1. Where a party brings a bill in equity complaining of an
injury for which he has a plain, complete, and adequate remedy at
law, the bill must be dismissed.
2. In the courts of the United States, such an objection goes to
the jurisdiction of the forum, and may therefore be enforced by the
judges sua sponte,
though not raised by the pleadings or
suggested by the counsel.
3. A decree affirmed dismissing a bill for a private nuisance in
which the nature of the injury was not set out in such a manner as
to show that the plaintiff was without a legal remedy.
4. Courts of equity have concurrent jurisdiction with courts of
law in cases of private nuisance, but to this jurisdiction of the
former courts there are some limitations; for many cases will
sustain an action at law which will not justify relief in
5. In what cases a court of equity will enjoin a nuisance and in
what cases not.
Page 67 U. S. 546
MR. JUSTICE SWAYNE.
This is a suit in equity. The appellant filed his bill to
procure a remedy against an alleged nuisance. The circuit court
dismissed the bill. He thereupon appealed to this Court.
It appears in the case that the appellant is the owner in fee
simple of a certain parcel of land situated on the Winnipiseogee
River, in the Village of Meredith Bridge. He owns, also, in
connection with this real estate, the right to use "one-half of the
water sufficient to carry wheels for operating a trip-hammer,
grindstone, and bellows." He claims under Stephen Perley, whose
title is undisputed. Perley conveyed the land and the whole of the
water power mentioned to Daniel Tucker by deed bearing date
February 27, 1808. Tucker conveyed the same premises, on the 14th
of April, 1832, to F. W. Boynton. The deed of Perley is referred to
in Tucker's deed for a description of the land and water right
thereby conveyed. While the premises belonged to Tucker, the dam at
Meredith Bridge was rebuilt. The amount to be paid by each of the
parties interested in the water power was fixed by arbitration. The
arbitrators awarded that Tucker should pay two-twelfths of the cost
of the dam "upon the Meredith side of the river," and he paid
On the 29th of October, 1824, Boynton, by deed of that date,
conveyed to Asa F. Parker. In this deed, the water right is thus
described: "Which said water privilege is the right to draw
one-half of the water from the flume connected with the premises."
On the same day, Asa F. Parker, by deed containing the same
description of the premises, conveyed to the appellant.
The Winnipiseogee River has its source in Winnipiseogee Lake.
The Lake has its outlet at a place called the Weirs, six
Page 67 U. S. 547
miles above the Village of Meredith Bridge. The outlet was
formerly, by a natural channel, from five to seven hundred feet in
length. The water discharges itself from this channel into Long Bay
-- a sheet of water about four and a half miles long and from half
a mile to a mile wide. At the foot of Long Bay, the water is again
discharged by a channel about a thousand feet long into "Little
Bay." At the outlet from Long Bay is Lake Village. From Little Bay
the water is discharged into Sanborton Bay by a channel about
fifteen hundred feet in length. At the outlet of Little Bay is
Meredith Village, where the premises of the complainant are
situated. Little Bay forms the headwater of the dam from which the
appellant's water power is supplied. The water is discharged out of
Sanborton Bay at or near a place called Union Bridge, and thence
pursues its course, about ten or twelve miles, to its confluence
with the Pemigewasset, below which the united streams take the name
of the Merrimac River. This river -- receiving several affluents on
its way -- passes by and supplies with their water power the
manufacturing towns of Lowell and Lawrence.
The dam at Meredith Bridge was built prior to 1808. There is a
dam at Lake Village, which was built in 1829.
After Perley conveyed to Tucker, he cut a canal through his own
land, tapping Little Bay, above the dam at Meredith Bridge, and
discharging into the river below the dam at its entrance into
The defendant is a corporation, created and clothed with its
powers by acts of the Legislature of New Hampshire. Its stock is
owned by the great manufacturing companies of Lowell and Lawrence,
except a few shares, held for purposes of convenience, by
individuals. The main object of its creation was to secure a more
abundant and regular supply of water for the mills at those places.
This was to be accomplished by making Lake Winnipiseogee a vast
reservoir of water, to be accumulated and retained in wet weather
and to be drawn off and passed down the stream as it might be
needed in dry weather.
The flow of water below the lake was thus to be equalized, as
far as practicable, throughout the year.
Page 67 U. S. 548
With a view to this object, the defendant has bought up all the
water rights relating to the lake and all those upon the river
above, and for some distance below, Meredith Bridge. Those holding
such rights at that village have been compromised with, except the
appellant. The answer avers that he was offered the same that was
paid to others, and that he refused, seeking to extort an
unreasonable and unconscionable sum.
The defendants made excavations at the Weirs in 1845-1846,
whereby the lake can be drawn down from four to six feet lower than
was before possible.
They erected a new stone dam at Lake Villaga in 1851. By means
of this dam, they can arrest the flow of the water so as to raise
it above the intermediate descents back to the lake, and raise the
water in the lake and retain it there.
They have enlarged the Perley Canal and increased the flow of
water through it. This was done in 1846.
In making their purchases and improvements, the defendants have
expended about $300,000. All was done without any objection from
It is admitted by the answer that the defendants intend to make
still deeper excavations at the Weirs, and that they have
controlled and intend hereafter to control the waters of the lake
both by retention and discharge, so as to equalize at all times
throughout the year, as far as practicable, the flow of water below
the outlet of the lake.
The gravamen of the appellant's grievances is thus alleged in
"And the said defendants have thus caused a proportionate
inequality in the quantity of water flowing in the River
Winnipiseogee by the premises of your orator greater than any
inequality which naturally arose from the ordinary changes of the
season or from the ordinary fluctuations in the head of water in
the said lake before the attempted regulation of the same by the
said defendants -- to the molestation, damage, and injury of your
orator in the use and improvement of the said mill privilege and
water power aforesaid."
"And your orator further represents that his said water
Page 67 U. S. 549
is damaged to the same extent as the equality of supply of water
at all seasons is disturbed."
"And that the defendants, with the intent and design to deprive
your orator of his just rights, have seized upon and taken
possession of the waters of the said Winnipiseogee Lake and River,
to regulate and control them as aforesaid, and to use the said lake
as a reservoir out of which to supply the Merrimac River with water
in time of drought, and to use the said Winnipiseogee River as a
channel through which to regulate and control such supply whenever
and as often as the supply of water in the Merrimac from other
sources may fail or become insufficient for a motive power for the
use of the manufacturing establishments situated thereon, and for
the benefit, profit, and advantage of such manufacturing
establishments, their owners or occupants, or parties interested
therein, or some of them, and to the hurt and damage of your orator
in the use, value, and capacity for improvement of his said water
power at Meredith Bridge aforesaid."
In reply to these allegations, the defendants say
"that they have, ever since said dam and excavation were made,
used and occupied the same for the purpose of giving greater
regularity and steadiness to the flow of water in said river and to
reserve and hold back the surplus water, which would, at wet
seasons and during spring freshets, have otherwise run to waste,
retarding and interfering with the operation and use of the mills
upon said Winnipiseogee and Merrimac Rivers, and discharging the
same at such times as the same was required in consequence of the
low state of the waters in said rivers for the use thereof, and
that the water of said lake and bay has been so managed and used as
to be a material benefit and advantage to the mills upon said
"And the defendants deny that they have in any manner caused a
proportional inequality in the quantity of water flowing in the
River Winnipiseogee by the premises of said complainant greater
either than any inequality which naturally arose from the ordinary
changes of the seasons or from the ordinary fluctuations in the
head of water in the said lake
Page 67 U. S. 550
before the regulation of the same by the said defendants to the
molestation, damage, or injury of said orator in the improvement of
his said mill privilege and water power. And said defendants
further say that said complainants' water power is not damaged by
anything which has been done by them, the equality of the supply of
water being not otherwise disturbed by them than is in this answer
hereinbefore set forth, and its supply being rendered more equal at
times when it was formerly scanty, and the excess of water being
prevented at periods of high water, which would not aid, but would
retard by back-water the operation of said complainants' mill."
The issue between the parties is thus presented. Several other
matters of defense are set forth in the answer. The view which we
have taken of the case renders it unnecessary particularly to
advert to them.
The appellant alleges an injury to his water right commensurate
in extent with the additional inequality in the flow of water in
the river which he alleges to have been caused by the works of the
They deny the injury, and claim that his water power is
improved. The appellant does not state in his bill how the injury
is produced, nor in what it consists. The particular nature of the
injury is unexplained. He complains neither of a diminished supply
of water nor of back-water. We have looked carefully into the
evidence upon the subject; the result is that we are left in doubt
upon which side lies the truth. We have failed to find those clear
fact of rights upon one side and wrong upon the other which are
necessary to quicken into activity the powers of a court of equity.
We forbear to pursue this inquiry because the case presents another
ground, free from doubt, upon which we prefer to rest our
It was urged at hearing, as an insuperable objection to the
relief prayed for, that the appellant has not established his right
by an action at law. The objection was not taken by demurrer or in
the answer. In the courts of the United States, it is regarded as
jurisdictional, and may be enforced by the court sua
though not raised by the pleadings nor suggested
Page 67 U. S. 551
counsel. 2 Cr. 419; 30 U. S. 5
496; 43 U. S. 2
383. The 16th section of the Judicial act of 1789 provides
"That suits in equity shall not be sustained in either of the
courts of the United States in any case where plain, adequate, and
complete remedy can be had at law."
This is merely declaratory of the preexisting rule, and does not
apply where the remedy at law is not "plain, adequate, and
complete," or, in other words, where it is not "as practical and as
efficient to the ends of justice and to its prompt administration
as the remedy in equity." 28 U. S. 3
215. But where the remedy at law is of this character, the party
seeking redress must pursue it. In such case, the adverse party has
a constitutional right to a trial by jury. 60 U. S. 19
The concurrent jurisdiction of courts of equity in cases of
private nuisance dates back to an early period in the growth of the
English equity system. 1 Spence 672. It has been greatly enlarged
since the time of Lord Thurlow. 7 Vesey 307, 308; 33
Cond.Eng.Ch.Rep. 236. It is now too firmly established to be
shaken, but it is not without limitation. It is governed by the
same principles which animate and control its action in other cases
where its aid may be invoked against a wrongdoer.
Many cases of private nuisance will sustain an action at law
which will not justify relief in equity. 16 Vesey 338; Story's
Eq.Jur., sec. 925.
A court of equity will interfere when the injury by the wrongful
act of the adverse party will be irreparable, as where the loss of
health, the loss of trade, the destruction of the means of
subsistence, or the ruin of the property must ensue. 2 Swanst. 335;
16 Vesey 342; 2 Ver. 646; 2 Bro.C. 64; 10 Vesey 163; 6 Paige 83;
Wat. Eden 659, note.
It will also give its aid to prevent oppressive and interminable
litigation or a multiplicity of suits or where the injury is of
such a nature that it cannot be adequately compensated by damages
at law, or is such as from its continuance or permanent mischief
must occasion a constantly recurring grievance which cannot be
prevented otherwise than by an injunction. Mitf. Eq.Pl., by Jeremy,
144, 145; Jer., Eq. 300; 1 Dick. 163; 16 Ves. 342; 6 J.C. 46; 6
Page 67 U. S. 552
A diminution of the value of the premises without irreparable
injury is no ground for interference. 2 Bro.C.C. 65; 16, Vesey 342;
3 M. & K. 169.
Where an injunction is granted without a trial at law, it is
usually upon the principle of preserving the property until a trial
at law can be had. A strong prima facie
case of right must
be shown, and there must have been no improper delay. The court
will consider all the circumstances and exercise a careful
discretion. Cr. & Ph. 283.
Where an injunction in such a case has been granted and the
complainant fails to proceed with diligence in his action at law,
the injunction will be dissolved. 4 M & C. 498.
A delay of three years or more has been frequently held to be
such laches as will preclude a party from relief in equity until he
has vindicated his right at law. 1 Cox, 102; 2 J.C. 379; 3 J.C.
282; 6 J.C. 19; 5 Met. 8.
The better opinion now is that it is only a fact to be
considered by the chancellor in connection with the other facts of
the case by which his discretion is to be guided. Wood v.
8 Eng.L. & E. 217; Sprague v. Rhodes,
"Until the rights of the parties are settled at law, only a
temporary injunction is issued, to prevent irreparable injury."
Irwin v. Dixon,
9 How. 10.
This jurisdiction is applied only where the right is clearly
established -- where no adequate compensation can be made in
damages, and where delay itself would be a wrong. 2 Swanst. 316;
Angel on Wat.Courses 475.
The case must be one "of strong and imperious necessity, or the
right must have been previously established at law." 6 Barb. S.C.
160; 7 Barb. S.C. 400; 2 J.C. 164; 4 B. & C. 8; 37 N.H. 254; 17
Me. 202. The right must be clear and its violation palpable. 6
Barb. S.C. 160.
If the evidence be conflicting and the injury doubtful, this
extraordinary remedy will be withheld. 3 Paige 210; 1 Cooper's
Sel.Cas. 333; 3 M. & K. 169; 5 Met. 8; 9 Gill. & J. 668; 3
J.C. 282; 2 Barb.Ch. 282; 1 Dev.Eq. 12.
After the right has been established at law, a court of
Page 67 U. S. 553
will not, as of course, interpose by injunction. It will
consider all the circumstances, the consequences of such action,
and the real equity of the case. 4 R.I. 301; 8 E. L. & E. 217;
9 E. L. & E. 104; 18 Eng.Cond., Ch. 436.
The estate of the appellant in the water is an easement or
servitude annexed to his land. As before stated, the excavation was
made at the Weirs, and the Perley Canal was deepened in 1846. The
stone dam was erected in 1851. The appellant brought his bill on
the 18th of September, 1855. During these intervening periods,
according to his own showing, he slept upon his rights. 8 E. L.
& E. 223. He does not allege either danger of irreparable
injury, or of protracted litigation, or of a multiplicity of suits,
as the ground upon which he seeks relief in equity. There is no
warrant for such an averment. If he has been injured, his injury
can be ascertained and fully repaired by damages in an action of
law. A jury is the tribunal provided by law to determine the facts
and to fix the amount, and they can best perform this duty. The
fact that other proprietors have been paid bears upon this point. 8
E. L. & E. 222, 223. The appellant can have no standing in a
court of equity until he has laid this foundation for relief. This
objection is fatal to the case. We decide nothing else.
There are cases in which a court of equity will take
jurisdiction and give a complete remedy without the previous
intervention of a court of Law. 6 Ves. 689; 1 McLean 355; 39 N.H.
186; 8 E. L. & E. 217; 4 R.I. 301; 4 M. & Cr. 433; 3 Hare
593; 2 Coll. 431; 7 Hare 221. But this case does not belong to that
The circuit court committed no error in dismissing the
The decree below is affirmed with costs.