§ 505. Same. If the plaintiff recovers judgment for the erection of a nuisance, and brings a second action for its continuance, he should recite the judgment in his declaration, and state that the action is for a continuance of the same, or the rule applies to both parties that the judgment is only evidence unless averred in pleading. In an action in Pennsylvania for the continuance of a dam overflowing the plaintiff's land, where the plaintiff so averred the former recovery, the court said: "In an issue on a declaration or plea founded on a former judgment, the only proper subject to be submitted to the jury is whether or not the matter in dispute in the present action is the same that was litigated in the former one. With this fact found the court must decide upon the effect of the former judgment." In an action for the continuance of a nuisance, by maintaining a dam which overflowed the plaintiff's mill and

special pleading is required, for I grant that where the parties are not bound to plead or reply specially, the record of a former recovery is conclusive evidence, binding the plaintiff, the court, and the jury, as in actions of assumpsit and debt." (Relying on the Duchess of Kingston's Case, 20 How. St. Tr. 537.) But, as we have seen, at common law the greatest latitude was extended to defences in the action on the case, offered under the plea of not guilty; and it would seem that if there were to be any exceptions to the rule, the action on the case would be one; and so it was held in Pennsylvania in Gilchrist v. Bale, 8 Watts, 355, 358. So that the authority of Kilheffer v. Herr, for the point in the text, is by no means unquestioned. In Long v. Long, 5 Watts, 102, the action was on the case for obstructing a stream, and a former judgment was specially pleaded. Rogers, J. (who gave the opinion in Kilheffer v. Herr), in his opinion followed the doctrine stated in the text, and cited the former case as in accord. In Smith v. Elliot, 9 Penn. St. 345, the action was on the case for diverting water from the

plaintiff's mill. The defendant pleaded the general issue, and insisted that a former judgment, offered in evidence, was conclusive. Rogers, J., again delivered the opinion. He followed Vooght v. Winch (2 B. & Ald. 662, see supra), and held that the judgment, while admissible, was not conclusive, and again construed Kilheffer v. Herr as in accord.

1 Rockwell v. Langley, 19 Penn. St. 502. See Myton v. Wilson, 11 Penn. Supr. Ct. 645. In Heller v. Pine, 8 Blackf. 175, the Supreme Court of Indiana held the same way. The action was case for obstructing a watercourse to the injury of the plaintiff's mill. The defendant pleaded the general issue. The plaintiff offered in evidence the record of a former cause for an injury to the same mill, by the same obstruction, and asked the court to instruct the jury that it was conclusive as to all matters put in issue at the former trial. But it was held that the record, though strong evidence for the plaintiff, could not act as an estoppel. See Morgan v. Burr, 58 N. H. 470; Fisk v. Hartford,70 Conn. 720; Lillis v. Emigrant Ditch Co., 95 Cal. 553.

spring, where the defendants relied on a former recovery, it was held that the plaintiff might give evidence that at the former trial he gave no evidence of the damage done during a part of the time laid in the declaration, and that the defendant might contradict it by other evidence.1 A former recovery by one tenant in common for a nuisance to the joint possession is admissible in evidence in a subsequent action brought by both for a continuance of the nuisance.2

1 Haak v. Breidenbach, 6 Binney, 12; 3 S. & R. 204. The doctrine of res adjudicata was not considered in

this case. See Fullerton v. Pool (Wyom.), 59 Pac. Rep. 431.

2 Fell v. Bennett, 110 Penn. St. 181.

SECTION.

CHAPTER XIII.

EQUITABLE REMEDIES.

506, 507. By injunction Without first establishing the right at law. 508-511. Ibid.-Irreparable injury.

512-517. Ibid.-Present and prospective injury.

518-520. Ibid.- Claim of adverse right by defendant.

521-523. Ibid.— Allegations in the bill.

524-527. Preliminary injunction - When granted.

528, 529. Perpetual injunction - When granted.

530-533. Ibid.- Acquiescence and equitable estoppel

534-537. Injunctions against obstruction or diversion of waters.
538, 539. Ibid.- Where the rights are fixed by contract or otherwise.
540. Regulation of common rights in equity.

541. Injunctions in cases of nuisances from stagnant water. 542. Ibid. Not granted to protect subterranean percolations. 543. Ibid.-To protect prior appropriations in mining districts. 544-546. Ibid.- To restrain pollutions.

547. Ibid.-Impediments to navigation and rights of access. 548, 549. Ibid.-In other instances of injuries affecting waters. 550, 551. Practice as to granting injunctions.

558-561. Difficulty in framing or fulfilling order, effect.

562-568. Bills of peace.

569-578. Specific performance.

§ 506. Injunctions — Establishing right at law.— Nuisances and injuries affecting waters are remedied in equity by the writ of injunction. The ground upon which equity takes jurisdiction is that the injury complained of is irreparable or of such a nature that there is no adequate remedy at law.1 It is an extraordinary remedy, and granted only where the plaintiff's right and his danger of suffering such an injury are clear. If the thing complained of is not itself a nuisance, or the mischief irreparable and capable of compensation in damages, there must first be a judgment at law establishing the existence of the nuisance and measuring the damages. But it is 2 Kennerty v. Etiwan Phosphate Co., 17 S. C. 411; Outcalt v. George W. Helme Co., 42 N. J. Eq. 665; W. H. Howell Co. v. Charles Pope Glucose

1 Pine v. New York, 76 Fed. Rep. 418; Bartlett v. Moyers, 88 Md. 715; Crescent M. Co. v. Silver King M. Co., 17 Utah, 444.

2

not indispensable that the plaintiff should establish his title at law before coming into equity; for, if the plaintiff's right had never been drawn in question, he would be put to delay in establishing it at law, and meanwhile the injury threatened might become complete, and the purpose for which equity takes jurisdiction defeated.1

§ 507. Same-Same.- In Bush v. Western, the plaintiff had been for sixty years in possession of the watercourse which was diverted, and it was held proper in such a case to bring the suit in equity in the first instance; and in Gardiner v. Newburgh, Chancellor Kent held that where the plaintiff showed that he had immemorially enjoyed the right to use the stream, there was no need of a trial at law. In Holsman v. Boiling Spring Co., it is said: "Where the complainant seeks protection in the enjoyment of a natural watercourse upon his land, the right will ordinarily be regarded as clear; and 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 injunc

Co., 171 Ill. 350; 61 Ill. App. 593; Peters v. Hansen, 55 Mich. 276; McClain's Appeal, 130 Penn. St. 546.

1 Finch v. Resbridger, 2 Vern. 390; Ripon v. Hobart, 3 Myl. & K. 169; Dewhirst v. Wrigley, 1 Cooper Prac. Cas. 319; Beaufort v. Morris, 6 Hare, 340; Goodson v. Richardson, L. R. 9 Ch. 221. See St. 25 and 26 Vict. ch. 42, § 4; Seneca Woolen Mills v. Tillman, 2 Barb. Ch. 9; Reid v. Gifford, Hopk. Ch. (N. Y.) 416; Mohawk Bridge Co. v. Utica & S. R. Co., 6 Paige, 554; Carlisle v. Cooper, 21 N. J. Eq. 576; Denton v. Leddell, 23 id. 64; Sprague v. Rhodes, 4 R. I. 301; Att. Gen. v. Hunter, 1 Dev. Eq. 12; Burden v. Stein, 27 Ala. 104; Switzer v. McCullough, 76 Va. 777; Corning v. Troy Iron Factory, 40 N. Y. 191; Eastman v. Amoskeag Manuf. Co., 47 N. H. 71; Tuolumne Water Co. v. Chapman, 8 Cal. 392; Lux v. Haggin, 69 Cal. 225; Stone v. Roscommon Lumber Co., 59 Mich. 24; Dwight

v. Hayes, 150 Ill. 273; Learned v. Hunt, 63 Miss. 373; Lyon v. Ross, 2 Bibb (Ky.), 466. Originally the rule undoubtedly was that the plaintiff must, in every case, first establish his right at law. In Weller v. Smeaton, 1 Cox, 102; 1 Bro. C. C. 572 (1784), Lord Thurlow said that in no instance, except that of Bush v. Western (1720), had equity ever interposed in a mere question of right between A. and B. See also Welby v. Rutland, 2 Bro. P. C. (Tomlin's ed.), 39; Lond v. Murray, 17 L. T. 248. Under the Massachusetts statute it is not necessary, where the legal right is not clear, that the plaintiff should first establish it at law, if in other respects he shows a case for proceedings in equity. Smith v. Smith, 148 Mass. 1, 5.

2 Prec. in Ch. 530.

32 Johns. Ch. 162.

41 McCarter (N. J.), 335, 343; Sanford v. Lyon, 37 N. J. Eq. 94.

tion." But where the rights of the parties are in dispute, and have never been adjudicated, equity will not undertake to try the right on a bill for injunction, but will direct an issue and require the plaintiff first to establish his title at law. If it is not clear that the acts of a corporation in obstructing a stream are unauthorized by its charter, that question must be determined against it by an action at law, before it will be restrained by injunction. But even in such case, if an act is threatened which would be an irreparable injury to the rights in question, if established, the court will interfere by an interlocutory injunction, and preserve the property and rights of the parties in statu quo until the question of right is determined. Where the alternative is interference or probable destruction of property, the court will be ready to lend its immediate assistance, even at considerable risk that it may be encroaching on what may eventually turn out to be a legal right of the defendant.1

§ 508. Same-Irreparable injury.-By irreparable injury, which is the equity of the bill, is meant one for which

1 Agar v. Regent's Canal Co. (per Lord Eldon), Cooper Chan. Cas. 77; Birmingham Canal Co. v. Lloyd, 18 Ves. 515; Cardiff v. Cardiff Water Works, 4 De Gex & J. 596; Bradbury 2. Manchester Ry. Co., 15 Jur. 1167; Van Bergen v. Van Bergen, 3 Johns. Ch. 282; Seneca Woolen Mills v. Tillman, 2 Barb. Ch. 9; Porter v. Witham, 17 Maine, 292; Cummings v. Barrett, 10 Cush. 186; Prentiss v. Larnard, 11 Vt. 135; White v. Forbes, Walk. (Mich.) 112; Heiskell v. Gross, 7 Phila. 317; Bliss v. Kennedy, 43 Ill. 67; Stolp v. Hoyt, 44 Ill. 219; Att. Gen. v. Hunter, 1 Dev. Eq. 12; Parker v. Winnipiseogee Lake Co., 2 Black, 545.

2 Sheboygan v. Sheboygan R. Co., 21 Wis. 607; Vick v. Rochester, 46 Hun, 607; Lake Erie & W. R. Co. v. Fremont, 92 Fed. Rep. 721; McLaren v. Caldwell, 5 Ont. App. 363.

3 Ripon v. Hobart, 3 Myl. & K. 169, 181, 182; Beaufort v. Morris, 6 Hare, 340; Whitchurch v. Hide, 2 Atk. 391; Buller v. Society, 12 N. J. Eq. 264;

Morris Canal Co. v. Central R. Co., 16 id. 419, 425; Myers v. Allspruce Meadow Co. (N. J. Eq.), 43 Atl. Rep. 1068; Johnson v. Belmar (N. J. Eq.), 44 Atl. Rep. 166; Los Angeles v. Los Angeles City W. Co., 124 Cal. 368; Troy v. Norment, 2 Jones Eq. (N. C.) 318; Richmond v. Dubuque R. Co., 33 Iowa, 482; United States v. Duluth, 1 Dillon, 469; Ingraham v. Dunnell, 5 Met. 118; McCallum v. Germantown Water Co., 54 Penn. St. 40; Sprague v. Rhodes, 4 R. I. 301, 309; Crenshaw v. Slate River Co., 6 Rand. 245; Phillips v. Stocket, 1 T. R. 200; Binney's Case, 2 Bland Ch. 99; Bliss v. Kennedy, 3 Ill. 67. See 1 High on Injunctions (2d ed.), § 8; Kerr on Injunctions (2d ed.), ch. 3; Great Western Ry. Co. v. Birmingham Co., 2 Phila. 597, 603.

4 Per Lord Cranworth, in Shrewsbury & Chester Ry. Co. v. Shrewsbury & Birmingham Ry. Co., 1 Sim. N. S. 410; Fulton v. Greacen, 36 N. J. Eq. 216, 220.