
    THE SOCIETY FOE ESTABLISHING USEFUL MANUFACTURES v. CATHARINE HOLSMAN ET AL
    In 1813, the Society for Establishing Useful Manufactures sold a lot.in Paterson, “ together with the right of taking from their canal twelve inches square of water.” A mill was shortly after erected on the lot, and water was drawn from the canal for supplying it, without the use of any means for accurately measuring the quantity drawn. In 1827, the society gave a notice to the owner of the mill, that he had reason to believe he was taking more than the said quantity of water, and requesting him to confine his future use of water to that quantity. The owner of the mill, in answer to the notice, said he was not using more than the one foot of water. In December, 1843, a like notice was given and request made. The owner did nothing to limit the flow. In April, 1844, the society built a stone wall in their canal, opposite the head-race leading the water on the lot, and placed in the side of the wall a piece of cast iron, with an aperture in it of twelve inches square, for the flow of water into the head-race, and, thereupon, the owner of the mill prostrated the said wall. A motion lor a preliminary injunction, restraining the owner from taking more water than will run through an aperture of twelve inches square, and from pulling down or taking out any gauge which the society might insert for the purpose of measuring twelve inches square of water, was denied.
    The bill states that the Society for Establishing [Jsefel Manufactures, the complainants, on the 20th of January, 1813, sold and conveyed, by deed, to Roswell L. Colt, a mill lot on Boudinot street, Paterson (describing it), “ together with the right of taking from their canal in Boudinot street aforesaid, twelve inches square of water, say one hundred and forty-four square inches,” for the consideration of $2500. That on the 3d of February, 1813, Colt, with his wife, conveyed the said lot and water-power to one David Parish. That Parish, by deed of November 12th, 1813, conveyed said lot and water-power to Daniel Holsman, with the buildings and improvements erected on said lot. That Parish or Holsman erected on said lot a mill, which has ever since been used for the manufacture of cotton. That Holsman owned said premises, and occupied them by himself or his lessees, till his death, in October, 1.840, intestate, leaving Catharine -Holsman, his widow, and six children, his heirs-at-law, and minors, and that said Catharine Holsman has taken letters of administration. That neither Colt, nor Parish, nor Holsman, ever had or claimed any legal right to a greater quantity of water to be used on said lot, than was granted by the said deed from the society. That on or about December 7th, 1827, the complainants gave a notice in writing to said Daniel Holsman, that by virtue of the deed under which he occupied the said lot and water privileges, he was entitled to take from the canal on Boudinot street twelve inches square of water, say 144 square inches; that the society considered that the said quantity of water was to be ascertained at the canal from which it was taken, in Boudinot street; and that, as they had reason to believe that the quantity of water then taken by him exceeded the said quantity, they felt it to be their duty to give him that notice, and (o request him to confine his future use of the water within the terms of the said deed. That Holsman, on receiving said notice, did not pretend that he had any right to more than one foot of water; but that he then declared that he did not use more than one foot of water on the said lot. That after Holsmau's death, his widow leased the lot and water power to Joseph Stark and William Parsons, and while they occupied the premises, the complainants gave another notice directed to Catharine Holsman, administratrix of Daniel Holsman, deceased j this notice was the same as the other, with the addition of these words : “ by placing a cast iron aperture of twelve inches square, or in such other way as shall limit the quantity of water taken to the amount granted, strict measureand requiring it to be done by the first day of April, then next, or that the society would feel itself compelled to apply to the proper tribunal for redress. This notice was dated December 26th, 1843, and a copy of it was left with Stark and Parsons, on the premises, on the 28th of that month. That thereupon, the said Stark applied to the complainants, and verbally agreed to hire of them an additional square foot of water, to be used on said lot, for about ten months, the time during which his lease was to run, for $400, and agreed that a cast iron gauge should be inserted, so as to draw but two square feet of water. That thereupon the said Catharine Holsman interfered, and forbid Stark from hiring said foot of water. That Stark and Parsons, during their lease, which expired in February, 1845, continued to draw from the race on Boudinot street about three feet of water, and that Parsons, who then hired and still occupies the premises, has continued to do so.
    That after the said last-mentioned notice was so given, the complainants received a notice, dated March 26th, 1844, signed C. Holsman, administratrix of Daniel Holsman, deceased, and guardian of his minor children, by which the society, and all persons acting for or under them, are notified to desist from placing any gauge or other obstruction, to prevent or diminish the flow of water from the canal or raceway in Boudinot street in and upon the said lot, and from using any means or device to cause a less quantity of water to flow into and upon said lot, than has been accustomed to flow thereon. That to prevent the use on said lot of more than twelve inches square of water, the complainants, on the 10th of April, 1844, built a stone wall in the canal on Boudinot street, on their own land, opposite- the head-race where the water is taken from said canal across said lot, and fastened therein, on a level with the bottom of said canal, a east iron aperture of twelve inches square in the inside, sufficient for the flow of the exact quantity of water to be used on said lot; and that thereupon certain persons, acting under the orders of said Catharine, entered on complainants’ land and prostrated the said wall, though forbid so to do by the complainants. That the complainants can safely agree to furnish from the said canal only 22 square feet of water, and that they have leased, agreed to lease, or sold, including the one foot so sold to be used on said lot, 22 square feet, to be taken from said canal ; aud that, if there shall be a scarcity of water, the complainants fear, if the occupants of said lot continue to draw more than a foot square, the complainants will be subjected to suits for damages, by others to whom they have leased, or agreed to lease, or sold the use of water. That the, occupants of said lot now use about'three square feet of water-, and refuse to allow the water to be gauged or measured. That the complainants have lately leased several feet of water, to be taken from said canal, at $500 and $600 per annum per square foot, and have lately leased surplus water, to be taken from said canal, over and above the 22 square feet, at $500 per annum per square foot, on certain conditions; and that, if the occupants of said lot shall be permitted to draw more than a square foot, the complainants, in a time of scarcity, will be subject to suits for damages on their covenants in said leases: and that the complainants are prevented from selling or leasing more of said surplus or contingent water, by reason of the occupants of said lot using more than they are entitled to. That the complainants have commenced a suit in the Supreme Court against said Catharine Holsman, in her own right and as guardian of said infant children, to recover damages for the use of more than a square foot of water on said lot, which suit is pending and undetermined. The said Catharine, widow, administratrix and guardian as aforesaid, and the minor children of Daniel Holsman, deceased, and William Parsons, are made defendants; and the bill pra’ys that the defendants may answer, &e.. and that the said Catharine, in her own person, and acting as guardian as aforesaid, and administratrix as aforesaid, and the said Parsons, may be enjoined from taking from the said canal any more water than will run through an aperture of twelve Inches square, and from pulling down or taking out any gauge which the complainants may insert for the purpose of measuring the said twelve inches square of water; and that this court may direct in what manner the said twelve inches square of water shall be gauged or measured; and for such other and further relief, &o.
    On the reading of the bill, an order was made, on motion of the complainants’ counsel, lor the hearing of the parties on an application for an injunction, as prayed by the bill, on notice to the defendants. The defendants thereupon put in their answers, which were read at the hearing.
    The answer of Catharine Holsman, for herself and as administratrix and guardian as aforesaid, admits the conveyances stated iu the bill, and states the consideration of the deed from Colt to Parish to have been $3750, and the consideration of the deed from Parish to Holsman to have been $12,000; and states that the last-mentioned deed conveys the water power and appurtenances in the following words, to wit: “ Together with the right of taking from the canal aforesaid, twelve inches square of water, (say equal to 144 square inches of water,) together with all and singular the buildings and improvements, ways, passages, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances thereunto belonging, or in any wise appertaining.” That she has heard and believes, that the channel through which the water flows across the premises to the mill thereon, was constructed before Holsman bought the premises, and that the water flowed through said channel before he bought, and has ever since continued to flow through the same, in the same manner it did at the filing of the bill and now does; that the cotton mill on said lot was built by Parish while he owned the lot, and has always been driven by the water flowing through said channel, ever since it was first put in operation. She admits that on the 19th of-October, 1841, she leased to Stark and Parsons the said lot and premises, except a strip of thirty-five feet wide on the eastern side thereof, for three years; and that on the 28th of December, 1843, the notice stated in the bill to have been left at the office of Stark aud Parsons on the premises, was so left. That she has heard aud believes, aud therefore admits, that Stark applied to the complainants to hire, an additional ■food of water, but that she has no knowledge of any agreement by Stark, that a cast iron, or any other gauge, should be inserted, to measure or limit the flow of water through its accustomed channel; and that such application and agreement, if any were made, were made without her knowledge or consent, and contrary to her wishes. That after the lease to Stark aud Parsons expired, Parsons continued in possession under a parol agreement for a lease, and is-still in possession. That being informed that the complainants threatened, aud were preparing to obstruct and limit the flow of water through said ancient channel, so as to cause a less quantity to flow than had been customary for more than thirty years, she gave the notice to the complainants stated in their bill. That she believes, and therefore admits, that the complainants never leased or sold, to Colt, Parish or Holsman, or any other person, to be used on said lot, any other water-power than that described in the deeds before mentioned. She admits the building of the stone wall and placing the gauge therein by the complainants, as stated in the bill; but says she is informed by competent judges, and believes and charges, that the same was so placed as not to admit the passage of more than half the water that would flow through the same gauge, if placed in a proper position for gauging a foot of water on the same level; and she admits that, for the reason that she did not believe the society had any right to place a wall or gauge in that or any other place that would obstruct, diminish, or alter the flow of water through said channel, she caused said wall and gauge to be removed, so as to leave the said channel communicating with said canal, as the same had heretofore been, doing no unnecessary damage. That she has no knowledge of the quantity of water used on the premises, but is informed and believes that the channel which draws the water is the same as it has been for thirty years prior to the filing of the bill; and that no more water passes through the same than has been accustomed to flow through it for the said period of thirty years. She denies that Holsman never claimed a right to more than one square foot of water, if more than that has been accustomed to flow on and over said lot, and alleges that Holsman, at all times, claimed a right to all the water that was accustomed to flow through the said channel. She says she has no knowledge how much water the complainants can agree to furnish on said canal, nor how much they have sold, leased, or agreed to lease; nor what quantity of machinery was in the mill on said lot when Holsman took possession thereof under the deed to him; nor whar machinery, if any, he put therein from time to time; nor what machinery Stark and Parsons, or Parsons, used therein, other than that they used a part of the same machinery that was therein at the death of Holsman; nor what quantity of water is required to drive said machinery successfully. That when Holsman entered, the channel through which the water now flows upon said lot, was open, and was and ever since has been of the same size, and the same, in all things, as it is now; and that the customary flow of water through said channel has been the same from that time to the present, excepting some diminution thereof, for several years last past, caused by the water in said canal being, during that time, considerably lower than it had heretofore been, and that the possession of said mill lot and channel, and the use of said water, has been uninterrupted, and has, at all times, been under a claim of title to the said mill, lot, and channel, and to the use of all the water flowing through and over the same, and adverse to any claim or right of the complainants, or of any other person thereto.
    That she is informed and believes and charges that, at the several times of the said several conveyances to Colt, and to Parish and to Holsman, and for a long period subsequent thereto, the usual height of water in the canal was materially greater than at the time of the filing of the bill, and now is and has been, on an average, for more than a year last past; and that, by reason thereof, the quantity of water that would flow through a given aperture on the bottom of the canal, would now be much less than at the before-mentioned periods; and that, by reason thereof, it would be contrary to equity, even in the absence of any title in the defendants to the customary flow of water in the said channel, to restrain them, by injunction, from using more than a square foot of water, without first requiring the complainants to raise and keep the water in said canal at its former level.
    The answer of Parsons was also put in, and was read at the hearing, by consent of counsel, for such (if any) consideration as the court should think it entitled to. He admits that, in February, 1842, Catharine Holsman leased the mill, machinery, and water-power to him and Stark, for three years, and that they ran the mill during that time. That before the expiration of their lease, the complainants gave to Mrs. Holsman the notice stated in the bill; that, thereupon, he and Stark verbally agreed to lease of the complainants an additional square foot of water, at $400 for about ten months, and that a gauge should be inserted so as to draw but two square feet; but that-said Catharine forbid them from so doing, and from allowing the water to be gauged or measured; and that, thereby, the said negotiation was broken off. He admits that, while he and Stark occupied, they used more than a square foot of water, and, as he thinks, between two and three square feet, but says he has never gauged or measured it; that, since the expiration, of the lease, he, occupying under said Catharine, has used about the same quantity of water that was used by him and Stark; that he is willing, and always has been, to pay the complainants for whatever water he might use on said lot over and above a square foot; but that lie has been prevented from doing so by the opposition of the said Catharine.
    He admits that the complainants gave the notice stated in the bill, and built the wall, and inserted the cast iron aperture, as stated in the bill ; and that the same was prostrated by the order of said Catharine Holsman.
    
      A. S. Pennington moved for the injunction.
    He cited 19 Vesey 155 ; 1 Harrison 344; Blanchard on Limitations 14; 2 John. Ch. Rep. 164; 4 lb. 293; 1 Soho, and Lef. 8; Green-leafs Evid. 125; 8 Cowen 589, 603; 1 Paige 447.
    
      Barkalow and P. D. Vroom, contra,
    
    cited Saxton 518, 718; Eden on Inj. 138, 139, 390; lb. 104; 3 Pick. 269; 8 lb. 509; 16 lb. 241; Angell on Water Courses 93; 6 East 208; 1 Campb. 163; 4 Mason 402; 4 Wash. C. C. R. 607; 2 Vern. 390; Adam’s Eject. 51. 486; Cro. Jac. 126; 6 Ves. 51, 147; 1 Brown’s Ch. 588; 2 lb. 65; 1 Coxe 102, 103; Jeremy’s Eq. Jur. 310; 18 Ves. 516; 6 John. Ch. Rep. 19; 4 lb. 21; 3 Halst. 139; 3 Paige 214; 1 Bay 375; 2 Penn. R. 452.
   The Chancellor.

The nature of the case presented by this bill, as well as the prayer of the bill, shows that the permanent relief'sought by the complainants is, that the owners and occupants of the premises be confined, in their use of water thereon, to the quantity that will run through an aperture of twelve inches square; and to that end the bill prays that this court may direct in what manner the said twelve inches square of water shall be taken from the canal on Boudinot street, and in what way the same shall be gauged or measured ; and that the owners and occupants be enjoined from taking more water, or from taking the quantity in any other manner, or by any other mode of measurement, than shall be directed by the court.

The relief sought is resisted on one main ground, from which two positions of defence are taken by the answer of the widow and administratrix and guardian of the minor children.

That ground is, that the quantity of water now drawn from the canal is the same as was originally drawn under the deed from the society, and that the mode of drawing it is the same, and that both the quantity drawn and the mode of drawing it have continued the same during the thirty years or more that have since elapsed.

This ground is relied upon, first, as evidence of right to the quantity drawn, even as against the deed, if it should appear that more than the quantity mentioned in the deed is drawn ; and, second, as evidence that the particular mode used of taking the water was adopted and assented to as a sufficiently accurate mode of drawing the quantity of water mentioned in the deed.

These positions involve so much for consideration and decision, that it will hardly be expected that the court will finally decide upon them on the bill and( answer. If I were willing now to say that a new mode of drawing the water should be adopted, there is not enough in the bill and answer to enable me to direct the proper mode of drawing the specified quantity. This belongs to the permanent relief sought by the bill, if the complainants finally prevail.

From the nature of the element we are to deal with, and the want of any mode prescribed in the deed for taking the specified quantity, it is clear that the court will need, for the guidance of its judgment, facts and scientific information which the bill and answer do not give, and which can be furnished only by the testimony of witnesses.

If, as the complainants contend, the water should be drawn from their canal through an aperture of a foot square, where should the aperture be ? in what part of the wall, in reference to the line of the current ? under what head of water ? Is the water to flow through the aperture against the resistance of water in the channel to the mill at the same level with the water in the canal, or is it to flow without other resistance than that of the air ? What was the height of water in the canal when the grant was made ?

It is clear that a final decision of the controversy cannot now be made; a perpetual injunction could not now be asked.

But the complainants ask that an injunction be now granted, to be hereafter made perpetual, or be dissolved,'as the case shall finally turn. In what terms should such injunction be expressed ? Could it be in the language of the prayer, enjoining the defendants “ from taking from the canal any more water than will run through an aperture of twelve inches square, and from pulling down and taking out any gauge which the complainants may insert for the purpose of measuring the said twelve inches square of water?” To this there are conclusive objections. First, it would be deciding in this stage of the cause, that a new mode of taking the water is now to be adopted, and that, notwithstanding the lapse of time, the defendants may now be restrained to strict measure. Next, it would be to declare that the complainants have the right to determine where the aperture should be, a position which, it is sufficient for me now to say, is at least doubtful. Indeed, it is opposed to the next branch of the prayer of the bill, which is that this court may direct in what manner the foot square shall be taken, and how it shall be measured. The counsel for the complainants, perceiving, no doubt, this difficulty, asked only that an injunction should go in the language of the deed, restraining the defendants from taking more than twelve inches square of water. This is still subject to the first objection above stated, and is also subject to another objection, arising from the position taken by Daniel Holsman, deceased, in 1827, when the first notice was given to him. The bill states that he then put himself on the ground that he did not use more than a foot square. Suppose, then, the injunction should go as asked by the counsel for the complainants, and the defendants should, notwithstanding, continue to use the water as it has heretofore been used, and an attachment should be applied for. Is there enough now before the court to enable it to determine that more than the foot square contemplated by the deed, if taken as it should be taken under the terms of the deed, is used ? The court would be in the same difficulty on the application for an attachment, as it is now in, in reference to the principal points of controversy. Would the court, on that application, first direct the mode in which the water should be taken and measured, in order to see whether more than the proper foot square was taken, and thereby to determine whether the injunction liad been disobeyed ?

The answer of a mere tenant of the principal defendant, that he thinks he is using more than a foot square, though he has never measured it, would not be sufficient ground for an attachment.

I forbear entering at this time into an examination of the principal points of controversy in the case. I am satisfied that a state of affairs which has existed for thirty years, and in reference to which the remedy is such as must be applied if the complainants succeed, should not be disturbed by a preliminary injunction. No alteration of that, state of affairs is threatened, or impending, and by the complainants’ own showing, the same state of affairs has continued for eighteen years, or thereabouts, since they gave notice tó Daniel Holsman to confine himself to i he foot square, and since they received his answer that he was not using more; to say nothing of the right claimed from long user, if the quantity used should turn out to be more.

The late leases or agreements to lease, or sales, by the company, stated in their bill, are not considered as making any such alteration in the state of affairs between the complainants and the defendants, as can be regarded on this motion.

The injunction is denied.  