidendi is the only matter of importance in estimating a precedent, it is of no consequence whether the rule in question was properly applicable to the facts presented in the cases referred to. Nor does the decision in Kerlin v. West, 3 Gr. Ch. 449, rest on a different ground. Gentlemen of the profession whose experience has a sufficient reach into the past, will remember what a struggle it was for the bar and the courts to find any standing ground on which to sustain an equitable power to prevent the waste and spoliation of large tracts of pine lands by pretended claimants. The result was that equity did assume the authority, as appears from the case just quoted, and such assumption was justified for the reason that the timber standing on such land constituted almost its entire value, and consequently its destruction filled up the measure of irreparable damage.

With respect to the citations from the New York and English reports, I have read them with care, and do not find that any one of them contains any doctrine adverse to the view already

Inhabitants of West Orange v. Field.

declared. The authority that seems to me to come the nearest to being an exceptive case is that of Goodson v. Richardson, L. R., 9 Ch. App. 221, in which a mandatory injunction was granted, directing the defendant to remove water pipes which he had laid under the surface of the soil of the complainant's land. But the circumstances were peculiar in this feature, that the pipes in question were laid in the bed of a public road, so that, as the court said, it was doubtful whether the complainant could remove them without subjecting himself to a liability to indictment. Unless this particularity will constitute a proper discrimination, the decision cannot be brought into harmony with the current of authorities.

In the case before the court, as I have said, there is nothing hown to vary it from an ordinary tortious taking of lands. It is not pretended that the city authorities have any intention to destroy the wharf put upon the premises by the complainants; on the contrary, it is averred that they intend to use it as a wharf for the public; nor are any facts stated evincing that any business of the complainants, connected with or dependent on this wharf, will be interfered with by the extension of this street in the manner proposed. Such a case is, in my opinion, in no sense an equitable one, and on this account I shall vote to affirm the decree appealed from. Decree unanimously affirmed.

INHABITANTS of West ORANGE V. FIELD.

(37 N. J. Eq [10 Stew.] 600.)

Municipal corporation-surface-water.

A municipal corporation may not, in connection with an alteration of the grade of a street, collect the surface-water by artificial drains, divert it from its natural flow, and discharge it upon the land of a proprietor.*

ILL for injunction. The opinion states the case. The injunction was granted below.

BILL

John W. Taylor, for appellants.

James W. Field, for respondent.

*Soo Hughes v. Anderson (68 Ala. 280), 44 Am. Rep. 147.

Inhabitants of West Orange v. Field.

VAN SYCKEL, J. The bill is filed to enjoin the defendants from continuing to discharge the drainage of certain streets upon the complainant's lands, by which they are submerged and rendered valueless and unhealthy.

The bill alleges that the municipal authorities, by the construction of ditches and artificial conduits in the highways, have diverted the flow of the surface-water from the course in which it would be carried by the grade of the streets, and have by such means collected all the surface-water in a large area and caused it to be thrown upon the complainant's lands.

To this bill a general demurrer has been filed, and therefore the question is presented whether, in any aspect of the case as stated by the bill, the defendants have exceeded their authority.

In Bowlsby v. Speer, 2 Vr. 351, the defendant, by the erection of a building on his own premises, diverted the flow of the surfacewater from his own land to that of the plaintiff. The resulting loss to plaintiff was held to be damnum absque injuria, for which no action will lie.

Town of Union v. Durkes, 9 Vr. 21, presented the case of a diversion of surface-water by the grading of public streets done. under competent authority, by which the water was cast upon the plaintiff's premises. This was also held by our Supreme Court not to constitute an actionable wrong.

As stated in that case, the authorities are quite uniform in holding that no responsibility attaches for damage done by the diversion of surface-water by the public authorities, where the diversion is merely incidental to and occasioned by the making or alteration of street grades.

The injury complained of here is not that consequent upon the alteration of grades, but flows from a scheme put into execution by the municipal authorities, by which the water is prevented from following the grades of the streets. By means of artificial ducts or channels the surface-water over a large district is carried away from where it would otherwise be discharged, and made to pour upon the complainant's lands.

Thus what is styled the common enemy, which every proprietor must resist as best he may, is invested with accumulated volume and force, and thrown upon one in ease of all others. The effect of this application of the doctrine, as the chancellor well says, would be to condemn private property to public use without compensation

Inhabitants of West Orange v. Field.

In Massachusetts, there are cases denying a right of action to the individual under such circumstances, but there, a public statute provides, that when any owner of land adjoining a highway shall sustain any damage in his property by reason of any raising, lowering or other act done for the repairing of such way, he shall have compensation therefor, to be determined by the selectmen of the town. Although the rule adopted in New York accords with that of our Supreme Court in the Durkes case, the Court of Appeals of N. Y. in Noonan v. City of Albany, 79 N. Y. 470; s. c., 35 Am. Rep. 540, distinguished the case, where by means of artificial structures in the streets, the surface-water of a large territory was collected and discharged on the premises of the plaintiff, and held that an action would lie for the consequent injury.

Unless the right of municipalities is limited to this extent there would be nothing to restrain them from constructing sewers, by which the concentrated surface-water of an entire city would be cast upon the premises of any proprietor that might arbitrarily be selected to bear the burden.

4

The cases furnish no authority for such an invasion of property rights without making due reparation.

The rights of an overseer of the highways, under section 45 of the road act (Rev. p. 1005), to enter on lands adjacent to the highways for purposes therein mentioned, is not hereby intended to be called in question.

That section of the road law was passed March 16, 1798, and is found in Pat. p. 327, since which time the right of the overseer to exercise the granted power has never been successfully challenged. In my opinion the decree below should be affirmed, with costs.