Fulton v. Greacen

• Decision Date: 09 November 1888
• Citation: 15 A. 827,44 N.J.E. 443
• Parties: FULTON v. GREACEN et al.
• Court: New Jersey Court of Chancery

15 A. 827

44 N.J.E. 443

FULTON

v. GREACEN et al.

Court of Chancery of New Jersey.

November 9, 1888.

(Syllabus by the Court.)

On motion for leave to file an original bill in the nature of a bill of revivor, and also on motion to dissolve an injunction.

Edward A. Day and John W Taylor, for complainant. Robert H. McCarter and Thomas IV. McCarter, for defendants.

VAN FLEET, V. C. The facts giving rise to the controversy in this case are stated with sufficient fullness in Fulton v. Greacen, 36 N. J. Eq. 216, to show the nature and extent of the dispute between the parties. For present purposes it is sufficient to say that the suit was originally brought by Elisha M. Fulton against John Greacen, Jr., to prevent Greacen from diverting water from a paper-mill which Fulton owned, and which water Fulton claimed a right to use to operate his mill. The water in question was supplied by the Morris Canal Company, and was carried from the canal to Fulton's mill by a raceway on Greacen's land. Greacen by his answer denied Fulton's right to the water, and admitted that he intended to deprive him of the use of it. The court, after hearing the parties, granted an injunction prohibiting the diversion of the water. Subsequently, and after the cause had been partially heard, the complainant was given leave to file an amended bill, for the purpose of bringing in another person as a party complainant, who, it appeared by the complainant's proofs, had such an interest in the subject-matter of the suit as to make him a necessary party. Afterwards the complainant also obtained leave to file a supplemental bill, for the purpose of laying before the court the fact that a deed executed by one of the complainant's predecessors in title to a person under whom the complainant did not and could not claim, and the existence of which the defendant, by his answer, had made one of his grounds of defense, had been adjudged, by the decree of this court, to be a nullity, and without legal force or effect. Both bills were filed pursuant to the leave given. Subsequently, the defendant, John Greacen, Jr., died testate, and since then his executors and devisees have been substituted, by the order of the court, as defendants in his place. To the amended and supplemental bills the new defendants have interposed a plea, alleging that since the last two bills were filed the complainant conveyed all the land to which the water in controversy is claimed to be appurtenant, as well as his right to the water itself, to the Essex Paper Company. With the pleadings in this condition, no reply of any kind having been made to the plea, an application is made on behalf of the Essex Paper Company for leave to file what is called in the notice of the application "a bill in the nature of a supplemental bill and bill of revivor." The defendants, on receiving notice of the application just mentioned, gave notice at once of a motion to dissolve the injunction granted to Mr. Fulton.

The application for leave to file a bill on behalf of the Essex Paper Company must, I think, be regarded as a confession of the truth of the main fact stated in the plea; for, except it be taken as true that the Essex Paper Company has succeeded to the rights which the original complainant sought to have vindicated and protected by this suit, it has no right to intervene, and there is nothing on which its application can stand. The situation of affairs is this: The defendants, by an appropriate pleading, deny the right of the original complainant to longer maintain this action, because, they say, he is no longer the owner of the rights which this suit was brought to protect, having conveyed them to the Essex Paper Company. Thereupon—the original complainant saying nothing to the defendants' plea—the Essex Paper Company asks, by the same counsel representing the original complainant, to be permitted to file a pleading which will enable it to supplant the original complainant in the litigation, and to continue the litigation in its own name against the defendants. In view of these facts, it would seem to be undeniable that the application of the Essex Paper Company must be regarded as a full confession of the truth of the defendants' plea. This being so, it is clear that the original complainant must be dealt with as having, by his own act, deprived himself of all right or power to further maintain this action. The principle is elementary that a complainant, suing in his own right, and alone, cannot, after he has parted with his whole interest in the subject-matter of the litigation, further prosecute the action. Story, Eq. Pl. § 348; 2 Daniell, Ch. Pr. 1518; Mills v. Hoag, 7 Paige, 18; Sedgwick v. Cleveland, Id. 287; Mason v. Railroad Co., 52 Me. 107; Tappan v. Smith, 5 Biss. 75. The truth of the plea being confessed, the case stands, so far as the rights of the parties are concerned, substantially as though an order had been made allowing the plea. If mere matter of procedure or form be put aside, that is the precise present position of the case. The original complainant having deprived himself of the power to further prosecute his action, and the truth of the defendants' plea setting up that fact being confessed, the court should regard the plea as allowed. The rule seems to be settled that the allowance of a plea which either constitutes a full defense to the complainant's whole case or deprives him of all power to further prosecute his action will, if he holds an injunction, entitle the defendant to its dissolution. The allowance of the plea will not ipso facto dissolve the injunction, but a dissolution will generally be granted as of course, on motion. Philips v. Langhorn, 1 Dick. 148; Mason v. Murray, 2 Dick. 536; Ferrand v. Hamer, 4 Mylne & C. 147; Eldred v. Camp, Har. (Mich.) 162; 1 Daniell, Ch. Pr. 698; 1 Barb. Ch. Pr. 121; 2 High, Inj. § 1505. But, suppose the injunction in this case was retained, it is not possible for me to see how its retention would benefit the Essex Pa per Company. It was granted originally to...