author: Pitney, Y. C.

text:
    Philander J. Mallory v. Andrew Kirkpatrick.
    1. A corporation organized, under the laws of this state, which is in an insolvent condition, cannot prefer, as a creditor, one of its officers.
    2. The president of a corporation in an insolvent condition, who is also its creditor to a large amount for cash advanced, brought suit against it on one day, resigned as president and director the next day, and on the third day the directors accepted the resignation and authorized an attorney to give a cognovit, upon which judgment was at once entered. — Held, that the creditor could not have a preference by virtue of such a judgment.
    3. Other judgments had been recovered by outside creditors against the corporation, in due course, shortly before the judgment by cognovit, and under these, all the property of the corporation was sold, leaving a surplus, which was paid by the sheriff to the ex-president under his judgment by cognovit. Subsequently, another creditor brought suit and recovered judgment, and filed his bill against the ex-president, praying that he be decreed liable to pay his judgment out of the surplus in his hands. — Held, (1) that the ex-president held the money so received in trust for all the creditors; (2) that they could not be reached by the latter judgment creditor for his own benefit, under the eighty-eighth and subsequent sections of the Chancery act; (3) that they could be reached by a receiver appointed for the benefit of all the creditors.
    4. Corporations are not liable to be proceeded against under the eighty eighth and subsequent sections of the Chancery act.

      This is a contest between two judgment creditors of the Newark Bark Company, a private corporation organized under the general act. The judgment of the defendant was entered on the 13th day of June, 1894, for upwards of $15,000. Upon it execution was promptly issued and all the property of the defendant corporation levied upon, sold and purchased by the defendant. The sale was made not only under the defendant’s judgment, but also under two other judgments previously recovered against the corporation, and the property produced a sufficient amount to pay the previous judgments and several hundred dollars on that of the defendant.
    About the time that the sale took place complainant brought an action upon his claim against the corporation, and obtained judgment by default on the 3d of October, 1894, for $605.85.
    The prayer of the bill is that the judgment recovered by the defendant may be declared to be fraudulent and void as against the complainant, and that the property, real and personal, sold under it to the defendant may be decreed to be subject to the lien of the complainant’s execution, and the sale under the previous judgment set aside, or, in the alternate, that the defendant pay the complainant’s judgment out of the proceeds of the sale which would otherwise go to satisfy his own judgment.
    The defendant was, from the organization of the corporation and up to the 12th of June, 1894, one of its directors and its president. On the day last named it was indebted to him in about the sum of $7,500 for money advanced to it, and he was an endorser on its notes for about $7,500 more. The company was hopelessly insolvent, and two judgments, amounting to about $3,000, had already been recovered against it. On the 11th of June he commenced suit against the company, and on the 12th he resigned as president and director. At a meeting of the remaining directors, held on the 13th, his resignation was accepted, and his son, Andrew Kirkpatrick, Jr., was elected a director in his place, and then, by a resolution of the board, an attorney of the supreme court, who was present, was authorized and directed to consent to a judgment in favor of' the defendant in his suit just commenced. Immediately after receiving this authority the attorney signed a cognovit actionem, and judgment was at once entered in the defendant’s favor against the company, for $15,000 and upwards. There is no dispute but that the whole amount was due.

      Mr. Thomas N. McCarter, Jr., for the complainant.

      Mr. Philemon Woodruff, for the defendant.
   Pitney, Y. C.

The complainant attacks the defendant’s' judgment on two grounds — -first, he alleges and proves that his claim was due and should have been paid in the fall of 1893, and that it was placed by him in the hands of an attorney for collection, who called upon the defendant and upon one of the directors, who appeared to be active in managing the financial affairs of the company, and demanded payment; that they both told him that the company was in financial difficulties, and that it was trying to pay its debts, and they thought it would be able to do so if the creditors gave them time. The defendant also stated to the complainant’s attorney that the corporation was largely indebted to him, and if the creditors attempted to force payment he should attempt to secure himself. On the strength of this statement complainant’s attorney accepted part payments on the amount due, and took notes of the company for the balance. . This was done on one or two occasions before the final collapse, part of the amount due being paid in each instance.

The precise point made by the complainant is that there was what amounted to a contract between him and the defendant as president of the company, that so long as the complainant granted renewals in part payment of his debt the defendant would not take measures to secure himself.

I think the evidence entirely fails to sustain the point. "What the defendant promised was that if all the creditors forebore to sue, the company would try to pay them all. This condition was not fulfilled. Two of them did sue, and obtained judgment and execution.

The second point relied upon by the complainant requires more careful consideration. It is that the corporation, being insolvent, had no right to prefer the defendant, who was its president, as its creditor; and he relies upon-the very recent case of Montgomery v. Phillips, 8 Dick. Ch. Rep. 203, and upon Sutton Manufacturing Co. v. Hutchinson, 63 Fed. Rep. 496.

Against this defendant relies upon Wilkinson v. Bauerle, 14 Stew. Eq. 635, and takes the additional ground that complainant has no standing in court to attack the judgment of defendant for his own benefit alone, but that it can only be done either by a receiver in insolvency, as in Montgomery v. Phillips, or by a bill in which complainant asks relief for himself and all other creditors who may come in and ask a benefit under the decree.

Before considering this question it is proper to notice a further technical objection made by the defendant, viz., that the corporation should have been made a party. It seems to me that the point is well taken, and that without the corporation in court the complainant’s proceedings are defective. But as that is a matter which may be remedied by amendment, I will proceed to consider the merits.

I am unable to reconcile the case of Wilkinson v. Bauerle with that of Montgomery v. Phillips. The former case distinctly avows the doctrine (14 Stew. Eq. 643, 644) that an insolvent incorporated company may prefer its creditors generally, not excluding its president, or other officers; and in that case one of the creditors preferred was the president of the company. In Montgomery v. Phillips, as I read it, the contrary doctrine is established; and it was distinctly held, upon review of all the authorities, that a corporation in an insolvent condition could not prefer one of its creditors who was an officer of the company, and a chattel mortgage given for that purpose was set aside at the suit of a receiver appointed by this court. At the same time an assignment of choses in action to a creditor-at-large, not an officer or stockholder, was sustained, though made when the company was insolvent. ■

The bill in Wilkinson v. Bauerle was exhibited by a creditor -who sued for himself and all others who might come in. That in Montgomery v. Phillips was exhibited by a receiver appointed by this court. This difference is not material, because the object of the bill in both cases was precisely the same, viz., to bring about an equal distribution of the assets of the corporation among its creditors.

In addition to the direct bearing upon this case of the decision of the court of errors and appeals in Montgomery v. Phillips, there is the eightieth section of the Corporation act, which declares that the funds of a corporation

“shall be distributed among the creditors proportionally to the amount of their respective debts, excepting mortgage and judgment creditors when the judgment has not been by confession for the purpose of preferring creditors.”

A judgment by confession for the purpose of preferring a creditor is expressly excepted by Justice Magie in his opinion in Wilkinson v. Bauerle.

It is urged by the counsel for the defendant that his is not a judgment by confession, but I cannot adopt that view. The suit was commenced by a summons and declaration on the 11th of June, the defendant’s resignation was dated on the 12th, the directors met on the 13th and accepted the resignation and elected his son a director in his place, and then authorized an attorney to consent to a judgment against the corporation, which the attorney did by an ordinary plea called a cognovit, in which it acknowledges that the defendant did undertake and promise as the plaintiff in its declaration has alleged, and that it cannot deny that it owes and unjustly detains from the plaintiff the sum claimed by him in his declaration, and consents that judgment be entered against it for the sum of $15,324.05. Now, if that is not a judgment by confession,. I am unable to understand what a judgment by confession is. It is the ordinary form found in the books of precedents of a cognovit, and a cognovit is a confession. Its effect in hastening the judgment was precisely the same as if the corporation had executed a bond with a warrant of attorney to confess judgment. The judgment’s contention that the language in the eightieth section of the Corporation act — “when the judgment has not been by confession for the purpose of preferring creditors” — applies only to judgments by bond and warrant of attorney, cannot be maintained. The common-law practice of entering judgment upon cognovit actionem is old and well established, and a judgment so entered has always been known as a judgment by confession. Stewart v. Walters, 9 Vr. 274 and cases there cited.

But the defendant’s counsel further contends that this judgment was not confessed for the purpose of preferring his client. If it was not for that purpose, then I am unable to imagine for what purpose it could have been done. Two judgments were entered against the company, aggregating over $3,000, on the 4th of June. The sheriff might, and undoubtedly would, proceed immediately to sell under them. If the property brought more than the amount of these judgments the surplus would, in the then condition of affairs, be paid to the company. The entry of these prior judgments made it possible and easy for any creditor, or any one of the stockholders of the company, to apply at once to the chancellor for a receiver and an injunction against any other suits. The result of that proceeding would have been to prevent any preference being made to the defendant. Hence, it is palpable that the object of hastening his judgment was to give him a preference, and that is in accordance with his avowed declarations made to the attorney of the complainant a month before, and he frankly states in his evidence that he gave instructions to the attorney to proceed and secure his debt. And see Stratton v. Allen, 1 C. E. Gr. 229.

Again, it is urged that the defendant, at the time the judgment was confessed, was not an officer of the company, and therefore he is not within the letter and spirit of the decision in Montgomery v. Phillips. If his judgment be by confession, for the purpose of giving him preference over other creditors, it is immaterial whether he be an officer or not, since that mode of obtaining preference is forbidden to all creditors, and the language of Vice-Chancellor Van Fleet in Bissell v. Besson, 2 Dick. Ch. Rep. 580, applies. But I am unable to accede to the view that defendant is not, for the present purposes, to be treated as an officer of the company. I cannot admit that the resignation as president and director and acceptance thereof, and the confession of judgment, all in one day, was efficient to alter his relations to the company.

I am forced, therefore, to the conclusion that the defendant is entitled'to no preference under his judgment against the other general creditors of the corporation.

That brings Us to another point taken by the defendant, which is that the complainant’s bill is defective in that it does not declare that it is filed on behalf of himself and all other creditors of the corporation; and this is really the troublesome point in the case.

The term “creditors’ bill” was originally applied to those bills which were filed by creditors of the estate of a decedent against his personal representatives for the marshaling of the assets and for the payment of the creditors according to their priority, and without any preference among those of equal degree. They were, strictly speaking, bills to administer the estate of the decedent. At the same time, all bills brought by creditors for the purpose of securing their debts are, in one sense, creditors’ bills. Thus, a bill to set aside a fraudulent conveyance of land by a debtor to a third party, or to subject to the lien of a judgment land the title to which has been purchased with the funds of the judgment debtor and the title placed in a third party for his benefit, is, in one sense, a creditors’ bill. But the term “ creditors’ bill,” as used in the standard treatises, was originally applied to bills for the administering assets of the character just indicated. Such, in effect, were the bills in Jones v. Fairweather, 1 Dick Ch. Rep. 237 (at p. 248), though those bills had the additional element of seeking to establish the fraudulent transfer of the property by the deceased in his lifetime to the defendant, his executor. See Mitf. Pl. *166; Story Eq. Pl. § 99 et seq. Nevertheless, it is true that in that class of cases one creditor might bring a bill for his own individual benefit without stating that it was for the benefit of all creditors, and if the personal representative admitted sufficient assets to pay all the debts, a decree would go at once in favor of the complainant alone. 1 Dan. Ch. Pr. *235, *236. But if, on the contrary, the personal representative denied sufficient assets, the result was a decree simply for an ascertainment of the value of the assets and amount of the debts and an equal distribution among all, so that no priority by one creditor over another could be obtained by such a suit. For such bills, no preliminary judgment was necessary, precisely as no judgment is necessary here in order to entitle a creditor to institute proceedings in insolvency against a corporation under the seventieth section of the Corporation act.

In creditors’ bills, based on the eighty-eighth and subsequent sections of the Chancery act, which provides a mode of reaching choses in action, a creditor is not obliged, directly or indirectly, to sue for the benefit of all the creditors, although he may do so, and however he frames his bill, he obtains a preference and priority of lien by filing his bill and getting his order. Whitney v. Robbins, 2 C. E. Gr. 360, 363. Such is the rule in New York, under a statute from which our first statute was copied. Corning v. White, 2 Paige 567; Parmelee v. Egan, 7 Paige 610.

Notwithstanding what was said by Mr. Justice Dalrimple, in his judgment in Tantum v. Green, 6 C. E. Gr. 364, I must take it that the rule is as stated by Chancellor Zabriskie, sitting as master, in Whitney v. Robbins, that in the absence of fraud this court would not, before the legislation just referred to, aid a judgment creditor to obtain payment out of any particular assets of a chattel nature not subject to levy. See Willard Eq. Jur. 237, 238; Donovan v. Finn, 1 Hopk. Ch. 59.

The property sought to be reached in this case is not land or leviable chattels, for before suit brought by complainant the property of the defendant corporation had been sold under valid judgments and executions other than that of the defendant, and the only effect of the defendant’s judgment was to give him the proceeds of the sale of the company’s property over and above enough to pay those prior judgments. This surplus came into the hands of the defendant lawfully. His judgment was a lawful and valid judgment. He had a right to sue the company, and to obtain judgment as soon as he aould; but he had no right to make use of that judgment, when obtained by confession, to gain a preference over other creditors. As to creditors he holds what he so obtained in trust for their equal benefit.

The defendant, then, is lawfully in possession of the assets of the corporation, as a trustee for all its creditors, and I am unable to see how the complainant is able to reach the funds in his hands under the provisions of the eighty-eighth and following sections of the Chancery act. That act clearly applies only to natural persons as defendants who may be called upon to be examined under oath, and has no application to a corporation.

As a bill to appropriate to himself exclusively an asset of the defendant corporation, I think the complainant’s bill fails.

The question remains whether or not it can be made available for any purpose. The clear policy of our Corporation act is that the assets of an insolvent corporation should be equally divided among its creditors. Its assets are to be administered in that regard like those of a decedent, and I am of the opinion that the only ground upon which the complainant’s bill can be maintained, is that it is a bill in the nature of a creditors’ bill against the estate of a decedent to administer the estate of an insolvent corporation. Such a bill was maintained in Wilkinson v. Bauerle.

If, then, the complainant is willing to amend by making the corporation a party and framing his bill for the benefit of all the creditors, I think he may be entitled to a decree declaring that the surplus brought by the property over and above a sufficient amount to pay the prior judgments shall be held by the defendant in trust for the benefit of all the creditors. But in order to have the benefit of such a declaration, it seems to me that it is proper, if not necessary, that a receiver should be appointed. Whether the defendant should account for any profit he may have made upon his purchase of the company’s property, can be considered after such appointment.


source: Caselaw Access Project

author: Pitney, V. C.

license: Public Domain

text:
    Frank Stevens, trustee under the will of Clark Hammond, deceased, v. Joanna C. Bosch (formerly Lister), James E. Howell and others.
    1. A bill by the successor of a deceased trustee against the assignee of deceased’s executrix is not multifarious because it seeks both to ascertain the amount of the trust fund in the hands of the executrix of the deceased trustee, who was also his sole devisee, and to declare the same a lien upon certain lands belonging to deceased’s estate.
    2. Where a bill by one appointed by the court as successor to a deceased trustee under a will, filed to ascertain the amount of the trust estate in the hands of the deceased at his death, shows that the will appointing deceased devised an estate to him in trust to pay the income therefrom to the testator’s daughter during her life, and at her death to divide it among her children and grandchildren, and that the daughter is still living, complainant’s cestwis que trust are not necessary parties, the object of the suit being simply to recover the trust estate from the former trustee’s estate.
    3. A trustee devised his entire estate to his wife, who was also named as executrix, and she assigned the whole of the property passing under the will to a third person for the benefit of the creditors of a partnership of which her husband had been a member, and of a corporation in which he had held stock. A bill was filed by a successor appointed by the court in the trusteeship, left vacant by the husband’s death, to ascertain the amount of the trust estate in the deceased’s hands at his death, and to recover the same. Held, that the cestwis que trust of the assignee of the executrix were riot necessary parties defendant.
    4. A was appointed trustee under a will to hold testator’s property in trust for the payment of the income therefrom to his daughter during her life, and then to divide the entire property between her children and grandchildren. A died, devising his entire estate to his wife as executrix, and she assigned it to a third-person in trust to pay the debts of a partnership of which her husband had been a member, and a corporation in which he had held stock. B was appointed to succeed A in his trust, and filed a bill against the executrix and her assignee to ascertain the amount of the trust estate and to recover possession of it. In it he alleged that the trust fund amounted to a certain sum, and that the former trustee had executed his bond for that sum to a third person, and secured it by a mortgage on certain of his own property; that subsequently he procured an assignment thereof to himself as trustee, and held it as such at the time of his death; that the bond and mortgage were still in existence and in the possession of complainant, but that the property covered by it is insufficient as security. He prayed a foreclosure of this bond and mortgage, and the former partner of the deceased trustee was made a party defendant. Upon his demurring to the bill on the ground of multifariousness, complainant moved to amend by striking out the clause praying for a foreclosure. — Held, that the granting of the motion to amend would not be made contingent upon payment of costs as against the deceased trustee’s former partner.
    On demurrers to bill.

      Mr. Frederic W. Ward and Mr. George M. Keasbey, for the demurrants.

      Mr. Charles H. Hartshorne, contra.

   Pitney, V. C.

The complainant was appointed by the orphans court of the county of Essex trustee to execute the trust created by the will of one Clark Hammond, in place of Alfred Lister, deceased, who was the trustee named in the will.

The object of the bill is, first, to ascertain the amount of the trust estate which was received by Lister in his lifetime; and second, to recover the same from the estate of which he died seized.

Lister, by his will, after directing the payment of his debts, gave the whole of hi§ estate, which consisted entirely of land, to his widow, Joanna C. Lister (who has since intermarried with one Bosch), and appointed her executrix thereof. There was no personal estate. Mrs. Lister conveyed all the lands (with a trifling exception) of which her husband died seized, to the defendant Howell, in trust for the payment of certain debts of a corporation in which. Lister was interested, and of a certain partnership of H. S. Miller & Co., of which he was a member.

The allegation of the bill is that Lister received at.least $6,000 of the estate of Hammond, which he failed to properly invest, so that his estate is liable to pay that sum, at least, with arrears of interest, to the complainant; and the equity relied upon is.that the debt due the estate of Hammond was the individual debt of Lister, and should be paid out of his estate before the partnership debts of H. S. Miller & Co., and before any of the debts of the corporation of which he was a member.

The demurrer states two grounds — first, misjoinder of causes of action, viz., (a) a suit to ascertain the amount of the trust fund .in the hands of the executrix of Lister; and (6) to declare the same a lien upon certain lands; second, lack of parties, both complainant and defendant.

There is no misjoinder of causes of action. The suit has a single object, namely, to recover from the estate of Alfred Lister, in whomsoever’s hands it is found, the amount due from him to the estate of Hammond. The .ascertaining of the precise amount due is a mere incident. The main object of it is to follow the assets of the estate into the hands of the assignee of the devisee and to enforce a lien thereon, given both by the statute and by the will of the decedent.

The authorities cited for the contrary, position, when carefully examined, do not sustain it. Salvidge v. Hyde, 5 Mad. 138 ; S. C., Jac. 151, was a creditors’ bill against an executor to settle the estate of the testator, and also to set aside a sale, made by the executor to a purchaser who was made a party. The vice-chancellor, as reported in 5 Mad., held the bill not to be multifarious, and I think his reasoning is sound.. He was-reversed by Lord Elden, on appeal, for reasons which Lord Cottenham explained in Attorney-General v. Cradock, 3 Myl. & C. 85 (at p. 96); and see Campbell v. Mackay, 1 Myl. & C. 603.

The object of the present bill is not, as in Salvidge v. Hyde, to have a general settlement of the estate of Lister, but to ascertain simply the amount due from him. All the parties to the bill are interested in both the questions, and the two are indissolubly connected.

It was suggested that the complainant should first establish the amount due from the estate of Lister and then file his bill against the grantee to establish his lien upon the lands. But the complete answer to that suggestion is that the grantee, as trustee, is engaged in selling the lands and distributing the proceeds among the creditors of Lister, and by the time the first suit would come to a conclusion the estate would probably have been disposed of and distributed among divers creditors in different parts of the country.

Upon the question of multifariousness or misjoinder, the judges all agree that it is impossible to lay down any rule applicable universally, or to say what constitutes or not multifariousuess, as an abstract proposition, but that each case must be determined upon its own particular facts and in the exercise of a sound discretion by the court as to what will best tend to the promotion of justice in a particular case. Vice-Chancellor Van Fleet, in Ferry v. Laible, 12 C. E. Gr. 146 (at p. 150), says: “The question is not one of principle, but of convenience addressed to the sound discretion of the court.” And Justice Depue, in Lehigh Valley v. McFarland, 1 Stew. Eq. 758, says:

“ The rule with regard to multifariousness, whether arising from the misjoinder of causes of action, or of defendants therein, is not an inflexible rule of practice or procedure, but is a rule founded in general convenience, which rests upon the consideration of what will best promote the administration of justice, without multiplying unnecessary litigation on the one hand, or drawing suitors into needless and unnecessary expenses on the other.”

The present case resembles that of the foreclosure of a mortgage against an assignee by deed with warranty of the mortgaged premises, who has not assumed the mortgage, and where the amount due upon the mortgage is open to dispute. Clearly, in such a case, the original mortgagor and bondsman should be brought in and the amount due 'upon the mortgage established as against him as a part of the foreclosure proceeding.

Next, as to want of parties.

It is alleged that the eestuis que trust, under the will of Hammond, should be made parties complainant, and that the eestuis que trust of the defendant Howell should have been made parties defendant.

"With regard to the first allegation, the bill shows that the estate was devised to the trustee in trust to pay the income to the testator’s daughter during her life, and at her death to divide it among his children and grandchildren. The widow is still living, and hence the trustee is not a mere naked formal trustee, holding the legal title without any active duties to perform except to pay it as soon as received to his eestuis que trust, but he is entitled to hold the fund upon a continuing trust with active duties; and the object of the present suit is simply to recover the estate from the hands of the holders of the estate for the former trustee. In such case, the general rule laid down in the books, that eestuis que trust are necessary parties complainant, does not apply. Story’s Eq. Pl. § 215 a.

The cases cited by counsel, to wit, Tyson v. Applegate, 13 Stew. Eq. 305; Brokaw v. Brokaw, 14 Stew. Eq. 223; Cool’s Executors v. Higgins, 10 C. E. Gr. 117 ; Allen’s Executor v. Roll, 10 C. E. Gr. 163, are all distinguishable ón the ground that in those cases either the complainant was a bare trustee and was not entitled to hold possession of the fund when recovered, or the interests of the eestuis que trust were adverse to those of the complainant.

The distinction above pointed out is treated of by Mr. Calvert in his book on Parties (2d ed., 1847) 277, 278, and several cases are there cited illustrating the distinction, to which I add the case of Reeve v. Richer, 1 De G. & S. 624; S. C., 17 L. J. (N. S.) Ch. 86.

This is not a suit to administer a trust, or in which the construction of it or the rights between trustee and eestuis que trust are at all involved. The trustee here represents his eestuis que trust, and the ease is clearly within one of the exceptions mentioned by Justice Dixon in his opinion in Smith v. Gaines, 12 Stew. Eq. 545 (at pp. 549, 550.)

The next specification of want of parties is that the eestuis que trust of the defendant Howell should have been made parties. I am of opinion that this objection as well as the others cannot prevail. So far as the bill shows, the names of the persons for whom Howell holds the estate in trust are wholly unknown to the complainant, and the allegation is that they are not only unknown to the complainant, but, if known, are so numerous as to make it inconvenient and improper to bring them all in. The defendant Howell represents them, and they are clearly within a familiar exception to the rule that all the cestuis que trust must be made defendants. The defendant Howell will have no difficulty in protecting himself by giving to each of his cestuis que trust notice of the suit and its objects, and if he is embarrassed by any lack of harmony among them he may take such means to protect himself as he shall be advised. At present, I can only be governed by the allegations of the bill, which shows a clear ease for omitting Howell’s cestuis que trust.

The bill had another aspect which requires consideration. The allegation is that the trust fund amounted to at least $6,000, and as evidence of this it is stated that the former trustee, Lister, made his bond for $6,000 to a third person, and secured it by a mortgage of certain of his own real estate, and that subsequently he procured an assignment of his own bond and mortgage to himself as trustee of Hammond, and held it as such at the time of his death, and that the bond and mortgage are still in existence, and at the moment of the argument were in the possession of the complainant. The allegation with regard to this bond and mortgage is that the property covered by it is entirely insufficient to secure it, and that if it was intended as an investment of so much of the fund it was a breach of trust.

The bill prays a foreclosure of this bond and mortgage, and certain judgment' creditors of Mrs. Bosch, the devisee of the deceased trustee, were made parties and brought in as subsequent lienors upon the mortgaged premises. Among these is Henry S. Miller, the former partner of Lister, the trustee, and he demurs to the bill on the ground of multifariousness, alleging, among other things, that so much of the bill as prays foreclosure has no connection with the other part of the bill and renders it multifarious.

Before the argument came on, complainant moved to amend his own bill by striking out the clauses praying foreclosure and making the judgment creditors of Mrs. Bosch parties as lienors. The motion was granted, the only question being as to whether it should be granted upon payment of costs as against Miller. The object of adding the prayer for foreclosure was evidently to save the costs of a separate suit for foreclosure. If the complainant succeeds in enforcing a lien upon the land conveyed to Howell, as trustee, and those lands should be insufficient, after paying complainant, for the purpose of the trust vested in Howell, then he will be entitled to have the bond and mortgage in question assigned to him and to foreclose it; or it may be that the court would, upon his application, stay the execution of the decree against him until the amount which might be realized out of the mortgaged premises should first be ascertained by an actual foreclosure and sale; and I am not at all sure that if the' complainant had not moved to amend I should have finally held that the bill was rendered multifarious by the part stricken out. The complainant is acting in perfectly good faith as an officer appointed by the court to execute a trust, and as Miller is interested in the execution of the trust given to Howell, I do not see how he is injured by the introduction of a foreclosure into this bill, and therefore decline to give costs.

I will advise that the demurrers be overruled.


text:
    Alfred E. Beach and The Sparks’ Manufacturing Company v. The Sterling Iron and Zinc Company.
    1. To a bill by a riparian proprietor to restrain defendant from polluting (by discoloration) the stream, it is no defence or equitable excuse that the discoloration is the natural and necessary result of mining operations prosecuted in the ordinary way. The doctrine finally adopted in Pennsylvania, in the case of Sanderson v. The Coal Co., US Pa. St. 126, is not the law of this state.
    2. Nor can the defendant set up that other independent causes are already operating to pollute.
    3. The maintenance of a nuisance to real estate amounts to a taking of property and cannot be legalized by the legislature for private purposes, even upon terms of making compensation. Hence, where the right of the complainant is clear and the facts undisputed, a court of equity is bound to give preventive relief. To refuse it is to allow the defendant to take complainant’s property upon terms of paying such compensation from time to time as a jury may assess.
    4. In this case, the discoloration of the water c.oming from the mine shaft was caused by a fine clay found in a rent or fissure in the rock intersected by the shaft, and after continuing several months began to abate, so that defendant was able, by the use of a settling basin, to deliver it to the stream in a clear condition, and such was the situation of affairs at the final hearing, which commenced about six months after the bill was filed. — Held, that considering that defendant, by its answer, denied complainants’ case throughout and set up a right to throw the discolored water into the river, and that the proofs show that there is some danger of the occurrence of discoloration in the future, that the decree establishing the complainants’ rights should include a provision for a perpetual injunction.
    Final hearing on bill, answers and proofs.
    The object of this bill is to permanently restrain what is .alleged to be a nuisance, namely, the pollution of a natural water-course. The complainant Beach is the owner, and the complainant manufacturing company is lessee in possession, of a paper mill, intended for making white tissue paper, situate on the Wallkill river, at Hamburg, in Sussex county, and driven by the waters of that river drawn out of an old artificial pond called the Furnace pond. The defendant is the owner of a mining property, situate near the river at a place called Greenspot, about a mile and a half upstream and southward from the paper mill.
    The complaint is, that the defendant, in its mining operations, pumped out of its mine and discharged into the river, upstream from the complainants’ mill, large quantities of turbid and discolored water, which affected the whole stream and rendered it unfit for use for making white tissue paper when it reached their mill.
    The answer puts the complainants on proof of the allegations of their bill; alleges that the water of the river, as it flowed previous to its mining operations, was unfit for use for making white paper; that its unfitness was not materially increased by the eontributions from its mine, and that it had a right to continue its mining operations, although the effect was to increase the discoloration of the water of the river.
    The bill was filed on the 21st of April, 1893. On that day an order to show cause why an injunction should not issue, with an order for interim restraint “ against corrupting or discoloring the water in the Wallkill creek, so as to prevent the complainant, the Sparks’ Manufacturing Company, from carrying on its business of manufacturing white tissue paper in its accustomed manner,” was made, returnable the 1st of May then next.
    On the 25th of April, upon ex parte application and affidavits to the effect that the flow from the mine was discolored only for a short time at intervals, an order was made modifying the interim restraint embodied in the order of April 21st, as follows: “ That if in the course of pumping from its mine the defendant shall pump discolored water, and shall immediately notify the persons in charge of the complainants’ factory of such discoloration, before the discolored water shall reach the factory, in such ease the restraining order shall be of no effect.”
    On the 1st óf May, the hearing of the original order to show cause was postponed until the 15th of May, upon terms that the defendant give bond to secure the complainant against damages, and on the 15th of May, it was further postponed, and from time to time thereafter until the 28th of June, when an order was made that an injunction do issue restraining the defendant from corrupting or discoloring the water of the creek above the paper mill of complainant so as to damage complainant in its business of manufacturing white tissue paper in its customary manner, but that the operation of the injunction be suspended until the 17th of July next, in order to give the defendant an opportunity to provide for the disposition of its foul water or otherwise avoid the injury to the complainant complained of.
    Oh the 17th of July, a motion was made to further extend the operation of the injunction, which was denied, and an injunction was issued according to the order of June 28th.
    The cause was duly referred, and was heard by evidence on the 2d and 3d of November, the 27th and 28th of December, 1893, the 10th and 11th of April, 1894, and on the 2d of October, 1895.

      Mr. Theodore E. Dennis, Mr. Robert L. Lawrence and Mr. Thomas N. McCarter, Sr., for the complainants.

      Mr. Charles D. Thompson and Mr. Gilbert Collins, for the defendant.
   Pitney, V. C.

The material facts of the case are undisputed. The only dispute is as to the degree of discoloration caused by the defendant’s operations and the length of time over which such discoloration extended.

The facts clearly established are as follows:

The Wallkill river rises in the southern part of Sussex county and flows upon a course of nearly north, passing through the villages of Franklin and Hamburg. At the latter place is situated an artificial pond, called the Furnace pond, caused by an old dam, upon which, for several years, has been a paper mill driven by the waters of the river from that pond. The complainant Beach purchased this water-power and lands connected with it in the summer of 1891, for the purpose of erecting a plant for the manufacture of what is known as white tissue paper. Associated with him were two gentlemen by the name of Sparks, who had previously been engaged in the business of waxing white tissue paper according to a process which they controlled, and the project was to both manufacture and wax,. for market, white tissue paper. For that purpose the corporation was formed, of which Mr. Beach and the Messrs. Sparks were stockholders, and the latter were the active managers. A large amount of money was spent in erecting a plant between the date of the purchase and the 1st of February, 1892, when they commenced the manufacture of white tissue paper and carried it on with success for about a year.

The manufacture of such paper requires a perfectly clear, pure water, and before purchasing the Hamburg water-power the complainants inspected the stream and inquired as to its character for clearness, and satisfied themselves that they would be able to use it for making white tissue paper without incurring the expense of filtration, and their experience for a year proved that their expectations were just.

In the month of February, 1893, complaints began to come in from the purchasers of their paper that it was deteriorating in the matter of whiteness, and they investigated the cause. The pond was frozen over, but they knew by reputation that mining operations were being carried on at Greenspot by the defendant, and they went there (March 1st) and found a stream of highly-colored water flowing from the defendant’s mine shaft into the river, traced its effect in discoloration to their pond, and by subsequent observations by themselves and others in the neighborhood- traced its effect not only in and through the Furnace pond, but for miles down the river to the north of Hamburg. In fact, several respectable and credible witnesses, called by the complainants, testified to the discoloration of the water in the Furnace pond and beyond, and the complainants were stopped by the court from producing further evidence on that subject in the opening of their case. Several witnesses called by defendant, among them its superintendent, corroborated this evidence, and there is no attempt to meet it..

The color was a peculiar reddish-yellow tint, which was in marked contrast with the discoloration due to the ordinary road and field wash after a heavy storm or spring thaw.

This peculiar discoloration continued throughout the month of March, and, with some intermissions and variations in degree of discoloration, through the month of April. Complainants, early in March, were obliged to stop the making of white tissue paper. Negotiations between the parties for some arrangement of the matter failing, the bill was filed on the 21st of April, 1893.

The immediate origin of the discoloration was as follows: The defendant corporation was organized by two gentlemen by the name of Heekscher, and two by the name of Wetherill, for the purpose of reaching and working a bed of franklinite ore which had been located by boring exploration at a depth of about a thousand feet below the surface near this point called Greenspot. It was the continuation of a seam of ore for many years worked to the southwest of Greenspot by two companies, one of which, viz., the Lehigh Zinc and Iron Company, was owned and controlled by the Heckschers and Wetherills. In the spring or early summer of 1891, the defendant commenced to sink a perpendicular shaft, known as the “ Parker shaft,” ten by twenty feet in diameter, and after passing through a small amount of superincumbent earth struck solid limestone rock. It continued the working without cessation until August 11th, 1892, when, having attained a depth of five hundred and sixty feet (many feet lower than the bed of the Wallkill), the workmen struck a water-bearing fissure or rent in the rock, which instantly flooded the mine and drove them out. Previous to that time they had encountered small seams or fissures from time to time, producing a little water and sometimes a little mud, which they pumped up of course, carried through a trough or trunk several hundred feet westerly toward the Wallkill till it reached a small spring run, where it was discharged, and from thence it ran into the Wallkill. The amount of water up to August was small, and its discoloration was slight, so that it was not felt or observed by complainants. The influx in August, 1892, was discolored by a fine clay, amounting almost to a pigment, having a high reddish-yellow tint, and intermixed with a small quantity of very fine sand. This water rose to within forty feet of the surface, and resisted all attempts to lower it by the pumps then in use, and until very large and heavy pumps were introduced. This was done in September. After the shaft filled with water there was no further movement — it became perfectly quiet — and the clay and sand began to settle, so that the water in the upper reach of the shaft became comparatively clear. The first water that was discharged after heavy pumping commenced came from near the top, and was but slightly discolored, such discoloration being due to the disturbance of the clay and sand which had settled on the timbering of the shaft. The quantity of water struck in the fissure was so great that with these powerful pumps very slow advance was made, the pumps being lowered from time to time, and the greater the depth attained the less rapid the advance and the greater the discoloration.

On about 'the 1st of January, 1893, the water was reduced to a depth of four hundred and twenty feet from the surface, and a delay there occurred of about three weeks, caused by the necessity of establishing a pumping station at that point. When the rapid pumping commenced again, at or near the 1st of February, the discharge was much discolored, and continued growing worse and worse until the bottom was reached, and there, without detailing the circumstances, the greatest discoloration was reached, and continued during the month of March. The discoloring clay is so very fine in its texture that a very slight movement of particles of water with which it comes in contact will thoroughly mix it, and it will only subside in perfectly still water. This accounts for the fact that it did not fully subside in passing through complainants’ pond, which is quite narrow, so that it is probable that the volume of the water of the Wallkill causes continued motion throughout its length.

After the shaft had been entirely pumped out and the volume of water stored in the fissure had been entirely exhausted and the flow reduced to the natural supply of the fissure, and the various water-channels which had been created throughout it by the sudden drawing off of the water had arrived at what the experts call an angle of repose,” so that no further scouring resulted from the flow of the ordinary quantity of water, there was no discoloration and the water ran clear. This condition was, as claimed by the defendant, reached some time in the summer of 1893, and the case shows that from about the middle of April or the 1st of May till about the middle of July, the discolorations were temporary and increasingly infrequent, and usually the result of clearing out the different settling basins, called sinks, which had been established in the rock at different points in the shaft. Since that time the shaft has been sunk over two hundred feet without finding any more water or fissures.

The proof is clear that the result of the contribution of this discolored water to the waters of the river was to render the mixture when it reached complainants’ mill unfit, without filtration, for use in making white paper.

An ingenious experiment was made by an expert, as follows: He ascertained, by a rough measurement, that the flow of the river was about forty times that of the output from the mine, and he took a jar of perfectly clear water and mixed with it one-fortieth of its quantity of the dirty water that came from the mine, and exhibited the sample to show to what a slight extent it was discolored. The dirty water which he used had been confined in a jar for several months, with the result that the fine particles of clay had partially coagulated and gathered into little flakes, and when shaken up did not produce the same degree' of discoloration as exhibited when freshly taken from the running stream. But even that experiment showed that the result of so slight a mixture made the whole mass palpably roilly. In point of fact, as shown by the evidence of the expert papermakers, a very small admixture of mud or clay will render the water improper, without filtration, for making white tissue paper; and the effect of that evidence is that the river, in its ordinary clear state, is no clearer than is necessary for that purpose. A very small admixture of coloring or dirty matter renders it unfit for use.

Several matters are urged in defence to this case. First, but faintly, that the doctrine finally established by a bare majority of a divided court in Pennsylvania, in Sanderson v. The Coal Company, 86 Pa. St. 401, 94 Pa. St. 303, 102 Pa. St. 370, and 113 Pa. St. 126, should be adopted here. The history of that case, in its various phases, is given by a writer in the American Law Register (N. S.), vol. 1, p. 1 (1894). It was an action, as here, by a riparian proprietor against a mining company for polluting a natural stream with water pumped from its'mine. After three decisions by the supreme court of Pennsylvania in favor of the plaintiff’s right, that court finally held the contrary and affirmed the right of the coal company to discharge its acid mine water into the creek, without regard to its effect upon lands below, upon the broad ground that the necessities of the mining interests of the commonwealth required it. This result was attributed by the author of the article in the American Law Register (pp. 5, 18), in part, to a lack of care on the part of the learned judge who prepared the first prevailing opinion. 86 Pa. St. 4-06. The doctrine of that case is shown by that writer to be inharmonious with a long line of previous decisions in Pennsylvania, and has not been, so far as I can learn, followed in any other state — certainly not in this state. It was repudiated in Ohio, whose mining interests are quite large, in the recent and well-considered case of The Columbus &c. Co. v. Tucker, 48 Ohio St. 41. I refer particularly to the lucid expressions of the learned judge found on pp. 58, 62.

It was not suggested on the argument that the doctrine ever-had the least foothold in this state. No case of a stream fouled by mining operations has indeed ever, so far as I know, been presented to our courts, but the right of a riparian proprietor to have the waters of the stream come to him unchanged in quality, as well as undiminished in quantity, has been determined in the clearest and most positive manner. In fact, the doctrine stated so tersely by Chancellor Kent, in Gardiner v. Newburgh, 2 Johns. Ch. 162 (at p. 166) — “A right to a stream of water is as sacred as a right to the soil over which it flows. It is a part of the freehold” — has always been adhered to by our courts. I need refer only to Holsman v. Boiling Spring Co., 1 McCart. 335, and Acquackanonk Water Co. v. Watson, 2 Stew. Eq. 366. In the last case the right was stated by the learned master in an extremely clear and comprehensive manner, and the decree advised by him was unanimously affirmed on appeal, for the reasons by him given.

The facts of that case are, in a m'anner, analogous to those here under consideration. Watson owned and operated a bleachery which required for use clear and pure water, which he obtained from a small stream running through his land. The water company, desiring to supply the city of Passaic with potable water, proposed to take this small stream above the bleachery and substitute for it an equal or greater quantity of Passaic river water, drawn from the Dundee canal and used to drive its pumps. This the court restrained on the ground that the substituted water was not of equal purity with that abstracted.

There is a line of cases of pollution by mine water in England which sustains the general doctrine. Hodgkinson v. Ennor, 4 Best & S. 229, was the case, as here, of'a papermaker against a miner who had permitted dirty washings of lead ores to run through rents called swallets ” in limestone rock into a subterraneous stream, rendering the water, which, in its course, came to plaintiff’s paper mill, unfit for use in the manufacture of paper, and the action was sustained by Chief-Justice Cockburn and Justices Blackburn and Mellor.

Magor v. Chadwick, 11 Ad. & E. 571, was a suit by a brewer against a miner.

Pennington v. The Brinsop Coal Co., L. R. 5 Ch. Div. 769 (1877), was a suit by a manufacturer against a coal miner, where the only allegation of injury was, that the acid contributed to the water from the mine rendered it less fit for use in the engine boilers driving the machinery of the plaintiff’s mill. An injunction was allowed. Defendant relied, without success, upon the ground taken in Sanderson v. The Coal Co., supra, that the acid could not be removed from the water; that there was no means of remedying the evil and an injunction would absolutely stop its work. The learned judge (Ery) refused even to exercise the right given by the English statute to give damages instead of an injunction, relying on Clowes v. The Staffordshire Water Works, L. R. 8 Ch. App. 125 (1873), and he declared that he would have granted the injunction, although the present damage was only nominal, because of the injury to the riparian rights of the plaintiff. And such is the doctrine of the case relied on, which was a suit by a silk-dyeing and washing establishment against a water works company for rendering the water coming to their works less clear and pure.

The English cases, dealing with pollution by mine water, culminated in the case of Young v. Bankier, L. R. App. Cas. 691 (1893), in the house of lords, on appeal from Scotland. The case was argued, elaborately, of course, before six law lords, whose unanimous judgments were delivered after consideration. The riparian proprietor (Bankier), the plaintiff there, was a distiller, and used the water of the stream in his distilling process, presumably for making mash, for which it was peculiarly fit by reason of its softness. The added mine water did not render it unfit for ordinary purposes — there called primary purposes — but by reason of its hardness rendered it less fit for distilling purposes. Sanderson v. The Coal Co. was' cited, but the court repudiated its doctrine and was unanimous in judgment in favor of the respondent, who was the plaintiff and had judgment below. Lord Macnaghten (at p. 699) says: Then the appellant urged (precisely as does the defendant here) that working coal was the natural and proper use of their mineral property. They said they could not continue to work unless they were permitted to discharge the water which accumulates in their mine, and they added that this water-course is the natural and proper channel to carry off the surplus water of the district. All that may be very true; but in this country, at any rate, it is not permissible in such a case for a man to use his own property so as to injure the property of his neighbor.”

There are numerous English cases upon the general right of a riparian proprietor to have the waters of his stream come to him in its natural condition, of which I cite Crossley v. Lightowler, L. R. 3 Eq. Cas. 279; 2 Chan. App. 478 (1867); Attorney-General v. Lunatic Asylum, L. R. 4 Ch. App. 145 (1868). Numerous other cases will be found cited in Gould Waters § 219, and in Higg. Pol. Waterc. 132 et seq.

The argument was advanced by the defendant that the use of the defendant’s property for mining purposes is what was termed, unfortunately, I think, by Lord Cairns, in Fletcher v. Rylands, L. R. 3 H. L. 330 (at pp. 338, 339) (1868), a natural user, and similar in that respect to plowing a field, and that if it.be unlawful for defendant here to cast into the stream the muddy waters from its mine, it is also unlawful for the farmer to plow his land and allow the muddy water which runs from it after a heavy rain to reach the river. But the very statement of the two cases shows the absence of analogy between them. In the first place, the water from the plowed field comes thereon by natural causes beyond the farmer’s control, and runs by gravity to the stream ; while in the case of the mine’the water is, as here, found and raised by artificial means from a level far below that of the river, and would never reach it but for the act of the miner. And, in the second place, by the common law of the land every owner may cultivate his land without regard to its effects upon his neighbor j while such is not the law as to mining. The supreme court of Ohio, in Columbus Company v. Taylor, 48 Ohio 41 (at p. 58), repudiates the notion that mining was a natural use of land in the sense that farming is.

The ground of a reasonable natural user seems to be at the bottom of what was said in Merrifield v. Worcester, 110 Mass. 216, upon this topic. So far as the expressions there used favor the notion that a city or town may collect and discharge sewage matter into a fresh-water stream to the injury of a riparian owner without liability to action, they are contrary to the law as held in England for centuries. Higg. Pol. Water 127 et seq., where several cases beside these above cited are collected.

Equally untenable is another position advanced by the defendant, viz., that the river was always more or less polluted by contributions from other mines and from the washing of plowed fields, public roads and railroad embankments. Such insistments have been frequently made and always overruled. The question in such cases seems to be whether the stream has already become so far polluted by contributors who have acquired a right so to do by adverse use .or otherwise, as that the pollution presently opposed will not sensibly alter its condition. And even in such a case the courts have held that the party has the right to deal with each contributor in detail, and to buy off" such contributors as have acquired a right, and is not obliged to submit to fresh contributors. I cite the following authorities: Ross v. Butler, 4 C. E. Gr. 294 (at p. 306); Attorney-General v. Steward, 5 C. E. Gr. 415 (at p. 419), where the learned chancellor says: The defendants have no right to pollute or corrupt the waters of the creek, or if they are already partially polluted, to render them more so.” And to Cleveland v. The Gas Co., 5 C. E. Gr. 201 (at p. 208); Meigs v. Lister, 8 C. E. Gr. 199 (at p. 205), where the learned chancellor says: “ The position taken by counsel that the complainants were entitled to no relief from this nuisance, because the locality was surrounded by other nuisances and dedicated to such purposes, has no foundation in law or in fact. If there were several nuisances of the like nature surrounding them, they must seek relief from each separately; they cannot be joined in one suit, nor need the suits proceedjpcwi passu

Crossley v. Lightowler, L. R. 2 Ch. App. 478 (at p. 481) (1867), where Lord Chelmsford says: “ But the defendants contend that the plaintiffs have no right to complain of any pollution of the Hebble occasioned by them, because there are many other manufacturers who pour polluting matter into the stream above the plaintiffs’ works, so that they never could have the water in a fit state for use, even if the defendants altogether ceased to foul it. The ease of St. Helen's Smelting Co. v. Tipping, 11 H. L. Ch. 642 (11 Jur. N. S. 785), is, however, an answer to this defence. Where there are many existing nuisances, either to the air or to water, it may be very difficult to trace to its source the. injury occasioned by any one of them; but if the defendants add to the former foul state of the water, and yet are not to be responsible on account of its previous condition, this consequence would follow, that if the plaintiffs were to make terms with the other polluters of the stream so as to have water free from impurities produced by their works, the defendants might say, ‘we began to foul the stream at a time when, as against you, it was lawful for us to do so, inasmuch as it was unfit for your use, and you cannot now, by getting rid of the existing pollutions from other sources, prevent our continuing to do what, at the time when we began, you had no right to object to.’” Attorney-General v. Lunatic Asylum, 4 Ch. App. 145 (at p. 150), report of the expert, and p. 155.

Attorney-General v. Leeds, L. R. 5 Ch. App. 583 (at p. 595) (1870), where the lord-chancellor says: “ I think the argument deduced from the foul state of the water before it gets to Leeds is not deserving of any weight for two reasons. First — and it is hardly disputed — the evil did become seriously' aggravated when the new sewer was opened — that' is to say, sixteen or seventeen years ago; and secondly, the nuisance might terminate; and no one can say it was right that when one nuisance terminates there should be another brought into existence.”

The sensible and material increase in the discoloration of the water, in this case, resulting from the contribution of the defendant’s mine, is clearly proved. The complainant was able to make white paper successfully and satisfactorily from February 1st, 1892, for nearly a year, and until the serious discharge of discolored water from the defendant’s shaft, in January, 1893; and they were also able to make such paper after the discolored water ceased to run, in June or July, 1893. During the intermediate period, while the discoloration of the water being discharged from the defendant’s mine was the greatest, complainant could not make white paper satisfactorily.

In whatever point of view the complainant’s case is considered, it seems entirely clear and free from doubt. I cannot think the least doubt is cast upon the law by the last decision in the Sanderson Case, in Pennsylvania, and the facts of the case are substantially undisputed. The complainant’s title and possession of the ripa, though put in issue by the answer, is established by the proofs and was finally admitted at the hearing. Their right to have the water come to them in its natural condition follows inevitably. Holsman v. Boiling Spring Co., 1 McCart. 335 (at p. 343, bottom), and cases there cited. The learned chancellor there says: Where the complainant seeks protection in the enjoyment of a natural water-course upon his land, the right will ordinarily be regarded as clear. And the mere fact that the defendant denies the right by his answer or sets up title in himself by adverse user, will not entitle him to an issue before the allowance of an injunction.”

There can be no doubt that, upon the facts presented, it would be the duty of a judge to direct a verdict, and the rule adopted by the court of errors and appeals in Higgins v. The Water Co., 9 Stew. Eq. 538, applies. I refer to the language of the chief-justice on p. 544 et seq.

The jurisdiction of this court to adopt, on final hearing, the extreme remedy of an injunction in this class of cases, when the right is clear, is well established, not only by the case just cited, but by Acquackanonk Water Co. v. Watson, supra, which was decided by the court of errors and appeals, and by Holsman v. Boiling Spring Co., supra, decided by Chancellor Green, and by Shields v. Arndt, 3 Gr. Ch. 234, and by Carlisle v. Cooper, 6 C. E. Gr. 576.

It was suggested that in this case no injunction should be ordered, but that the complainants should be left to their action at law for damages. I am unable to adopt that view. It must now be considered as settled law in this state that the maintenance of a nuisance of the kind here in question is, in effect, a taking of property. Pennsylvania Railroad Co. v. Angel, 14 Stew. Eq. 316 (at p. 339), where Judge Dixon, speaking for the court of errors and appeals, says: This principle rests upon the express terms of the constitution. In declaring that private property shall not be taken without recompense, that instrument secures to owners, not only the possession of property, but also those rights which render possession valuable. Whether you flood the farmer’s fields so that they cannot be cultivated, or pollute the bleacher’s stream so that his fabrics are stained, or fill one’s dwelling with smells and noise so that it cannot be occupied in comfort, you equally take away the owner’s property. In neither instance has the owner any less of material things than he had before, but in each case the utility of his property has been impaired by a direct invasion of the bounds of his private dominion. This is the taking of his property in a constitutional sense; of course, mere statutory authority will not avail for such an interference with private property. This doctrine has been frequently enforced in our courts,” and he proceeds to cite previous authorities in the same court. If this be so, then the legislature has no power to authorize the maintenance of a nuisance for the promotion of private objects, even upon terms of making compensation. Eor no authority is necessary for the position that the legislature is powerless to enact a law declaring that defendant may have complainants’ mill and water-power upon terms of paying them what a court may ascertain it is worth. And I am unable to distinguish such action and that of leaving complainants to the remedy of repeated actions at law to recover damages as often as they are suffered. In this respect, our system of laws varies from that of England, where parliament is omnipotent and is not confined to the mere making of laws — the true function of a legislature — but may take private property for private purposes, with or without making compensation, the only restraint upon its power' being its own innate Sense of justice. Hence, the English courts are authorized, in cases of certain nuisances, to give damages once for all instead of an'injunction.

The result of my consideration of the subject is, that there is no principle which will sustain a court of equity in refusing an injunction against the maintenance of an established continuing nuisance and leaving the injured party to his remedy at law. To do so is, in effect, to permit a party to take his neighbor’s land for his own use upon terms of making such compensation as a jury shall assess. This is inadmissible.

The object and office of a verdict and judgment at law is to establish the right and give compensation for past injuries. The right being once made clear, whether by judgment at law or upon incontrovertible rules of law and well-established facts, the remedy in equity by injunction to prevent future injury is a matter of right, and the relief cannot be refused.

The ground, however, mainly relied upon by defendant is that the proofs show that the nuisance has entirely abated and that there is no danger of its recurrence, and hence an injunction is unnecessary and improper.

At-about the time the injunction was issued — July 17th, 1893 —defendant purchased a small tract of land skirting the railroad, between the shaft and the river, and established on it a settling basin, into which the mine water was turned and given opportunity for subsidence before reaching the river. The result was that it was substantially clear, and no further injury has been since felt at the paper mill. It is also in proof that from that time, up to July, 1894, the water was usually clear when it came from the mine. At the sessions of December 27th and December 28th, 1893, Professor Nason, a competent geologist and mining expert, testified that, in his opinion, no further clay and water-bearing seams or rents would be met in the course of defendant’s mining operations, and that the rent which had given so much trouble had, by natural causes, become harmless. It was not suggested that all or any large proportion of the discolored ■ clay deposit had been removed, but the theory was that the descending water had worn channels in the clay, resulting in little rivulets centering at the section by the shaft, and that the scouring power of the water — that is, its power to bring down clay — had ceased by reason of the clay banks and beds of the little rivulets having arrived at ah “angle of repose.” The stability of this state of affairs depends, of course, upon the uniformity of the flow of water, both as to-quantity and source of inflow, and Professor Nason, on cross-examination, admitted some uncertainty in this respect. After his examination and the close of the evidence on both sides, and before'the argument, viz., about July 16th, 1894, an unexpected influx of muddy water occurred, due to an overflow from a flume carrying water from the neighboring mine of the Lehigh Zinc and Iron Company, which found its way into the seam or rent at a point where it came to the surface, about one thousand eight hundred feet from the Parker (defendant’s) shaft. This-opening was a surface fissure or swallet in the rock, quite common where limestone rocks come to the surface. In this case, as-I understand Professor Nason, he did not suppose or infer, fromc the trend of the fissure, that it reached the surface in that neighborhood, but such was the fact. It was promptly stopped by defendant and filled up, so as to prevent any more water getting in at that point.

Now, it seems to me that this occurrence shows the impossibility of affirming that there will be no further incursions of muddy water. It is true that with the continued use of the settling ground no injury will probably result to complainants from such an irruption. I say “ probably,” because in ease of a sudden irruption of discolored water the quantity might be so great as to overwork the present settling basin. But without a decree and injunction, the defendant will be at liberty to discontinue its use and permit any muddy water that may appear to flow into the Furnace pond as of old.

At the time the complainants filed their bill the injury was serious and continuous. The defendant positively declined to stop it, but claimed the right to continue it. To complainants’ bill was interposed a general denial, and setting up a right to persist in the injury as long as its necessities required. On all these issues the defendant is beaten. The complainants have established- their case, and it would seem to be a most lame and impotent conclusion to refuse to give them the very relief prayed for, viz., a perpetual injunction. I am unable to imagine any other decree in their favor which would adequately meet the case and give them the just fruits of their suit; and, surely, if there is no danger of further discoloration the injunction will do the defendant no harm, but will be of value as a muniment of title to the complainants’ property. The language of Lord-Justice Turner, in Goldsmid v. Tunbridge Wells Commissioners, L. R. 1 Ch. App. 349 (at p. §55), applies: In this particular case, I think that regard must be had not merely to the comfort or convenience',of the occupier of the estate, which may only be interfered with temporarily and in a partial degree, but that regard must also be had to the effect of the nuisance upon the value of the estate, and upon the prospect of dealing with it to advantage; and I cannot but think that the value of this estate, and the prospect of advantageously dealing with it, is and will be affected by the continuance of this nuisance.”

But the defendant further urges that the complainants have manifested a disposition to make an unreasonably harsh and oppressive use of their rights in the premises, and have thereby weakened their standing in equity and disentitled them to the extreme decree asked for.

In the month of March, 1893, while the outflow from the mine was at its worst, negotiations took place - between the parties for some sort of settlement, and a filter was mentioned. The complainants offered to be satisfied if defendant would furnish them with a filter of proper size, which they said, and about which there is no dispute, would cost $5,000. The defendant offered to pay one-half of the expense of the filter, the same to be in full compensation for all damages up to the time it was furnished, which offer the complainants refused to accept. I can see nothing harsh or oppressive in that refusal.

Next, and after bill filed, as I now recollect, defendant made an arrangement with the tenant of a grist mill, located upon a little stream which empties into the Furnace pond, for a right to divert water from the mill and carry it by a flume several hundred feet down to the complainants’ works, and furnish them with clear water from that stream. Complainants employed an expert to examine the stream and see whether it would supply sufficient water for their paper engines, with the result that they were informed and believed that it was not sufficient, and declined to accept it as a substitute for the river water. The defendant, nevertheless, in the face of complainants’ refusal, built the flume — a mere wooden trough, set upon benches and trestles — along the surface of the ground down to the mill yard of the complainants. The complainants refused to allow it to be put across their mill yard, because it would prevent them from having access to their works and from free passage with carts and wagons from one part to the other, and said that anything of that kind must be put underground in iron pipes. But the radical difficulty with that movement on the part of the defendant was, that the right to the use of the water was merely obtained temporarily from a mere tenant of the mill property, and did not give the complainants any permanent right to the flow of the stream, even if it had been large enough for their purposes. I can see nothing harsh or oppressive in complainants’ action in refusing this offer of substitution. They not only had the strict right in law to refuse to accept them, but their conduct in so doing, in my judgment, was not inequitable.

I shall advise a decree establishing the complainants’ right to the flow of the stream in its natural condition, and an injunction, with costs.