Defiance Fruit Co. v. Fox

Leaming, Y. C.

This cause coming on for final hearing I have, on my own motion, declined to proceed further until complainant shall have established his rights at law.

It is, in this state, well settled that this court will not adjudicate controversies of this class unless defendant’s misconduct shall be ¿dmitted or shall have been established at law against him. The present case is essentially similar to Outcalt v. George W. Helme Co., 42 N. J. Eq. (15 Stew.) 665. The complainant’s right to relief is not admitted, and cannot be made clear until the defendant’s averments are overthrown, and there is in this case no other circumstance to warrant the interposition of a court of equity before the right is established at law. Complainant relies upon Carlisle v. Cooper, 21 N. J. Eq. (6 C. E. Gr.) 576. In that case the legal right of complainant was admitted, and the object of the bill was to ascertain the extent of the right and to protect it in a manner not attainable by legal procedure.

There is in the present case, however, one element of which this court may take cognizance. I refer to the allegation of the bill that defendant has threatened to raise the water higher than it now is or has been. The answer denies such threat and disclaims such purpose, and makes no claim of right to raise the water higher than its present level. The issues as presented may be said to admit the right of complainant to protection against a higher level of the water. If, therefore, complainant desires to proceed to establish the fact that defendant threatened and at the date of the filing of the bill intended to raise the level of the water to the injury of complainant the cause may proceed to hearing at once on that issue alone, otherwise the cause will be held in its present condition until complainant shall have had a reasonable time to establish its right at law.

I shall hold the cause and not dismiss the bill for the reason that the answer in no way denies the jurisdiction of this court as to the matters in which I hold this court is without jurisdiction, and also because one object of the bill is to secure affirma*300tive relief to remove the obstruction, a relief which can be appropriately adjusted in this cause should complainant succeed in the establishment of its right at law. See Todd v. Staats, 60 N. J. Eq. (15 Dick.) 507.