
    WILLIAM M. WARNE v. THE MORRIS CANAL AND BANKING COMPANY.
    1. In 1832, tlie owner of a mill-seat leased to a canal company, for three years, at an annual rent, the privilege of diverting water from the stream, at a point above and beyond his land, into the canal. He then sold his mill-seat to a third person, reserving by the deed all right, interest and demand against the company for the use of the water, which he then had, or which either of the parties to the deed might thereafter have, as freely as if he had not conveyed the mill-seat. The company paid the grantor of the mill-seat the rent for the three years. After the expiration of the lease, the company continued to use water diverted from the stream without paying for it. In 1845, the grantor filed a bill praying an account and payment of the rents, and an injunction restraining the company from diverting the water. The injunction was denied.
    2. Where there is a remedy at law, and nothing to show that the damages which might be awarded at law could not be realized, and nothing of the character of irreparable damages, an injunction will not be granted.
    In June, 1832, William M. Warne, being seized of a lot of land of sixteen acres, near the canal of the Morris Canal and Banking Company, in Warren county, on which lot he had mills in operation, driven by the waters of the Hopatcong and Brasscastle creeks, which united some distance above his said lot, and after the junction flowed through the same j and the said company wishing to use the water of the Brasscastle, to increase the supply of water for their canal, the company entered into a negotiation with Warne for the purchase of the right to divert the water of the Brasscastle, either permanently or for a time, alleging (as the bill states) that the necessity for using it in the canal would be temporary only, until the banks of the canal should become tight. Warne, believing that the want of water for the canal would be permanent, wished them to buy his whole right. After negotiation between the company aud Warne, the company leased from Warne the privilege of taking the water from the Brasscastle for three years, at the annual rent of $250, and thereupon cut a sluice, by which they turned the water of the Brasscastle into their canal. The company paid Warne the stipulated rent for the three years.
    
      On the 19th of January, 1833, Warne sold and conveyed his said land to H. M. Winter, reserving by the deed, to himself, his heirs, &c., “ all right, title, interest, property, claim and demand, both in law and equity, against the Morris Canal and Banking Company, for the use of the water of the Brasscastle, which he then had, or either of the parties to the said deed might thereafter have, as fully as if he, the said Warne, was still in possession of the premises and had never conveyed the same.”
    After the expiration of the three years the company continued to take the water without any further agreement with Warne, and, (the bill states,) as he supposed, with the intention of using it as his tenants from year to year, at the same rent.
    On the 21st of October, 1844, the canal and its appendages, and the chartered rights of the said company, were sold under a decree of this court, and the purchasers at that sale, or persons holding under them or associated with them, are using the canal and exercising the chartered rights of the said company.
    In July, 1845, Warne filed his bill against the Morris Canal and Banking Company, stating the foregoing facts, and that the company have neglected and refused to pay him any rent since the expiration of the said lease, or to make him any adequate compensation for the use of the water, or to make any proper arrangement with him for the future use of the water j and praying an account, and payment of the rent since the expiration of the lease, and an injunction restraining the company from using the water, and from turning the same into the canal, and commanding them to restore the same into its natural and ancient channel.
    On the filing of the bill, the complainant gave notice to the defendants of a motion for an injunction pursuant to the prayer of the bill.
    The motion was argued on the bill.
    
      S. R. Hamilton, for the complainant.
    
      F. T. Frelinghuysen and William Halsted, for the defendanta. They cited 6 John. Ch. 46; 3 Paige 213; 1 Green’s Ch. R.
    
   The Chancellor.

There are, perhaps, some questions in the case which ought to be settled at law, for the purpose of establishing the complainant’s right, before the court should act by injunction. There is, also, a difficulty in the way of an injunction growing out of the length of time during which the complainant has slept over his rights, if he has any. But aside from these matters, it is clear that in the present position of things, this is not a case for the interposition of this court by injunction.

It is not an application by the owner of a mill-seat, to prevent the obstruction or diversion of the.stream. An injunction is sought by the complainant as a means of compelling the company to make him compensation for the use of the water. This must be its only object; for the complainant having conveyed the mill-seat, has no use for the water himself. The only benefit he can derive from his present position, under the , reservation in his deed to Winter, (assuming that such a reservation is good,) is from the actual use of the water by the defendants ; and there is nothing to show that an action at law would not yield him any compensation a court of law might award himj and there is nothing of the character of irreparable injury to the ©ompMaanfc by the defendants’ use of the water.

Motion denied.  