McCann v. Chasm Power Co.

• Decision Date: 12 May 1914
• Citation: 105 N.E. 416,211 N.Y. 301
• Parties: McCANN et al. v. CHASM POWER CO.
• Court: New York Court of Appeals Court of Appeals

211 N.Y. 301

105 N.E. 416

McCANN et al.

v.CHASM POWER CO.

Court of Appeals of New York.

May 12, 1914.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Arthur H. McCann and others against the Chasm Power Company. From a judgment of the Appellate Division (151 App. Div. 304,136 N. Y. Supp. 383) modifying a judgment of the Supreme Court by suspending an injunction against the defendant, plaintiffs appeal. Affirmed.

The judgment rendered at Special Term permanently enjoined the defendant from flooding the lands of plaintiffs by its dam in the Chateaugay river after ten months from the rendition of the judgment and awarded the plaintiffs six cents damages. The Appellate Division modified that part of the judgment granting an injunction by ‘suspending its present operation and providing that the plaintiffs may at any time apply at the foot of the judgment, upon showing substantial injury from any cause to them, hereafter occurring, for an injunction substantially as provided in the present judgment, or as the court may direct, or at their election, the plaintiffs may bring such separate action for such or other relief as they may be advised, on account of any injury to their property hereafter occurring.’ The facts, so far asJohn M. Cantwell, of Malone, for appellants.

A. B. Cooney, of Malone, for respondent.

COLLIN, J.

The southerly line of the defendant's land is the northerly line of the plaintiffs' land, and in a chasm through the lands flows the Chateaugay river. The defendant, a domestic corporation, has been engaged since 1903 in supplying electricity for public and private use in the village of Chateaugay and elsewhere for lighting and power. Prior to July, 1093, at a point about 600 feet northerly from the said boundary line, the defendant constructed in the river a dam by which the water was set back or raised upon the perpendicular rock banks through a distance of about 420 feet of the plaintiffs' lands, lessening the amount of available power upon the river above it. The premises of the plaintiffs so flooded consist of barren, perpendicular rock which are not shown, as the finding of the trial court states, to be of any value. The defendant has expended about $97,000 in the construction of the dam and in building and equipping its power house and lines. The plaintiff McCaghey constructed the dam and a portion of the plant of the defendant and knew then the height of the dam and the height to which the water in the river was raised by it. The plaintiffs purchased their lands in 1906. Arthur H. McCann, Daniel B. McCann, and Frank A. Fielding were, while the dam was being constructed, and since have been, stockbolders in the defendant and all the plaintiffs when purchasing the lands knew they were flooded by reason of the dam and the extent of the flooding. Plaintiffs' grantors did not at any time object to the construction or maintenance of the dam or the flooding of the lands.

[1] The plaintiffs as riparian owners had the strict legal right to have the natural fall in the river-that is, the difference of level between the surface where the river first touches their land and the surface where it leaves it-uninterfered with. The defendant in raising the water through the 420 feet by the dam and thus destroying that difference of level committed a trespass upon the lands of the plaintiffs. Such trespass was continued from the time the dam was constructed to the entry of the judgment and the defendant was legally liable to continuous actions at law, in which the recovery would be for the damage sustained prior to the commencement of each action and subsequent to the commencement of that last preceding. The trespass being continuous, the plaintiffs had the right to resort to equity for the purpose of enjoining its continuance and to thus prevent a multiplicity of actions at law to recover damages.

[2] It is a general rule that, when one without right attempts to appropriate the real property of another by acts or results which will create an easement or ripen into a permanent right, a court of equity will compel the trespasser to undo as far as possible what he has wrongfully done. This rule, however, is not rigid. There are many authorities declaring and applying exceptions to it. We recognized this fact in adopting the language of Judge Werner in Whalen v. Union Bag & Paper Co., 208 N. Y. 1, 4,101 N. E. 805, in which the plaintiff was seeking to protect by mandatory injunction a legal right injured by a continuous trespass, as follows:

‘It is not safe to attempt to lay down any hard and fast rule for the guidance of courts of equity in determining when an injunction shall issue.’

The ownership of property will be protected unless there are other considerations which forbid, as inequitable, the remedy of the prohibitive or mandatory injunction. A court of equity can never be justified in making an inequitable decree. If the protection of a legal right even would do a plaintiff but comparatively little good and would produce great public or private hardship, equity will withhold its discreet and beneficent hand and remit the plaintiff to his legal rights and remedies.

[3] In the present case the plaintiffs have no equities and no larger or other claim than that an invasion of a technical and profitless legal right should be corrected. One of them constructed the dam by which the invasion was caused, and the others were, as stockholders of the defendant, parties to such construction in a substantial sense. They bought the lands with complete knowledge that the continuing trespass was upon them and of its cause and extent. Their predecessors in title had not at any time complained of the dam or its effects. They had sustained no damage, and there is neither finding nor request to find that the trespass was preventing or interfering with plaintiffs' present or contemplated use of their lands.

The defendant, upon the other hand, had been since the completion of the dam and its plant manufacturing and supplying electric light and power to the public and individuals. We may presume from its defense to this action that it is satisfying a public demand and that the present height of the dam is necessary for its useful operation. Since the completion of the dam it has expended a considerable sum of money in improving its plant, and the entire sum spent by it in construction, equipment, and improvement is for the locality, large. It has many times been said by us and by the courts of other states that under such or analogous facts a court of equity will not decree the issuance of a mandatory injunction. An equity court is not bound to decree an injunction where it will produce great public or private mischief, merely for...