George M. Loukes, Respondent, v. Daniel F. Payne, Appellant

George M. Loukes, Respondent, v. Daniel F. Payne, Appellant. Third Department; November 16, 1910. Equity — injunction—water and watercourses — when maintenance of dam will not be enjoined at suit of lower proprietor — form of relief where damages are nominal. A court of equity may in its discretion enjoin a wrongful act, although the damages are not substantial. But a court of equity will not grant an injunction restraining the maintenance of a dam for storage purposes, although, under the circumstances, the plaintiff is entitled to nominal damages by reason of the fact that his legal rights as" a lower riparian owner are infringed, if in fact he was guilty of laches in allowing the dam to be'raised at a great expense without objection and he is not damaged, but on the contrary is benefited owing to the fact that the same amount of water goes down the stream and the flow is more uniform so that injuries caused by the spring floods are avoided and a flow maintained throughout the dry season. Under such circumstances a judgment for six cents damages should be entered with permission to plaintiff to apply at the foot of the decree for an injunction if at any future time he can show substantial injury, and permission to bring a separate action for such future injury if he so elect. Appeal by the defendant, Daniel F. Payne, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Essex on the 15th day of November, 1909, upon the decision of the court rendered after a trial at. the Clinton Special Term. By the judgment the plaintiff recovers: six cents damages and restrains the.defendant perpetually from maintaining and using his storage dam at the Kingdom, except as a power dam. The dam extends across Black river, in Essex county, and was built for the purpose of impounding waters in Lincoln pond to supply power for defendant’s electric light plant built one and one-lialf miles below. The plaintiff has a farm on Boqnet river, and the Black river flows .into the Boqnet river just above the plaintiff’s farm, and about eleven and one-half miles from Lincoln pond. The defendant owns the flowage rights around Lincoln pond and along Black river above his electric light plant and dam. Before the year 1873 a storage dam, ten or twelve feet high, was maintained at this place to supply motive power for a forge for the manufacture of iron. The iron works were destroyed by fire forty-five years ago. In 1904 the defendant rebuilt the dam, raising it to a height of sixteen and seventy-five one-hundredths feet. The defendant expended in 1904 and 1905 $60,000 in building the storage dam and the electric light plant. The Special Term finds: “ That the storage dam causes no actual present injury to the lower owners on the Black or Boquet rivers, except as it invades their legal rights. On the contrary, it is a distinct benefit to them all, for the destructive freshets of the spring and fall are thereby prevented, and the waters saved are let down in dry weather to continue the flow of a stream which would otherwise very nearly dry out. The same amount of - water comes down the river, but in a more uniform and beneficial manner than formerly. * * * That the plaintiff has suffered no actual present damage by the defendant’s acts in storing water by the reservoir dam, and using the same for the purposes of his plant, except as his legal rights are thereby invaded.” Smith & Wickes [Francis A. Smith of counsel], for the appellant. Pyrke & Dudley [Berne A. Pyrke of counsel], for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: A court of equity may enjoin a wrongful act, although the damages are not substantial, but it is not required to do so in every case. In each particular case, as it arises, the discretion of the court is appealed to, and where- a right' is invaded it may or may not grant injunctive relief, according to the real conscience of the court in the premises. In this case, at the instance of the plaintiff, the defendant is enjoined from doing an act which is Of the utmost value and profit to him, causes no injury to the plaintiff, and is in fact .a substantial benefit to him. The legal rights of the parties are defined and secured by the judgment for nominal damages. If the defendant continues storing the water it cannot ripen by user into a permanent right, as the judgment in this case establishes the rights of the parties in the premises. The question, therefore, is presented ; Will the court, at. the instance of the plaintiff, give him this extraordinary remedy .when it will injure the defendant very materially, and will also bring injury upon the plaintiff; and in no event can properly bring the plaintiff any benefit ? • If this action had been instituted when the dam was being erected, before the plaintiff had made the large expenditure of money, perhaps. a different situation would present itself. It is hot clear that the plaintiff knew-that the dam was being erected, although the probability is strong that he must have known that extensive works were being carried on in rebuilding the dam and in erecting the plant below. In a rural locality like the one in question we cannot at least assume that the plaintiff did not know, and when he seeks to -use the injunctive order of the court to the great detriment of the defendant, as well as his own detriment, lie should show that he is guilty of no laches, arid has taken action at the earliest moment and has not "done any act to lull the defendant into a state of repose and cause him unnecessary expense. When we consider that the plaintiff is seeking to restrain acts, the "doing of which are beneficial to himself, it is fair to assume that he is actuated by some ulterior purpose. Tie may desire- to sell his farm at a large price, or to coerce from the defendant large sums of money to get rid of the injunction. If such is his purpose, it does not appeal to a court of equity ; it will not willingly aid him by using this extraordinary remedy for such a purpose. The remedy of injunction is intended to prevent a wrong in favor of a party aggrieved.. The plaintiff is not aggrieved, and the court will not interfere by injunction where the only proper legal effect is to visit injury upon all the suitors and where no party to the litigation can be benefited, but all parties must suffer. The judgment, so far as it awards six cents damages to the plaintiff, is affirmed, for the reason that upon the facts shown the defendant is not authorized to use the dam as a storage reservoir, and the judgment will establish that the plaintiff is entitled to the injunctive relief granted whenever it appears that injury caused to the plaintiff is substantial and that equity and justice require that the injunction be put in force. The judgment granting the injunction shouíd be modified by suspending its operation and providing that the plaintiff at any time may apply at the foot of the judgment upon showing substantial injury to him hereafter occurring and that the ends of justice require it, for an injunction substantially as mentioned in the judgment, or as the court may direct, or at his election the plaintiff may bring such separate action for such or other relief as he may be advised on account of any injury to his property hereafter occurring, and as so modified the judgment appealed from is affirmed, without costs to either party. • J udgment modified as per opinion and as so modified unanimously affirmed, without costs.