Village of Keeseville v. Keeseville Electric Co.

Headnote

Action to restrain the maintenance of a dam below the dam of the plaintiff— an injunction enjoining the defendant from baching water upon the plaintiff’s wheel is improper—it requires the defendant to decide the question at issue.

In an action brought by a riparian owner against a lower riparian owner to compel the latter to remove a wing dam erected by him and to perpetually restrain him from using or maintaining said dam, one of the principal* issues was whether the wing dam caused the .water of the stream to flow back upon the plaintiff’s premises.

The affidavits submitted upon a motion for an inj unction pendente lite being conflicting upon this question of fact, the court granted the following order: “ That the defendant, * * * its agents, servants and officers, be and they hereby are restrained and enjoined during the pendency of this action from raising or backing or causing to be raised or backed the water upon the water wheels of plaintiff or any of them mentioned in the complaint herein, and from permitting or suffering said water to be raised or backed upon said wheels.”

Held, that the order should be reversed, as it compelled the defendant to determine , at its peril one of the principal issues in the action.

Appeal by the defendant, the Keeseville Electric Company, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Essex on the 17th day of January, 1901, granting an injunction pendente Vite.

The plaintiff is a municipal corporation and owns and operates a system of water works by which water is supplied to its inhabitants for domestic and fire purposes. It owns lands bounded on the Ausable river, and on such lands it has a pumping station and water from said river is pumped through water mains for the purposes stated. The defendant is a domestic corporation owning lands on said river, next below the lands of the plaintiff, and there operates an electric light plant, and light is supplied to the inhabitants of said village. Both parties run their plants by water power and water is taken by them from said river by means of the same dam and flume. The plaintiff claims that the defendant has erected a wing dam on its premises below the premises of the plaintiff, causing water to flow back upon the plaintiff’s station, water wheels and premises, and seeks a judgment compelling the defendant to remove said wing dam, and perpetually restraining the defendant from

using or maintaining said wing dam or permitting it to be used or maintained. The defendant denies that the wing dam causes the water, to flow back upon the plaintiff’s station, water wheels and premises.

A motion was made at Special Term for “ an order restraining and enjoining, during the pendency of this action, the defendant, its agents, servants and officers, from using or maintaining or permitting to be used or maintained the wing dam or pier erected by it. * * * ” On the hearing of the motion the plaintiff read several . affidavits to the effect that the wing dam causes the watér of the river to flow back upon the plaintiff’s premises, and the defendant read a large number of affidavits to the effect that the wing dam does not cause the water of the river to flow back upon the plaintiff’s premises. The Special Term granted an order “That the defendant * *' * its agents, servants and officers, be and they hereby are restrained and enjoined during the pendency of this action, from raising or backing or causing to be raised or backed the water upon the water wheels of plaintiff or any. of them mentioned in the complaint herein, and from permitting or suffering said water to be raised or backed upon said wheels.”