Heilman v. The Union Canal Company
| Decision Date | 03 October 1860 |
| Citation | 37 Pa. 100 |
| Parties | Heilman <I>versus</I> The Union Canal Company. |
| Court | Pennsylvania Supreme Court |
The case was argued by Josiah Funk, for appellant, and by R. Rundle Smith, R. A. Lamberton, and Levi Kline, for appellee.
The opinion of the court was delivered, October 3d 1860, by
The learned judge of the Common Pleas denied not the plaintiff's right to the flow of water to his mill in the channel of the Quitapahilla creek, as "of long time it had been accustomed to flow," nor the defendant's ultimate liability to make compensation for diverting the same, but denied the remedy invoked.
Equity may and will undoubtedly interfere by injunction in a proper case, on the ground of the restraint of irreparable mischief. But it is not every case which will furnish a right of action against a party for a nuisance, which will justify the interference of courts of equity to redress the injury, or to remove the annoyance. There must be the absence of an adequate remedy at law. A common trespass is not the foundation for an injunction, where it is only contingent, fugitive, or temporary. But if continued so long as to become a nuisance, in such a case an injunction ought to be granted, to restrain the person from committing it: 2 Story's Eq. Juris., § 925. So obstruction of watercourses, the diversion of streams from mills, and the pulling down of the banks of rivers, thereby exposing adjacent lands to inundation, or mills to destruction: Id. 927.
These various remedies proceed on the ground of preventing irreparable mischief. How does the plaintiff's right stand under this head? From 1834 up until 1855, the complainant, and those under whom he claims, assented to the use of the water of the Quitapahilla Creek, and received compensation therefor from the company.
During this time and since, expensive improvements have been made on the defendant's works, but up until 1855, no objection to the use of the water seems to have been interposed. For two years afterwards, while the company were enlarging their canal, the water was not much used, and no notice was given by the plaintiff that its use might not be continued as hitherto. But since the enlargement, the works have gone into the hands of trustees for creditors, and payment for the right have not been made as perhaps they should have been, and this is the reason for the present bill.
But the Court of Common Pleas thought that the acquiescence or assent of the party to the use of the water for so many years, and its use by arrangement and contract, precluded an injunction. In this he was fully sustained by equity principles and practice.
The ground of irreparable mischief cannot be entertained in equity, where a party has assented to and received compensation for the permitted use of the means of encroachment upon his right. If there be injury under such circumstances, the compensation accepted proves that it was not irreparable. It would be damnum sine injuria. It...
To continue reading
Request your trial
-
Kramer v. Thompson
...succeed. In support of this conclusion, the Pennsylvania court cited Bersch v. Rust, 249 Pa. 512, 95 A. 108 (1915) and Heilman v. Union Coal [Canal] Co., 37 Pa. 100 (1860). Plainly, when these two cases were decided, careful distinctions between courts of law and equity were still being obs......
-
United States v. Smelser
...well-settled principles. Heine v. Levee Commissioners, 19 Wall. 655, 658, 22 L.Ed. 223; Carlton v. Salem, 103 Mass. 141, 143; Heilman v. Union Canal Co., 37 Pa. 100; Mitchell v. Dowell, 105 U.S. 430, 432, 26 L.Ed. As administered in this court, equity has a precise, definite, and limited si......
-
Mazzocone v. Willing
...the present case an action for damages would be a pointless gesture since the defendant is indigent. In the case of Heilman v. The Union Canal Company, 37 Pa. 100, 104 (1860), which was an action to restrain a canal company from diverting and using the water of a creek, the Court held that ......
-
Livesley v. Johnston
... ... 565, 15 N.W. 906, 45 ... Am.Rep. 57; Manufacturing Company v. Brush, 43 Vt ... 528; McClure v. Briggs, 58 Vt. 82, 2 A. 583, ... The ... principle is well stated by Mr. Justice Thompson in Heilman ... v. Union Canal Co., 37 Pa. 100, 104, as follows: "The ... ...
-
Doing Equity in Bankruptcy
...App. 2002)). 94. H.C. Horack, Insolvency and Specific Performance, 31 Harv. L. Rev. 702, 714-15 (1918).95. See Heilman v. Union Canal Co., 37 Pa. 100, 104 (1860) ("The fact, if it be so, that this remedy may not be successful in realizing the fruits of a recovery at law, on account of the i......