Garwood v. N. Y. Central & Hudson R. R. R. Co.
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made May 26,1879, reversing an order of Special Term, which denied plaintiff’s demand for equitable relief, and for a judgment for damages, and ordered that the action be retained as an action at law for trial by a jury upon a single question specified in the order.
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Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made May 26,1879, reversing an order of Special Term, which denied plaintiff’s demand for equitable relief, and for a judgment for damages, and ordered that the action be retained as an action at law for trial by a jury upon a single question specified in the order. (Reported below, 17 Hun, 356.) This action was brought by the plaintiff, who is the owner of a grist-mill, which is operated by the waters of Tonawanda creek, in the town of Batavia, Genesee county, to restrain…
1Opinion of the CourtDanforth, J.
The argument in behalf of the appellant raises no doubt as to the correctness of the judgment rendered by the Supreme Court, or its conformity to well-settled rules of law and equity. The diversion of the water is conceded; the jury have found that it was injurious to the plaintiff; he was, therefore, entitled to damages already sustained. It was continuous and under a claim of right; and to prevent further injury preventive relief was proper, for without it there would be vexatious litigation and multiplicity of suits. (Story’s Eq. Jur., vol. 2, § 927; Gardner v. Newburgh, 2 Johns. Ch. 162;…
2Cases cited2 opinions
- Campbell v. . SeamanNew York Court of Appeals · 1876
- Tyler v. WilkinsonU.S. Circuit Court for the District of Rhode Island · 1827
3Cited by23 opinions
- People v. HulbertMichigan Supreme Court · 1902
- Jones v. ConnOregon Supreme Court · 1901
- Clough v. WingArizona Supreme Court · 1888
- Ulbricht v. Eufaula Water Co.Supreme Court of Alabama · 1888
- Stratton v. Mount Hermon Boys' SchoolMassachusetts Supreme Judicial Court · 1913
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