Welton v. Martin

• Decision Date: 30 April 1842
• Citation: 7 Mo. 307
• Court: Missouri Supreme Court
• Parties: WELTON & EDWARDS v. MARTIN.

7 Mo. 307

WELTON & EDWARDS

v.MARTIN.

Supreme Court of Missouri.

April Term, 1842.

APPEAL FROM THE CLAY CIRCUIT COURT.

FRENCH & DONIPHAN, for Appellant.

WOOD & REES, for Appellee.

SCOTT, J.

Martin, the complainant below, filed in March, 1839, his bill against the defendants below, Welton & Edwards, in which he stated, that he is the owner of a tract of land, through which Fishing river runs: that he, at the March term of the Clay Circuit Court, in 1838, filed his petition for leave to erect a dam on the said stream, to be connected with a grist and saw mill: afterwards, at the July term of said court, permission was granted to erect his dam: that so soon as permission was obtained, he commenced building his dam, saw, and grist mill: that his dam and saw mill were so far completed, as to enable him to work the saw mill; and that the grist mill and other works, will be completed in a few weeks. The bill then charges, that the defendants below, Welton & Edwards, about the first of March, 1838, without the authority of law, erected a dam on the same stream, below the seat of the complainant, which caused the water to flow back, and so to obstruct his mill and machinery, as to render them of little or no value; that the defendants are still at work on their dam and mills connected with it. Prayer, that the defendants may be enjoined, and restrained from further work on said dam so erected; and from further continuing the same, so high as to back the water on the complainant's mills, and that at the final hearing, the defendants may be compelled to pull down and destroy their dam, it being a public nuisance.

The defendants, in their answer, admit that the complainant is owner of the tract of land mentioned in his bill, and did erect, at the time stated the dam and mills therein described, by the permission of the Circuit Court of Clay county. They admit they have built the dam complained of, about a mile and a half below the complainant's; but deny that it causes the water to flow back so as materially to injure the complainant's mill, and allege that it can now do as much work as if the defendants had not erected their dam; they deny that their dam was built without authority of law; that, at the November term, in 1837, of the Clay Circuit Court, a petition was filed, praying for leave to erect the same, which was granted at the July term following, and in pursuance thereof, their dam was built; that at the time of filing their said petition, they believed the complainant was not owner of the land, at the point where he erected his dam, but afterwards purchased the same, maliciously designing to deprive them of their mill seat. They admit, that when the mill stream is full, their dam causes the water to back to the complainant's mill, but deny that it does any injury, &c. To this answer, there was a replication, and the cause set for hearing; at the return term of the writ, a motion was made for an injunction, the motion was continued, and it does not appear from the record that it was ever disposed of. The cause was afterwards heard on the bill, answer, exhibit and depositions of witnesses, when the court below decreed as follows: that the defendants be perpetually enjoined from all other time, continuing said dam in a condition to back the water on the dam, mill, and mill machinery of said complainants; that they be perpetually enjoined from continuing their dam in such a condition, as that the back water therefrom, will be nearer than nine inches of the head of the shoal in said creek, where the State road from Liberty to Richmond crosses the same; that the defendants abate, pull down, and destroy so much of their dam, as causes the water to back beyond the point mentioned on said shoal. That the said defendants, be further perpetually enjoined from further work on said dam, &c. from erecting or constructing other, or new dams, or other obstructions in said watercourse, so as to back the water higher up the said watercourse than said point on said shoal; and it is further ordered, that if the defendants fail to abate their dam as required, then that the sheriff carry so much of this decree into effect. From this decree an appeal was taken by the defendants to this court. The bill of exceptions, not having been signed by the judge who tried this cause, will not be noticed, the court yielding to the motion, to strike the same from the record. This will narrow the case to the single question, whether the bill presents such a state of facts as warrants the exercise of the preventive justice of a court of chancery.

The counsel for the defendants contended that, by the statute concerning Mills, all unauthorized obstructions to watercourses, were declared public nuisances, and on the authority of the opinion of Chancellor Kent, in the case of the Attorney General v. The Utica Insurance Company, 2 Johns. Ch. R. insist, that as the injury complained of, is a public nuisance, a court of equity has no jurisdiction. It is a plain principle, that the proprietor of land is entitled to the use of a watercourse which flows through it, and the law gives a remedy for the violation of the...