commit a further trespass,-and so, if B. should be allowed to maintain an action against A. for not repairing the windows, his action would rest on A.’s not doing that which he had no right to do.

The only judicial hint ever given, so far as I am aware, that it was possible for a duty like that which the complainants charge against the defendants to spring from a trespass, was thrown out by Chief Baron POLLOCK in disposing of a demurrer to a declaration in Firmstone v. Wheeley, 2 Dowl. & L. 203. The declaration alleged that the defendant had committed a trespass on the plaintiff’s land by removing a barrier which the plaintiff had left there to protect his mine against water accumulating in the defendants’ mine; and that, in consequence of the defendant’s trespass, the water in his mine, which the barrier, if it had been left undisturbed, would have held back, now flowed into the plaintiff ’s mine. The declaration then charged that it became the defendant’s duty, in consequence of his having unlawfully removed the only barrier between the two mines, to so deal with the water accumulating in his mine as to prevent it from flowing into the mine of the plaintiff. The chief baron, in deciding the question raised by the demurrer, said:

“There may, perhaps, be a difierence, as regards the law, between the barrier of a mine and a. fence above ground. If a wall is knocked down. the owner may maintain an action of trespass; but he cannot. by omitting to rebuild it, hold the defendant always responsible for any consequential damages. But here the plaintiff says that the removal of the barrier is irreparable, and therefore the duty alleged in this declaration may well arise.”

This, it will be seen, is, at most, a mere intimation that such may be the law. The case does not decide that a trespass will create any such duty, and it has never been so understood. Lord DENMAN, in speaking of it in Ctegg v. Dearden, 12 Adol. & E. (N. S.) 601, said that it had not been determined in that case that any such duty or obligation would flow from a trespass; and in Smith v. Kenm'ck, 7 Man., G. & S. 564, the court, in reviewing the last remark attributed to the chief baron, said that the case could hardly be treated as a decision.

If these criticisms of Firm-stone v. Wheeley do not show that no such duty exists, they are certainly sufficient to raise serious doubts respecting its existence. Whether it exists or not is a disputed question of law, and, while that remains the case, no injunction or other equitable relief can be granted. So long as the defendants’ duty is in doubt, there must also be doubt respecting the complainants’ legal right; for, if the defendants are not subject to the duty claimed, the complainants are without legal right; and where, as in this case, a complainant asks protection against injury arising from the violation of a legal right, he is not entitled to what he asks, unless he can show that the right on which his title to relief rests is settled as a matter of law.

There is, however, authority declaring directly that no such duty exists. To this extent, I think, the law pertinent to this branch of the case must be considered settled: that for wrongs like those of which the complainants complain there is but a single remedy, and that is an action of trespass; and that the only duty which a wrong-doer incurs by the commission of such wrongs is a liability to answer in damages for the loss his wrongs have caused. These are the doctrines established by C'legg v. Dearden, supra. The plaintiff’s right of action in that case rested on the same duty which the complainants hero seek to fasten upon the defendants. The defendant had broken down a barrier which the plaintiff had left on his land to protect his mine against water rising in the defendant’s mine. The parties owned adjoining mines; the plaintiff’s being the lower of the two. The plaintiff brought an action of trespass against the defendant, had a recovery, and his damages were subsequently paid. The plaintiff afterwards suffered further damages,— damages which were not covered by the previous recovery,—and to recover such subsequent damages he brought an action on the case against the defendant for wrongfully keeping open and continuing the aperture between the two mines which he had made in breaking down the plaintiff ’s barrier. The case was submitted, on a special verdict, to the court. of queen’s bench for judgment whether, on the facts above stated, theplaintiff could recover. The court held that he could not. It was said, leaving the aperture open, in consequence of which the water continued. to flow from the defendant’s mine into the plaintiff’s, afforded no distinct ground of action as for the continuance of a trespass or of a nuisance. The flowing of the water, and the damage thereby caused to the plaintiff, was merely consequential to the making of the aperture, and for that the plaintiff had already received compensation. The pith of Lord DENMAN’s argument against the plaintiff’s right to recover was expressed as follows:

“There is a. legal obligation to discontinue a trespass or remove a nuisance, but there is no such obligation upon a trespasser to replace what he has pulled down or destroyed upon the land of another, though he is liable, in an action of trespass, to compensate in damages for the loss sustained. The defendant, having made an excavation and aperture in the plaintiff’s land, was liable to an action of trespass, but no cause of action arises from his omitting to reenter the plaintiff’s land, and fill up the excavation. Such an omission is neither a continuation of a trespass, nor of a nuisance, nor is it a breach of any legal duty.” ‘

Substantially the same views were expressed by the court in Smith v. Kenr'ick, supra.

The law, as established by Olegg v. Dearden, was adopted and enforced in Williams v. Pomeroy Coal Co., 37 Ohio St. 583. The defendants in this case, while working out the coal in their land, broke over the line, and took coal belonging to the adjacent owner for a distance of from 36 to 39 feet. This trespass was committed in 1861, and the defendants abandoned their mine in 1862. In 1864 the plaintiff acquired title to the land upon which the defendants’ trespass had been committed. In 1868 the plaintiff’s workmen, while taking out his coal, broke into the excavation made by the defendants, and, through the opening thus made, the water which had collected in the defendants’ mine was let into the plaintiff’s mine, and flooded it. The plaintiff, subsequently, and after the right of action for the trespass committed in 1864 had become barred by statute, brought an action to recover the damages which he had sustained by the flooding of his mine. He insisted that the defendants’ Wrong was, in legal substance, a continuing nuisance; that while it was trUe their wrong had its origin in the trespass committed in 1861, yet its injurious consequences did not cease with the trespass, but were continuous, those most remote causing the utter ruin of his mine, and the damnifying consequences of the wrong should therefore be treated like the injuries inflicted by other continuing nuisances, and be adjudged to be the proper basis of successive actions. The court refused to adopt this view, but, on the contrary, held that the case was one of simple trespass, and not of nuisance, and that any bar or extinguishment of the right of action for the trespass, whether it arose from lapse of time or a prior recovery, absolved the defendants from all liability for the trespass or any of its consequences.

A recent decision of the supreme court of Michigan adopts the doctrine laid down in these two cases in all its length and breadth. The case referred to is National Copper Co. v. Minnesota Min. (70., 57 Mich. —-—; S. C. 23 N. W. Rep. 781. The plaintiff and defendant owned adjoining copper mines, each holding their land in fee. The plaintiff, in working out its ore, left a wall of rock, from 15 to 18 feet thick, next to the defendant’s mine. The defendant left no barrier; but, in taking out its ore, worked, not only up to the boundary line, but over it, breaking into the plaintiff’s mine at two different points, at one of which its trespass extended over on the plaintiff’s land about 20 feet. The plaintifl subsequently, in making blasts in its mine, broke into the excavations, and openings were thus made between the two mines, by which the water in the defendant’s mine was let into that Of the plaintiff. The defendant afterwards abandoned its mine, first robbing it by taking out all the ore which had been left for supports. In consequence of the removal of the supports the surface of the defendant’s mine caved in, and depressions were thus made, into which the water produced by rains and melting snow collected, and then sank into the defendant’s mine, and from there flowed, through these openings, into the plaintiff’s mine. The plaintiff, after its right of action for the original trespass was barred by statute, brought an action against the defendant. It put its right to maintain its action on two grounds: First, that the defendant’s trespass was a continuing wrong; and, second, that the defendant, having wrongfully removed the barrier which the plaintifi“ had left for the protection of its mine, and thereby caused the water in the defendant’s mine, which' the barrier would, if it had been left undisturbed, have kept there, to flow into the plaintiff’s mine, thereby, as a legal consequence Of its wrong, imposed upon itself an Obligation either to close the openings, or to prevent the water in its mine from flowing through them into the plaintiff ’s mine. The plaintiff recovered a judgment for a large sum in the court of original jurisdiction. The case was then removed to the supreme court, and there both grounds taken by the plaintiff were declared fallacious. Chief Justice COOLEY, who pronounced the opinion of the court, said, in discussing the plaintiff ’s first ground:

“The case before us was one of admitted trespass, from which immediate damage resulted. Had suit been brought at that time, all the natural and probable damage to result from the wrongful act would have been taken into account, and the plaintiff would have recovered it. But there was no continuous trespass from that time on. The defendant had built no structure on the plaintiff’s premises, was occupying no part of them with anything it had placed there, and was in no way interrupting the plaintiff’s occupation or enjoyment. All it had left there was a hole in the wall. But there is no analogy between leaving a hole in a wall on another’s premises, and leaving houses or other obstructions there to incumber or hinder his occupation. Physical hinderances are a continuance of the original wrongful force, but the hole is only the consequence of a wrongful force which ceased to operate the moment the hole was made.”

The chief justice then discusses the second ground taken by the plain— tiff, with more elaboration and a greater wealth of illustration than it is discussed in either Ulegg v. Dearden or Williams v. Pomeroy Coat 00., but he rests his repudiation of it at last on the principle established by those cases. On the important question whether the remedy given by the common law, in cases of this kind, where the damages flowing from a trespass contemporaneous with its commission, or shortly afterwards, may be very insignificant in comparison with those which may result from it, at a date long subsequent to its commission, is adequate to enable a court of law to do full and complete justice to the person aggrieved, the chief justice speaks as follows:

“The wrong to the plaintiff consisted in breaking down the wall which had been left by it in its operations. If any damage might possibly result from this which was not then so far probable that a jury could have taken it into account in awarding damages, the plaintiff was not without redress. It would have been entitled, in a suit then brought, to recover the costs of restoring the barrier which had been taken away; and if it had done so, and made the restoration, the damage now complained of could not have happened. It thus appears that complete redress could have been had in a suit then brought, and, that being the case, the plaintiff is not entitled to recover now for an injury for which an award of the means of prevention was within the right of action which was sufiered to become barred. The right which then existed being a right to recover for all the injury that had been suffered, including the loss of the dividing barrier, it would not have been competent for the plaintiff, had suit then been brought, to leave the loss of the barrier out of account, awaiting possible special damages to flow therefrom as a ground for a nonsuit. The wrong which had then been committed was indivisible, and the bar of the statute must be as broad as the remedy was which it extinguishes.”

These adjudications make it entirely clear that the wrongful acts imputed to the defendants imposed no such duty upon them as that which the complainants seek to fasten upon them, and they also demonstrate that the only remedy to which the complainants could ever have had recourse for the redress of the wrongs of which they complain was an ac; tion of trespass. ‘

So far the case has been considered as though the defendants had themFelves committed the trespasses of which complaint is made, and also as though the damages against which protection is sought were all caused by the unlawful acts of the defendants, and were therefore legally chargeable against them. This, however, is not the fact. The defendants committed neither trespass; nor is it true that all the damages the complainants have since sustained resulted from the trespasses. They were, to a large extent, self-inflicted. As already remarked, the proofs show that the complainants’ shaft was judiciously located, and also that in carrying their shaft down it was impossible to avoid breaking into the upper excavation. But, so long as their mine did not extend below the first excavation, an opening between the two mines, at this point, could do the complainants no harm; but, on the contrary, would be advantageous. It would provide them with a way by which their mine could be relieved of all the water accumulating in it, above this point, without pumping it to the surface. Their superintendent says that this was one of the advantages which he had in view in selecting the site for the shaft. The injury which the complainants’ mine now suffers from this opening is inflicted at a point far below the opening, and is caused by the fiowage of water, rising in the defendants’ mine, through the opening, into the complainants’ mine. The complainants carried their mine on down below the opening, not only with full knowledge that the opening was there, but also knowing what would be the inevitable effect upon their mine, if they sunk it below the opening, without first erecting a barrier across the opening. The erection of a barrier at this point was one of the things which the complainants’ superintendent had in contemplation when he selected the site for the shaft. He says that he intended, if it became necessary for the protection of the complainants’ mine after an opening had been made, to build a barrier across the opening, and that he thought thatthis course would be less expensive than to sink the shaft at any other point, or to so alter the course of the shaft as to avoid breaking into the excavation.

In view of these facts, there can be no dispute that the injuries against which the complainants seek protection are largely, if not entirely, due to causes which the complainants have themselves created. It is certain that if they had not sunk their mine below the opening, or if, before carrying it below that point, they had erected a suflicient barrier across the opening, none of the injuries of which they now complain could have happened. Their injuries have been caused by what they did, and what they omitted to do; and this is true of both sources of injury, of both the upper and lower opening. The complainants had an unquestionable right to sink their mine below the opening; but the fact that they knew that the opening was there, and that, if they left the opening in just the condition they found it, they would expose their mine to constant and serious danger, made it their duty to do what they could to protect their mine against injury from this source. A wrong-doer is not liable for such damage as the injured person may easily avoid by his own act. The rule is settled that, if the damages resulting from a trespass are aggravated or increased by the folly, willful obstinacy, or gross carelessness of the person injured, such part of his loss as is directly attributable to his own fault cannot be recovered. 1 Suth. Dam. 148; Field, Dam. §