So a city council will be restrained from discharging sewage into a private canal. Where a discharge of sewage into a stream has been continued for several years, but in quantities not producing perceptible injury, and is afterwards increased so as to cause a serious injury, a party applying for an injunction against such increase will not be held guilty of laches.2 Where a city made a contract with the proprietor of land to enlarge a ditch through his premises, so as to provide for carrying off the drainage of the city, and performed its part of the contract in good faith, and was not shown to be guilty of any serious fault or neglect, an injunction was granted to restrain the owner from filling in the ditch and obstructing the flowage.3 547. Same-Protecting navigation and access.- Remedies for injuries to navigation are treated in that part of this work devoted to public waters. It may be remarked here, that where such a nuisance causes, or is about to cause, special injury to an individual, he is entitled to an injunction against its creation or continuance as a private nuisance, but that such special injury must be clearly shown, to warrant the interference of the court at his suit. So an interference with one's private right of access to a body of water from his own land, or by a particular wharf, will be enjoined at his private suit." 2 Att. Gen. v. Luton Local Board, 2 Jur. N. s. 180; Goldsmid v. Tunbridge Wells, L. R. 1 Ch. 349; L. R. 1 Eq. 161; Met. Board v. London & N. W. Ry. Co., L. R. 17 Ch. D. 246: Att. Gen. v. Acton Local Board, 22 Ch. D. 221. 1 Boston Rolling Mills v. Cam- man v. New York Balance Dock Co., bridge, 117 Mass. 396. 3 How. Pr. 40; Hecker v. New York Balance Dock Co., 13 How. Pr. 549; Hudson River R. Co. v. Loeb, 7 Rob. (N. Y.) 418; Gillespie v. Forrest, 18 Hun, 110; Maryland R. Co. v. Stump, 8 Gill & J. 479; Frink v. Lawrence, 20 Conn. 117; Thornton v. Grant, 10 R. I. 477; Hickok v. Hine, 23 Ohio St. 523; Cowell v. Martin, 43 Cal. 605; Parrish v. Stephens, 1 Oregon, 73; Parker v. Taylor, 7 id. 435; Musser ?. Hershey, 42 Iowa, 356; Kuehn v. Milwaukee, 83 Wis. 583; Stevens Point Boom Co. v. Reilly, 44 id. 295; Cotton v. Mississippi Boom Co., 19 Minn. 497; Page v. Mille Lacs L. Co., 53 id. 492. See Morris & Essex R. Co. v. Prudden, 20 N. J. Eq. 530. 3 Coldwater v. Tucker, 36 Mich. 474. See Whipple v. Fair Haven, 63 Vt. 221. 4 Ante. §§ 121–128. 5 Crowder v. Tinkler, 19 Ves. 617; Spencer v. London Ry. Co., 8 Sim. 193; Att. Gen. v. Lonsdale, L. R. 7 Eq. 377; Georgetown v. Alexandria Canal Co., 12 Pet. 91; Mississippi R. Co. v. Ward, 2 Black, 485; No. Pac. R. Co. v. Whalen, 149 U. S. 157; Rowe v. Granite Bridge Co., 21 Pick, 344; Penni 6 Lyon v. Fishmongers' Co., 1 App. Cas. 662; Hartlepool Collieries Co. v An obstruction or injury to the navigation of a private canal will be restrained at the suit of the parties injured thereby.' § 548. Same-Other cases.- Other instances of injuries affecting waters, in which injunctions have been granted, are: against the flooding of another's mine by permitting a communication between the mines to remain open; 2 preventing a person from exercising his right to enter upon the lands of the defendant to repair his dam or works erected for the use of water; against erecting a house upon land which is subject to an easement of supplying water through pipes to the adjoining land, when access to the pipes for the purpose of 3 Gibb, 5 Ch. D. 713; Cowell v. Martin, 43 Cal. 605; Parker v. Taylor, 7 Oregon, 435. See Thornton v. Grant, 10 R. I. 477; Knickerbocker Ice Co. v. FortySecond Street Ferry R. Co., 65 How. Pr. 210. As to injuries to such right by the public in the construction of public works, see Att. Gen. v. Conservators of the Thames, 1 H. & M. 1, 31; Macey v. Met'n Board, 33 L. J. Ch. 377; Sutton Harbor Impr. Co. v. Hitchins, 21 L. J. Ch. 73. 1 London Ry. Co. v. Grand Junction Canal Co., 1 Ry. & C. Cas. 224. As to enjoining the working of subjacent mines, causing subsidence of a canal, see Benfieldside Local Board v. Consett Iron Co., 3 Ex. D. 54; London & N. W. Ry. Co. v. Evans, [1892] 2 Ch. 432; [1893] 1 Ch. 16; Bennett v. Morris (Cal.), 37 Pac. Rep. 929. In States where streams having only capacity to float logs to market at certain seasons of the year are not considered navigable, the diversion of water from such streams will not be enjoined as an injury to navigation. Hubbard v. Bell, 54 Ill. 110. The Illinois courts followed the early New York doctrine. Munson v. Hungerford, 6 Barb. 265. So the owner of a dam on such a stream was held entitled to an injunction against injury by the rafting of logs over it. Curtis v. Keeler, 14 Barb. 511. The New York rule was modified in Morgan v. King, 18 Barb. 277; 30 Barb. 9. The stricter rule as to the right of navi, gation was favored in the same case, 35 N. Y. 454, and Pierrepont v. Lovelass, 4 Hun, 696. But in 72 N. Y. 211, the latter decision was reversed, and the rule now is that streams capable of floating logs at certain seasons, or by improvements, will be protected as navigable for such purposes. See, also, ante, § 107; Gaston v. Mace, 33 W. Va. 14; Watts v. Norfolk, etc. Ry. Co., 39 id. 196; Hall v. Nester (Mich.), 80 N. W. Rep. 982; Rowe v. Titus, 1 Allen (N. B.), 326; Essen v. McMaster, 1 Kerr (N. B.), 501; McLaren v. Caldwell, 6 Tupper's App.. Rep. (Canada) 456. On a bill for an injunction by a mill-owner to protect his dam from injuries by floods, and jams of logs caused by the defendant's booms, Cooley, J., held, in dismissing the bill without prejudice, that the parties' rights mutually modified each other, and that, while the exercise of each might render the other less valuable, there was no ground for complaint, if the use was reasonable. Buchanan v. Grand River Log Co., 48 Mich. 364. 2 Mexborough v. Bower, 7 Beav 127; ante, § 295. 3 McSwiney v. Haynes, 1 Ir. Eq.. (1839), 322; post, § 553. 5 3 repairing them is thereby materially interfered with and rendered more expensive;1 the erection of a railway bed in and upon an artificial basin, diminishing its capacity;2 maintaining a boom which drives logs upon another's land; interference with an exclusive right to supply a town with water;* draining a fish pond; the holding of a regatta upon a lake, and thereby injuring an exclusive right of fishery; the diminution of the volume of a stream by pumping out large quantities of water for mechanical purposes; the building of a dike along the bank of a stream in such a way as to throw the water in unnatural quantities upon the lands on the other side, and injure them; the destruction of a dam and works, where the plaintiff's right to maintain them is clear; and interference with prior appropriations of water in the far western states and territories.10 9 $549. Same-Same.-The abatement, as a nuisance, of works authorized by law, or whose character as a nuisance is not clear, will be enjoined until the character of the structure is ascertained, and if it be decided to be lawful, a perpetual injunction will issue." So the abatement, as a nuisance to nav 1 Goodhart v. Hyett, 25 Ch. D. 182. See Sandgate Local Board v. Leney, id. 183, note; Birkenhead v. London & N. W. Railway, 15 Q. B. D. 572. 2 Boston W. P. Co. v. Boston R. Co., 16 Pick. 572. For cases at law upon the same point, see Beeston v. Wheate, 5 E. & B. 986; Peter v. Daniel, 5 C. B. 568; Frailey v. Waters, 7 Penn. St. 221. 23 N. H. 462; Morris Canal Co. v. Society, 1 Hal. Ch. 203. 10 Supra, § 230 et seq.; Consolidated Canal Co. v. Mesa Canal Co., 177 U. S. 296. 11 Lehigh Valley R. Co. v. McFarlan, 31 N. J. Eq. 706; 30 id. 180; Getting v. Union Impr. Co., 7 Kulp, 493. In the first case a company authorized to maintain a canal and take property 3 Cotton v. Mississippi Boom Co., 19 therefor had maintained a dam for Minn. 497. 4 Whitchurch v. Hide, 2 Atk. 391. See Walla Walla v. Walla Walla W. Co., 172 U. S. 1; Phillipsburg W. Co. v. Citizens' W. Co., 189 Penn. St. 23. 5 Ambrose v. Buffalo, 20 N. Y. S. 129. "Bostock v. North Staffordshire Ry. Co., 5 De Gex & Sm. 584. See De Camp v. Burns, 53 N. Y. S. 1035. 7 Att. Gen. v. Great Eastern Ry. Co., L. R. 6 Ch. 572. 8 Burwell v. Hobson, 12 Gratt. 322. 9 Great Falls Manuf. Co. v. Worster, many years as a part of their works. They increased its height by flashboards. The defendant, who was injured by back-flowage caused by the increased height, removed the flashboards. It was held that the only remedy was by an action for damages, and he was enjoined from interfering with the dam in future. Upon an indictment for maliciously breaking down A.'s dam, A.'s ownership or interest must be proved. State v. Weeks, 30 Maine, 182. igation, of a dam maintained as by right, will be restrained until the right can be determined, where great loss to the owner and inconvenience to the public would be occasioned by its destruction. So equity will prevent the abatement of an alleged nuisance by an unreasonable method, or one causing needless damage. So, where a municipal body attempted to fill up a canal which was a public highway, because it had become unwholesome, such action was restrained by an injunction at the instance of an owner of property abutting thereon. In a suit to quiet title, a decree for the plaintiff cuts off an easement claimed by the defendant." 5 550. Same- Practice.- The plaintiff's equitable right to an injunction must appear on the face of the bill, or it will be held bad on demurrer. The jurisdiction of the court must also be shown where the court is not of general jurisdiction, or the bill will be demurrable. But the pendency of an action at law by the plaintiff is no reason why equity will not grant an injunction. And the court will not withhold its hand on account of the pendency of an appeal at law from the decision establishing the legal right, unless it doubts the correctness of the decision, but the pendency of the appeal may influence 1 Crenshaw v. Slate River Co., 6 Rand. 245. 2 Clark v. Syracuse, 13 Barb. 32; Babcock v. Buffalo, 1 Sheld. (N. Y.) 317; 56 N. Y. 268. See Finley v. Hershey, 41 Iowa, 389; Fresno v. Fresno Canal Co., 98 Cal. 179. 3 Indiana Ry. Co. v. Allen, 113 Ind. 308, 581. See Riverside Land & Ir. Co. v. Jansen, 66 Cal. 300; Harris v. Harrison, 93 Cal. 676; Hulsman v. Todd, 96 id. 228; Fudickar v. East Riverside Ir. District, 109 id. 29; Bathgate v. Irvine (125 Cal.), 58 Pac. Rep. 442; California Oil Co. v. Miller, 96 Fed. Rep. 12. An administrator cannot maintain a suit to quiet title to a water right, which is real estate. Travelers' Ins. Co. v. Childs, 25 Col. 360. 6 Att. Gen. v. Bradford Canal, L. R. 2 Eq. 71. But equity may decline to exercise jurisdiction where actions at law are pending, and the effect of taking jurisdiction would be to produce, and not to prevent, multiplicity of suits. In Eastman v. Amoskeag Manuf. Co., 47 N. H. 71, the court said: The plaintiffs "bring forth their own suits at law, and no final judgment is obtained in either of them. They then bring their bill in equity, and ask this court for the writ of injunction, and among other things, for damages, since the last or second suit at law. We approve of the plaintiffs' prosecuting one of these suits at law to final judgment, so that their legal right be fully established, and they have doubtless 4 Winnipiseogee Lake Co. v. Young, the right to resort to another suit at 40 N. H. 420. 5 May v. Parker, 12 Pick. 34. 52 law. But when a party brings forth his two suits at law before he appeals the court in determining the date at which the injunction should take effect. Generally the court will not grant an injunction seriously affecting the rights of persons not before the court. But we have seen that in such a case it may call the persons to be affected before it. And where a person undertakes the prosecution or defence of a case, as where a landlord assumes the defence of a bill against his tenant, he is within the jurisdiction of the court, and may be included in the terms of the decree.1 6 § 551. Same-Same.- Where a preliminary injunction has been granted upon the filing of the bill, it is always open to a motion to dissolve before the coming in of the answer; and sometimes provision will be made in the preliminary order for hearing such a motion. Where the preliminary injunction appears to have been granted in a case perfectly remediable at law, it will be dissolved.' It may also be modified, in the discretion of the court, so as to permit the defendant to complete the work enjoined, if such completion will not prejudice the plaintiff's right to relief on the final hearing. But a partial removal of the nuisance before the injunction issues will not deprive the plaintiff of his right where the existence and continuance of an injury in the past are shown." 8 § 552. Same Form. In form the injunction may be either prohibitory or mandatory. The power to issue a mandatory injunction was formerly doubted; and resort was had to to the equitable tribunal, we think the presumption may be fairly entertained that he has elected a favorite remedy, and must abide by it, and should not ask for equity while in flicting a multiplicity of suits at law upon his opponents." 1 Att. Gen. v. Bradford Canal, L. R. 2 Eq. 71. 2 Hartlepool Gas Co. v. West Hartlepool Harbor Co., 12 L. T. N. s. 366. 3 Adams v. Manning, 48 Conn. 477; 51 Conn. 5. 52 Dan. Ch. Prac. (5th ed.) 1675; Wing v. Fairhaven, 8 Cush. 353. As to the effect of the answer, see Lambert v. Alcorn, 144 Ill. 313. 6 Binney's Case, 2 Bland Ch. 99. 7 Wing v. Fairhaven, 8 Cush. 363; Wheeler v. State, 50 Ga. 34; Phillips v. Stocket, 1 Tenn. 200; Grill v. Wiswall, 31 N. Y. S. 470. 8 Hugg v. Fath, 37 N. J. Eq. 46; Dunning v. Kelly, 46 id. 605; Com'rs v. Catawba L. Co., 114 N. C. 505. 9 Carlisle v. Cooper, 21 N. J. Eq. 576. 4 Att. Gen. v. Bradford Canal, L. R. See Conklin v. Pacific Imp. Co., 87 |