Summary
In Bailey v. Schnitzius, 45 N.J. Eq. 178, which appears to be an accepted authority, it is said that a preliminary mandatory injunction will be ordered only in cases of extreme necessity; and in Rogers Locomotive Works v. ErieRailroad Co., 20 N.J. Eq. 379, and Wakeman v. New York, LakeErie and Western Railroad Co., 35 N.J. Eq. 496, it is said preliminary mandatory injunctions will be ordered only in cases of obstruction to easements, or rights of like nature.
Summary of this case from Rockaway, c., Corp. v. D., L. W.R.R. Co.Opinion
09-16-1891
SCHNITZIUS v. BAILEY.
Thomas E. French, for complainant. John W. Westcott, for defendant.
(Syllabus by the Court.)
Bill by Schnitzius against Bailey for a mandatory injunction. Granted.
Thomas E. French, for complainant.
John W. Westcott, for defendant.
BIRD, V. C. Upon final hearing in this case, nothing has been developed in the testimony or in the argument of counsel to vary the important facts upon which my conclusions were founded at the hearing of the order to show cause why a preliminary mandatory injunction should not be issued. See Schneitzius v. Bailey, (N. J. Ch.) 13 Atl. Rep. 247. Such an injunction was then advised. The cause was taken to the court of errors and appeals, and the order ad vising the injunction was reversed. Bailey v. Schnitzius, 45 N. J. Eq. 178, 16 Atl. Rep. 680. The only question, then, was whether a mandatory injunction should issue at that stage of the case or not. The case as it then stood, and even more conclusively as it now stands, is within the reasoning of the well-considered case of Earl v. De Hart, 12 N. J. Eq. 281. The premises in the last-named case being city property, and the premises in this case being farm land, there are considerations in this case which are important to advert to, because such considerations bring it also within the important cases of Peck v. Goodberlett, (N. Y. App.) 16 N. E. Rep. 350, and McCormick v. Horan, 81 N.Y. 86. According to these cases, it is good policy for courts to encourage the cultivation of the soil for agriculture and trade purposes. If the farmer can improve his land by changing the water-course thereon which passes from his land to and upon lands of lower proprietors, without substantial injury to such lower proprietors, he may do so. To this extent he may increase the volume or velocity thereof by surface or under drainage. The lower proprietors have no right to complain, unless they can show material injury. The testimony offered by the defendant in this case shows that the ditch or channel through which the water flows from the complainant's land is from three to four feet wide throughout the greater part of its length, and from two to three feet deep. It is insisted that this channel is an artificial one, for the reason that, if the water had taken its natural course, it would have departed from the line of this ditch about half-way across the field; and, instead of pursuing a westerly course, would have gone in a north-westerly course, crossing the lane, and entering upon the land of the defendant several hundred feet north from where the complainant insists it should and always has crossed the lane and entered upon defendant's land. From the evidence, it cannot possibly make any material difference as to what the judgment of the court should be on this point; for if the ditch was opened or made by hand, and not by the force of the water, it has been in existence so long that the memory of man runneth not to the contrary, and will not be interfered with. The same may be said of several of the under drains. Clearly they have been in use for a very long period of time. The complainants made additional drains. But all this work was for the improvement of the land for agricultural purposes. There is no proof that the volume or velocity of the water was in any wise increased. As the law stands according to the cases above referred to, it is not in any sense material to determine whether the water spoken of in this case comes in part from springs or in the whole from rains or melting snow. There is no doubt but that large portions of the 30-acre tract named in the complainant's bill of complaint are so wet, marshy, or spongy as to be unproductive, and that by clearing out that main ditch, and by opening the old under-drains, and putting in new ones, the natural wet condition of the soil has been so overcome as to enable the complainant to raise fair crops thereon. I will advise that a mandatory injunction do issue according to the prayer of the bill. The complainant is entitled to costs.