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tinuance of a nuisance, by maintaining a dam which overflowed the plaintiff s mill and 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

502. In Heller v. l'ine, 8 Blackf. 175, the Supreme Court of Indiana held the same way. The action was case for obstructing a watercourse to the 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.

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

CHAPTER XIII.

EQUITABLE REMEDIES.

SECTION.

606, 507. By injunction. — Without first establishing a clear right at law.

508-511. Ibid. — Irreparable injury.

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

518-620. Ibid. — Claim of adverse right by defendant.

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

624-527. Preliminary injunction. — When granted.

528, 529. Perpetual injunction. — When granted.

530-533. Ibid. — Acquiescence and equitable estoppel.

534-537. Injunctions in cases of obstruction or diversion of streams and other waters.

638, 639. Ibid. — Where the parties' rights are fixed by contract or otherwise.

640. Regulation of common rights in equity.

641. Injunctions in cases of nuisances from stagnant water.

642. Not granted to protect subterranean percolations.

643. May issue to protect prior appropriations of water in mining

districts.

644-646. Injunctions. — To restrain pollutions.

647. Ibid. — To prevent impediments to navigation and private rights

of access.

648, 549. Ibid. — In other instances of injuries affecting waters.
550,551. Practice as to granting injunctions.
652-554. Form of injunction.
655-557. Command to abate.

658-661. Difficulty in framing or fulfilling the order, no ground for

refusing relief. 562-568. Bills of peace. 660-578. Specific performance.

§ 506. 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. It is an extraordinary remedy, and granted only where the plaintiffs right and his danger of suffering such an injury are clear. It is not, however, indispensable that the plaintiff should establish his title at law before coming into equity;i for, if the plaintiffs 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.

§ 507. In Bush v. Western,2 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 Gardner v. Newburgh,3 Chancellor Kent held that where the plaintiff showed that he had innnemorially enjoyed the right to use the stream, there was no need of a trial at law. In Holsman v. Boiling Spring Co.,4 it is said: "Where the complainant seeks protection in the enjoyment of a natural watercourse

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191; F.astman v. Amoskeag Manuf. Co., 47 N. H. 71; Tuolumne Water Co. v. Chapman, 8 Cal. 392; Lyon v. Ross, 1 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 Bro. C.C. 572 (1784), Lord Thurlow said that in no instance, except that of Bush v. Steinman (1720), had equity ever interposed on a mere question of right between A. and B. See also Welby v. Rutland, 2 Bro. P. C. (Tomlin's ed.), 39.

- Bush i>. Western, Prec. in Ch. 530.

3 Gardner v. Newburgh, 2 Johns. Ch. 162.

4 Holsman v. Boiling Spring Co., 1 McCarter (N. J.) 335, 343.

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 injunction." 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.1 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.2 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.8

§ 508. By irreparable injury, which is the equity of the bill, is meant one for which there is no adequate remedy at law.4 In Wood v. Sutcliffe, which was a case for injunction

1 Agar v. Regent's Canal Co. (per Lord Eldon), Cooper, Chan. Cas. 77; Birmingham Canal Co. v. Lloyd, 18 Ves. 515; Mayor of Cardiff v. Cardiff Water Works, 4 De Gex & J. 596; Van Bergen v. Van Bergen, 3 Johns. Ch. 282; Seneca Woollen Mills v.Tillman,2 Barb. Ch. 9; Porter v. Witham, 17 Maine, 202; Cummings ii. Barrett, 10 Cnsli. 180; Prentiss v. Larnard, 11 Vt. 135; White v. Forbes, Walk. (Mich.) 112; Ueiskell v. Gross, 7 Phila. 317; Bliss v. Kennedy. 43 111. 67; Stolp v. Iloyt, 44 111. 219; Attorney General v. Hunter, 1 Dev. Eq. 12; Parker r. Winnipiseogee Lake Co., 2 Black, 645.

- Sheboygan v. Sheboygan Railroad Co., 21 Wis. 007.

8 Ripon v. Ilobart, 3 Myl. & K. 109, 181, 182; Beaufort v. Morris, 6 Hare, 340; Whitchurch v. Hide, 2 Atk. 391; Buller v. Society, 12 N. J. Eq. 204; Mor

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against corrupting water, it is stated among other conditions that, "if the injury complained of is of such a nature that damages will not he an adequate compensation, that is, such a compensation as will in effect, though not in specie, place them in the position in which they previously stood," equity will interfere.1

§ 509. The court is not governed by questions of pecuniary value, but will remedy and prevent an injury which it may be reasonably supposed would materially lessen the enjoyment of property by its owner.2 Where the damage is inconsiderable, or accurately ascertainable, and capable of adequate compensation at law, equity will not interfere.8

§ 510. A mere trespass and entry, as for the enlargement of a course for the discharge of water, is not such an injury.4 The pollution of a stream causing serious and continuous, or frequently recurring obstruction of the plaintiff's use of the water, is ground for injunction.5 A diversion depriving the plaintiff of the use of a stream is such an injury, and it is

37 N. H. 254, 204; Parker p. Winnipiseogce Lake Co., 2 Black, 545; Lcgg r. Horn, 45Conn. 40!); Crown r. Leonard, 32 (ia. 241; Wright r. Moore,

38 Ala. 693; Laney r. Jasper, 39 111. 4(1; Welton v. Martin, 7 Mo. 307; Jloxsie v. Hoxsic, 38 Mich. 77; Fairhaven Marble Co. r. Adams, 40 Vt. 490; Heiskell i\ Gross, 7 Phila. 317; Mason v. Cotton, 2 MeCrary, 82.

1 Wood r. Sutcliffe, 2 Sim. N. 8. 163.

- White i>. Forbes, Walker (Mich.) 112. In New York, by statute, interference by equity was formerly limited to injuries amounting to 8100, and in case of diversion causing recurring damage to cases where the annual injury equalled the interest on $100. Smith c. Adams, 0 Paige, 435. Under a similar statute in Michigan, it is held that equity will take jurisdiction of suits involving land worth in itself lees than 8100, if the riparian right

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