Opinion
05-13-1891
HYDE v. FRENCH.
Craig A. Marsh, for complainant. Charles A. Reed, for defendant.
Bill to enjoin the maintenance of a dam. Complainant showed in his bill that for 20 years prior to and until 1882 defendant had a dam some 600 yards beyond complainant's property, which had never backed water so as to prevent the uninterrupted flow thereof through and beyond complainant's laud. In 1882 a freshet washed away this dam, and defendant erected a new one about 8 1/2 inches higher than the old one. By reason of this additional height, water was backed upon complainant's premises to such an extent as to frequently cover portions thereof. Defendant, in his answer, denied that he erected the new dam higher than the old one.
Craig A. Marsh, for complainant.
Charles A. Reed, for defendant.
BIRD, V. C. It is quite clear that, in disposing of this case, the court must be controlled by the decision of the court of errors and appeals in the case of Outcalt v. Geo. W. Helme Co., 42 N. J. Eq. 665, 9 Atl. Rep. 683. The declarations of that court must be the guide of this in all cases where they are reasonably applicable; and perhaps no two cases can be found where the principal matters in dispute, and the facts by which the rights of the parties must be determined, are more nearly alike. The counsel for the complainant urged that this case comes within the familiar exceptions to the general rule, because the complainant is suffering irreparable mischief in the obstruction occasioned by the casting back of an unlawful amount of water upon his water-wheel, which he uses to irrigate his lawns and shrubbery around and about his dwelling; in other words, it is an interference with that lawful enjoyment of his home, and a deprivation of his domestic comfort, which cannot possibly be estimated in damages, and which the uniform practice of all courts of equity has been to protect upon the ground that they do not admit of pecuniary consideration. This principle is well founded, and has been distinctly recognized by the court of errors and appeals, (see Hart v. Leonard, 42 N. J. Eq. 416, 7 Atl. Rep. 865;) but, as in every other case, courts of equity cannot fail to consider the circumstances which have controlled the parties, and which manifestly appear in the presentation of the case. A striking circumstance in this case is the fact that the complainant did not bring his suit until more than seven years had elapsed after the wrong complained of had been committed, although from the first he suffered in all respects to the same extent as he did at the time he filed his bill. Hence I find no just reason for attempting to distinguish this case from Outcalt v. Geo. W. Helme Co. Therefore I will advise that the bill be dismissed, with costs.