Village of Keeseville v. Keeseville Electric Co.

Headnote

Interlocutory Injunction—Evidence to Sustain.

Plaintiff has a system o£ waterworks operated by water power. Defendant constructed a wing dam, which plaintiff claims backs the water on its water wheel. Plaintiff moved, on affidavits, for an injunction pendente lite to restrain maintenance of such dam, and defendant filed affidavits denying that the wing dam backed the water on the wheel.' Held, that an order enjoining defendant pendente lite from backing the water on plaintiff’s water wheel was erroneous, as, if defendant permits the dam to remain, it may be found guilty of contempt, while to remove the dam would be an admission that its defense and the testimony of all its witnesses were false.

Appeal from special term, Saratoga county.

Action by the village of Keeseville against the Keeseville Electric Company. From an order granting an injunction against defendant pendente lite, defendant appeals.

Reversed.

The plaintiff is a municipal corporation, and owns and operates a system of waterworks 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 piel erected by it.” On the hearing of the motion the plaintiff read several affidavits to the effect that the wing dam causes the water 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 are hereby, 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.”