water. Society for Establishing Useful Manufactures v. Low. any gauge, and that he is using at least four square feet of The defendant denies that he is using a quantity of water greatly exceeding one square foot; and affidavits are annexed to the answer to show that it is impossible to use more than two square feet of water on the defendant's wheel, and that the machinery used in the mill requires less power to drive it, than would be furnished by two square feet of water. This very conflict of testimony demonstrates the propriety of an injunction. The defendant, by his lease, is entitled to draw but one square foot of water. All that he uses beyond that is an unauthorized diversion and use of water belonging to the complainants, without the possibility of their ascertaining the extent to which they are injured. It was against this very use that the covenants in the lease are designed to guard. The covenant on the part of the lessee is not only that he will use but one square foot of water, but that he will maintain an aperture which shall effectually prevent the use of water, in any manner whatever, beyond the quantity allowed by the lease, and that the water shall be drawn and used in no other mode. The design of the covenants clearly was, not only to prevent the use of more water than was allowed by the lease, but to furnish at all times unequivocal evidence of the quantity used. The complainants ask, therefore, not only that the defendant should be restrained from using an excess of water to their prejudice, but that he should be restrained from drawing any water, under color of his lease, except in the mode therein specified; that they may have the protection against the wrongful acts of the defendant, which the covenants in the lease were designed to secure. Upon the case made by the bill, the complainants are clearly entitled to an injunction. The question, if any there be in regard to the case, is created by the matters set up in the answer by way of justification or avoidance. It would, perhaps, be a sufficient answer to the matters insisted on by way of defence, to say that they cannot avail the defendant at this stage of the VOL. II. с cause. Society for Establishing Useful Manufactures v. Low. Where the equity of the bill is not denied, or where the facts upon which the equity rests are admitted, but the answer sets up new matter in avoidance, the injunction will not be dissolved or denied. Butler v. The Society, 1 Beas. 266, 506; Green v. Pallas, Ibid. 267; Allen v. Craberoft, Barn. Ch. R. 373; Minturn v. Seymour, 4 Johns. Ch. R. 499; Salmon v. Clagett, 3 Bland's Ch. R. 162–3. The defendant in this case stands upon the same ground, and with the same rights, that he would do upon a motion' to dissolve. The complainants' equity, and their title to an injunction upon the case made by the bill, was clear. The injunction was withheld in the first instance, and the rule to show cause was granted, because it was deemed proper, under the circumstances, that the defendant should have an opportunity of denying that equity. The complainants' right to an injunction, or to its continuance, cannot be prejudiced or altered by the mere fact that the case now stands upon the complainants' motion, and not upon a motion to dissolve. The only allegation in the answer which is directly responsive to the allegations of the bill and a denial of the complainants' equity, is that which relates to their title to the water in controversy. The bill alleges that the complainants are the owners of the water and of the works at Paterson, under their act of incorporation. The defendant, by his answer, says that he believes that neither the act of incorporation, nor the supplements thereto, nor any acts which the society have done, nor all combined, vest the property or ownership of the waters of the Passaic river, or in the canals or raceways at Paterson, in the complainants, and that they have no right to the said waters, or to divert the same, except for the purposes of navigation. A denial of the complainants' right upon an application for an injunction must be upon the defendant's knowledge, and not upon his belief or opinion. This is clearly a matter not within, and not pretended to be within, the defendant's . Society for Establishing Useful Manufactures v. Low. knowledge. If the allegation be untrue, it does not expose him to the penalties of perjury. Nor is he in a situation to deny the complainants' title. He is under covenant with them not to draw the water, and he is estopped by his covenant from denying their right. All the right he has to the water is derived from their grant. He holds as tenant under their grantee, and neither he, nor his immediate landlords, can deny the complainants' title. But if the defendant was in a situation to call in question the title of the complainants, and if his denial of the title were absolute, the allegation of the answer is destitute of foundation. The title of the complainants, under their charter, to the waters of the Passaic, for the purposes to which it is applied by them, has been too often recognized by this court, and is too firmly established, to be treated as an open question. As early as 1829, in the case of The Society v. The Morris Canal and Banking Company, Chancellor Williamson, in an opinion characterized by his usual learning and ability, and which, to the regret of the court and the loss of the profession, is not reported, said: "The river Passaic, at the great falls, is a private and not a public river. As owners of the lands, the society has a clear and undoubted right, in my opinion, to the flow of all the waters of the Passaic at the great falls in their ancient channel, without diminution or alteration. The society has appropriated by occupancy the whole water of the Passaic river for manufacturing purposes, as they had a right to do under their charter." Chancellor Vroom, in 1830, expresses his opinion as to the rights of the society in language equally clear and emphatic. "The society," he says, "are the riparian proprietors, and upon plain and acknowledged common law principles, they are entitled to the use of the stream, and have a right to enjoy it without diminution or alteration. Their right is not confined to the use of so much water as may be necessary for their present purposes. They have appropriated to themselves the use of the stream. They have the right to take the whole of it Society for Establishing Useful Manufactures v. Low. for the purposes of their manufactures, provided it is again, after being used, restored to the bed of the river for the benefit of those below." The Society v. The Morris Canal and Banking Co., Saxton 157. Again: the defendant alleges that he has been informed and believes, that the water has been drawn through the trunk, as it now is, for more than thirty years, since the original lease to Beggs. This allegation is not made upon the defendant's knowledge, and cannot, therefore, avail upon this motion. But admitting it to be true, how can it affect the complainants' rights? The lease was renewed, and the covenants which the complainants seek to enforce, were entered into in 1857. By those covenants the lessee bound himself from time to time, and at all times, to maintain the aperture which then was, or thereafter should be, made, so as effectually to prevent the use of water beyond the limited quantity allowed by the lease. There can be, therefore, no pretence of title acquired by the lessee by long continued enjoyment adverse to his covenant. Nor is it perceived that there is any ground for declaring that the complainants have forfeited their title to relief by laches upon their part. The covenant on the part of the lessee, to draw the water only in the mode specified in the lease, is a continuing cov enant running with the land, binding upon the assignee, and which is daily violated so long as the water continues to be drawn otherwise than in conformity with the terms of the covenant. If, under the circumstances, the injunction had been asked without notice that the complainants insisted upon the insertion of the aperture, there would have been reason for resisting the motion upon the ground of surprise. But no such defence is suggested. The defendant had written notice to insert the aperture, long before the filing of the bill. But the main ground of objection to the granting of the injunction is, that the complainants have not kept and per- . formed the covenants of the lease on their part in this, to wit, that the water in the raceway has not been uniformly kept at a head of thirty inches above the centre of the pro Society for Establishing Useful Manufactures v. Low. posed aperture. The defendant says that he has been advised by counsel, and verily believes, that the complainants are bound by law to keep at all times (except in case of necessary repairs) in the middle canal, a quantity of water. sufficient to furnish, if a cast iron aperture should be inserted at the bottom of the canal of the dimensions of six inches by twenty-four inches, according to the terms of the lease, a head of at least thirty inches above the centre of the aperture; that such was the intention of the parties to the deed from the society to Colt, and of the parties to the lease to Beggs; that such was the understanding of the parties upon the renewal of the lease to Hoxsey; and that the complainants have failed to supply in the said canal, a quantity of water sufficient to enable the defendant to draw at all times one foot square of water under a head or pressure of at least thirty inches, as intended and understood by the said lease, and the parties thereto. The answer to the objection is, that there is no covenant on the part of the complainants to keep the water at any given head above the aperture. The only covenant, on their part, is that they will keep up and maintain the main dam and banks of the canal in front and rear of the demised premises, so that the foot square of water thereby demised, may at all times, during the said demise, flow freely into and upon, and out of and from the said demised premises, without diminution or hindrance, unavoidable accident alone. excepted. It may well be, that when the lease was originally made, and when it was renewed, the dam and the banks of the canal were constructed with the view and intention of maintaining a head of thirty inches of water above the middle of the aperture; and there is no allegation that they have not been so kept and maintained. The allegation is that there is not, at all seasons of the year, water enough in the canal to maintain the full head for which the canal was intended. There is no covenant by the complainants, express or implied, that they would at all times furnish that head. Admit C* |