
    THE MORRIS CANAL AND BANKING COMPANY v. THE SOCIETY FOR ESTABLISHING USEFUL MANUFACTURES.
    1. The Society for Establishing- Useful Manufactures, incorporated in 1791, located at the falls of the Passaic, and owning mill sites there, on the 8th of August, 1845, pulled down a gate and waste-way of the canal of the Morris Canal and Banking Company, incorporated in 1824, and discharged the water from the canal into the Passaic above the falls. The canal company repaired the breach, and filed their bill against the society for an injunction, which was granted.
    2. The society answered the bill, and set up an agreement under seal, entered into between the canal company and them in 1836, for the discharge of water from the canal into the stream above the falls, and stated that the canal company, in breach of the contract, had nailed down the gates of the waste-way and stopped the flow of water from the canal to the river ; and that therefore they broke, &e.; and thereupon it was moved to dissolve the injunction. The motion was denied.
    3. The society also filed a cross-bill, praying a decree for the specific performance of the agreement, and that the canal company might, in the meantime, be restrained from preventing the flow of water from the canal to the stream, according to the provisions of the agreement, and moved for an injunction accordingly. This motion was also denied.
    4. Grounds on which the motions were denied.
    5. A right claimed must be free from doubt, and the injury from a violation of it irreparable in damages, to authorize the court to interpose in aid of it by preliminary injunction.
    The Morris Canal and Banking Company, on the 3d of October, 1845, exhibited their bill against the Society for Establishing Useful Manufactures, stating that since April 1st, 1845, the said company have been engaged in widening and repairing their canal, and having completed the work, proceeded, early in July, to fill the canal with water, and that, thereupon, Roswell L. Colt, governor of the Society for Establishing Useful Manufactures, under pretence that the company were using water to fill their canal which of right belonged to the society, which allegation and pretence the complainants declare to be untrue, on or about the 18th of July last, declared his intention to break down the gates of the complainants’ canal; that the process of the law was too tedious, and that he would take the law into his own hands; and made many violent declarations and threats, all expressive of the same intent. That on the 8th of August, aforesaid, the canal being filled and ready for business, the complainants gave public notice that the same was- ready for business. That on the last-mentioned day, a party of men of ten or twelve, of Paterson, the location of the society, in a violent and riotous manner, broke down a gate and waste-way on the canal, at or opposite Paterson, so that the water in the canal was discharged therefrom for a distance of seven miles. That the leader of the party declared he was employed so to do by the society, and when remonstrated with by the agent of the complainants, threatened to shoot any person who should interpose to prevent him. And the complainants charge that the said party were employed and directed to demolish said gate and waste-way by the said society, or by R. L. Colt, acting or pretending to act under the authority of the society.
    That the complainants gave directions for the immediate repair of the breach, and had no doubt the same had been repaired, and that the part of the canal which had been so emptied was in the course of being filled again, and that the same would be again ready for business in a few days, if no further violence was done to the canal or its works. That at the time of the said demolition they had seventy-five boats between Newark and Paterson, proceeding to Mauch Chunk for coal, and that the said boats were stopped by reason of said breach, and that there were at the time many other boats of the company and of individuals about to be put on the canal.
    
      That, by the act of incorporation of the company, the canal is declared to be a public highway. That (he canal, if unmolested, will have capacity to transport about 300,000 tons of coal and merchandise annually. That, in contemplation of the increased capacity of the canal when widened, several large establishments have been put up on the line of the canal; that other establishments on the line, and inhabitants of villages, would be injured by the interruption of the navigation on said canal. That the company have in no way infringed any right of the society touching the use of the waters of the Passaic, but charge the truth to be that, from the time they commenced filling the canal to the time of the said injury to the canal, more water was running in the Passaic above the falls than before the complainants commenced filling their canal, by reason of the leakage from the canal, and by the water flowing from the complainants’ reservoir at Long Pond into the Passaic through the Pomptou. That, at the time of said breaking, water was actually running over a dam across the Passaic, above the falls erected by the society for the express purpose of diverting the waters of the Passaic for the use of the society and mill-owners; so that there was actually running in the Passaic, at the time, more water than the society could divert to their works.
    That the complainants have sustained great and irreparable injury and damages by the said breach and the interruption of their business; and that they apprehend, from the facts above stated, that other like injuries will be committed, and that the said society, or the said Colt, or some person or persons acting under the authority of.them, or some of them, will again break down or destroy, &o.; and they pray an injunction against the society and the said Colt, restraining them from breaking down or injuring any of the works of the canal, until the further order of this court to the contrary.
    An injunction was granted according to the prayer of the bill.
    The society put in an answer to the bill. They state the incorporation of the society in 1791, the purchase of 700 acres of land at the great falls of the Passaic, the construction of a canal from a short distance above the falls, to lead the water through the lands bought by them and empty it into the river below the falls, and the construction, at different periods, of two other canals, so that the water is now used three times. That the ground adjacent to the canals forms sites for mills, and that the society, finding that their manufacturing business could be carried on more advantageously and effectively through individual enterprise, have in a few instances sold, and in general leased, on reservation to the society of annual rents, a great number of lots, as sites, on which have been erected a number of mills, which are now in full operation, and have leased or sold water-power on the upper canal to the amount of twenty-one square feet.of water, on the middle canal of twenty-one and a half square feet, and on the lower canal of twenty-two square feet. That the lots already appropriated, with the buildings and machinery thereon, are worth about $1,800,000. That said canals, improvements, and leases have all been made and taken, under the confident expectation that the faith of the state would be kept inviolate, and that the waters of the Passaic would be allowed to continue to flow, &c. That Paterson, incorporated under the said charter, now contains 11,000 inhabitants. That the society, by such purchase, &o., became entitled to the full flow of all the waters of the Passaic and its tributaries, without alteration or diminution. That the Passaic is formed by the confluence of three large branches — the Passaic, Rockaway, and Pompfon branches. That the complainants, in 1828, constructed works on the Rockaway, hear Dover, Power-ville, and Boonton, by means whereof they diverted water of the Rockaway and its tributaries into their canal, and carried it away from the falls at Paterson and from the canals of the society there. That, by means of the said works at Dover, Powerville, and Boonton, the complainants can take from the Rock-away as much water as they want, to supply their canal, without the knowledge of any person except their own agents. That, in consequence of dams, &c., on the streams, the diminution of water in the Passaic, from the withdrawal of it as aforesaid, will not be immediately seen and felt in some parts of the river, which gives rise to contradictory evidence respecting such diminution, and involves it in obscurity. That the canal of the complainants cuts off a great number of small streams which formerly ran into the different branches of the Passaic. That in 1828, the society filed their bill in chancery, to enjoin the said company, and that the Chancellor decreed that the society have a clear right to the flow of all the waters of the Passaic, at the great falls, without diminution, and that an injunction would be ordered when an actual injury should be sustained by the society, by the said company’s taking any of the waters of the Passaic. That in 1833, the society filed another bill, in which the Chancellor made a like decision as to the rights of the society. That there was no necessity for the said canal company to mix their waters with the waters of the Rockaway, and that they did so for the purpose of taking the waters of the Passaic or its tributaries, into their canal. That the works at Paterson will require all the waters of the Passaic, during the summer months, and that if the canal company are permitted so to divert the waters, without giving the society the water in return, as provided for in the agreement in the answer after mentioned, they will, during the summer months — more especially in dry seasons — divert a great portion of the water from the works at Paterson, and will greatly injure them at other seasons of the year. That in January and February, 1836, the canal company applied to the legislature for a supplement to their charter, to enable them to make a reservoir at Long Pond and a feeder at Pompton, to use the water of the canal for manufacturing purposes, to increase the capital stock $600,-000, for the purpose of making reservoirs, feeders, &c.; that the society and mill owners remonstrated; and, while said application was pending, and after a time had been fixed for the hearing of the parties before a committee of the legislature, to settle the difficulties between the company and the society, and because the conflict between them was so important, and affected so many persons, and to compromise disputed rights appertaining to the franchises of the two companies then in the enjoyment of those franchises, it was, on the 17th of February, 1836, agreed between the companies, in writing, as follows:
    “ Whereas certain controversies have arisen, and have for some time existed between ‘ The Society for Establishing Useful Manufactures’ and ‘The Morris Canal and Banking Company,’ in relation to the use of the waters of the Passaic river, ‘The Society for Establishing Useful Manufactures’ alleging that ‘Tlie Morris Canal and Banking Company’ were diverting the water of some of the tributary streams of the Passaip, so as greatly to diminish the waters at Paterson, in times of drought, of which the'said ‘Society for Establishing Useful Manufactures ’ claim the exclusive use — which allegation was and is denied by ‘The Morris Canal and Banking Company ;’ now, in order to terminate in an amicable manner all said matters in difference between the said companies, it is covenanted and agreed between them as follows:
    “First. The said ‘Society for Establishing Useful Manufactures’ covenant and agree, to and with ‘The Morris Canal and Banking Company,’ that they will erect, at their own expense, a permanent, water-tight dam, and at all times will keep the same water tight (unavoidable accidents excepted), across the Passaic riyer, at the ledge of rocks between their present dam and the great falls; said dam to be of such height as will keep the water at a level equal to that which can be maintained by the present dam, and that they will make and keep their present middle canal or raceway in good order and repair, and water tight, and so adjust the waste-gates on the same that the water shall stand in the said raceway not less than thirty inches above the monument set in the raceway at the rear of Car-rick’s mill, that being the ordinary height of the water in said race. That they will so regulate the sluices or gates to the mills on that race, that not more than twenty-two square feet of water shall be drawn (rom the same under a pressure or head of not more than thirty inches, measured from the centre of the apertures to the surface of the water; the apertures already contracted for to be twelve inches square, excepting where, under existing agreements, it is stipulated that they shall be of a different form, and those thereafter to be contracted for to be not less than six inches in depth; it being expressly understood that, in this arrangement, it is agreed that a quantity equal to twenty-two square feet of water, drawn under a head of thirty inches,' measured as aforesaid, is the minimum quantity of water to flow regularly for the supply of the mills now erected, or'hereafter to be erected at Paterson, to be measured on said middle canal in manner aforesaid. And the said ‘The Society fo> Establishing Useful Manufactures,’ in consideration of the covenant hereinafter and first contained, on the part of ‘ The Morris Canal and Banking Company,’ do hereby consent and agree, so far as they have the power so to do, that the said ‘ Morris Canal and Banking Company ’ may make and avail themselves of all reservoirs on the head waters of any of the tributary streams of the Passaic river, and divert those streams, and use the waters thereof as they may think proper.
    “ And the said ‘ The Morris Canal and Banking Company ’ do hereby covenant and agree to and with the said ‘ The Society for Establishing Useful Manufactures,’ that they will discharge from their canal, through a basin formed by ‘ The Society for Establishing Useful Manufactures,’ and by them kept in repair and water-tight, in the natural ravine on the rocky hill adjoining the canal, near the falls, at all times, unless when, from breaches, or unavoidable accidents, it cannot be done, three square feet of water, to be drawn from the canal under a head of thirty inches, to be measured from the centre of the aperture or apertures to the surface of the water, and to flow into the said Passaic river above the said dam, to be erected by the said ‘ The Society for Establishing Useful Manufactures,’ as is hereinbefore provided for, which apertures shall not be less than eight inches in depth. And if the said three feet of water, so drawn as aforesaid from the said canal, shall not at any time, with the water in said river, be sufficient to keep the pond so full as may be necessary to give to the said ‘ The Society for Establishing Useful Manufactures’ twenty-two square feet of water in their said middle canal, to be drawn under the pressure above mentioned, then ‘ The Morris Canal and Banking Company ’ covenant and agree to discharge as much more water from their said canal, in addition to the three feet above mentioned, as shall always give the above minimum quantity in the said middle canal of the said ‘ The Society for Establishing Useful Manufactures.’ And in case, at any time, the said dam and raceway of ‘ The Society for Establishing Useful Manufactures’ shall not be water-tight, for any reason whatever, the said ‘ Morris Canal and Banking Company ’ shall not, during the time the same remains out of repair, be obliged to discharge more than three feet of water from the canal, in the manner herein mentioned. And ‘The Morris Canal and Banking Company’ hereby agree that if they shall hereafter be satisfied by experience, that in dry seasons the natural supply of water in the Passaic, at Paterson, shall be equal to twenty-three feet under the pressure and head hereinbefore mentioned, then the minimum of water to be secured to the works of ‘ The Society for Establishing Useful Manufactures,’ at Paterson, shall be fixed at that quantity.
    “ ‘ The Society for Establishing Useful Manufactures ’ hereby covenant and agree that ‘The Morris Canal and Banking Company,’ for the purpose of forming a reservoir in the Passaic river, at and above the falls; may, at their own expense, increase the height of the main dam across the said river, provided, however, that the said ‘ The Morris Canal and Banking Company' shall pay and satisfy any damages which may be sustained by any person or persons other than the said ‘ The Society for Establishing Useful Manufactures,’ in consequence of the erection of the said dam.
    “ For the purpose of having this arrangement fairly and properly executed by the respective parties, it is hereby further agreed that a competent person be annually appointed by the parties, and be paid by them equally, whose duty it shall be to- see that the terms of this agreement are complied with by the respective parties. And in case the parties cannot agree upon the person to be appointed, then it is agreed that each party will nominate an arbitrator, and the two arbitrators so named shall appoint the said person; and if they cannot agree, then they shall nominate a third arbitrator, and the said three arbitrators, or any two of them, shall appoint the said person to see that this agreement is properly and fairly executed.
    “ It is understood between the parties hereto, that this agreement is not binding upon them, unless the legislature of the State of New Jersey shall pass an act at their present session, enabling and authorizing ‘ The Morris Canal and Banking Company ’ to use, or let to others to use, the waters in their canal, for driving machinery for manufacturing purposes, and also authorizing them to make a feeder to Long Pond, and to acquire and make other reservoirs, for the purpose of obtaining a supply of water for the use of said canal; and to increase their capital to an amount sufficient to acquire, and make the necessary reservoirs and feeders, or shall grant such part or parts of their application as shall induce ‘ The Morris Canal and Banking Company’ to make the contemplated improvements, for the use of the waters of the Passaic, or any of its tributaries.
    “ In witness whereof, the president of ‘ The Morris Canal and Banking Company,’ and the governor of ‘The Society for Establishing Useful Manufactures,’ have hereunto set their respective hands, the seventeenth day of February, in the year of our Lord one thousand eight hundred and thirty-six.
    “ Louis McLane,
    “ President of the Morris Canal and Banking Company.
    “ Roswell, L. Colt, Governor S. U. M.
    “Signed, sealed and delivered in the presence of 1 A. S. Pennington, Elias B. D. Ogden.” j
    That the said agreement was signed by the then president of the canal company, and by R. L. Colt, governor of the society; and that said president was clothed with full power to make said agreement by a resolution, &c. That said agreement was entered into in good faith by the society, and they thereupon considered that all controversies with the said company were at an end. That in pursuance of the said agreement, the society built, at great expense, a dam across the river, and also at the place referred to in said agreement; and built a lock at the place and in the mode pointed out by the engineer of the canal company, to take the water from the said canal, according to the terms of the said agreement. That the (¡anal company took down their bank across a ravine, cleared out the ravine, and surrendered the possession of it to the society ; and the same continued open and was used by the society until it was obstructed by the company, as after stated in the answer. That after the execution of the said agreement, the society and others withdrew their opposition and assisted, &c., and the said supplement applied for by the said company was passed by the legislature, March 5th, 1836.
    The answer insists that this act, and the acceptance of it, effected a change in the chartered rights of the canal company, investing them with additional powers; and that such change being made by virtue of the said agreement with the society, and in consequence of the withdrawal of their opposition, the agreement became a part of the same transaction, as much as if it had been distinctly referred to in the said supplement, and was thereby fastened on the franchises of the canal company, in whose hands soever they might fall; and that the rights of the society under the said agreement became a lien on the franchises and privileges of the canal company, so far forth as should be necessary to carry the same into full effect.
    That under the said supplement the canal company increased their capital and made a large reservoir at Long Pond, and a feeder to their canal, and by one or more dams took into their canal the waters of the Pompton and its tributaries, so that they could then take into their canal, in a dry season, if they chose to do so, all the waters of the Pompton and Rockaway, leaving the defendants without any remedy, except by reason of the said agreement. , That Cornelius S. Van Wagoner was appointed by the companies their joint agent, to see that the terms of the said agreement should be complied with; and the said two companies executed a commission to him, dated February 6th, 1839, as follows: (Setting out the commission. It is an appointment for one year, to see that the agreement is complied with.) That since the passage of the supplement, the company have exercised the powers granted by it and by the said agreement. That said Van Wagoner did, from time to time, draw from the canal such water as was required by the society, not exceeding the quantity stipulated to be drawn by said agreement, for the use of the society; and that the society have, ever since that agreement, taken from said canal such water as they wanted, according to the said agreement, until prevented, as after stated. That the society now own the said ravine. That the. company commenced, last spring, to enlarge their canal,, and that the society have been prevented from interfering to prevent it by reason of their being bound by the said agreement.
    That on the 17th of June last, (1845,) the company erected a wall and wood-work so as to prevent any water from flowing from the canal into the Passaic, or basin above the falls, and placed gates in the same, which they nailed up, so that the society could not take the water from the canal, as provided for in the said agreement, at the place so cleared out and surrendered to the society, in part performance of the said agreement, though forbidden by the society from erecting said wall and wood work. That, after the said erections, the works at Paterson became short of water ; that, at sometimes, there would be plenty of water, and at other times a scarcity ; and that, on the first of August last, the company drew into their canal nine-tenths of all the waters of the Pompton, by their said feeder, and, at the same time, took a considerable part of the Rockaway or its tributaries; so that some of the mills at Paterson could not run all their machinery. That the society, seeing that the water was low at Paterson, by reason of the conduct of the company, on the 21st of July last, addressed a letter to the company as follows : (The letter is here given. It states that, by the contract, the society is. entitled to a constant flow from the canal of three square feet, under a pressure of thirty inches, and also to draw from the canal enough water to supply twenty-two feet, at all times, in the middle canal of the society at Paterson, and that the society can view the said wall and wood work to close said waste-way in no other light than as a nuisance, which they will treat accordingly, unless the company immediately furnish them with their water, according to said agreement, as the water is now very short.) That they received, the same day, an answer from the cashier of the company, that the president was absent, and that on his return the letter of the society would receive immediate attention; and that since then the society have not heard from the company in relation to it; and the society, finding the waters of the Passaic, after sending said letter, rapidly diminishing, and complaints being made by the mill-owners, grantees or lessees of the society, of the scarcity of water, and that they could only run a part of their machinery; and the society having ascertained that the company were drawing a great deal of water from the Pompton and Rockaway, and their tributaries, while at the same time they had shut off all supplies to the works at Paterson, the society were compelled, to prevent irreparable injury to the mills and inhabitants of Paterson, to remove said wall and wood-work, and to treat the same as a nuisance ; and they admit that, on the 8th of August, 1845, they did remove ,so much thereof as would permit the water to flow as it had been accustomed to flow through the said ravine, from the time the said lock-gate was erected until the said wall and woodwork were erected. They admit that said Dickerson and others were employed by them to remove the same. They say that, for several days before the breaking down the said wall, the water had been very low at Paterson, occasioned by the company’s diverting and using the waters of the Passaic, and not returning any through the said ravine. That sometimes there would be plenty of water, and then again a scarcity, without any cause except the will of the company, who let the waters come down irregularly. That it may have been that, at the particular time when the wall was removed, there was water at Paterson ; but if there was, it was only a temporary matter; and that, at that time, the said ravine was closed by the act of the company, so that no water could run to the works at Paterson through the same; whereas, by the said agreement, the society were entitled at all times to have three square feet of water running through the said ravine; and that this right did not depend on the quantity of water in the river.
    On this answer, a motion was made to dissolve the injunction. The society also filed a cross-bill, stating the matters set forth in their answer, and stating, in addition thereto, that the commissioners appointed by the legislature, previous to the granting of the canal charter, to examine, &e., contemplated that Lake Hopatcong would be an ample, supply for the said canal, and recommended its subserviency to that object; that Green Pond is a small lake, whose waters are carried by Meadow Brook into the Rockaway; and that it was not contemplated by the said commissioners, or recommended, that its waters, or any waters contributing to the Passaic, should be applied to the purposes of the said canal. That one inducement for selecting Paterson as the site of the society’s operations, was the consideration that Green Pond might be converted into a reservoir to supply, in some measure, the deficiency of water occasioned by the droughts of the summer months. That the canal company, in March, 1830, executed a mortgage to Wilhelm Willink on the canal and chartered rights of the company to secure $750,000, and have since executed one or more mortgages to the State of Indiana and to the State of Michigan. That after the making of the said agreement between the company and the society, and while the company were enjoying the benefits thereof, Willink filed his bill against the canal company, on the 20th of October, 1841, to foreclose his mortgage; but that the Society were not made parties to the bill. That under a decree and execution in that suit, the canal, the feeder and its appendages, and the chartered rights of the canal company were, on the 1st of October, 1844, sold to B. Williamson, A. Whitehead and J. J. Bryant, and conveyed to them. That the society did, on the day and at the place of sale, and before the sale, publicly give notice of the said agreement to all persons who might bid at the said sale. That the persons now holding the said property and franchises claim to represent, or to be, the Morris Canal and Banking Company, and as such are organized under the said supplement of 1836. That the Morris Canal and Banking Company, thus organized, have lately widened and deepened their canal, and will, by reason thereof, be obliged to take more water from the Passaic or its tributaries; and that the society have been prevented from interfering to prevent such alterations by reason of their being bound by the said agreement.
    That about June 17th, 1845, the company constructed the said wall and wood-work on land of the said society, on the line of the said canal, and fixed gates in the same, which they afterwards nailed up, so that the society could not receive the discharge of water from the canal, as provided for in the said agreement. That the place where they so erected the said work was previously, and ever since the same was first cleared out by them under the said agreement, left open and unobstructed by the canal company, in part performance of the said agreement; and that the canal company never had attempted to place any obstructions or erections there, nor had claimed any right so to do, until, &c. That while the said company were erecting the said wall and wood-work, the society forbid them and notified them that they had no right to erect them. That while the company were filling their canal, the works at Paterson have been short of water, and that the company have taken the waters of the Eockaway and its tributaries, and also the waters of the Pompton and its tributaries, as they are authorized by the said agreement and the said supplement to do, to fill their canal; and in a dry season they cannot carry on their operations on the said canal without using the waters of the Passaic or its tributaries; and that (hey have and now do greatly diminish the flow of water at Paterson.
    The cross-bill then states the letter to the company, &e., as stated in their answer to the bill of the company, and that the company, since the date of the letter, have continued to draw from the Eockaway and its tributaries and from the Pompton; and at some times have drawn nearly all the water of the Pompton. That on the 1st of August, 1845, they drew nine-tenths of the water of the Pompton into the canal through their said feeder, and have thereby so affected the water of the Passaic, that many of the mill owners-and lessees 'of the society have not been able to drive all their machinery. That the society, finding that the company were diverting the waters of the Passaic, and that the water, from time to time, in different parts of different days, was so low as not to allow the mills to run at their usual and accustomed speed, removed a part of the said wall and wood-work on the 8th of August, 1845, so as to permit the water of the canal to flow to the Passaic above the falls, as it had been accustomed to flow under the said agreement, and until, &c.
    That afterwards, on the 16th of August, 1845, the canal company erected, on lands of the society, in the said ravine, a solid stone wall, of the width of ten feet, extending to the face or exterior line of the canal, so that no water can flow from the canal to the works at Paterson, and afterwards stopped the gates from their reservoir at Lung Pond, so that no water could come from that place; and on the 18th and 19th of August, and for some days before, diverted all the water of the Pompton into their said feeder and thence into their canal, and uearly all the waters of the Eockaway at Boonton into their canal, and at the same time brought no water down from Long Pond ; by reason whereof, nearly all the mills at Paterson were stopped or could run only a small portion of their machinery; by which means they diverted about two-thirds of all the water which should have flowed to the works at Paterson, the right to the flow of which, without diminution, belonged to and still does belong to the society.
    That the company, in their bill, have not in any way stated the said agreement between the company and the society, nor the said supplement of March 5th, 1836, under which agreement and act combined the company derive the important powers above set forth ; nor have they set forth the fact that the society were in the actual possession and ownership of the said ravine, and the flow of water from the said canal to the works at Paterson, and that the society had been so using and enjoying the same since the said agreement, but have knowingly suppressed the same. That the company have charged tolls on the Pompton feeder, made since the passing of the supplement of 1836, and claim the right to lease the waters of the canal for manufacturing purposes, by virtue of said supplement, and have used the said Pompton feeder and reservoir at Long Pond, and drawn water therefrom, which they only had a right to do by virtue of the said agreement and the said supplement. That said supplement was passed be,cause the society had made the said agreement with the said company, and that in consequence of said agreement, the society withdrew their opposition to the said supplement, and thereupon it was passed. That as the company are enjoying the benefits resulting to them from the said supplement, which was based on the said agreement, they cannot take the benefits resulting from the said agreement, and refuse to be bound by the agreement under which the said supplement passed. That if the said agreement is not binding on the company, they have no right to the benefits resulting from the said supplement, or the privileges granted by it, and must give up their reservoir at Long Pond and their Pompton feeder, and their right to lease water as aforesaid, and must permit all the waters of the Pompton and Rockaway and their tributaries to flow down the Passaic to Paterson, without alteration or diminution. That under these circumstances the society hoped the company would have desisted, &c., or from interfering with the society to prevent them from receiving a discharge of water from the canal into the river, through the said ravine, as provided for by the said agreement.
    
      The society insist that, on a sound construction of the charter of the company, they are not authorized by the general expressions it contains to take any of the waters tributary to the Passaic, inasmuch as the same were already appropriated, under the faith of the legislature, to the use of the society.
    That the company, by their charter, are prohibited from using any waters and streams, except such as may have been acquired by gift or purchase, without first causing a map and survey thereof, and having the same appraised; yet that the company have taken the waters, as above stated, without complying with any of the prerequisites of their charter; and that no survey, map or appraisement of the land or water taken to make the reservoir at Long Pond, or the Pompton feeder, have been put on record. That the company pretend that the society have no right to abate the said wall and wood-work, be- , cause they say the land on which it stands belongs to them, the said company, the same having been appraised by the commissioners appointed under their charter, but the society say that the said land, when so appraised, belonged to R. L. Colt, who then resided in Baltimore, and that no notice was given to him of the said appraisement; and that the amount thereof has never been tendered to him, or to the society, or deposited in the Court of Chancery, and so no title has ever been vested in the company. That the taking lands without the intervention of a jury, is contrary to the constitution of the United States, and of this state. That the society, being the owners of said land, and never having given up or abandoned the possession thereof, had a right to enter and abate the said wall and wood-work, especially as it interfered with and utterly prevented the flow of water to the works at Paterson, as provided for in said agreement. That if the ownership or possession of said land was not in them, yet had they a right, by virtue of the said agreement, to enter upon the same, and to remove the said obstruction, to the flow of the water, and to abate the nuisance thereby created.
    The cross-bill prays, that the said agreement may be established, and that the company, and all persons claiming or acting as such, may be decreed specifically to perform it, and to continue to perform the same; and that the wall already erected may be abated; and that the company, their agents, &c., be enjoined from again erecting the same, and from closing said ravine, and from doing any act by which the flow of the water from the canal, at the said ravine, to the river above the falls, as provided for in said agreement, and heretofore enjoyed by the society, can be in any way hindered or prevented. And if, in the opinion of the court, the company, from any cause, is not bound by the said agreement, then that they, their agents, &o., be enjoined from diverting any of the waters of the Passaic or its tributaries, and from using the said reservoir at Long Pond, or the waters of said pond, and from taking any of the waters of the Eockaway and Pompton rivers or their tributaries ; and .hat the company may be decreed to account to the society for damages already done, and for further relief.
    On this cross-bill the society moved for an injunction against the company.
    Both motions were heard at the same time.
    Depositions, taken on both sides, were read on the hearing. Their contents are not noticed in the opinion given on these motions, except so far as they go to show the extent of the diminution of water in the mill-races or canals of the society, and the amount of injury which the canal would suffer, if the agreement between the company and the society calls for a constant flow from the canal of three square feet of water, as is contended for by the society, but which is denied by the company.
    P. D. Vroom and George Wood, in support of the motions.
    They cited Eden on Inj. 141, 142; 1 Brown’s Chan. Rep. 588; 10 Vesey 193; 1 Nicholson’s Railway Cases 173, 193; 1 Mylne and Craig 650, 347; 3 lb. 782, 783; 9 Simons 278; Saxton’s Ch. Rep. 694.
    
      F. T. Frlinghuysen and H. W. Green, contra.
    They cited Angell on Water-Courses 29; Saxton 188; 6 Malst. Rep. 238; 1 Dickens 165; 2 lb. 600; 2 Swanston 354; 16 Vesey 333; 4 Barn, and Cressw. 792; 1 East 48; 2 P. Wms. 306; 9 Barn. and Cressw. 538; 1 Aikin’s Vermont Rep. 264; 2 Mad. Ch. Rep. 356; Ambler 452; 3 Halst. 
      149; 5 lb. 78; 6 Peters 738, 739; 11 lb. 544, 550, 639; 4 lb. 560; Vattel, Book 1, chap. 20, § 244; Domat's Civil Law, Book 1, title 8; 20 John. Rep. 735; 2 Mad. Ch. Rep. 256, 527; 11 Mass. Rep. 19; 2 Kent’s Com. 278; 13 Serg. and Rawle 210; 3 Black 236; 5 Vesey 734; 10 lb. 292, 193; 8 lb. 163; Prec. in Ch. 538; 2 Coxe's Ch. 77; 2 Young and Jarvis 172; 3 Swanst. 108; 3 Harr, and McHenry 324; 3 Randolph 238; 2 Bibb 78; 1 Alab. Rep. 458; Ambl. 209; Drury on Inj. 237; Eden on Inj. 157; 5 Vesey 129 2 Atkyns 83; 1 Vesey 140, 542; 2 Green’s Ch. 353; 1 Mylne and Keen 154; 6 Eng. Cond. Ch. 558; 3 Meriv. 688; 38 Vesey 220.
   The Chancellor.

The question which lies deepest in

this controversy is that which respects the original rights of these companies under their respective charters. It is contended by the purchasers under the Willink mortgage, that the agreement of February 17th, 1836, is void against them, it being subsequent to that mortgage; and particularly if the agreement binds the canal company to permit a constant flow of three square feet of water at the ravine; for that such a flow would destroy the canal. It is answered by the society, that if that agreement is void, then they claim to be remitted to their original rights under their charter; and that, in view of those rights, the canal company are not authorized to touch, or in any way interfere with any of the head waters of the Passaic. To this the company reply, that the legislature had the power and constitutional right to authorize them to take, for the purposes of the canal, not only the lands and waters of individuals, but even the lands and waters of the society; and that the terms of their charter are unlimited in this respect. If this question shall be presented for discussion in any stage of this controversy, it will be the duty of the court to decide it. But certainly this court would not be asked, at this late day, to grant a preliminary injunction against the canal company, and suspend their operations till a question like this should be decided.

As to the right of the canal company to drop the waters they bring from Lake Hopatcong into the Rookaway, with the view of taking an equal quantity of water out of the Rockaway on the other side of it, and thus saving the expense of an aqueduct, the question has passed sub judice. This court, on two successive applications for an injunction, has refused to act against the company on a denial of that right.

As to that part of the cross-bill which asks a specific performance of the agreement of February 17th, 1836, the counsel for the society do not contend that in that aspect of the case the court should grant a preliminary injunction.

But it is said on the part of the society, that they do not ask a specific performance; that the agreement has been performed; and that the society ask the interference of the court to prevent the company from now repudiating it; that is to say, to restrain the company from preventing the flowing of water from the canal at the ravine, according to the terms of the agreement. This involves several questions. One of these questions, and which was elaborately argued at the bar, that is to say, whether an injunction could issue to restrain the company from preventing the flow of water from the canal, I do not find it necessary to consider. The present motions are denied on other grounds.

What is the agreement between the company and the society ? The society claim that it is lor a constant flow of three square feet, unqualified by any other rule or consideration. This, the proof now before the court seems to show, would destroy the canal. On the other hand, the extent of damage to the society by stopping the flow from the canal, is entirely uncertain. The mills might suffer more or less, for a portion of the year, longer or shorter, in dry seasons. Should not the court, under such circumstances, leave the society to their compensation in damages at law ? It is sufficient for mo to say, that under such circumstances I could not grant a preliminary injunction.

But I am not so well satisfied that this agreement calls for a constant flow of any quantity of water, as to be willing to grant an injunction on the society’s bill, if all other difficulties in the way of such injunction were removed; and a doubt as to the correctness of the society’s construction of the agreement in this respect would be sufficient ground for denying the injurietion asked by them for the purpose of compelling a constant flow.

If the agreement does not call for a constant flow, but only for a flow at such times and in such quantities as to keep the middle canal of the society in a state to supply twenty-two square feet of water, should an injunction to any extent go? Several objections are made to it. First. That the present holders of the canal, whether they be the old canal company or a rara avis in terris, (in the language of Mr. Wood,) hold it under a mortgage made prior to this agreement.

Second. That the society have not fulfilled their part of the agreement; but that they permit an escape, under their embankment, of a quantity of water nearly or quite equal to a flow of three square feet.

Third. That there is no sufficient evidence that the society have not had, during the whole season, water enough, if it were properly husbanded, and their works were kept tight, according to the agreement, to supply twenty-two square feet for use on the middle canal.

If the agreement does not call for a constant flow, I am of opinion that the society cannot be allowed to permit such an escape of water as, from the proof now before the court, it appears there is, and still claim the flow at the ravine provided for in the agreement. If it is impracticable to prevent such escape, then it is impracticable for the society to comply on their part with the terms of the agreement; and the result is simply this, that the society are unable to use all the water three times over; which they might be able to do if they could comply with the terms of the agreement.

Again, if there has been any scarcity of water at Paterson this season, beyond what would have existed independently of the operations of the canal company, yet, if that scarcity was produced only by the filling of the enlarged canal, and ceased after it was filled, the application for an injunction fails. But it is by no means clear, on the proof that is now before the court, that the filling the canal, this season, did not add to, rather than diminish the flow at Paterson. Indeed, if the filling the canal was calculated to reduce the flow to the falls below the extreme reduction which was the necessary result of sc continued and severe a drought, it is difficult to imagine how the season could have passed with so little interruption of the works at Paterson.

Without permitting myself to be drawn further into the questions that may be involved in other prayers of the cross-bill, it seems to me there is no sound equitable principle on which the court can grant the prayer for an injunction.

It is obvious that, in this view of the case, the court cannot dissolve the injunction obtained by the company.

The company’s bill charges that, at the time of the breaking of the gate and waste-way at the ravine, the water of the Passaic was running over the dam above the falls made by the society to divert the water to their works; and the answer does not deny, but admits the charge.

Under these circumstances, it seems to me that a dissolution of the injunction would be a present recognition by the court of the right of the society to a constant flow at the ravine of three square feet. This, as intimated before, I am not now prepared to declare.

Both motions are denied.

Cited in Att'y-Gen. v. Pateson, 1 Stock. 683.  