The Village of Keeseville, Respondent, v. Keeseville Electric Company, Appellant

The Village of Keeseville, Respondent, v. Keeseville Electric Company, Appellant. Action to restrain the maintenance of a dam below the dam of the plaintiff— an injunction enjoining the defendant from baching water upon the plaintiff’s wheel is improper—it requires the defendant to decide the question at issue. In an action brought by a riparian owner against a lower riparian owner to compel the latter to remove a wing dam erected by him and to perpetually restrain him from using or maintaining said dam, one of the principal* issues was whether the wing dam caused the .water of the stream to flow back upon the plaintiff’s premises. The affidavits submitted upon a motion for an inj unction pendente lite being conflicting upon this question of fact, the court granted the following order: “ That the defendant, * * * its agents, servants and officers, be and they hereby are restrained and enjoined during the pendency of this action from raising or backing or causing to be raised or backed the water upon the water wheels of plaintiff or any of them mentioned in the complaint herein, and from permitting or suffering said water to be raised or backed upon said wheels.” Held, that the order should be reversed, as it compelled the defendant to determine , at its peril one of the principal issues in the action. Appeal by the defendant, the Keeseville Electric Company, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Essex on the 17th day of January, 1901, granting an injunction pendente Vite. The plaintiff is a municipal corporation and owns and operates a system of water works by which water is supplied to its inhabitants for domestic and fire purposes. It owns lands bounded on the Ausable river, and on such lands it has a pumping station and water from said river is pumped through water mains for the purposes stated. The defendant is a domestic corporation owning lands on said river, next below the lands of the plaintiff, and there operates an electric light plant, and light is supplied to the inhabitants of said village. Both parties run their plants by water power and water is taken by them from said river by means of the same dam and flume. The plaintiff claims that the defendant has erected a wing dam on its premises below the premises of the plaintiff, causing water to flow back upon the plaintiff’s station, water wheels and premises, and seeks a judgment compelling the defendant to remove said wing dam, and perpetually restraining the defendant from using or maintaining said wing dam or permitting it to be used or maintained. The defendant denies that the wing dam causes the water, to flow back upon the plaintiff’s station, water wheels and premises. A motion was made at Special Term for “ an order restraining and enjoining, during the pendency of this action, the defendant, its agents, servants and officers, from using or maintaining or permitting to be used or maintained the wing dam or pier erected by it. * * * ” On the hearing of the motion the plaintiff read several . affidavits to the effect that the wing dam causes the watér of the river to flow back upon the plaintiff’s premises, and the defendant read a large number of affidavits to the effect that the wing dam does not cause the water of the river to flow back upon the plaintiff’s premises. The Special Term granted an order “That the defendant * *' * its agents, servants and officers, be and they hereby are restrained and enjoined during the pendency of this action, from raising or backing or causing to be raised or backed the water upon the water wheels of plaintiff or any. of them mentioned in the complaint herein, and from permitting or suffering said water to be raised or backed upon said wheels.” Richard Lockhart Hand, for the appellant. Franklin A. Rowe, for the respondent. [MAJORITY — Chase, J.:] Chase, J.: An' injunction order should be sufficiently definite and certain in stating what the party enjoined must do or. refrain from doing so-that it will not be necessary for the party enjoined to determine at his peril one or more of the principal issues to be tried in the action before deciding what, if anything,, it is necessary to do in obedience to the order. The court at Special Term in this, case avoided passing upon conflicting affidavits or taking further means for determining preliminarily the controversy, and made an order that involves one of the principal issues for .determination. The defendant'cannot take, down its'wing dam without for the time being abandoning one of its defenses to the action and substantially admitting that all of the persons whose affidavits it has read have sworn falsely, and if it does not remove the wing dam, and it is finally determined that the plaintiff has a cause of action against the defendant, and that the wing dam does in fact cause the water to flow back on the plaintiffs premises, then it will be liable for a continued contempt of court in disobeying the order. Such an order is of no possible value to the plaintiff pending a determination of the controversy, and it places the defendant in unjustifiable jeopardy. This court has recently held that such an order should not be granted. (St. Regis Paper Co. v. Santa Clara Co., 55 App. Div. 225.) It is unnecessary to consider the other questions raised on this appeal. Order reversed, with ten dollars costs and disbursements. All concurred. Order reversed, with ten dollars costs and disbursements.