Watertown republican. [volume] (Watertown, Wis.) 1860-1906, 1868-09-02

water at the wheel, that any objection was
ever taken to that mode of measurement,
and it was then first made by these plain
tifs The new mill was put up and COM
pleted at an expense of several thousand |
dollars, which will be an almost total loss
to the defendants, in case the extraordin-
airy remedy of1ei ded by the writ of injunc
ton, shall prevail. The question is, ought
it to prevail We are fully persuaded
under the circumstances of the case as
now presented, that it ought not but as
much of the evidence offered by the de-
PENDANTS upon this question was improp-
erly excluded by the court and as the
same seems to have been entered upon
but very slightly on the part of the plain
tiffs, we shall remand the case for a new
trial, in case the plaintiffs shall be so ad
vised by their counsel In the examina-
ton of authorities upon this question, we
have. found none more really in point
than the case of Sprague VS. Shore, /,
Rhode Island R., 247. In that case the
plaintiff based his claim for relief by in
junction, upon the language of a deed,
which he himself had made, and which
clearly sustained his claim. 1t was a bill
in equity to comtel the defendant to
lower his mill dam, and to restrict the
foWage of the plaintiffs land, to the limits
expressed in the grant. The plaintiff had
granted the mill site and water privilege,
with power to flow his land within certain
limits, which limits had been exceeded,
and his land beyond, flowed This had
been doLe with his knowledge, and with
out any objection on his part, until after
the dam, mill and machinery had been
erected and put in operation. The period
of time however during which his land
had been flowed, was not very long, it
was not more than four or five years
The court dismissed the bill and turned
the plaintiff over to his remedy at law, on
the ground Of acquiescence. Storys
Eq., Jr. S $50, A, is cited by the court
where it is said, THAT no Injunction will
be granted to restrain nuisance by the
erection of a building, when the erection
has been acquiesced in, or encouraged by
the party seeking relief nor will it be
granted in cases of gross laches or delay
| by the party seeking the relief, to enforce
his rights, as for example, when in case
Of patent or copyright, the patentee has
lain by and allowed the violation to go on
for long time without objection or seek
ing redress. And a case is also cited
from 2. Cases in Equity, abridged, 522-3,
which is reported in that book as follows
"a diverted a water course, which pat B
to great expense, in laying sewers, &C.,
and the diversion being nuisance to B,
he brought his action, but an injunction
was decreed upon bill exhibited for that
purpose, it being proved that B did see
the work when it was carrying on, and
connived at it, without showing the least
disagreement, but rather the contrary
Taylor VS.. Short in Lord Somcrs time
was cited which was: .''Short built a fine
house, Taylor began to build another, bu
laid part of his foundation on Shorts
land. Short seeing this, did not forbic
him. but on the contrary very much en-
couraged it, and when the house was bull
brought an action, and Lord Somers
granted an injunction, and said it was
Just and reasonable, for being nuisance
every continuance is fresh nuisance anC
SO he would be perfectly liable to action
which would be hard when he was en-
couraged by the party himself" 1
would seem from these cases which were
bills in equity, fled by the parties com
hitting the nuisance, to restrain proceed
ings in action at law, brought by the par
ties injured by it, that acquiescence may
sometimes constitute ground as we'll fol
affirmative relief in equity, against the
party acauiescing, as for dismissing hi
application when he asks redress agains
the other party.
Similar relief was granted in the Tren
ton Bank VS.. McKelway, 4 Hatsted's, Oh
r. 81, where the defendant was perpetu
ally enjoined from bringing eiectment 70
portions Of lot which he owned, owe
which race-way had been constructed
on the ground that he made no obiectio
: to it, but as the President and one of til
acting managers, took part in the diret
: ton of the proceedings Of the compan,
: by which the race-way was located an
i constructed over the lot, the complainant
however, having offered in their BILL t
/ pay the value of the lot, an issue was o.
/ dered to ascertain the value The iuds
e ment Of Circuit Court is reversed, and til
G cause remanded fer further proceeding
7 according to law.