§ 554. The court will not consider an application for a mandatory injunction where the plaintiff has been guilty of any delay in asking its aid. It will not undo what the plaintiff might have prevented by filing his bill promptly.1 In deciding upon an application, the court will consider the inconvenience likely to be caused. Where an order was asked against a local board to close up certain sewers, it was refused on the grounds of inconvenience, and of a doubt as to the powers of the board.2

§ 555. Equity has jurisdiction to decree the abatement of a nuisance as well as to prevent its erection or continuance.3 Such a decree is a mandatory injunction in nature, for equity jurisdiction is properly in personam and not in rem, and the order is primarily directed to the defendant.1

bank upon the land of the defendant and began to change its channel, threatening irreparable injury to the plaintiff, such an injunction was granted before the coming in of the

answer.

1 Wicks v. Hunt, Johns. 372; Ward v. Higgs, 12 W. R. 1074.

nant not to maintain a dam at a particular place is not against public policy, and will be enforced in equity by a decree to abate a dam built in violation thereof. Ulrich v. Hull, 17 Wis. 424.

4 See cases above cited. In some jurisdictions, either by statute or by

2 Attorney General v. Acton Board, judicial legislation, the practice is 22 Ch. D. 221.

3 Lamborn v. Covington, 2 Md. Ch. 409; Earl v. De Hart, 1 Beas. Ch. 280; Attorney General v. New Jersey Railroad Co., 2 Green Ch. 136; Mann v. Wilkinson, 2 Sumner, 272, 273; Pennsylvania v. Wheeling Bridge, 13 How. 518, 557; Hammond v. Fuller, 1 Paige, 197. See Van Bergen v. Van Bergen, 2 Johns. Ch. 272; 3 Johns. Ch. 282; Stone v. Peckham, 12 R. I. 27, 30; Philips . Stocket, T Tenn. 200; Burwell v. Hobson, 12 Gratt. 322; Ackerman v. Horicon Iron Co., 16 Wis. 150. See Shannon v. Wisconsin, 18 Wis. 604; Eastman v. St. Anthony Water Power Co., 12 Minn. 137; Ames v. Cannon River Manuf. Co., 27 Minn. 245; Brown v. Carolina Central Railway Co., 83 N. C. 128; Raleigh Co. v. Wicker, 74 N. C. 220. A cove

established of directing the order to the officer of the court in the first instance. Ames v. Cannon River Manuf. Co., 27 Minn. 245. But the power of equity was not so exercised originally. East India Co. v. Vincent, 2 Atk. 83 (abatement of a wall). To same effect, see Campbell v. State, 16 Ala. 144; Barclay v. Commonwealth, 25 Penn. St. 503. These are cases of indictments. The power to abate a nuisance is generally lodged by statute with the common-law courts in their criminal jurisdiction. We have noticed (ante, § 400) that an equitable action is maintainable in New York in the Supreme Court by any person specially injured by a nuisance, in which judgment will be granted, directing the removal or abatement of the nuisance. Knox v.

§ 556. In exercising this power, equity will not compel the destruction of valuable property, except in a clear case of necessity. The Supreme Court of Michigan, in reversing an order for the removal of a dam, said (per Graves, J.): "Property is not to be destroyed until its destruction is lawfully ascertained to be necessary in order to stop the nuisance, and then no other and no more is to be destroyed than is thus determined to be needful to effect that object." 1

Where the injury, present and threatened, is caused by the use of flash-boards, the court may command the removal of the flash-boards already placed upon the dam, and enjoin the defendant against their future use.1

§ 557. The injunction itself must be in clear and definite terms, which will impose a specific prohibition or command upon the defendant. Generally equity will not command the defendant so to use his own rights as not to injure the plaintiff. That duty is already prescribed by the law of the land. The object of equitable interference is to protect parties from specific infringements of their rights. Where an injunction was asked to restrain the defendant from using a steam engine in pumping and draining water into a river, "so as in any manner to injure the banks of said river, or to injure or interfere with the draining" of other lands, Lord Brougham said: "What purpose then could such an injunction serve as the second alternative of the motion describes? It would give no information; it would prescribe no rule or limits to the defendants; it could not in any manner of way be a guide to them if it did not operate as a snare. It would in reality amount to nothing more than a warning, that if they did anything which they ought not to do, they would be punished by the court; but it would leave to themselves to discover what was forbidden and what allowed."2

1 Knapp v. Douglas Axe Co., 13 Allen, 1.

2 Ripon v. Hobart, 3 Myl. & K. 169, 173. See, also, Bradfield v. Dewell, 48 Mich. 9; Coalter v. Hunter, 4 Rand. 58, 67; Baltimore v. Appold, 42 Md. 442, 458; Olmstead v. Loomis, 6 Barb. 152; 9 N. Y. 423. In this case, at the Supreme Court, the injunction was denied because of the indefiniteness of the injury to be prohibited. But it was overruled on appeal. Parker, J., said: "If it is established that a longenjoyed right of the plaintiff's has been improperly interfered with by the defendants, it is no objection to entertaining jurisdiction of the case that there is an uncertainty as to the

measure of right, or as to the precise language in which to describe it intelligibly in an injunction; id certum est quod certum reddi potest; and if it were necessary, this case might now be sent to a referee to ascertain and report, after a scientific examination, the precise quantity of water requisite for the use of a forge, such as Wales (the plaintiff) had, and two blacksmith's bellows. But I think in this case such a reference is unnecessary." For cases where a general order will be issued, with leave to the plaintiff to apply for further order, see remarks of Kindersley, V. C., in Hartlepool Gas Co. v. West Hartlepool Harbor Co., 12 L. T. N. S. 366, cited ante, § 530, note 2.

§ 558. The court will not refuse to grant an injunction on account of the difficulty in so framing it as to protect the respective rights of the parties, unless the difficulty is caused by uncertainty as to the rights themselves.1 In Patten v. Marden, a case in which the court was called on to adjust the rights of a grantor and grantee under a deed conveying a portion of a water-power, Cole, J., said: "But however difficult it might be to frame an injunction to meet the emergency of the case, still if the complaint set forth a state of facts calling for the interposition of a court of equity, we are clearly of opinion that an injunction should be granted to protect the rights of the appellant from violation and invasion." In cases where the injury is continued, but not great at any time, the writ or order should contain the words "to the injury of the plaintiff," to prevent the authority of the court being invoked for trivial reasons.3

§ 559. Where a plaintiff has proved his right to an injunction against a nuisance or other injury, it is no part of the duty of the court to inquire in what way the defendant can best remove it. The plaintiff is entitled to an injunction at once unless the removal of the injury is physically impossible; and it is the duty of the defendant to find his own way out of the difficulty, whatever inconvenience or expense it may cause him.4 The possibility that another nuisance will result from obeying the injunction is no ground for not obeying it. Where compliance with the decree will involve difficulty and expense, the court will usually suspend its operation for a time so as to save the defendant from needless loss. But the plaintiffs' rights will never be abridged for this purpose.

1 Olmstead v. Loomis, 9 N. Y. 423, 434; Patten v. Marden, 14 Wis. 473. 2 14 Wis. 473.

3 Lingwood v. Stowmarket, L. R. 1 Eq. 77; Elwell v. Crowther, 31 Beav. 163, 171. In Baltimore . Appold, 42 Md. 442, the court held that an injunc tion merely forbidding user to the plaintiff's damage would be insufficient

for the plaintiff's protection, because he would be entitled to an action without damage, and to an injunction to save repeated actions.

4 Attorney General v. Colney Hatch Asylum, L. R. 4 Ch. 146.

5 Attorney General r. Bradford Canal, L. R. 2 Eq. 71.

6 Attorney General v. Birmingham,

§ 560. Where an injunction to restrain a local board of health from polluting a stream with sewage was suspended for a time, and on the expiration of the time the board failed to comply with the order, alleging that they had not yet found a means of deodorizing the sewage, they were held guilty of wilful contempt, and an order of sequestration was issued. Where time is given for compliance, the court may require an undertaking from the defendants as to their future conduct, and retain the bill, giving the plaintiff leave to apply for a further order at any time.2 Such an undertaking is in effect equivalent to an injunction, and will be enforced by the court. But where the plaintiff does not make out his right to an injunction on the existing state of facts, equity will not retain the bill, and give him leave to apply, in the absence of special reasons for such a course.1

§ 561. An account of damages resulting from the injury in the past may be ordered, and payment of the amount found due decreed as incidental to the principal object of the bill; but damages will seldom be granted in lieu of an

4 K. & J. 528, 548; Attorney General v. Halifax, 39 L. J. Ch. 129; Attorney General r. Bradford Canal, L. R. 2 Eq. 71; Attorney General r. Colney Hatch Asylum, L. R. 4 Ch. 161; Pennington v. Brinsop Hall Coal Co., 5 Ch. D. 769; Manchester v. Worksop Board, 23 Beav. 198; Boston Rolling Mills v. Cambridge, 117 Mass. 396; 1 Seton on Decrees (4th ed.), 213. In Attorney General v. Halifax, 39 L. J. Ch. 129, a municipality was allowed one year in which to comply with an order for the alteration of sewers.

1 Spokes v. Banbury Board, L. R. 1 Eq. 42. See Coulson & Forbes on Waters, 668. The fact that a complete and literal compliance with an injunction would altogether stop the defendants from working, is not an excuse from such non-compliance; a grave inconvenience of such a kind is proper ground for moving the court to modify such injunction, and such motion may be made by a defendant

in contempt for disobedience. Bonshaw v. Prince, 5 Wyatt, Webb, & A'Beckett (Vict.), Eq. 140, cited in 31 Moak's Eng. Rep. 374, notes to Box v. Judd.

2 Elwell v. Crowther, 31 Beav. 163. 3 London & Birmingham Railway Co. v. Grand Junction Canal Co., 1 Rail. Cas. 224. Where a coal mining company fouled a natural stream of water by pumping water from its mines into the stream, to the damage of a riparian proprietor, it was held (in an action at law) that the act could not be justified either by the importance of the industry to the Commonwealth, or by general custom. Pennsylvania Coal Co. v. Sanderson, 94 Penn. St. 302.

4 Pratt . Lamson, 6 Allen, 457; Mann v. Wilkinson, 2 Sumner, 273.

5 Kerr on Injunctions, 47; Bliss v. Rice, 17 Pick. 230; Canfield v. A¤drews, 54 Vt. 1.