Eldridge v. Hill

Headnote

A Bill of Peace, to prevent litigation at law, is allowed only in case the plaintiff has satisfactorily established his right at law, or where the persons who controvert the right are so numerous as to render an issue, under the direction of the Court, necessary to bring in all the parties concerned, and to prevent a multiplicity of suits.

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THE bill stated, that the plaintiff is seised in fee of lot No. 13, in Young’s patent, in Sharon, in Schoharie county, and that he, and those under whom he holds, have been in possession for upwards of twenty years. That the defendant Hill possesses lot No. 41, adjoining it, under the defendant Murray. That Wm. Honey, who possessed lot No. 41, about six or seven years ago, erected a carding machine, within a few feet of the line between them. That an ancient stream runs through lot 41, to and through lot 13. That the machine was not placed on the stream, but at some distance, and the water from the stream conducted to the machine, by means of a ditch, and from it by a ditch dug to the lot 13, and into and through that lot until it came to a descent, so that the water would run off, without a ditch, into the natural channel. That the said ditch was so dug before the plaintiff purchased the lot of Barnabas Le Grange. That Le Grange never gave any license to make the ditch, nor is any such license set up by the defendants. That until the 9th of July last, the defendant has been in the quiet possession of the ditch, through the land of the plaintiff, as a water-course. That the plaintiff wishing to use the water, by a mill, and to cause it to flow back to his line, the defendant refused to fill up his ditch, and the plaintiff placed a partial obstruction in the ditch on his own land, about 1J feet high, which forced the water back to the wheel of the machine. That he did this to give the *defendant an opportunity to try his right; for if the plaintiff cannot fill up the ditch, nor flow the water into it, he cannot build a dam on his own land. That the defendant Hill sued the plaintiff for that obstruction, in the Supreme Court, and the cause is there at issue. That Hill, afterwards, commenced a suit before a justice of the peace for a continuance of the obstruction, and has sued the plaintiff every week since, before the same justice, for the same obstruction. That there have been commenced, in all, 15 or 20 suits, one of which was brought to trial on its merits, and a verdict given against the present plaintiff, who has sued out a certiorari, and had

the same allowed, for removing that judgment into the Supreme Court. That the defendant H. continues to commence suits weekly, and threatens to do so indefinitely.

The bill prayed for an injunction to restrain the defendant H. from further prosecuting the suits before the justice already pending, and from commencing any more, on account of the obstruction aforesaid, until the suit commenced by the defendant Hill, in the Supreme Court, be determined.