UNITED STATES SUPREME COURT DECISIONS ON-LINE

The time at which a party appeals to a court of equity for relief affects largely the character of the relief which will be granted.

A failure to pursue statutory remedies is not always fatal to the rights of a party in possession, and if full and adequate compensation is made to the plaintiff, sometimes the possession of the defendant will not be disturbed.

A court of equity may take possession and finally end a controversy like the present by securing the payment of adequate compensation in lieu of a cessation of the trespass.

This was a suit commenced in the Circuit Court of the United States for the Southern District of New York by the appellees, as plaintiffs, for an injunction restraining the City of New York from maintaining a dam on the west branch of Byram River and diverting the waters thereof from their natural flow through the farms of plaintiffs.

The facts are these: Byram River is a nonnavigable stream of fresh water flowing into Long Island sound. Tracing its source upstream from the sound, for a short distance it forms the boundary between New York and Connecticut, then deflects to the east, and for some five or six miles is within the clubjuris

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State of Connecticut. It there divides into two branches, the east branch being entirely within the limits of that state. The west branch, which is the longer of the two, extends into the State of New York. A few hundred feet from the state line, the City of New York, under legislative sanction, commenced the construction of a dam, with a view of appropriating part or all of the waters of this west branch and using the same for the supply of the city. The watershed of this west branch above the dam, the territory from which the water sought to be appropriated is all drawn, is wholly within the limits of the State of New York. The plaintiffs own farms situated on Byram River in Connecticut, below the junction of the two branches. In their bill, they alleged, among other things:

"Fourth. Your orators further aver that the defendant began about two years ago the building of a dam across the said west branch of said Byram River, about five hundred feet north of the Connecticut line, and is now building said dam and it is now near completion, and your orators are informed and believe that the said defendant intends to divert or cause to be diverted the water of said west branch or some of it from the natural channel thereof, and intends to divert or cause the same to be diverted from flowing through its natural channel into and through the State of Connecticut, and by, through, and over land owned by your orators."

"Fifth. Your orators further aver that they, as riparian owners of land in the State of Connecticut on said Byram River or on the west branch thereof, are each of them accustomed to use the water of said river, . . . and that the flow of said river would be materially lessened by the diversion of the water of the said west branch or any part thereof, and that they, your orators, and each of them, would be damaged in the sum of twenty-four hundred dollars ($2,400) and more."

The answer of the city admitted the building of the dam, although averring that it was not near completion, and would not prevent the natural flow of the west branch for at least a year; admitted its intention to appropriate some or all of the water; alleged that such appropriation would cause little or no injury or damage to the plaintiffs, and denied on information clubjuris

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and belief that the premises of either would be damaged in the sum of $2,400; averred that the building of the dam was of great and permanent benefit to the citizens and residents of New York, and that it was and always had been able and willing to pay any damages that the complainants might suffer from being deprived of the natural flow of the water. Testimony was taken and the case submitted to the court upon pleadings and proofs. That the dam as completed, and it was completed when the testimony was taken, would work a diversion of a considerable portion of the water in its natural flow, and that the property of plaintiffs was damaged by such diversion, was shown by the testimony and found by the court, although whether such damage amounted to more than $2,400 each was perhaps not established by the testimony, and certainly was not found by the court. The cost of the dam proper was about $45,000, though the city had expended for land and damages several hundred thousand dollars. It also appeared that several thousand people in the City of New York were dependent upon this water supply. The circuit court, after finding the fact of damage, held that a court of equity had no power to ascertain and order the payment of damages, but that it might delay the issue of an injunction so as to give the parties an opportunity to agree in respect to the amount of compensation, and in an opinion, filed on June 27, 1900, ruled that a decree would be entered on November 1, 1900, if the parties had not come to an agreement. Thereafter, no agreement having been made, a decree was entered as follows:

"That the complainants in this suit and each of them are entitled to the injunction order of this Court restraining the defendant, its successors and assigns, their and its officers, agents, and employees, each, all, and any of them, from diverting the water or any part of the water of the west branch of the Byram River or any part of the water of the Byram River, or in preventing in any way said water or any part thereof at any time from flowing through its natural channel, before, at, and below the junction of the two branches of said river; and"

"It is further ordered, adjudged, and decreed that the defendant, its successors and assigns, their and its officers, agents, and employees, each, any, and all of them, be and they and each of them are hereby perpetually enjoined from diverting the water or any part of the water of the west branch of the Byram River, or any part of the water of the Byram River, or in preventing in any way said water or any part thereof at any time from flowing through its natural channel, before, at, and below the junction of the two branches of said river."

On appeal to the Circuit Court of Appeals for the Second Circuit this decree was, on October 30, 1901, affirmed by a divided court. Thereupon the case was brought here by certiorari. 183 U.S. 700. clubjuris

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