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Raritan Water Power Co. v. Veghte.

ing needs, within the limits of the present culverts, and the consequent flow below the dam, were not inconsistent with each other. The company could not use any more water than the demand required, and whatever was not so used necessarily came to the complainants' land, and in which they had their natural rights. The non-user by the company, and the corresponding flow below the dam, were in harmony. No adverse enjoyment can be set up by the complainants under these circumstances, and the question of abandonment therefore rests simply upon whether the company intended to relinquish their right beyond the scope that it had been exercised with the present culverts. The reason urged to support the abandonment, is non-user beyond those culverts. To accomplish 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 is not, even for twenty years, conclusive evidence in itself of an abandonment. Its weight must depend upon the intention to be drawn from its duration, character, and accompanying circumstances. Washb. on Easem. 551-6; Crossley v. Lightowler, Law R. 3 Eq. 279; Ward v. Ward, 14 E. L. & E. 413; Queen v. Chorley, 12 Q. B. 515; Stokoe v. Singers, 8 E. & B. 31.

The non-user in this case is accounted for on the ground that the company were obliged to refrain from any use beyond the demand. They had no option to use or not, further than the limit of the demand for the time being, and an intention to abandon any of their rights under the license as executed, cannot therefore, be drawn from a consistent use therewith, and a failure to violate its terms, and the provisions of the charter. The non-user in this case is peculiar. It is not a total non-user. The works were maintained and used, but the project was not as successful as expected, and the use was therefore only correspondingly limited, not given up. It is very different from where there is a total cesser of use, consequent upon a tearing down of works, or allow

Raritan Water Power Co. v. Veghte.

ing them to go to decay, or other circumstances from which an indication to relinquish the improvements may be drawn.

The fact that the original gates were not rebuilt, but culverts of much less size inserted, is explained by the evidence that the effort to replace them, even of smaller dimensions than the first, was not successful on account of a storm, and that the sluiceways and culverts were built only for a temporary purpose, and as a sufficient means at the time for the probable demand. It is evident from the testimony that the company had no intention to abandon any right, by not immediately replacing the first gates. Had the original gates been replaced, the diversion, as already stated, could not have exceeded the demand, and within that limit it could have made no difference to the owners below the dam, whether the diversion was through them, or the present culverts. There is nothing in the case from which an intention to abandon the right to use the works, as executed under the license, can be fairly drawn.

The remaining question on the merits is, whether the defendants should be enjoined from erecting their new gates, and extending their canal to them. The present culverts have always been, and are liable to obstructions by logs of wood, and rubbish, are out of view, and difficult to clear out and manage. Besides, the foundation is of quicksand, and the stone work about the gates is liable to fall, owing to the obstructions; there has been at times an insufficient supply of water. In order to obtain a good foundation, and to be relieved from the difficulty of the present culverts, the company have selected and purchased a site for new gates about ten chains above, where they can have shell rock for a foundation, and propose to extend the canal further, and to erect their gates. The point selected seems to be as near to the present head of the canal as practicable, to secure a good foundation. The gates, as proposed, will be two in number, and of the aggregate width of sixteen feet in the clear; about half the width of the original gates. It will

Raritan Water Power Co. v. Veghte.

not be possible with them to divert as much water in volume as through the first gates, and they will not be equal to the capacity of the canal as already constructed, with the dam at the height of two and a half feet above the ordinary level of the water, as erected. The company would have no right to change the location of their gates, and extend their canal, or alter it so as to divert beyond the capacity of the canal as constructed, with the dam of the height as stated, but any alteration within those limits cannot affect the complainants. Whatever the size of the gates might be, the use must always be reasonably commensurate with the demand, and relief against any excessive use could be had. When the demand is liable to be increased by additional mills, factories, or works, such as the water power was intended to encourage, and in view of which the license was given, there would be no equity in compelling the company always to keep their gates of the exact size necessary for the immediate supply, and to submit to the expense of a change when more is required. The gates are not the test of the right to use the water, and whether the supply is through small or larger gates, cannot be questioned by the complainants, as long as they are within the limits of the capacity of the canal in its relation to the dam, as both were constructed. The fact of gates being built of larger capacity than necessary for the immediate demand, can no more be a cause of complaint by the owners below, than that the canal is larger than at present necessary, and the use of which was allowed, and expected to lie dormant until expanded by the growth and necessities of business.

The capacity of the new gates to divert water, with the canal extended, will clearly be within the limits of the capacity of the canal and dam as originally constructed, and also within the limits of the first gates. The extent of user must depend upon the demand, and the mere change in the mode of diversion does not prejudice the rights of the complainants. There is no present ground of complaint

Weissenborn v. Sieghortner.

against the new gates, and the extension of the canal to the site proposed.

On the merits, the decree of the Chancellor must be reversed, and the bill be dismissed with costs in both courts.

For reversal-BEASLEY, C. J., BEDLE, DALRIMPLE, DePUE, KENNEDY, OGDEN, SCUDDER, VAN SYCKEL, VAIL, WALES, WOODHULL. 11.

For affirmance-OLDEN.

WEISSENBORN, appellant, and SIEGHORTNER, respondent.

This was an appeal from a decree of the Chancellor, made. in accordance with his opinion in the cause, reported in 5 C. E. Green 177.

The appeal was argued by Mr. A. P. Whitehead and Mr. Bradley, for appellant; Mr. A. Zabriskie and Mr. C. Parker, for respondent.

No opinion was delivered. Upon argument, the following decree was directed to be entered:

Whereupon, this cause coming on to be heard, and the court having advised of the same; it is, on this 3d day of December, 1869, ordered, adjudged, and decreed, that the order of the Chancellor be reversed, so far as it relates to the appointment of a receiver, but that the injunction be retained and continued until the final hearing of the cause; provided that the respondent (the complainant below) stipulate and submit to be enjoined to the same extent as the defendant stands enjoined; with liberty to either party to apply to the Chancellor to take such order for collecting and preserving the assets of the firm as he may deem advisable. And it is further ordered and decreed, that the respondent pay to the appellant his costs in this appeal, and that the proceedings be remitted to the Court of Chancery, to be proceeded in according to law.

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62 768

21 484 66 347 66 348

MARCH TERM, 1870.

THE CAMDEN AND AMBOY RAILROAD AND TRANSPORTATION
COMPANY, appellants, and STEWART, respondent.

1. An appeal lies to an order of the Chancellor sustaining exceptions to a bill for impertinence.

2. With respect to appellate jurisdiction, there is a class of cases to which no certain test can be applied, but each case of such class, in this particular, must be adjudged by its peculiar circumstances.

3. The case should be especially clear, to warrant the expunging of matter from pleadings as impertinent; but when the Chancellor has struck out statements from a bill which are very prolix, and appear to be of but small importance to the case, this court will not interfere with such order.

4. A deposition of a deceased or foreign witness, appended to an injunction bill, is not competent in the absence of proof that the suit in which it was taken was between the same parties and related to the same subject matter, and the only legitimate proof of such deposition is by a compared or duly certified copy.

5. There is no relaxation of the rules of evidence with respect to affidavits annexed to injunction bills.

The bill was for the specific performance of a contract alleged to have been made by the respondent, who was the defendant below, to convey a tract of nine acres of land, and to grant a right of way in front of his other lands, for the railroad of the complainants. This contract was contained in the following receipt, which was set forth in the bill, viz. "1832, Sept. 15th. Received of E. A. Stevens his check on Trenton Bank, dated December 1st, 1832, for the above sum, for which I agree to execute a deed of conveyance for the above tract, in conjunction with Mrs. Stewart, and also a grant of the right to pass in front of my premises with said railroad, the said company furnishing me with suitable passage ways to the river, for which said check, when paid, will be in full." The bill alleges that at the time of the execution of this contract the complainants were constructing their road, "based upon the idea of a double track."

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