The defendants insist that the plaintiffs have no right to use the water of the creek, except for the purpose of running a forge and two blacksmith's bellows. But this position is untenable. The forge and two blacksmith's bellows are mentioned as the measure of quantity, and not as the only objects to which the use of the water could be applied. Nor are the defendants limited to a use of the water for the purpose of an oil mill alone. They have a right to use all the surplus water beyond what was reserved to the grantors of the plaintiffs. The plaintiffs are entitled to use water enough for a forge and two blacksmith's bellows. They may apply it to any other kind of machinery, *Page 432 and it appears to have been applied to the propelling of a paper mill for about forty years. To that extent the plaintiffs are entitled to a preference in the use of the water. If there is a surplus beyond it, the defendants are at liberty to use it for propelling their paper mill. But they are not at liberty to interfere with such preference by diverting to their own mill the water which was necessary to the plaintiffs' mill. Such diversion is, I think, clearly established by the evidence. So far I concur fully in the opinion expressed in the court below as to the legal rights of the parties under the deed and contract; but I cannot concur in the conclusion of that court that this is not a proper case for equitable relief; on the contrary, I think a proper case is made out by the allegations in the bill and the proofs taken, to authorize that court to grant the relief by injunction prayed for in the bill. It is well settled that courts of equity have concurrent jurisdiction with courts of law in cases of private nuisance of this character. The plaintiffs need not set forth in the complaint all the reasons that might be given why an injunction should be granted. It is enough that it appears from the facts set forth in the bill of complaint and from the proofs, that the plaintiffs' right is unquestionable and has been recognized by ancient use and enjoyment, and that the diversion, being a recent act, has the effect to prevent the plaintiffs from carrying on business at their mill. All this appears in this case, as well from the bill of complaint as the evidence. It is not necessary to allege in terms that the threatened injury will be great or irreparable, if it is apparent from the facts set forth that such must be its effect; nor is it necessary in such a case first to establish a right at law. In Gardner v. TheVillage of Newburgh (2 John. Ch. R., 165), it was decided that the court of chancery has a concurrent jurisdiction with courts of law, in a case of private nuisance by diverting or obstructing an ancient water-course, and may issue an injunction to prevent the interruption, though the plaintiff *Page 433 has not established his title at law; and Chancellor KENT said, "the foundation of jurisdiction in such a case is the necessity of a preventive remedy, when great and immediate mischief or material injury would arise to the comfort and enjoyment of property." In that case an injunction was granted on the grounds that the right to the use of the stream, of which the plaintiff was in the actual possession, had been immemorially enjoyed, and "that the plaintiff would receive immediate and great injury by the suspension of all those works on his land which are set in operation by the water."
In Arthur v. Case (1 Paige, 447), it was held that where hydraulic works were erected on both sides of a private stream, the owners of the works were each entitled to an equal share of the water, and that if the owner of the mills on either side attempted to deprive the other of the use of his share of the water, of which he had been in the quiet enjoyment, and thus to destroy his mills, an injunction would be granted, as the injury might be irreparable. In Belknap v. Trimble (3 Paige, 577), the complainants were the several owners of different mills, situated upon the same stream, which mills depended upon a particular use of the waters of a pond at the head of the stream for the running thereof, and, as such mill owners, had been in the uninterrupted use and enjoyment of the water in a particular manner for more than twenty years; and it was held that the court of chancery had jurisdiction to establish their right to such use of the waters of the pond and to restrain the defendant from disturbing them in the enjoyment thereof. It was decided in that case that where different mill owners have a common right to an artificial use of water for their respective mills, the court of chancery had jurisdiction so to regulate the common use of the water as to preserve the rights of each.
The cases where a court of chancery has refused to entertain jurisdiction, and sent the plaintiff to a court of law for *Page 434 relief, are where the right interfered with has not been "long previously enjoyed," as in Van Bergen v. Van Bergen (3 John.Ch. R., 282), or where the act of diversion complained of took place more than three years before the bill filed, as in Reid v. Gifford (6 John. Ch. R., 19; see also 1 Cox's Cases, 102; Brown's Case, 2 Vesey, 414). The decisions on this subject are generally collected in Story's Eq. Juris., § 927, and in note 2 to the same section.
If it is established that a long enjoyed right of the plaintiffs has been improperly interfered with by the defendants, it is no objection to entertaining jurisdiction of the case that there is an uncertainty as to the measure of right or as to the precise language in which to describe it intelligibly in an injunction; "id certum est, quod certum reddi potest;" and if it were necessary, this case might now be sent to a referee to ascertain and report, after a scientific examination, the precise quantity of water requisite for the use of a forge such as Wales had and two blacksmith's bellows. But I think in this case such a reference is unnecessary. A paper mill was substituted for the forge over forty years ago and has been constantly used there since; and the fact that one of the owners of the oil mill assisted at its erection, and that it had been allowed to run so many years undisturbed, affords very satisfactory evidence that the general use of the water for the paper mill did not vary materially from the quantity necessary for the forge.
After such a lapse of time I think it is right to say that the plaintiffs are to be protected in the use of whatever water is necessary for the running of their paper mill as it had been run for twenty years previous to 1847, and that the defendants ought to be restrained by injunction from drawing water from the dike so as to deprive the plaintiffs of the use of the water to that extent.
ALLEN and DENIO, Js., gave no opinion, the latter having been counsel in the court below. *Page 435
All the other judges concurring in the foregoing opinions the cause was remitted with leave to the parties to proceed by reference or otherwise, upon the principles laid down in the opinion of RUGGLES, J.