National Bank of the Metropolis v. Sprague. will not lie from an order in the discretion of the Chancellor, or upon a mere matter of practice. It was so ruled by this court in the matter of the application of Anderson, guardian of Thompson, 2 C. E. Green 536. The real question is, whether the order applied for was in the discretion of the Chancellor, or whether it was a matter of right which he was bound to grant upon a proper case shown. What is matter of discretion may, in some cases, be doubtful. In The People v. The Superior Court of New York, 5 Wend. 125, this discretion is correctly defined to be "that which is not and cannot be governed by any fixed principles or rules." And in Rogers v. Hosack's Ex'rs, 18 Wend. 319, Justice Cowen says, that to warrant an appeal, "some definite rule of law or equity must appear to have been violated." This is cited with approbation in the opinion of this court, delivered by the Chief Justice in Garr v. Hill, 1 Halst. Ch. 641. Courts of equity interfere upon a proper application, to set aside sales made by their officers, when conducted contrary to principles of law, or when, through fraud or mistake, injustice has been done by the sale. They so interfere upon application in the suit in which the sale was made, and even when the purchaser was not a party to the suit. They hold that by becoming a purchaser in the suit, he subjects himself to the jurisdiction of the court, so far as the purchase is concerned. In England, and also in the Court of Chancery that formerly existed in New York, confirmation of sales in chancery was required. But the jurisdiction did not depend upon that; sales were set aside upon application in the suit, even after confirmation. In Casamajor v. Strode, 1 Sim. & Stu. 381, it was held that a stranger to the suit, by becoming a purchaser, submitted himself to the jurisdiction of the court. In Watson v. Birch, 2 Ves., jun., 51, the sale was opened after confirmation. And in Morice v. The Bishop of Durham, 11 Ves. 57, and in White v. Wilson, 14 Ves. 151, Lord Eldon National Bank of the Metropolis v. Sprague. held that after confirmation sales could not be opened except for fraud, or fraudulent negligence, implying that in such case they would be opened. In Collier v. Whipple, 13 Wend. 224, and Tripp v. Cook, 26 Wend. 143, the sales had been confirmed and the deeds delivered, yet the sales were set aside. In Requa v. Rea, 2 Paige 339, a sale to a stranger was set aside on petition in the suit after the deed was delivered. In this state, in Seaman v. Riggins, 1 Green's Ch. 214, Chancellor Pennington set aside a sale, as he said he had no doubt of the power of the court, or its duty, to set it aside. In Howell v. Hester, 3 Green's Ch. 266, the same Chancellor declared that the case was within the principle of the authorities, and set aside the sale upon petition. In Campbell v. Gardner, 3 Stockt. 423, Chancellor Williamson, upon petition in a foreclosure suit, set aside a sale after the deed had been delivered. In that case the complainant was the purchaser, and the relief was granted on grounds perhaps in the discretion of the court, but in the others it was on the ground of fraud or mistake, or other grounds which gave title to relief in chancery on bill filed. The relief was granted not as a matter of discretion, but as a matter of principle and duty or right. In this case, some of the grounds on which the application was made would, if sustained, give the appellants a right to have the sale set aside. They would have had that right upon bill, on the ground of an unlawful combination. to prevent competition. If it is the settled practice of the Court of Chancery to grant such relief upon petition in the suit in which the sale is made, and the established doctrine there, that it is the duty of the court to grant it in a case within the principles fixed for such relief on bill, then it is clearly no longer a matter of discretion. That court might once have had a discretion, whether it would permit the relief to be asked on petition, or would require a bill to be filed, but the practice by petition being established, the Chancellor, when he hears and examines into VOL, VI. 2 G National Bank of the Metropolis v. Sprague. the merits of the application, has no discretion in the decision, but must determine according to the settled rules of law and equity. This result, of course, would not follow in an application not based upon the illegality of the sale, but upon matters on which it is in the discretion of the court to give relief or not. On principle, then, an appeal should lie from a decision like this, determining the merits of the controversy between the appellants and the purchaser. That controversy is, whether the sale was made contrary to the requirements of law. And this appeal is sustained by authority as well as principle. It has been expressly decided that an appeal will lie from an order upon application to set aside sales, made by petition or motion in the suit in which the sale was ordered. It was so held in England by the House of Lords, in Bailey v. Maule, reported in a note, in 7 Cl. & Fin. 121, and referred to in O'Neill v. Fitzgerald, in 3 Bligh's Appeals 24. And in New York such appeals were sustained in Collier v. Whipple, 13 Wend. 224, and in Tripp v. Cook, 26 Wend. 143. In the last case, which came up like the one before us, the appeal was sustained on a motion to dismiss it. In Kingsland v. Bartlett, 28 Barb. 480, an appeal from an order of the special term refusing to set aside a sale was dismissed, because the application was not founded on any fraud or irregularity in the proceedings, but on a misapprehension as to the time of sale, and such application was held to be in the discretion of the court. The court say, there can be no right where no legal mistake has been committed by those who have conducted the proceedings. This is in accordance with the principles in the other cases. The motion to dismiss must be denied. The whole court concurred. Raritan Water Power Co. v. Veghte. 21 463 47 164 21 463 THE RARITAN WATER POWER COMPANY, appellants, and 1. The right to divert water is an incorporeal hereditament, and at the common law, could only be created by deed. But when a charter of a water power company gives a right to divert the water of a river, upon the written consent or permission of those owning lands and water privileges, such written consent obtained after the act, with the assistance of the act, operates as a substitute for the common law method, and has the effect of granting to the company a legal right to divert. 2. If such consent was in fact, however, obtained previous to the grant of the charter, it was a license merely. But when such license has been executed upon the lands of the licensor, and permanent works and improvements erected in pursuance thereof, at great expense, equity will not, to the extent that the license is executed, disturb it, or permit its revocation. 3. Where improvements of a permanent nature have been made by a person on his own land, the enjoyment of which depends upon a right recognizable by the law, affecting the land of another, and to which his consent is necessary, and where such consent is expressly proved, or necessarily implied from the circumstances, and the improvements have been made in good faith upon it, equity will not permit advantage to be taken of the form of the consent, although not according to the strict mode of the common law, or within the statute of frauds; and to defeat such a purpose will, upon proper bill filed, enjoin the licensor from accomplishing his fraud, or when he asks relief it will be refused, or if granted, will be allowed merely in the shape of compensation, but protecting the right of the licensee. 4. The measure of the execution of the license, in this case, is the capacity of the dam and canal as originally constructed, regarding the culverts only as a means of supply, according to the necessity of business, and liable to any change in their location or construction, the better to enjoy the benefit of the dam and canal as originally built and completed, the equity being that the defendants shall, if necessary, have the full use of the expenditure made on the faith of the consent within its terms, and depending upon it. 5. An equitable estoppel will affect a subsequent purchaser to the same extent as his grantor, when he has had actual notice of the condition of things upon which it is based, or when the circumstances are such as to put him upon inquiry to ascertain the facts. 6. To constitute an abandonment, the facts or circumstances must clearly indicate such an intention. Abandonment is a question of intention. Non user is a fact in determining it, but though continued for twenty years, is not conclusive evidence, in itself, of an abandonment. Its weight must always depend upon the intention to be drawn from its duration, character and accompanying circumstances. 48 506 49 293 21 463 55 77 21 463 56 480 21 463 59 34 21 463 64 815 Raritan Water Power Co. v. Veghte. The opinion of the Chancellor is reported in 4 C. E. Green 142. Mr. Williamson and Mr. J. Wilson, for appellants. Mr. Dodd and Mr. Bradley, for respondents. The opinion of the court was delivered by The appellants are the owners of a dam and water power on the Raritan river, at Raritan, in Somerset county. The same formerly belonged to the Somerville Water Power Company, a corporation incorporated February 28th, 1840. The latter company mortgaged their whole property and franchises in 1848, to secure certain bondholders, which mortgage was afterwards foreclosed by them in the United. States Circuit Court, and the whole property, franchises, &c., purchased by the bondholders; which bondholders afterwards (March 25th, 1864,) conveyed the same to the appellants, they having been incorporated as the Raritan Water Power Company, March 24th, 1863, and fully authorized to purchase, possess, and enjoy, all the real estate of the Somerville Water Power Company, including the canal, head gates, water power, water rights, franchises, &c. The Raritan Water Power Company are now the owners of all such property, rights, and franchises, as were owned by the Somerville Company. The bill was filed against the Raritan Company, by seven different owners of land along the river, two of whom are above the dam, one at the dam on each side, and the other four are below the dam. The bill complains that the comhad raised their dam, and were about to tighten and pany further raise it; also, that they were about to change the location of the head gates of their canal, and to enlarge their size, and by these acts to increase the quantity, and to divert more water than they are entitled to. The water power consists of a dam across the river, and a canal about |