Carlisle v. Cooper. not to be established. Where the truth of facts can be satisfactorily ascertained by the court without the aid of a jury, it is its duty to decide as to the facts, and not subject the parties to the expense and delay of a trial at law. But in cases where the evidence is so contradictory as to leave the decision of a question of fact in serious doubt, aud superior advantages of testing the credit of witnesses by viva voce examination in open court, and of applying the facts and circumstances proved in the cause to the decision of disputed points, may be obtained by means of a trial before a jury, it is proper that an issue should be awarded. Trenton Banking Co. v. Woodruff, 1 Green's Ch. 118; Miller v. Wack, Saxt. 205; Bassett v. Johnson, 2 Green's Ch. 417; Hildreth v. Schillinger, 2 Stockt. 196; Lucas v. King, Id. 277; Fisler v. Porch, Id. 242; Black v. Lamb, 1 Beas. 108; S. C., nomine Black v. 'Shreve, 2 Beas. 455; 2 Daniell's Ch. Pr. 1086, 1285; Short v. Lee, 2 Jac. & Walker 465; Dexter v. The Providence Aqueduct Co. 1 Story's R. 387; Dale v. Roosevelt, 6 Johns. Ch. 255; Hammand v. Fuller, 1 Paige 197; Apthorp v. Comstock, 2 Paige 482; Townsend v. Graves, 3 Paige 453. The granting or refusing an issue is a matter of discretion, and no application was made to the Chancellor for an issue. The case of Carlisle v. Cooper, 3 C. E. Green 241, in which the question of jurisdiction was raised, was not between these parties. The subject matter of the controversy there, was the dam complained of in this case, but the complainant in that cause was John D. G. Carlisle, and the application to the Chancellor was not an application for a feigned. issue. In the answer in this case, the defendant, after stating the abatement of his dam nine inches, submits and insists "that if the complainants shall insist that the defendant has not reduced his dam to the height it was prior to the year 1846, and insists upon trying that question in this honorable court, that this honorable court is not the appropriate tribunal in which to try and decide that ques tion." A replication was filed, and the parties proceeded to Carlisle v. Cooper. take their evidence. A court of equity is an appropriate tribunal to decide that question. The case was submitted to the Chancellor for decision on its merits, without objection to the mode of trial. The submission of it to him without applying for an issue, concludes the parties from objection now to the mode of trial. Belknap v. Trimble, 3 Paige 577. The position was also taken, that the complainants had lost their right to relief by long delay. Mere delay in applying to the court is frequently a ground for denying a preliminary injunction, and is also a reason for courts of equity refusing to take cognizance of a case, where there is a remedy at law. But where the legal right is settled, and the more efficacious remedy of a court of equity is necessary to complete relief, delay is no ground for a denial of its aid, unless it is coupled with such acquiescence as deprives the party of all right to equitable relief. A person may so encourage another in the erection of a nuisance, as not only to be deprived of the right of equitable relief, but also to give the adverse party an equity to restrain him from recovering damages at law for such nuisance. Williams v. Earl of Jersey, 1 Cr. & Ph. 91. So a party who knowingly, though passively, encourages another to expend money under an erroneous opinion of his rights, will not be permitted to assert his title, and thereby defeat the just expectation upon which such expenditure was made. Dann v. Spurrier, 7 Ves. 231; Rochdale Canal Co. v. King, 2 Sim. N. S. 78; S. C., on final hearing, 21 Eng. L. & Eq 178; Ramsden v. Dyson, L. R. 1 H. of L. 140; Dawes v. Marshall, 10 C. B., N. S., 697; Wendell v. Van Rensselaer, 1 Johns. Ch. R. 354; Ross v. The E. & S. R. R. Co., 1 Green's Ch. 422; Hulme v. Shreve, 3 Green's Ch. 116; The Morris and Essex R. Co. v. Prudden, 5 C. E. Green 531; The Raritan Water Power Co. v. Veghte, 6 C. E. Green, ante p. 463. The defendant's case is not within either of these principles. He did not make his expenditure in erecting his dam, and increasing the capacity of his mill, either Carlisle v. Cooper. upon the encouragement of the complainants' ancestor, or under an impression that he had the right to cast the water back to the extent it was held by his dam. He knew that by so doing he would interfere with the complainants' farm. He claims that he obtained that privilege from the complainants' ancestor, under a verbal agreement that he was to be permitted to flow as much of his lands as he, the defendant, saw fit, if he paid him therefor at the same rate as the defendant paid one Horton for lands on the opposite side of the stream. Upon such alleged agreement the defendant sought his remedy after the actions at law were brought, by a bill for its specific performance, and was denied relief. Cooper v. Carlisle, 3 C. E. Green 525. The adjudication and decision of that question in that case concludes the rights of these parties. The damages paid by the defendant in the two suits at law, amounted to $500. The injury done to the farm of the complainants by the backwater, rendered a part of their land comparatively useless, and the evidence shows that a nuisance was created on it deleterious to health, and that the enjoyment of the premises was thereby impaired. For such injuries an action at law furnishes no adequate remedy, and the party enjoined is entitled to the protection of a court of equity by abatement of the nuisance. Holsman v. The Boiling Spring Bleaching Co., 1 McCarter 335; 2 Story's Eq. Jur., § 926. As the facts were when the bill was filed, the nature and extent of the injury sustained by the complainainants were such as to entitle them to relief in a court of equity, and it would be an extraordinary proposition, that a defendant after the institution of the suit for such relief, should be enabled to defeat complete redress by a partial abatement of the nuisance, thus mitigating but not removing the evil, upon an insistment that the effects of such portion of the nuisance as still remained, were not of sufficient consequence to entitle the complainant to ask that perfect relief which he was entitled to when he sought his remedy. Carlisle v. Cooper. The prayer of the bill is, that the exact amount of the increase in the height of the dam in 1846 may be ascertained, and that the defendant may be ordered and decreed to abate said dam, and reduce it to its original height, as it was prior to the year 1846, and remove the obstructions caused thereby to the flow of the river; or that the same may be abated and reduced in height under the directions. of the court. The complainants are entitled to the relief prayed for. The appeal upon the merits, raises the question whether the relief which was granted by the Chancellor, is such as is warranted by the evidence. The exact import of the decree is, that the defendant is entitled to maintain his dam at the height of the present stone work, and the mudsill thereon, and the sheathing, with the right to place on the mudsill, for the whole length thereof, moveable gates of plank of the width of seven inches, reaching a line nine inches above the said mudsill, and no higher; and that by means of these contrivances the defendant shall be entitled to use the water of said river, subject to the obligation in times of freshets or high water, to so raise the said gates as that the surface of the water shall not be raised above a line drawn twelve and a quarter inches above the top of the mudsill. The dam was built originally in 1827. It then consisted of a stone wall with a sill upon it, and was about thirty-six feet long. In 1828 or 1829, the superstructure was increased by the addition of posts twelve inches long, with a cap piece on the top nine inches wide. The space between the cap piece and the sill, at each end, was boarded up tight. The rest of the space was occupied by gates nine or ten inches wide, leaving a space between the top of these gates and the underside of the cap, through which the water flowed under the cap piece. In 1846 it is admitted that the structure of the dam was raised, and in 1852 changes were made which increased its power of retaining and throwing back the water. In 1866, when the bill was filed, the super Carlisle v. Cooper. structure consisted of a sill nine inches in height, on which were set posts twenty-one inches high, on which was placed a cap piece nine inches in height, and the space between the sill and cap piece was closed by solid planking at each end, and moveable gates in the intermediate space, thus making the efficient height of the superstructure above the stone wall, thirty-nine inches. It was reduced nine inches in 1866, leaving its present height thirty inches, and the decree of the Chancellor directs a further reduction of twelve inches, reducing the height of the superstructure above the stone wall to eighteen inches, which consists of the height of the sill of nine inches, and the height of the sheathing and gates upon it of nine inches additional. The effect of these operations will be to reduce the height of the dam, including the stone wall, sheathing, sill, and gates, to about what it was originally in 1828, including the stone wall, sill, and gates, which then made up the dam, but without taking into account the fact that the solid planking between the cap piece and the sill at each end, joined close up to the cap piece. The principle of law stated by the Chancellor, that the extent of the right acquired by adverse user is not determined by the height of the structure, but is commensurate with the actual enjoyment of the easement, as evidenced by the extent to which the land of the owner of the servient tenement was habitually or usually flowed during the period of prescription, rests upon sound reasoning, and is supported by authority. Angell on Watercourses, §§ 224, 379; Burnham v. Kempton, 44 New Hamp. R. 78. The introduction into the rule requiring continuity of enjoyment to acquire a prescriptive right, of the qualification of habitual use, as applied to the effect of the structure, is the only qualification that is permissible where the easement is such that its enjoyment is profitable only from a continuous use, as an easement to overflow lands. That the degree of flowage upon the lands of another fixes the extent of the right, is shown by a variety of cases.. |