The time at which a party appeals to a court of equity for
relief affects largely the character of the relief which will be
granted.
A failure to pursue statutory remedies is not always fatal to
the rights of a party in possession, and if full and adequate
compensation is made to the plaintiff, sometimes the possession of
the defendant will not be disturbed.
A court of equity may take possession and finally end a
controversy like the present by securing the payment of adequate
compensation in lieu of a cessation of the trespass.
This was a suit commenced in the Circuit Court of the United
States for the Southern District of New York by the appellees, as
plaintiffs, for an injunction restraining the City of New York from
maintaining a dam on the west branch of Byram River and diverting
the waters thereof from their natural flow through the farms of
plaintiffs.
The facts are these: Byram River is a nonnavigable stream of
fresh water flowing into Long Island sound. Tracing its source
upstream from the sound, for a short distance it forms the boundary
between New York and Connecticut, then deflects to the east, and
for some five or six miles is within the
Page 185 U. S. 94
State of Connecticut. It there divides into two branches, the
east branch being entirely within the limits of that state. The
west branch, which is the longer of the two, extends into the State
of New York. A few hundred feet from the state line, the City of
New York, under legislative sanction, commenced the construction of
a dam, with a view of appropriating part or all of the waters of
this west branch and using the same for the supply of the city. The
watershed of this west branch above the dam, the territory from
which the water sought to be appropriated is all drawn, is wholly
within the limits of the State of New York. The plaintiffs own
farms situated on Byram River in Connecticut, below the junction of
the two branches. In their bill, they alleged, among other
things:
"Fourth. Your orators further aver that the defendant began
about two years ago the building of a dam across the said west
branch of said Byram River, about five hundred feet north of the
Connecticut line, and is now building said dam and it is now near
completion, and your orators are informed and believe that the said
defendant intends to divert or cause to be diverted the water of
said west branch or some of it from the natural channel thereof,
and intends to divert or cause the same to be diverted from flowing
through its natural channel into and through the State of
Connecticut, and by, through, and over land owned by your
orators."
"Fifth. Your orators further aver that they, as riparian owners
of land in the State of Connecticut on said Byram River or on the
west branch thereof, are each of them accustomed to use the water
of said river, . . . and that the flow of said river would be
materially lessened by the diversion of the water of the said west
branch or any part thereof, and that they, your orators, and each
of them, would be damaged in the sum of twenty-four hundred dollars
($2,400) and more."
The answer of the city admitted the building of the dam,
although averring that it was not near completion, and would not
prevent the natural flow of the west branch for at least a year;
admitted its intention to appropriate some or all of the water;
alleged that such appropriation would cause little or no injury or
damage to the plaintiffs, and denied on information
Page 185 U. S. 95
and belief that the premises of either would be damaged in the
sum of $2,400; averred that the building of the dam was of great
and permanent benefit to the citizens and residents of New York,
and that it was and always had been able and willing to pay any
damages that the complainants might suffer from being deprived of
the natural flow of the water. Testimony was taken and the case
submitted to the court upon pleadings and proofs. That the dam as
completed, and it was completed when the testimony was taken, would
work a diversion of a considerable portion of the water in its
natural flow, and that the property of plaintiffs was damaged by
such diversion, was shown by the testimony and found by the court,
although whether such damage amounted to more than $2,400 each was
perhaps not established by the testimony, and certainly was not
found by the court. The cost of the dam proper was about $45,000,
though the city had expended for land and damages several hundred
thousand dollars. It also appeared that several thousand people in
the City of New York were dependent upon this water supply. The
circuit court, after finding the fact of damage, held that a court
of equity had no power to ascertain and order the payment of
damages, but that it might delay the issue of an injunction so as
to give the parties an opportunity to agree in respect to the
amount of compensation, and in an opinion, filed on June 27, 1900,
ruled that a decree would be entered on November 1, 1900, if the
parties had not come to an agreement. Thereafter, no agreement
having been made, a decree was entered as follows:
"That the complainants in this suit and each of them are
entitled to the injunction order of this Court restraining the
defendant, its successors and assigns, their and its officers,
agents, and employees, each, all, and any of them, from diverting
the water or any part of the water of the west branch of the Byram
River or any part of the water of the Byram River, or in preventing
in any way said water or any part thereof at any time from flowing
through its natural channel, before, at, and below the junction of
the two branches of said river; and"
"It is further ordered, adjudged, and decreed that the
defendant, its successors and assigns, their and its officers,
agents, and employees, each, any, and all of them, be and they and
each of them are hereby perpetually enjoined from diverting the
water or any part of the water of the west branch of the Byram
River, or any part of the water of the Byram River, or in
preventing in any way said water or any part thereof at any time
from flowing through its natural channel, before, at, and below the
junction of the two branches of said river."
On appeal to the Circuit Court of Appeals for the Second Circuit
this decree was, on October 30, 1901, affirmed by a divided court.
Thereupon the case was brought here by certiorari. 183 U.S.
700.
Page 185 U. S. 96
MR. JUSTICE BREWER delivered the opinion of the Court.
Many interesting question are involved in this case, but we
think it unnecessary for the present at least to decide more than
one. We assume, without deciding, that, as found by the circuit
court, the plaintiffs will suffer substantial damage by the
proposed diversion of the water of the west branch. Also, without
deciding, we assume that, although the west branch above the dam
and all the sources of supply of water to that branch are within
the limits of the State of New York, it has no power to appropriate
such water or prevent its natural flow through its accustomed
channel into the State of Connecticut; that the plaintiffs have a
legal right to the natural flow of the water through their farms in
the State of Connecticut and cannot be deprived of that right by
and for the benefit of the City of New York by any legal
proceedings either in Connecticut or New York, and that a court of
equity, at the instance of the plaintiffs at the inception and
before any action had been
Page 185 U. S. 97
taken by the City of New York, would have restrained all
interference with such natural flow of the water.
Notwithstanding these assumptions, we are of opinion that the
decree ought not to stand, and for these reasons: this is not a
case between two individuals in which is involved simply the
pecuniary interests of the respective parties. On the one side are
two individuals claiming that their property rights are infringed
-- rights which can be measured in money, and that not a large sum;
on the other, a municipality undertaking a large work with a view
of supplying many of its citizens with one of the necessities of
life. According to the averments in the bill, the city had been
engaged in this work for two years, and had nearly completed the
dam. While the near completion is denied in the answer, there is no
denial of the time during which the city had been engaged in the
work, and it stands as an admitted fact that, for two years prior
to the commencement of this suit, the work had been under way. It
is true the testimony discloses that the plaintiffs and the city
had been trying to agree upon the amount of compensation, but that
shows that the plaintiffs were seeking compensation for the
injuries they would sustain, and were not insisting upon their
alleged right to an abandonment of the work. It is one thing to
state a right and proffer a waiver thereof for compensation, and an
entirely different thing to state the same right and demand that it
should be respected. In the latter case, the defendant acts at his
peril. In the former, he may well assume that payment of a just
compensation will be accepted in lieu of the right. In the latter,
the plaintiff holds out the single question of the validity and
extent of the right; in the former he presents the right as the
foundation of a claim for compensation, and his threat to enforce
the right if compensation is not made is simply a club to compel
payment of the sum he deems the measure of his damages. Further,
the testimony shows that the city was settling with other parties
similarly situated, and paying out large sums of money for the
damages such parties would sustain. So, it is not strange that the
city acted on the assumption that the only matter to be determined
was the amount of the compensation.
Page 185 U. S. 98
If the plaintiffs had intended to insist upon the strict legal
rights (which for the purposes of this case we assume they
possessed), they should have commenced at once, and before the city
had gone to expense, to restrain any work by it. It would be
inequitable to permit them to carry on negotiations with a view to
compensation until the city had gone to such great expense, and
then, failing to agree upon the compensation, fall back upon the
alleged absolute right to prevent the work. If they had intended to
rest upon such right, and had commenced proceedings at once, the
city might have concluded to abandon the proposed undertaking and
seek its water supplies in some other direction. If this injunction
is permitted to stand, the city must pay whatever the plaintiffs
see fit to demand, however extortionate that demand may be, or else
abandon the work and lose the money it has expended. While we do
not mean to intimate that the plaintiffs would make an extortionate
demand, we do hold that equity will not place them in a position
where they can enforce one.
The time at which parties invoke the aid of a court of equity is
often a significant factor in determining the extent of their
rights.
Vigilantibus non dormientibus cequitas subvenit is
a maxim of equity. As said by Pomeroy, in his work on Equity
Jurisprudence, vol. 1, sec. 418, the principle embodied remedial
portion of equity jurisprudence, remedial portion of equity
jurisprudence, but rather as furnishing a most important rule
controlling and restraining the courts in the administration of all
kinds of relief, than as being the source of any particular and
distinctive doctrines of the jurisprudence. . . . The principle
thus used for two years and the defendant has expended the award of
reliefs is designed to promote diligence on the part of
suitors.
In
Smith v. Clay, 3 Brown Ch. 639, note, Lord Camden
said:
"A court of equity, which is never active in relief against
conscience or public convenience, has always refused its aid to
stale demands, where the party has slept upon his right, and
acquiesced for a great length of time. Nothing can call forth this
court into activity but conscience, good faith, and
reasonable
diligence. "
Page 185 U. S. 99
It was said by Circuit Judge Shipman in deciding this case:
"If a court of equity has power in any case by decree to
ascertain and order the payment of damages by decree of injunction
in the alternative, a court of equity will not exercise such power
where the defendant has committed a permanent injury without
authority of law and without pretense of right to take and retain
the property."
However true that proposition may be generally when invoked at
the inception and before any work has been done, we think it not
applicable when the plaintiffs have waited until the work has been
progressing for two years and the defendant has expended a large
sum of money thereon. As declared by Lord Camden in the quotation
just made, a court of equity is never active in relief against
public convenience.
It may be not amiss to notice some of the cases in which the
effect of time upon a suit in equity has been the subject of
discussion. In
Galliher v. Cadwell, 145 U.
S. 368, was considered the general subject of laches.
Many authorities were cited and reviewed, and it was said (p.
145 U. S.
373):
"But it is unnecessary to multiply cases. They all proceed upon
the theory that laches is not like limitation, a mere matter of
time; but principally a question of the inequity of permitting the
claims to be enforced -- an inequity founded upon some change in
the condition or relations of the property of the parties."
In
Roberts v. Northern Pacific Railroad, 158 U. S.
1, it appeared that Douglas County, Wisconsin, had
agreed with the Northern Pacific Railroad Company to deed to it
certain lands held by the county under tax titles in consideration
of the construction by the company of its railroad through the
county. The company constructed the road and the county made the
deed. Thereafter the validity of such deed was questioned, and the
county made a conveyance of the lands to Roberts
et al.,
whereupon the railroad company brought suit against them to quiet
its title. The line of the road was constructed through some of
these lands, and MR. JUSTICE SHIRAS, speaking for the Court,
observed (pp.
158 U. S.
9-11):
"So far as those portions of the lands, described in the
bill
Page 185 U. S. 100
of complaint, consist of parcels held and used by the railway
company for the necessary and useful purposes of their road as a
public highway, it is obvious that the title and possession thereof
cannot be successfully assailed by the appellants. The latter
became purchasers long after the railroad company had entered into
visible and notorious possession of these portions of the lands and
had constructed the roads, wharves, and other improvements called
for by their contract with the county."
"It is well settled that, where a railroad company having the
power of eminent domain has entered into actual possession of land
necessary for its corporate purposes, whether with or without the
consent of the owner of such lands, a subsequent vendee of the
latter takes the land subject to the burthen of the railroad, and
the right to payment from the railroad company, if it entered by
virtue of an agreement to pay, or to damages, if the entry was
unauthorized, belongs to the owner at the time the railroad company
took possession. . . . So too it has been frequently held that if a
landowner, knowing that a railroad company has entered upon his
land and is engaged in constructing its road without having
complied with the statute requiring either payment by agreement or
proceedings to condemn, remains inactive and permits them to go on
and expend large sums in the work, he will be estopped from
maintaining either trespass or ejectment for the entry, and will be
regarded as having acquiesced therein, and be restricted to a suit
for damages."
Lexington & Ohio Railroad v. Ormsby, 7 Dana, 276;
Harlow v. Marquette &c. Railroad, 41 Mich. 336;
Cairo & Fulton Railroad v. Turner, 31 Ark. 494;
Pettibone v. La Crosse & Milwaukee Railroad, 14 Wis.
443;
Chicago & Alton Railroad v. Goodwin, 111 Ill.
273.
Again,
Penn Mutual Life Insurance Co. v. Austin,
168 U. S. 685, was
a suit to perpetually restrain the City of Austin from completing a
system of waterworks and from levying on the property of the Austin
Water, Light & Power Company any taxes to pay therefor, and it
was held that, by reason of the delay in pressing their claim, the
plaintiffs were not entitled to the relief, and many authorities
were cited in the opinion in support thereof.
Page 185 U. S. 101
In
Northern Pacific Railroad Co. v. Smith, 171 U.
S. 260, was presented a question similar to that in
Roberts v. Northern Pacific Railroad, supra, and the same
conclusion was reached. In the course of the opinion,
Provolt
v. Chicago, Rock Island & Pacific Railroad, 57 Mo. 256,
264, was cited. That was a case in which the conduct of a landowner
in standing by while a railroad company constructed its road
precluded him from recovering physical possession of the land
covered thereby, and this quotation was made from the opinion of
that court:
"If, from negotiation in regard to the price of the land or for
any other reason, there is just ground of inference that the works
have been constructed with the express or implied assent of the
landowner, it would seem wholly at variance with the expectations
of the parties and the reason of the case that the landowner should
retain the right to enter upon the land or to maintain ejectment.
There are other effective and sufficient remedies. A court or
equity would unquestionably interfere, if necessary, and place the
road in the hands of a receiver until the damages were paid from
the earnings. 2 Redf.Am.Railw.Cas. 2d ed. 253. But the only
question we are called upon to decide is whether, under all the
facts and circumstances of this case, ejectment will lie, and we
think it will not."
This question was also considered in
Charleston Railway Co.
v. Hughes, 105 Ga. 1, and in the course of the opinion on page
15 are these pertinent observations by Mr. Justice Cobb:
"When a railroad company, without warrant or authority, enters
upon the land of another, it is as a general rule no less a
trespasser than any other person who is guilty of an act of a
similar nature. If, however, a railroad company enters upon the
land with the consent of the owner, or under license from him, and
the property thus taken possession of becomes such a necessary
component part of its railroad that to surrender its possession
would interfere seriously with the interests of the company, the
landowner, although entitled to compensation for his property,
might by his conduct in allowing the entry upon his land and
permitting the company to so use it as that it could not be
abandoned without great prejudice to its rights,
Page 185 U. S. 102
estop himself from asserting against the company the legal title
to the property by an action of ejectment. The propositions above
stated are simply the application of familiar principles of law
which govern in all transactions of the character above referred
to, whether the controversy be between natural persons alone or
between such persons and corporations, and whether the corporation
be public or private. A railroad corporation, being one charged by
the law with the performance of certain duties to the public, is
allowed, under some circumstances, to set up rights connected with
the land over which it operates its line of railway, of which an
individual or an ordinary private corporation would not generally
be allowed to avail itself. Controversies in reference to the
possession of land, where the rights of individuals only are
involved, are purely matters of private concern. Controversies in
which a corporation charged with the duties incumbent upon carriers
of passengers, freight, and mails, in which an effort is made by
private individuals or others to take away from such corporation a
part of the property in its possession, which is absolutely
essential to its complete performance of the public duties required
of it, become matters of more than private concern, and in which
the public is deeply and seriously interested. For this reason it
has become settled law that the harsh remedies which would be
allowed to one individual against another in reference to the
possession of land will not be allowed to one who is seeking to
recover such property from a railroad company when exact justice
can be done to such owner by giving him remedies which are less
severe in their nature, and by which he would secure substantially
the same rights, thereby saving to the public the right to require
a performance of the public duties incumbent upon the corporation
whose property is the subject matter of the controversy. That a
railroad corporation has a right to deprive a person of his
property for its uses by doing acts which in an individual would be
dealt with as a trespass is not contended for; but when a railroad
company enters upon land and constructs its road without lawful
authority, and the landowner acquiesces in the wrongful act and the
consequent appropriation of the property to a great
Page 185 U. S. 103
public use until the same has become a necessary component part
of the property required by the railroad to perform its public
duties, such landowner will be held to have waived his right to
retake the property, and will be remitted to such other remedies
for the wrong done him as will not interfere with the rights of the
public to have the railroad maintained and operated."
See also Atlanta, Knoxville & Northern Railway Company
v. Barker, 105 Ga. 534;
Chicago, Burlington & Quincy
Railroad Company v. Englehart, 57 Neb. 444.
From these authorities, it is apparent that the time at which a
party appeals to a court of equity for relief affects largely the
character of the relief which will be granted. If one, aware of the
situation, believes he has certain legal rights, and desires to
insist upon them, he should do so promptly. If by his declarations
or conduct he leads the other party to believe that he does not
propose to rest upon such rights, but is willing to waive them for
a just compensation, and the other party proceeds to great expense
in the expectation that payment of a fair compensation will be
accepted and the right waived -- especially if it is in respect to
a matter which will largely affect the public convenience and
welfare -- a court of equity may properly refuse to enforce those
rights, and, in the absence of an agreement for compensation,
compel him to submit the determination of the amount thereof to an
impartial tribunal.
These views do not justify the conclusion that a court of equity
assumes a general right to ignore or supersede statutory provisions
for the ascertainment of the amount of compensation in cases of
condemnation. They simply mean that a failure to pursue statutory
remedies is not always fatal to the rights of a party in
possession, and that sometimes, if full and adequate compensation
is made to the plaintiff, the possession of the defendant will not
be disturbed.
It is true the cases cited were mainly those of actual physical
possession by railroad companies of real estate belonging to other
parties, but the same doctrine applies when there is only an
invasion of some easement or other incorporeal right, and its
preservation can alone be secured in a court of equity. The
Page 185 U. S. 104
action of the court does not depend upon the character of the
property or right involved, but upon the conduct of the plaintiff
in respect to his claim.
Pappenheim v. Metropolitan Elevated
Railway Co., 128 N.Y. 436, was a suit brought by the owner of
premises on Second Avenue, in New York City, to restrain the
defendants from operating their elevated railway in front of
plaintiff's premises. The trial court found the amount of the
damage to the premises, and provided by its decree that an
injunction should not issue in case the defendants paid the amount
of the damage upon the execution by plaintiff of a deed conveying
her interest in the easement taken. This decree was affirmed by the
Court of Appeals, and in the opinion by MR. JUSTICE PECKHAM, then a
member of that court, it was said, after referring to the rule
controlling actions at law:
"But the owner may resort to equity for the purpose of enjoining
the continuance of the trespass, and to thus prevent a multiplicity
of actions at law to recover damages, and in such an action the
court may determine the amount of damage which the owner would
sustain if the trespass were permanently continued, and it may
provide that, upon payment of that sum, the plaintiff shall give a
deed or convey the right to the defendant, and it will refuse an
injunction when the defendant is willing to pay upon the receipt of
a conveyance. The court does not adjudge that the defendant shall
pay such sum and that the plaintiff shall so convey. It provides
that, if the conveyance is made and the money paid, no injunction
shall issue. If defendant refuse to pay, the injunction
issues."
P. 444.
It is true, in that case, the plaintiff sought in her petition
the very relief that was granted, and so the case is not authority
on the question of the effect of delay in asserting one's legal
rights, but it is authority for the proposition that a court of
equity may take full possession and finally end the controversy by
securing the payment of adequate compensation in lieu of a
cessation of the trespass.
See also Jackson v. Stevenson,
156 Mass. 496, 502.
It is, however, urged that in all the cases referred to, the one
party could have appropriated the property or right of the other by
condemnation proceedings, and that as he could have done
Page 185 U. S. 105
so he should not be disturbed for lack of those proceedings, but
either given time to carry them through or else, in the pending
equitable suit, have the compensation or damages estimated, and
then, upon payment, be protected in his possession. In other words,
as he could have obtained the rightful possession by legal
proceedings and payment, equity will do what the law could have
done, and on payment of the ascertained compensation or damages,
affirm the possession. Whatever may be true of those cases, we
start in this with the assumption that there was no power in the
City of New York, by any proceedings on the States of New York or
Connecticut, to acquire the right of appropriating this water, and
thus depriving the plaintiffs of its continued flow. It was
suggested in the
Pappenheim case,
supra, that
"in cases where the owner wishes to actually stop the further
trespass, and where the defendant has no legal right to acquire the
property, such condition would not be inserted, and an injunction
would issue upon the right of the owner being determined.
Henderson v. Central Railroad Co., 78 N.Y. 423."
But the ruling of this Court has been to the contrary, at least
in cases where there has been delay on the part of the plaintiff in
commencing suit. In
Osborne v. Missouri Pacific Railway
Company, 147 U. S. 248, the
plaintiff, owning lots on Gratiot Street, in St. Louis, filed a
bill in the United States Circuit Court for the Eastern District of
Missouri to restrain the defendants from constructing a steam
railroad along such street. The fee of the street was in the
public, but it was alleged that the construction and operation of
the railroad would work a damage to the property of the plaintiff,
and the facts tending to show such damage were set forth. It
appeared that the road had been constructed before the bill was
filed. Section 21 of article 2 of the Missouri Constitution of 1875
reads "that private property shall not be taken, or damaged, for
public use without just compensation." The statutes of Missouri
provided means for condemning a right of way and assessing the
value of property taken, but contained no provision for assessing
the damages to property not taken, so that neither the railroad
company nor the plaintiff could at the time have taken any legal
proceedings for ascertaining the amount of the damage
Page 185 U. S. 106
to plaintiff's property by the construction of the railroad. The
circuit court, finding that the plaintiff's property was damaged
and assuming that the damages came within the protecting clause of
the constitution, held that nevertheless the plaintiff was not
entitled to an injunction, saying (35 F. 84, 85):
"The question at issue is whether a complainant who claims
damages resulting incidentally to his property from the laying of a
railroad track in a public street under a legislative and municipal
license can wait until the work is done, and then enjoin its
operation, although none of his property is actually taken, or
whether he should in such case be left to his remedy at law for the
damage inflicted. Unless the wrongdoer is insolvent, or unless some
other cause exists to render the legal remedy of no avail, it
appears to me that, on general principles, he should be left to his
legal remedy, and it was so held in the cases first above cited.
The rule does not deprive the complainant of the protection
intended to be afforded by the constitution, nor does it work any
hardship. It simply requires the complainant to be diligent in
applying for such relief as equity may afford."
That decision was affirmed by this Court, and in the opinion it
was said (p.
147 U. S.
259):
"But where there is no direct taking of the estate itself, in
whole or in part, and the injury complained of is the infliction of
damage in respect to the complete enjoyment thereof, a court of
equity must be satisfied that the threatened damage is substantial
and the remedy at law in fact inadequate before restraint will be
laid upon the progress of a public work."
Reference was made in the opinion to
McElroy v. Kansas
City, 21 F. 257, a case in the Circuit Court of the United
States for the Western District of Missouri in which the same
constitutional provision was in question, and an application made
to restrain the grading of a street in front of the complainant's
lot, and in which, as stated,
"it was ruled that, if the injury which the complainant would
sustain from the act sought to be enjoined could be fully and
easily compensated at law, while, on the other hand, the defendant
would suffer great damage, and especially if the public would
suffer
Page 185 U. S. 107
large inconvenience if the contemplated act were restrained, the
injunction should be refused, and the complainant remitted to his
action for damages. If the defendant had an ultimate right to do
the act sought to be restrained, but only upon some condition
precedent, and compliance with the condition was within the power
of the defendant, the injunction would almost universally be
granted until the condition was complied with; but if the means of
complying with the condition were not at defendant's command, then
the court would adjust its order so as to give complainant the
substantial benefit of the condition while not restraining
defendant from the exercise of its ultimate rights."
These propositions do not, as counsel for appellees suggest,
necessitate some legislation like the act of Parliament known as
Lord Cairn's Act, 21 and 22 Victoria, June 28, 1858, c. 27, by
which it was provided that
"in all cases in which the Court of Chancery has jurisdiction to
entertain an application for an injunction against a breach of any
covenant, contract, or agreement or against the commission or
continuance of any wrongful act, or for the specific performance of
any covenant, contract, or agreement, it shall be lawful for the
same court, if it shall think fit, to award damages to the party
injured, either in addition to or in substitution for such
injunction or specific performance, and such damages may be
assessed in such manner as the court shall direct."
Nor do they justify the conclusion that, under their
application, one man is at liberty to wrong another upon payment of
damages. There is no thought of creating a new rule or of
substituting a judicial opinion for an act of Congress. All that
can be fairly said in reference to them is that they are an
application of the ancient maxim that he who seeks equity must do
equity. Limiting them, as we have limited them in the present case,
to conditions which exist after defendant has proceeded in the
completion of its proposed work and has expended a large sum of
money therein, they can never be considered as inviting a party to
do a wrong with the expectation of escaping every penalty save a
pecuniary one.
On that ground alone, and without deciding whether
plaintiffs
Page 185 U. S. 108
have a legal right to recover damages, the decrees of the
circuit court of appeals and the circuit court will be reversed and
the case remanded to the latter court with instructions to set
aside its decree and to enter one proving for an ascertainment, in
the way courts of equity are accustomed to proceed, of the damages,
if any, which the plaintiffs will suffer by its decree and to enter
one providing for an of the water, and for which the defendant is
legally responsible, a proposition upon which we express no
opinion, and fixing a time within which the defendant will be
required to pay such sum, and that, upon the failure to make such
payment, an injunction will issue as prayed for, and, on the other
hand, that upon payment, a decree will be entered in favor of the
defendant. If the plaintiffs shall prefer to have their damages
assessed by a jury, leave may be given to dismiss the bill without
prejudice to an action at law.
Reversed.
MR. JUSTICE GRAY did not hear the argument, and took no part in
the decision of this case.