
    
      Talley v. Tyree.
    November, 1843,
    Richmond.
    (Absent Cábele, P.)
    Appellate Jurisdiction — Injunction—Motion to Dissolve — Overruled.—An appeal lies to the court of appeals from an order of a circuit court overruling- a motion to dissolve an injunction which was improvidently granted. Accord. Lomax v. Picot, 2 Rand. 247.
    Mills and riilldams — When Owner Cannot Be Injoined from Rebuilding Dam — Case at Bar. — Two verdicts were rendered in favour of a party whose land was overflowed, against the owner of a mill, for keeping his dam too high. The dam was then swept away; and the plaintiff at law thereafter exhibited a bill of injunction against the mill owner, which alleged that he had not begun, within the time prescribed by law, to rebuild the dam, also contained a suggestion in general terms, that irreparable mischief would result to the plaintiff from rebuilding the same. It did not appear .that there was ever any order of court granting leave to build the mill and dam; it did appear, however, that the mill and dam had existed more than 50 years. Held, that the verdicts for keeping the dam too high shew that the mill owner had at least a prescriptive right to keep the dam at some height; that these verdicts did not warrant an injunction to restrain him from rebuilding the dam, in the absence of any allegation in the bill that he was about to build it, or had threatened to build it, beyond the authorized height; and that if it was competent for a court of equity to interpose at all to enforce a forfeiture of the mill owner’s right because of his failure to rebuild the dam within the time prescribed by law, it ought not to be done by way of injunction, without an allegation in the bill of some distinct and sufficient ground of irreparable mischief.
    In Aug-ust 1836, Joseph Tyree exhibited a bill to the judge of the circuit court of Hanover, setting forth, that he is the owner of a tract of land in Hanover county on the south side of Mattadyquin creek, and Dyd-ball Talley is the owner of a tract on the north side of said creek; that across the creek, for many years, Talley had had a dam, and a mill connected therewith; that whether the same was authorized by law or not, the complainant had never been able clearly to ascertain, but so far as 501 *he had investigated the subject, he was satisfied, and therefore charged, that legal and proper permission had never been obtained to erect said dam and mill; that it is certain, however, the same has been, within less than 20 years, raised above any height at which in previous years it had stood, and by consequence had greatly flooded and injured the complainant’s land; that for this injury the complainant instituted an action at law, and by a fair trial obtained a verdict and judgment; that the said Talley still continuing to hold the water in his pond higher than he Should under any circumstances have done, the complainant, for this continued injury, instituted another suit at law against the said Talley, and obtained another verdict and judgment; that sometime about the 10th of September 1834, a considerable part of the dam of the said mill was swept off by a very heavy flood, by which all the water, or very nearly all, was drawn off from the pond, and the lands above the dam were uncovered, and have since so remained; that the said Talley had not since begun to “rebuild or repair’’ the said mill, although the same had been unfit for public use nearly two years; but that he now threatened to rebuild the dam forthwith, and by doing so he would again flood and greatly injure the land of the complainant, lying both above and below the said dam. And the complainant alleged, that if the said Talley should be permitted to proceed thus arbitrarily and illegally, he (the complainant) would be subjected to the most serious and irreparable injury ; an injury for which he could obtain no adequate legal relief. An injunction was therefore prayed, to restrain the said Talley from proceeding to rebuild or repair the said mill or dam.
    The injunction was awarded.
    Talley answered, that the mill and dam (or rather the privilege thereof) have existed in use and unquestioned, certainly for 50 years, and he believed for a 502 *much longer time. He admitted that he had not found, among the records of Hanover county court, the original proceedings by which his said mill was established; but it was, he said, one of the oldest in the country, and could be proved to have had existence at a period the records of which were very imperfect, and it was not improbable that it was built at a time when it was lawful, and frequently the practice, to build mills and dams without application to any court for authority to do so. The complainant’s speaking of the water having been, within less than twenty years, raised above its proper height, betrayed, the respondent argued, the complainant’s own knowledge of the fact which he pretended to question, that the said mill and dam had an undoubted legal existence, from the length of time they had continued. The respondent did not deny that the complainant had recovered two verdicts against him in actions brought to recover damages for injury done to his lands. In these suits, he said, he laboured under the disadvantage of having no record to shew the height to which he was entitled to hold the water in his pond, and he believed that in consequence of this the jurors referred to his supposed illegal acts, consequences resulting from the relative situation of the creek and of the complainant’s land. For, he said, he believed he could shew that as much injury would result to the land from a flood in the creek, when his dam is down and the water let off, ás when the dam is standing. After each verdict, he said, he held the water in his pond at a lower height. Yet the complainant had instituted a third suit to recover damages for injury to his land in the intervening period between the last verdict and the month of September 1834, when the dam was carried away; and had avowed his purpose to contest the respondent’s right to have his mill and dam on the site where they had stood so long, on any terms whatever. The only ground, 503 the respondent argued, upon *which the complainant could come into equity, was for the prevention of irreparable injury. What, he asked, is the “irreparable injury” in the present case? The plaintiff complains that his land will be covered when the dam is raised too high. Then, said the respondent, the injury can only arise from raising the dam to an illegal height. “How can the complainant anticipate that this will be done, and that injury will ensue? Will it not be time enough to bring his action when the injury actually occurs? And has he shewn in any manner that such action will not compensate the injury?” The respondent denied emphatically the allegation in the bill that he did not begin to rebuild and repair his dam within one year from the 7th of September 1834, when it was carried away; and proceeded to state what he had done towards such rebuilding and repair, and when he did it.
    Depositions read in the actions at law were produced by the defendant to shew the antiquity of the mill. According to these depositions, it was erected before 1768.
    The defendant moved to dissolve the injunction, but the court overruled the motion.
    From this order an appeal was allowed.
    Daniel for appellant.
    The appeal was properly allowed in this case, to settle the principles of the cause, and save expense and delay. 1 R. O. 1819, ch. 66, § 57, p. 208; Sess. Acts 1830-31, ch. 11, $ 31; Suppl. to Rev. Code, p. 149. The case of Eomax v. Picot, 2 Rand. 247, is a decision in point.
    The charge of irrej arable injury to the appellee from the erection of the dam is in general terms, and it is not shewn how such injury is to result. The jurisdiction of equity to interfere in such cases by injunction is of modern origin, and 504 very cautiously exercised. *Coulson v. White, 3 Atk. 21; Hanson v. Gardiner, 7 Ves. 307; Stevens v. Beekman and others, 1 Johns. Ch. Rep. 318; 2 Story’s Eq. 207, '£ 928; Earl of Ripon and others v. Hobart and others, 3 Mylne & Keene 169; 8 Cond. Eng. Ch. Rep. 331. The principle of this last case is directly applicable to the present. In Crenshaws v. The Slate River Company, 6 Rand. 245, the court adverts to the peculiar nature and public utility of mill property, and the hardship which may be inflicted on the mill owner by the interference of the court of chancery.
    Eyons for appellee.
    It may well be questioned whether an appeal from an order refusing to dissolve an injunction is sustainable. Great delay, without any corresponding benefit, must be the consequence of allowing appeals in such cases, since they are not now privileged in respect to the time of the hearing.
    This is a case of nuisance, in which there have been repeated trials at law, and repeated verdicts for the plaintiff. In such a case, equity has unquestionable jurisdiction to interfere by injunction, as it would have, indeed, if the case were one of simple trespass. Eden on Injunctions 259-275; 1 Chitty’s Gen. Pract. 722, 4; Field v. Beaumont, 1 Swanst. 208; Gardner v. Village of Newburgh, 2 Johns. Ch. Rep. 164; Corning and others v. Lowerre, 6 Id. 439; Beveridge v. Lacey, 3 Rand. 63. The plaintiff had no adequate remedy but in equity. If he had waited until .the dam was rebuilt, a prosecution for a public nuisance could not be sustained. Webb v. The Commonwealth, 2 Leigh 721. And the plaintiff might, also have been held to have waived his right to equitable relief, by his delay in applying to the court. As to actions at law, the history of this case is enough to shew that they would not afford , any sufficient or effectual redress.
    505
    *Daniel in reply.
    While the act of April 16, 1831, (Sess. Acts 1830-31, ch. 11, i 32; Suppl. to Rev. Code p. 149,) has taken away the right to priority of hearing in cases such as this, it has left the right of appeal as it was under the former law.
    The defendant had an unquestionable right to have his dam at some height, and it does not follow, because it has been heretofore too high, that he intended to rebuild it to an illegal height. [Lyons. The verdicts ascertain that the former height of the dam was illegal: but they do not determine that' the defendant had a right to raise the dam. He may have had no right at all to have a dam at the place.] The verdicts are not in the record. They were not found, however, because a dam was unlawfully in existence, but because the height of it was too great. The bill itself concedes that the defendant had a right to have a dam of some height. And the plaintiff does not shew that the rebuilding the same would produce injury to him. There is then no ground disclosed by the bill for equitable interference; and though a demurrer might have been filed for that cause, yet it was unnecessary. The want of equity in the bill is a proper consideration on a motion to dissolve the injunction.
    
      
      Appellate Jurisdiction — Dissolutions of Injunctions. —On this question the principal case is cited in Baltimore & O. R. Co. v. City of Wheeling, 13 Gratt. 58, and foot-note. See also, citing the principal case on this subject, Kahn v. Kerngood, 80 Va. 344; Norfolk, etc., R. Co. v. Old Dominion Baggage Co., 97 Va. 90, 33 S. E. Rep. 385; Gallaher v. Moundsville, 34 W. Va. 737, 12 S. E. Rep. 861. See monographic note on "Injunctions” appended to Olaytor v. Anthony, 15 Gratt. 518.
    
    
      
      Mills and Milldams. — See monographic note on “Mills aud Milldams” appended to Calhoun v. Palmer, 8 Gratt. 88
    
   BALDWIN, J.,

delivered'the following as the opinion of the court:

The court is of opinion, that the verdicts recovered by the appellee against the appellant for keeping his dam, in the proceedings mentioned, too high, serve to shew that he had at least a prescriptive right to keep the same at some height; and therefore that if it was competent for a court of equity to interpose at all, to enforce the alleged forfeiture of such right, by reason of the appellant’s alleged failure to reconstruct his dam (after it had been swept away) within the time prescribed by law, it ought not to have been done by *way of injunction, without an allegation in the bill of some distinct and sufficient ground of irreparable mischief, instead of a general and indefinite suggestion of such mischief. And the court is further of opinion, that the said verdicts against the appellant for keeping his dam beyond the authorized height did not warrant an injunction to restrain him from reconstructing it at all,.or even from reconstructing it beyond the authorized height, in the absence of any allegation in the bill that he was about to reconstruct, or had threatened to reconstruct it, beyond such authorized height. The court is therefore of opinion, that the circuit court erred in refusing to dissolve the injunction which had been granted to the appellee, inasmuch as the same was improvidently granted. It is therefore considered that the order of the said circuit court overruling the appellant’s motion to dissolve said injunction be reversed and annulled, and that the appellant recover against the ap-pellee his costs by him expended in the prosecution of his appeal here. And this court proceeding to make such order as the said circuit court ought to have made, it is further considered that the said injunction be dissolved. Which is ordered to be certified to the said circuit court.  