Arnold v. Klepper

• Decision Date: 31 January 1857
• Parties: ARNOLD et al., Respondents, v. KLEPPER et al., Appellants.
• Court: Missouri Supreme Court

24 Mo. 273

ARNOLD et al., Respondents,

v.KLEPPER et al., Appellants.

Supreme Court of Missouri.

January Term, 1857.

1. Section 25 of the act concerning mills and mill-dams (R. C. 1845, p. 743) was designed to afford a remedy only in cases in which a mill, or other machinery, or a dam erected in pursuance of said act, was injured by the subsequent erection of a dam or other obstruction, also erected under the provisions of said act.

2. Where it appears that the obstruction complained of was not erected under the provisions of said act concerning mills and mill-dams, the party aggrieved may seek redress by means of a suit for damages, or he may invoke the equitable interference of the courts by injunction; but before he can become entitled to the extraordinary relief afforded by an injunction, he must establish his right to redress by a recovery in an action at law.

Appeal from Greene Circuit Court.

Plaintiffs in their petition allege in substance that they were the owners of and in possession of a certain saw-mill; that said mill was erected under and by virtue of an order of the Circuit Court of the county of Greene; that since the erection of their mill by plaintiffs, defendants, unmindful of the statute in such case made and provided, and without authority, have commenced the erection of a dam a short distance below said mill, and so near as to cause the water to be obstructed and to flow back on said mill, and thereby so to obstruct said mill and the machinery thereof as to render them of no value to plaintiffs, etc. Plaintiffs prayed that the dam of defendants be abated by the sheriff as a nuisance, and that defendants be prevented from proceeding to complete the erection of said dam so commenced by them until a hearing of the petition.

A temporary enjoining order was granted in accordance with the prayer of the petition.

The defendants moved the court to dissolve this injunction. Plaintiffs were permitted to amend their petition, on the hearing of this motion, by abandoning all claim for damages, and by inserting a prayer to the court “to enjoin and restrain the defendants from building their mill-dam any higher than it now is.” The court found that “if said defendants' mill-dam were completed and finished, great injury would be done to plaintiffs' machinery.” The court, by its final decree, enjoined and restrained defendants “from completing the said mill-dam, or so raise the same above a point, the level of which would be less than twelve inches below the bottom of said plaintiffs' mill wheel.”

Gardenhire, for appellants.

I. The petition does not state facts sufficient to constitute a cause of action at most for any thing more than the damages, and they were disclaimed by amended petition. This objection is never waived. Welton & Edwards v. Martin, 7 Mo. 307, is a case precisely in point, and decisive of this. The sole object in that case seems to have been an injunction; such object alone is still more apparent in this, for respondents, when they got this injunction, amended their petition disclaiming all damage. The petition shows no special facts which entitle the respondents to this extraordinary remedy. (Ranken v. Charless, 19 Mo. 490; 2 Story's Eq. §959 b.)

II. The finding of the court did not warrant a perpetual injunction. It does not show the erection or raising of any dam, stoppage or obstruction across any stream; or any nuisance to any mill, machinery or dam authorized by the order of any court; or which mill was above or below; or on what stream; or which was erected first; or that there were any mills at all; but only “that if the said defendants' mill-dam was completed and finished, great injury would be done to plaintiffs' machinery.” It was not even found that defendants were about to complete their dam. (R. C. 1845, p. 747, §25.)

F. P. Wright, for respondents.

I. The cause was tried by the court, and if the defendants had denied the correctness of the finding of any of the facts proved, they should have applied to the court for a review, and specified the fact which they supposed the court had erroneously found; or if they desired a review of any matter of law, they should have made a case and brought the alleged error to the attention of the court. This they failed to do. (Bates v. Bower, 17 Mo. 550; Practice Act, Art. 5, §3; Reymond & Kendall v. Edgar & Walsh, 19 Mo. 32.)

II. The finding of the court was sufficient to sustain the judgment.

III. The motion in arrest was properly overruled.

IV. The court had jurisdiction and authority as a court of chancery to make the decree. (R. C. 1845, Tit. Mill and Mill-dams, §§25, 26; 2 Waterman's Eden on Injunctions, 259, 261, 265; The Mohawk & Hudson Railroad Co. v. Archer et al., 6 Paige's Ch. 83; City of Georgetown v. The Alexandria Canal Co., 12 Pet. 91; Corning et al. v. Lewern, 6 Johns. Ch. 439; 2 Story's Eq. Juris. § 924; The Attorney-General v. Michel, 16 Vesey, 338; Crowder v. Tukler, 19 Vesey, 616.) Section 25 of the Revised Code is a new provision, and was not in the statute of 1835.

SCOTT, Judge, delivered the opinion of the court.

The objection that the complainants are not the proprietors of the land on which they have built their mill, has no force in it. They claim by purchase, and show their deed from the former reputed owner, who, it is alleged, is under some disability which renders her conveyance inoperative. These defendants cannot be permitted to come in and force the complainants to litigate their title with them,...