
    Arthur H. McCann et al., Appellants, v. Chasm Power Company, Respondent.
    Injunction— court of equity not bound to grant an injunction, which will produce great public or private mischief, merely for the purpose of enforcing a technical right — continuing trespass by waters of a dam—when injunction will not be granted to restrain such trespass.
    1. The ownership of property will be protected unless there are other considerations which forbid, as inequitable, the remedy of the prohibitive or mandatory injunction. If the protection of a legal right would do a plaintiff but comparatively little good and would produce great public or private hardship, equity will withhold its hand and remit the plaintiff to his legal rights and remedies. A court of equity is not bound to decree an injunction where it will produce great public or private mischief, merely for the purpose of protecting a technical or unsubstantial right.
    2. The defendant, a domestic corporation, has been engaged since 1903 in supplying electricity for public and private use. Prior to July, 1903, at a point about six hundred feet northerly from its boundary line, the dam of the defendant was constructed in a river by means of which the water was set back or raised upon its perpendicular rock banks through a distance of about four hundred and twenty feet of the plaintiffs’ lands, lessening the amount of available power upon the river above the dam. The premis'es of the plaintiffs so flooded consist of barren perpendicular rock which are not shown to be of any value. The defendant has expended a large sum in the construction of its dam and in building and equipping its power house and lines. One of the plaintiffs constructed the dam by which the invasion was caused, and the others were, as stockholders of the defendant, parties to such construction. They bought the lands with the complete knowledge that the continuing trespass was upon them and of its cause and extent. Their predecessors in title had not at any time complained of the dam or its effects. They had sustained no damage, and it does not appear that the trespass was preventing or interfering with plaintiffs’ present or contemplated use of their lands. Held, that the plaintiffs have no equities and no larger or other claim than that an invasion of a technical and profitless legal right should be corrected. Under these circumstances a perpetual injunction was properly denied, and a judgment which declares the plaintiffs’ title and then- opportunity to enforce it, adequately protects the plaintiffs from the acquisition by the defendant of a right or title by prescription.
    
      McCann v. Chasm, Power Co., 151 App. Div. 304, affirmed.
    (Argued February 3, 1914;
    decided May 12, 1914.)
    Appeal from so much of a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered June 22, 1912, as modified, and as modified affirmed, a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.
    The judgment rendered at Special Term permanently enjoined the defendant from flooding the lands of plaintiffs by its dam in the Chateaugay river after ten months from the rendition of the judgment and awarded the plaintiffs six cents damages. The Appellate Division modified that part of the judgment granting an injunction by “ suspending its present operation and providing that the plaintiffs may at any time apply at the foot of the judgment, upon showing substantial injury from any cause to them, hereafter occurring, for an injunction substantially as provided in the present judgment, or as the court may direct, or at their election, the plaintiffs may bring such separate action for such or other relief as they may be advised, on account of any injury to their property hereafter occurring.”
    The facts, so far as material, are stated in the opinion.
    
      John M. Cantwell for appellants.
    It is undisputed that the defendant is flooding lands to which the plaintiffs hold the title. Its act in so doing constitutes a continuing trespass. (Sedgwick on Dam. 49, 151; Dixon v. Clough, 24 Wend. 188; Garvey v. L. I. R. R. Co., 159 N. Y. 332.) The plaintiffs are entitled to a permanent injunction as matter of law. (Whalen v. Union Bag & Paper Co., 208 N. Y. 1; Schwarzenbach v. O. L. & P. Co., 207 N. Y. 671; Strobel v. Kerr Salt Co., 164 N. Y. 303; Sammons v. City of Gloversville, 175 N. Y. 346; Pendorf v. City of Rome, 203 N. Y. 645; Pappenheim v. M. E. R. Co., 128 N. Y. 436; Brown v. Ontario Talc Co., 81 App. Div. 273.)
    
      A. B. Cooney for respondent.
    Plaintiffs’ grantors acquiesced in the construction and use of the dam for years, during which period defendant expended large sums of money in improving its plant and plaintiffs purchased the premises with full notice of the condition and are, therefore, estopped from maintaining this action. (Dean v. Benn, 69 Hun, 519; Penrhyn Slate Co. v. Granville El. L. & P. Co., 181 N. Y. 81; Fischer v. Trustees of Village of Clifton Springs, 121 N. Y. Supp. 163; 125 N. Y. Supp. 1119; Koehler v. Adler, 78 N. Y. 287.) The plaintiffs should not obtain equitable relief by injunction as their pretended right thereto is purely technical and the granting of the .same would work great private and public inconveniences and damage. (Penrhyn Slate Co. v. Granville El. L. & P. Co., 181 N. Y. 80; McClure v. Leaycraft, 183 N. Y. 36; Knoth v. Manhattan Ry. Co., 187 N. Y. 243.)
   Collin, J.

The southerly line of the defendant’s land is the northerly line of the plaintiffs’ land, and in a chasm through the lands flows the Chateaugay river. The defendant, a domestic corporation, has been engaged since 1903 in supplying electricity for public and private use in the village of Chateaugay and elsewhere for lighting and power. Prior to July, 1903, at a point about six hundred feet northerly from the said boundary line, the defendant constructed in the river a dam by which the water was set hack or raised upon the perpendicular rock banks through a distance of about four hundred and twenty feet of the plaintiffs’ lands, lessening the amount of available power upon the river above it. The premises of the plaintiffs so flooded consist of barren, perpendicular rock which are not shown, as the finding of the trial court states, to be of any value. The defendant has expended about $97,000 in the construction of the dam and in building and equipping its power house and lines.The plaintiff McCaghey constructed the dam and a portion of the plant of the defendant and knew then the height of the dam and the height to which the water in the river was raised by it. The plaintiffs purchased their lands in 1906. Arthur H. McCann, Daniel B. McCann and Frank A. Fielding were, while the dam was being constructed, and since have been, stockholders in the defendant and all the plaintiffs when purchasing the lands knew they were flooded by reason of the dam and the extent of the flooding. Plaintiffs’ grantors did not at any time object to the construction or maintenance of the dam or the flooding of the lands. '

The plaintiffs as riparian owners had the strict legal right to have the natural fall in the river, that, is, the difference of level between the surface where the river first touches their land and the surface where it leaves it, uninterfered with. The defendant in raising the water through the four hundred and twenty feet by the dam and thus destroying that difference of level commit-, ted a trespass upon the lands of the plaintiffs. Such trespass was continued from the time the dam was constructed to the entry of the judgment and the defendant was legally liable to continuous actions at law, in which the recovery would be for the damage sustained prior to the commencement of each action and subsequent to the commencement of that last preceding. The trespass being continuous, the plaintiffs had the right to resort to equity for the purpose of enjoining its continuance and to thus prevent a multiplicity of actions at law to recover damages.

It is a general rule that when one without right attempts to appropriate the real property of another by acts or results which will create an easement or ripen into a permanent right, a court of equity will compel the trespasser to undo as far as possible what he has wrongfully done. This rule, however, is not rigid. There are many authorities declaring and applying exceptions to it. We recognized this fact in adopting the language of Judge Werner in Whalen v. Union Bag & Paper Co. (208 N. Y. 1, 4), in which the plaintiff was seeking to protect by mandatory injunction a legal right injured by a continuous trespass, as follows: “ It is not safe to attempt to lay down any hard and fast rule for the guidance of courts of equity in determining when an injunction should issue.” The ownership of property will be protected unless there are other considerations which forbid, as inequitable, the remedy of the prohibitive or mandatory injunction. A court of equity can never be justified in making an inequitable decree. If the protection of a legal right even would do a plaintiff but comparatively little good and would produce great public or private hardship, equity will withhold its discreet and beneficent hand and remit the plaintiff to his legal rights and remedies.

In the present case the plaintiffs have no equities and no larger or other claim than that an invasion of a technical and profitless legal right should be corrected. One of them constructed the dam by which the invasion was caused, and the others were, as stockholders of the defendant, parties to such construction in a substantial sense. They bought the lands with complete knowledge that the continuing trespass was upon them and of its cause and extent. Their, predecessors in title had not at any time complained of the dam or its effects. They had sustained no damage, and there is neither finding nor request to find that the trespass was preventing or interfering with plaintiffs’ present or contemplated use of their lands.

The defendant, upon the other hand, had been since the completion of the dam and its plant manufacturing and supplying electric light and power to the public and individuals. We may presume from its defense to this action that it is satisfying a public demand and that the present height of the dam is necessary for its useful operation. Since the completion of the dam it has expended a considerable sum of money in improving its plant, and the entire sum spent by it in construction, • equipment and improvement is, for the locality, large. It has many times been said by us and by the courts of other states that under such or analogous facts a court of equity will not decree the issuance of a mandatory injunction. An equity court is not bound to decree an injunction where it will produce great public or private mischief, merely for the purpose of protecting a technical or unsubstantial right. (O'Reilly v. N. Y. El. R. R. Co., 148 N. Y. 347; Gray v. Manhattan Ry. Co., 128 N. Y. 499; Knoth v. Manhattan Ry. Co., 187 N. Y. 243; McClure v. Leaycraft, 183 N. Y. 36; Llandudno Urban Dist. Council v. Woods, L. R. [2 Ch. 1899] 705; Levi v. Worcester Consolidated St. Ry., 193 Mass. 116; Starkie v. Richmond, 155 Mass. 188; Bassett v. Salisbury Mfg. Co., 47 N. H. 426; Becker v. Lebanon, etc., St. Ry. Co., 188 Pa. St. 484.)

The judgment of the Appellate Division, in that it declares the plaintiffs’ title and their opportunity to enforce it, adequately protects the plaintiffs from the acquisition by the defendant of a right or title by prescription.

The judgment appealed from should be affirmed, with costs.

Willard Bartlett, Ch. J.

(dissenting). The judgment of the Appellate Division which it is proposed to affirm in this case sanctions a permanent occupation of the plaintiffs’ land by the defendant corporation. None of the cases cited in the prevailing opinion goes as far as this.

It is quite true that a court of equity is not bound to grant an injunction “where it will produce a great public or private mischief, merely for the purpose of protecting a technical or insubstantial right.” But I am unable to classify the right to the possession of one’s own land in the category of technical or insubstantial rights. On the contrary, it seems to mé that no right can be more substantial. Here the defendant is not merely a quasi trespasser upon easements of the plaintiffs as in the principal elevated railroad case cited by my brother Collin (O'Reilly v. N. Y. Elev. R. R. Co., 148 N. Y. 347), but it is an actual invader of the plaintiffs’ property by flooding back upon it the waters of the Chateaugay river for a distance of 420 feet, thereby lessening the water power available to the plaintiffs thereon.

The findings of the trial court, which remain undisturbed by the modification of the judgment, establish the fact that the plaintiffs’ premises which are overflowed by the action of the defendant constitute a valuable water power, and that the setting back of the water thereon has deprived the plaintiffs of the use and enjoyment of their lands and lessened the amount of available power upon the river to which the plaintiffs are entitled. This is admitted to some extent even in the prevailing opinion at the Appellate Division, where it is conceded that the part of the chasm thus flooded might be used by the plaintiffs as a tail race. We have here, then, the case of a water power of substantial value which it is proposed to leave in the possession of those who have unlawfully invaded it because, as is intimated by the court below, an injunction can do no good to the plaintiffs and will greatly harm the defendant. I do not agree to the proposition that an injunction will do no good to the plaintiffs. It will give them possession of their water power to its full extent and enable them to build a power house on their property which the overflow now prevents them from doing. It will remove the cloud upon their title caused by the adverse occupation of their lands by the defendant which manifestly constitutes an obstacle to the ready sale thereof should they desire to sell it. In the situation in which it is proposed to leave the plaintiffs a purchaser of their property necessarily buys a lawsuit, unless he is willing to allow the land to remain covered by the water thrown back thereon by the defendant’s dam. He cannot obtain the complete and absolute use and occupation of the premises without intervening in this action or bringing a new action to procure the very relief that has been denied to the plaintiffs here.

In Corning v. Troy Iron & Nail Factory (40 N. Y. 191, 205), which was a case of wrongful diversion of a stream, it was urged in this court that the final judgment should not award a mandatory injunction for the restoration of the water to its natural channel because it would be productive of great injury to the defendant and little benefit to the plaintiffs. There the plaintiffs had been deprived of their water power not, as in the present case, by overflowing them land but by diverting the water therefrom. This court, speaking through Grover, J., said: “The question then comes to this, whether the defendant, who has wrongfully diverted from the plaintiffs a stream affording such a water power, shall be permitted to continue such wrongful diversion, and thus to deprive the plaintiffs of what is clearly theirs without their assent, upon the ground simply that its restoration would be a great damage to it. In other words, that by its continuance wrongfully to appropriate to its own use the property of the plaintiffs, it derives a much greater benefit than the plaintiffs could by being restored to their own. The bare statement of the question would seem to suggest the only proper answer. The very idea of justice is to give to each one his due. ” In my opinion it is due to these plaintiffs that the defendant be compelled forthwith to desist from flooding their lands.

Not only is the invasion thereof a continuous trespass but it is a private nuisance as well. The findings show this. To refuse an in j miction after the right and nuisance are completely established * * * would be contrary to equity and good conscience, as well as contrary to every well-considered case. In such a case no actual pecuniary damage need be proved, the law imports damage to support the right, and when the right and its violations by a continuous or threatened act is established, an injunction may fairly be said to be a matter of right.” (Wood’s Law of Nuisances [3d ed.], § 782.) If the right to an injunction may be stated thus positively in the case of a mere nuisance, how much more strongly may it not be asserted in the case of an actual appropriation and hostile occupation of land without warrant of law ?

For the reasons stated in addition to those given by Mr. Justice Betts in the court below, I dissent and vote to reverse the judgment of the Appellate Division so far as appealed from by the plaintiffs and to reinstate the judgment of the Special Term in all respects.

Werner, Hisoock, Cüddeback and Hogan, JJ., concur with Collin, J.; Miller, J., concurs with Willard Bartlett, Ch. J.

Judgment affirmed.  