Mayor v. Chestnut Hill Land Co.

• Decision Date: 24 February 1910
• Citation: 75 A. 644,77 N.J.E. 23
• Parties: MAYOR, ETC., OF CITY OF NEWARK v. CHESTNUT HILL LAND CO.
• Court: New Jersey Court of Chancery

75 A. 644

77 N.J.E. 23

MAYOR, ETC., OF CITY OF NEWARK

v. CHESTNUT HILL LAND CO.

Court of Chancery of New Jersey.

Feb. 24, 1910.

Suit by the Mayor and Common Council of the City of Newark against the Chestnut Hill Land Company. On bill for an injunction restraining certain actions at law. Dismissed.

Herbert Boggs, Michael Dunn, and William H. Corbin, for complainant.

John W. Griggs, for defendant.

STEVENS, V. C. This is an application by the city of Newark to enjoin an action of tort commenced against it by the defendant land company. The land company is a riparian owner on the Passaic within the corporate limits of the city of Paterson, and avers in its declaration that Newark has for the past six years withdrawn water from the Pequannock river, one of the tributaries of the Passaic, in such quantities as materially to affect the flow of the last-named stream, to its damage $50,000. It has also brought similar suits against the city of Jersey City and the East Jersey Water Company. The two municipalities and the water company have filed separate bills to restrain these suits and to draw the litigation into this court, first, on the ground of avoiding a multiplicity of suits; secondly, because of the complexity of the problems involved; and, thirdly, on the ground of laches. I do not think either of these grounds tenable.

First, as to avoiding a multiplicity of suits. The land company has brought three suits at law against three independent corporations. It is not proposed to consolidate these suits into one, and thus avoid a multiplicity of actions. It is proposed to have three suits in equity in their place. It is said that the actions at law will determine nothing but the amount of damages suffered by the land company for the past six years, and that there will or may be other similar actions brought in the future. The obvious answer is that Newark and Jersey City may at any time institute proceedings to condemn and that will prevent such actions. Besides, it has never been held that, because the tort is continuing, the wrongdoer may come into this court. The privilege of so coming is, under some restrictions, that of the party injured, and not of the party injuring. Says Beasley, C. J., in Society v. Lehigh Valley R. R. Co., 32 N. J. Eq. 329: "Nor have I been able to find any authority for the doctrine that equity should intervene in order to avoid that multiplicity of suits that would be incident to the continuance of the legal jurisdiction. The rule is entirely settled that, in case of private nuisance, the person injured may vindicate his rights by repeatedly suing the wrongdoer in a court of law." The eases cited by the counsel of the several complainants are not in point. Those principally relied on are Trenton Water Power Co. v. Chambers, 9 N. J. Eq. 476; North Hudson Co. v. Booraem, 28 N. J. Eq. 450; N. Y. & Greenwood Lake R. R. Co. v. Stanley, 35 N. J. Eq. 283; Paterson v. Kamlah, 42 N. J. Eq. 93, 6 Atl. 444; Id., 47 N. J. Eq. 331, 21 Atl. 954; Speer v. Erie R. R. Co., 68 N. J. Eq. 616, 60 Atl. 197; N. Y. City v. Pine, 185 U. S. 93, 22 Sup. Ct. 592, 46 L. Ed. 820. With the exception of the last two, these were cases in which possession had been taken by consent or agreement, and by companies which had the power to condemn. The landowner was seeking inequitably to obtain possession after a long lapse of time and after works had been constructed. It was held that what the defendants were justly entitled to was compensation, and not the property in its altered condition. The Speer Case, supra, is really an authority for the land company. Speer came into this court and asked for an injunction to restrain the company from obstructing his right of passage as he had theretofore enjoyed it. The Court of Appeals denied him the relief that he asked, but said that he was entitled to compensation, and expressly reserved to him his right to bring a suit at law, if he so desired. So in the Pine Case, while the Supreme Court of the United States refused to give the complainant an injunction to restrain the city of New York from interfering with the flow of the stream past his land, they gave him at his election the right to have his damages assessed by a jury. In Sparks Manufacturing Co. v. Newton, 57 N. J. Eq. 393, 41 Atl. 385, Id., 60 N. J. Eq. 399, 45 Atl. 596, jurisdiction was taken expressly on the ground that both parties had agreed to its exercise. In Penrhyn Slate Co. v. Elec. L. & P. Co., 181 N. Y. 80, 73 N. E. 566, a municipality had diverted water 15 years before. The court refused an injunction, but said that, if there were any damages, the landowner had an adequate remedy at law. The distinction seems to be this: Where there is an agreement or inequitable conduct or a question of the public welfare, there, at least in cases where the power of condemnation exists, equity may, in lieu of possession, give compensation. But, where there is no agreement, no inequitable conduct, no possession demanded, and nothing but the invasion of a legal right shown for which damages are sought at law, equity will not, against the objection of the party injured, assume jurisdiction to the exclusion of the law court, even though the corporation invoking its aid has the power to condemn. The argument addressed to me on behalf of complainants fails to take account of the distinction pointed out by Beasley, C. J., in Society v. Lehigh Valley R. R. Co., 32 N. J. Eq., on page 342. He says: "in all these cases [he was speaking of persons entitled to the use in common of a stream of water] the equitable jurisdiction was undoubted, as it was invoked by the party injured. In such cases courts of equity and courts of common law have concurrent jurisdiction, and consequently the complainant may seek either forum. That his relief may not be as complete in the forum which he chooses as it might have been in another forum is a matter for his own consideration, and not for that of his adversary. The power to take charge of the given case being co-ordinate, neither court can assume a paramount authority and compel an unwilling suitor to come to it for protection." And Justice Depue, in Lehigh Valley R. R. v. McFarlan, 31 N. J. Eq. 754, thus expressed himself: "The appropriate relief against successive suits by the same plaintiff for damages arising from an injury which is continuous is by application for the consolidation of actions, or for a stay of proceedings and not by bill in chancery, unless the right in controversy has once been determined adversely to the plaintiff." Of course, where there is no right to condemn, there is the added objection...