Harris v. Vanderveer's Executor. whether certain parts of the will, particularly that in relation to him and his issue, could be admitted to probate to the exclusion of the rest. Although it is quite evident that the deceased had previously expressed an intention in different drafts of wills unexecuted, that Lawrence should have the chief part of his estate for life, yet it in no way appears that his intention was to give him the whole income. By striking out all the clauses, excepting that appointing the executor, and bequeathing and devising the estate to him in trust, with power to receive the income, and invest, and reinvest, and to convey certain real estate, and then to pay over to Lawrence during his lifetime, the balance of the income, and at his decease to transfer the whole estate to his lawful male issue surviving, if any he shall have, it would result in giving Lawrence the whole income of the estate, (deducting the necessary expenses of the executorship and trusteeship) to the exclusion of all others, who also might be expected to be objects of his bounty. I am not satisfied that such was his intention. The paper was evidently drawn as an entirety, and its clauses cannot be separated so as to say, from the evidence, that any one part by itself, was according to the intention of the deceased. This view renders any expression on the validity of Lawrence's appeal unnecessary, or any consideration of the extent to which the court would go in admitting part of a will to probate. The decree of the Prerogative Court should be reversed. For reversal-BEDLE, CLEMENT, DALRIMPLE, KENNEDY, OGDEN, VAIL, VAN SYCKEL, WOODHULL. 8. For affirmance-BEASLEY, C. J., OLDEN, SCUDDER. 3. Carlisle v. Cooper. 21 576 50 622 CARLISLE and others, appellants, and COOPER, respondent. COOPER, appellant, and CARLISLE and others, respondents. 1. The jurisdiction of courts of equity over the subject matter of nuisances, is not an original jurisdiction. It does not arise from the fact that a nuisance exists, but results from the circumstance that the equitable power of the court is necessary to protect the party from an injury for which no adequate redress can be obtained by an action at law, or its interference is necessary to suppress interminable litigation for the recovery of damages for an actionable wrong. As a condition to the exercise of that power it is ●ssential that the right shall be clearly established, or that it should previously have been determined by the action of the ordinary tribunals for the adjudication of the rights of the parties, and the injury must be such in its nature or extent, as to call for the interposition of a court of equity. 2. The rule of the English law requiring the complainant's legal rights to be first established in a court of law, before a court of equity will give relief in cases of nuisance, has been somewhat relaxed. The mere denial of the complainant's right by the defendant in his answer, will not oust the court of its jurisdiction by injunction. So also when the complainant has for a long time been in the undisputed possession of the property or enjoyment of the right with respect to which he complains, and the acts of the defendant which constitute the injury to such property, or the invasion of such right, have been done recently before the filing of the bill, the Court of Chancery will entertain jurisdiction to decide and dispose of the entire litigation, if the evidence does not raise any serious question as to the fact of the existence of the complainant's rights when the bill is filed. 3. Where a complainant seeks protection in the enjoyment of a natural -watercourse upon his land, the right will ordinarily be regarded as clear. The mere fact that the defendant denies the right by his answer, or sets up title in himself by adverse user, will not entitle him to an issue before the allowance of an injunction. 4. Where complainant's lands are rendered comparatively worthless by backwater from a dam, and a nuisance is thereby created deleterious to health, and the enjoyment of the premises is thereby impaired, an action of law furnishes no adequate remedy, and the complainant is entitled to the protection of a court of equity by the abatement of the nuisance. 5. Where the complainant's right to the relief sought by the bill is admitted by the answer, and also established in a suit at law, and the sole question of fact in controversy is, whether the defendant has effected an abatement of the admitted nuisance by lowering his dam to the required level, a court of equity is an appropriate tribunal to decide that question. Carlisle v. Cooper. There is nothing in the subject matter of such investigation that would entitle the defendant to an issue as of course. 6. The granting or refusing of an issue is a matter of discretion. 7. The power of courts of equity to order the trial of an issue of fact which the court is itself competent to try, ought to be sparingly exercised, and a practice of sending ordinary matters to the decision of a jury ought not to be established. Where the truth of facts can be satisfactorily ascertained by the court, without the aid of a jury, it is its duty to decide as to the facts, and not subject the parties to the expense and delay of a trial at law. 8. Mere delay in applying to the court is frequently a ground for denying a preliminary injunction, and is also a reason for courts of equity refusing to take cognizance of a case where there is a remedy at law. But where the legal right is settled, and the more efficacious remedy of a court of equity is necessary to complete relief, delay is no ground for a denial of its aid, unless it is coupled with such acquiescence as deprives the party of all right to equitable relief. 9. A person may so encourage a nuisance as not only to be deprived of the right to equitable relief, but also to give the adverse party an equity to restrain him from recovering damages at law for such nuisance. But where a defendant expended money in erecting a dam, and increasing the capacity of his mill, under a verbal agreement with the owner of lands above for the privilege of overflowing his lands for a compensation to be made, and filed a bill after the work was completed for the specific performance of that agreement, and was denied relief, he will be concluded by the decree in that case, and cannot rely on such alleged agreement as a ground for denying relief, on a bill subsequently filed by such owner to enjoin the overflow of his lands and to obtain an abatement of the dam. 10. Where, as the facts were upon the filing of the bill, the complainant was entitled to relief in a court of equity, the defendant cannot defeat complete redress by a partial abatement of the nuisance, upon an insistment that the effects of such portion of the nuisance as still remain, are not of sufficient consequence to entitle the complainant to ask that perfect relief which he was entitled to when he sought his remedy. 11. The extent of the right to flow the lands of another acquired by adverse user, is not determined by the height of the structure of the dam, but is commensurate with the actual enjoyment of the easement, as evidenced by the extent to which the land of the owner of the servient tenement was habitually or usually flowed during the period of prescription. 12. As a general rule, the height of the dam when in good repair and condition, including such parts and appendages as make its efficient height in its ordinary action and operation, fixes the extent of the right to flow, without regard to fluctuations in the flowage which are due to accidental -causes, such as a want of the usual repairs, or the variation in the quantity Carlisle v. Cooper. of water in the stream in times of low water or drought, or in the pondageof the dam by its being drawn down by use. 13. There may be such continuity of use of flash boards as that they, in effect, are parts of the permanent structure, and by such user a right to flow by means of a permanent dam to the height of such boards may be acquired, but the occasional use of flash boards for short periods, when little or no injury may be done, as an exception to the general rule not to keep them on, does not amount to the open, uninterrupted, and notorious adverse use necessary to establish a prescriptive right. 14. Prescriptions may be upon condition in restraint of the mode in which the prescriptive right is to be enjoyed, or may have annexed to them a duty to be performed for the benefit of the person against whom the prescription exists. 15. The prescriptive right to the use or flow of water may be qualified as to times, seasons, and mode of enjoyment, by the character of the use from which the right has originated. 16. Where the practice in the use of a dam and its appendages during the period of prescription, has been to control the height of the water in the pond in times of high water by removing the gates and permitting the water to flow off, this mode of user qualifies the right which has been acquired by prescription, and a decree permitting the use of such gates, which requires that they shall be removed in times of freshets and high water, is necessary to restrain the flowage of the complainant's lands to what it was accustomed to be during the time of prescription. 17. A decree which refers to the cap piece of the dam, as fixing the extreme height to which the water may be raised by the use of the gates when shut, though more specific in its direction than is usual, is not objectionable for that reason. The bill was filed by Eliza Carlisle and others, to ascertain and settle the height at which the defendant, Cooper, was entitled to maintain his dam; and to enjoin the defendant from overflowing the complainants' lands with backwater from the dam of the defendant. The facts of the case sufficiently appear in the opinion of the Chancellor, reported in 4 C. E. Green 257. Both parties appealed from the Chancellor's decree, and the appeals were argued together. Mr. Pitney, for Carlisle and others. Mr. Vanatta and Mr. Shipman, for Cooper. Carlisle v. Cooper. The opinion of the court was delivered by DEPUE, J. The counsel of the defendant, as a preliminary matter, submitted to the court the question, whether the Court of Chancery has jurisdiction to try the question of nuisance or no nuisance, involved in this cause. Upon the abstract question, whether a court of equity has jurisdiction over nuisances, whether they come within the class of public or of private nuisances, very little need be said. Whatever contention there is at the bar, or disagreement among judicial minds, as to the principles on which that jurisdiction should be administered, there is no room for controversy that such jurisdiction pertains to courts of equity. It is a settled principle that courts of equity have concurrent jurisdiction with courts of law in cases of private nuisances; the interference of the former in any particular case being justified, on the ground of restraining irreparable mischief, or of suppressing interminable litigation, or of preventing multiplicity of suits. Angell on Watercourses, § 444; 2 Story's Eq. Jur., § 925; The Society v. The Morris Canal Co., Saxt. 157; Scudder v. Trenton Del. Falls Co., Saxt. 694; Burnham v. Kempton, 44 New Hamp. R. 79. The doctrine of the English courts is, that the jurisdiction of courts of equity over nuisances, not being an original jurisdiction for the purpose of trying a question of nuisance, but being merely a jurisdiction in aid of the legal right for the purpose of preserving and protecting property from injury pending the trial of the right, or of giving effect to such legal right when it has been established in the appropriate tribunal, the court will not, as a general rule, entertain jurisdiction to finally dispose of the case, where the right has not been previously established and is in any doubt, and the defendant disputes the right of the complainant or denies the fact of its violation. Under such circumstances the court will, ordinarily, do nothing more than preserve the property in its present condition, if that be |