The Home Electric Light & Power Co. v. The Globe Tissue Paper Co.

• Decision Date: 02 February 1897
• Docket Number: 17,746
• Citation: 45 N.E. 1108,146 Ind. 673
• Parties: The Home Electric Light and Power Company v. The Globe Tissue Paper Company
• Court: Indiana Supreme Court

45 N.E. 1108

146 Ind. 673

The Home Electric Light and Power Company v. The Globe Tissue Paper Company

No. 17,746

Supreme Court of Indiana

February 2, 1897

From the Elkhart Circuit Court.

Affirmed.

J. S Dodge, O. Z. Hubbell, J. M. Van Fleet and V. W. Van Fleet for appellant.

Chamberlain & Turner, Baker & Miller and Osborne & Zook, for appellee.

OPINION

McCabe, J.

--The appellee sued the appellant to enjoin it from doing certain acts and asking a temporary restraining order until the final hearing. The trial court granted a temporary restraining order until the final hearing, and afterwards the defendant moved to dissolve the same, and affidavits were read in support of and against the right of the plaintiff to such an order.

The motion to dissolve was overruled, and from this interlocutory order this appeal is prosecuted. Burns' R. S. 1894, section 658 (R. S. 1881, 646).

The errors assigned call in question the sufficiency of the facts stated in the complaint to constitute a cause of action for an injunction, or warrant relief by way of injunction, and the action of the circuit court in overruling appellant's motion to dissolve the restraining order, in granting the injunction upon the evidence and in overruling appellant's motion to modify the judgment. We presume counsel mean to say, overruling appellant's motion to modify the restraining order, as there was no judgment, and their motion to modify was not to modify the judgment, but to modify the restraining order.

The substance of the complaint is, that the plaintiff, the Globe Tissue Paper Company, is a corporation organized under the laws of the State of Indiana, engaged in the manufacture of paper by water power, and has been so engaged for many years prior to May 29, 1891; that on said day, the St. Joseph Hydraulic Company, a corporation, was the owner of an undivided third of the water power of the St. Joseph river furnished and produced by reason of a dam constructed across said river in the city of Elkhart by the Elkhart Hydraulic Company some years prior thereto, which water so owned by said St. Joseph Hydraulic Company was to be and has been used on the north side of the St. Joseph river by means of a raceway, owned by said St. Joseph Hydraulic Company on the north side of the St. Joseph river, which connects with the water of the St. Joseph river above said dam and extends upon the north side of said river westwardly to a point below said dam; that said St. Joseph Hydraulic Company had arranged for factory sites for the purpose of furnishing and leasing to factories and mills water power out of its said hydraulic head-race; that on said day there were standing upon the bank of said hydraulic head-race and between it and the St. Joseph river, large factory buildings, which were then empty and unoccupied, but which had theretofore been used as a paper mill; and that said company had flumes connecting with said buildings and six water wheels, all set and ready for use, and a tail-race for the purpose of carrying off the water coming from said raceway and flumes and through the water wheels in said buildings, and emptying the same into the St. Joseph river below said dam; that plaintiff was desirous of purchasing said buildings and rearranging the machinery therein for the purpose of operating a paper mill plant, and to that end plaintiff and the St. Joseph Hydraulic Company on said day entered into a parol agreement, by virtue of which the St. Joseph Hydraulic Company, for the sum of $ 2,000.00 yearly rental, payable quarterly by plaintiff, agreed to furnish the Globe Tissue Paper Company 9,927 cubic feet of water per minute under a working head of ten feet and more or less proportionately as the head might vary below or above said ten feet above named from said hydraulic head-race, to be delivered to said Globe Tissue Paper Company through said flumes adjacent to said race for the term of twenty-five years. It was further agreed between said parties that said contract should be reduced to writing and be signed by each; that afterwards plaintiff caused a formal written lease, in accordance with the terms of said parol contract, to be drawn up and signed by plaintiff, which was delivered to said hydraulic company, but said company as yet has not executed the same; that after said agreement was entered into, and upon the faith thereof and in reliance thereon, the plaintiff purchased said factory buildings and the land upon which they stand and placed therein a large amount of costly machinery for the manufacture of paper at an expense of over $ 25,000.00; that at the time said agreement was made said St. Joseph Hydraulic Company well knew the condition and location, number and height of the water wheels contained in said building, and well knew the location and condition of the tail-race connecting said mill and said wheels with the St. Joseph river; that plaintiff completed its said plant so purchased by it, and began the manufacture of paper in the same on the 1st day of October, 1891, and has been in possession and so engaged ever since, except when said mill was temporarily shut down, caused by the wrongful conduct of the defendant, hereinafter alleged, and plaintiff has, during all that time, kept and performed all its part of the agreement with said hydraulic company. It was further agreed on the part of said hydraulic company with plaintiff that the plaintiff company should have a priority of right to use said water out of said hydraulic race over all other leases of said St. Joseph Hydraulic Company; that on or about the day of May, 1894, the St. Joseph Hydraulic Company leased to the defendant out of said head-race certain water power, which defendant took with full knowledge of and subject to plaintiff's lease aforesaid; that defendant has drawn water from said race ever since, and threatens to continue so to do, as hereinafter stated, with notice and knowledge of plaintiff's rights; that said defendant is a manufacturing corporation, and has constructed its plant 150 feet westward of plaintiff's plant; that defendant began operating its plant about the day of [146 Ind. 677] -----,...