David Josiah Brewer

“ Unless the wrongdoer is insolvent, or unless some other cause exists to render the legal remedy of no avail, it appears to me that on general principles he should be left to his legal remedy, and it was so held in the cases first above cited. The rule does not deprive the complainant of the protection intended to be afforded by the Constitution, nor does it work any hardship. ”

“ Section 21 of article 2 of the Missouri Constitution of 1875 reads 'that private property shall not be taken, or damaged, for public use without just compensation.' The statutes of Missouri provided means for condemning a right of way and assessing the value of property taken, but contained no provision for assessing the damages to property not taken, so that neither the railroad company nor the plaintiff could at the time have taken any legal proceedings for ascertaining the amount of the damage to plaintiff's property by the construction of the railroad. ”

“ The time at which parties invoke the aid of a court of equity is often a significant factor in determining the extent of their rights. Vigilantibus non dormientibus cequitas subvenit is a maxim of equity. ”

“ A railroad corporation, being one charged by the law with the performance of certain duties to the public, is allowed, under some circumstances, to set up rights connected with the land over which it operates its line of railway, of which an individual or an ordinary private corporation would not generally be allowed to avail itself. ”

“ If this injunction is permitted to stand the city must pay whatever the plaintiffs see fit to demand, however extortionate that demand may be, or else abandon the work and lose the money it has expended. While we do not mean to intimate that the plaintiffs would make an extortionate demand, we do hold that equity will not place them in a position where they can enforce one. ”

“ In other words, as he could have obtained the rightful possession by legal proceedings and payment, equity will do what the law could have done, and on payment of the ascertained compensation or damages affirm the possession. Whatever may be true of those cases, we start in this with the assumption that there was no power in the city of New York, by any proceedings on the states of New York or Connecticut, to acquire the right of appropriating this water and thus depriving the plaintiffs of its continued flow. ”

“ From these authorities it is apparent that the time at which a party appeals to a court of equity for relief affects largely the character of the relief which will be granted. If one, aware of the situation, believes he has certain legal rights, and desires to insist upon them, he should do so promptly. ”

“ It is one thing to state a right and proffer a waiver thereof for compensation, and an entirely different thing to state the same right and demand that it should be respected. In the latter case the defendant acts at his peril. In the former he may well assume that payment of a just compensation will be accepted in lieu of the right. In the latter the plaintiff holds out the single question of the validity and extent of the right ”

“ So, too, it has been frequently held that if a landowner, knowing that a railroad company has entered upon his land, and is engaged in constructing its road without having complied with the statute requiring either payment by agreement or proceedings to condemn, remains inactive and permits them to go on and expend large sums in the work, he will be estopped from maintaining either trespass or ejectment for the entry, and will be regarded as having acquiesced therein, and be restricted to a suit for damages.' Lexington & O. R. Co. ”

“ There are other effective and sufficient remedies. A court or equity would unquestionably interfere, if necessary, and place the road in the hands of a receiver until the damages were paid from the earnings. ”

“ It was suggested in the Pappenheim Case, 128 N. Y. 436, 13 L. R. A. 401, 28 N. E. 518, that 'in cases where the owner wishes to actually stop the further trespass, and where the defendant has no legal right to acquire the property, such condition would not be inserted, and an injunction would issue upon the right of the owner being determined. Henderson v. New York C. R. Co. 78 N. Y. 423.'
But the ruling of this court has been to the contrary, at least in cases where there has been delay on the part of the plaintiff in commencing suit. In D. M. Osborne & Co. v. missouri P. R. Co. ”

“ Limiting them, as we have limited them in the present case, to conditions which exist after defendant has proceeded in the completion of its proposed work and has expended a large sum of money therein, they can never be considered as inviting a party to do a wrong with the expectation of escaping every penalty save a pecuniary one. ”

“ Many interesting question are involved in this case, but we think it unnecessary for the present at least to decide more than one. We assume, without deciding, that, as found by the circuit court, the plaintiffs will suffer substantial damage by the proposed diversion of the water of the west branch. ”