said that a disturbance or deprivation of one's riparian right is in itself an irreparable injury. The erection of a raceway which would involve cutting down a river-bank, destroying trees, and exposing ground to be washed away is a clear case of waste, in which equity will interfere.2 But the overflowing of land, causing the destruction of timber, and other damages, has been held not a sufficient injury to justify interference.3 Where the diversion of a stream will cause the stoppage of the plaintiff's mill and throw a number of servants out of employment, the injury is plainly irreparable. Depriving the plaintiff of his right to a supply of water for his house from a spring, and the cutting and destruction of his pipes laid for conducting the water, are also grounds for interference.5

§ 511. If a statute authorizing the taking of property, or flowage of land, or use of a stream, provides an adequate remedy by special proceeding to parties injured thereby, equity will not take jurisdiction. The mere existence of a legal remedy will not bar equitable jurisdiction where the remedy in equity is more adequate, comprehensive, and effectual. So, where a Mill Act gave the court power to abate and remove a dam, without having a prospective effect, it was held that equity would take jurisdiction to determine the proper height of the dam, fix terms upon which it could be maintained, and perpetually enjoin the nuisance. An injunction will not be granted merely as a means of compelling a defendant to make compensation; as if having had the lease of a water-right, he holds over and refuses to pay for the use and occupation. But where the defendant is insolvent and unable to respond in damages, this is itself a

1 Holsman v. Boiling Spring Co., 42; Spangler's Appeal, 64 Penn. St. 1 McCarter (N. J.) 335. 387; ante, § 250.

2 Scudder v. Trenton Delaware

Falls, 1 Saxt. (N. J.) 694.

7 Bemis v. Upham, 13 Pick. 169; Boston Water Power Co. v. Boston &

3 Coe v. Winnipiseogee Lake Co., Worcester Railroad Co., 16 Pick. 512;

37 N. H. 254, 264.

4 Wright v. Moore, 38 Ala. 593.

5 Legg v. Horn, 45 Conn. 409.

Ballou v. Hopkinton, 4 Gray, 324.

8 Bemis v. Upham, 13 Pick. 169.

9 Warne v. Morris Canal Co., 1 Hal.

6 Bull v. Valley Falls Co., 8 R. I. Ch. 410.

ground upon which equity will take jurisdiction, as a recovery at law would necessarily be an inadequate remedy.1

§ 512. The remedy being preventive, past injuries are not. in themselves grounds for equitable interference.2 But where some degree of injury is shown, the court will consider its probable continuance; 3 and if the injury seems likely to continue, equity will not refuse to interfere because the damage is slight. The fact that the act complained of is completed. will not prevent an injunction from issuing against the continuance of a trespass or nuisance.

1 Winnipiseogee Lake Co. v. Worster, 29 N. H. 433; Hart v. Mayor of Albany, 3 Paige, 212; Atchison v. Peterson, 20 Wall. 507, 515; Sword v. Allen, 25 Kansas, 67; Derry . Ross, 5 Col. 295. In Heilman v. Union Canal Co., 37 Penn. St. 100, which was upon a bill to restrain a canal company from using the water of a certain creek, it is said: "The fact, if it be so, that this remedy may not be successful in realizing the fruits of a recovery at law, on account of the insolvency of the defendants, is not of itself a ground of equitable interfer

ence.

The remedy is what is to be looked at, if it exist, and is ordinarily adequate; its possible want of success is not a consideration. It is not intended here to say that insolvency is never a consideration moving a chancellor. It frequently does, but not alone.

The equitable remedy must exist independently. In balancing cases, it is a consideration that gives preponderance to the remedy. Hence, the alleged insolvency of the company, and the supposed inability to collect damages that may be recovered from it, is no reason for interfering by injunction." And this position is adopted by Mr. High (Injunctions, 2d ed., § 18).. It is called "an important consideration" in 29 N. H., p. 449. In the Pennsylvania case, the defendant had used water belonging to the plaintiff for twenty years with his consent, and had paid him therefor. But in the

An uncertain future

leading case on the point, Smallman v. Onions, 3 Bro. Ch. 621, Lord Eldon granted an injunction to stay waste against the tenant in common of the plaintiff solely on the ground of insolvency. The law is the same in New Jersey. West . Walker, 2 Green Ch. 279, note B. 291, citing MS. cases of Read v. Cornelius, and Norcross v. Fisher.

2 Coalter . Hunter, 4 Rand. (Va.) 58; Coe v. Winnipiseogee Lake Co., 37 N. H. 254, 266; Burnham v. Kempton, 44 N. H. 78, 101; Society v. Morris Canal Co., 1 Saxt. Ch. 157; Cobb v. Smith, 16 Wis. 661; Loker v. Simpson, 7 Cal. 340; Tuolumne Water Co. v. Chapman, 8 Cal. 392.

3 Goldsmid . Tunbridge Wells, L. R. 1 Ch. 349; Rochdale Canal Co. v. King, 2 Sim. x. s. 78; Attorney General v. Sheffield Gas Co., 3 De Gex, M. & G. 304; Attorney General v. Leeds, L. R. 5 Ch. 583; Attorney General v. Luton, 2 Jur. N. s. 180; Bemis v. Upham, 13 Pick. 169; Ballou v. Hopkinton, 4 Gray, 324; ante, § 346.

+ Ibid.; Attorney General v. Sheffield Gas Co., 3 De Gex, M. & G. 304.

5 Goodson v. Richardson, L. R. 9 Ch. 221. In some States the plaintifï is allowed to join an action at law for past damages, with a bill for an injunction. Akin v. Davis, 11 Kansas, 580; Phoenix Water Co. r. Fletcher, 23 Cal. 481; Barnes v. Sabron, 10 Nev. 217; Columbia Mining Co. v. Holter, 1 Mont. 296.

injury will not be ground for exerting the extraordinary power of equity. It has sometimes been said that some degree of present injury is necessary before equity will interfere. Thus, in Elmhirst v. Spencer, Lord Chancellor Cottenham said: "Now the plaintiff, before he can ask for an injunction, must prove that he has sustained such a substantial injury by the acts of the defendants, as would have entitled him to a verdict at law in an action for damages"; and there are cases in which this is true, viz., where the character of the act as a nuisance is doubtful, and where it is not clear that any damage will follow.2

§ 513. Actual damage, or even a completed violation of the plaintiff's rights, is not necessary to entitle a plaintiff to the protection of equity. In Webb v. Portland Manuf. Co.,3 Story, J., said: "But if the doctrine were otherwise, and no action were maintainable at law without proof of actual damage, that would furnish no ground why a court of equity should not interfere and protect such a right from violation and invasion. . . . And one of the most ordinary processes to accomplish this end is by a writ of injunction. . . . If there be no such remedy at law, then, a fortiori, a court of equity ought to give its aid to vindicate and perpetuate the right of the plaintiffs." It is settled in England and America that where irreparable injury is threatened, it is not necessary for the plaintiff to wait until some injury has been done before filing his bill, but that equity will take jurisdiction to prevent, if possible, any injury.4

1 Ripon v. Hobart, 3 Myl. & K. 169; Attorney General r. Kingston, 13 W. R. 888; s. c., 11 Jur. N. s. 596; Mayor

ין

Pemberton, 1 Swanst. 244, 251; Goldsmid v. Tunbridge, L. R. 1 Ch. 349; Rochester e. Erickson, 46 Barb. 92; Hough. Doylestown, 4 Brewst. 333; Walton v. Mills, 86 N. C. 280; Shreve . Voorhees, 2 Green Ch. 25; Ellison v. Commissioners, 5 Jones Eq. 57; Mohawk Bridge Co. v. Utica Railroad Co., 6 Paige, 54; Lytton v. Stewart, 2 Tenn. Ch. 586; Society v. Morris Canal Co., 30 N. J. Eq. 145, note.

2 Elmhirst v. Spencer, 2 MacN. & G. 45; Elwell v. Crowther, 31 Beav. 163; Attorney General v. Cambridge Co., L. R. 4 Ch. 86; Goldsmid v. Tunbridge Wells, L. R. 1 Ch. 349; Lillywhite . Trimmer, 36 L. J. Ch. 525; Oldaker v. Hunt, 6 De Gex, M. & G. 376; New Boston Coal Co. v. Pottsville Water Co., 54 Penn. St. 164; Shreve . Voorhees, 2 Green Ch. 25.

3 Webb . Portland Manuf. Co., 3 Sumner, 189, 197.

4 Attorney General . Forbes, 2

§ 514. That Lord Cottenham did not intend by the decision in Elmhirst v. Spencer 1 to exclude equitable jurisdiction to prevent threatened injuries, may be inferred from his decision in Attorney General v. Forbes,2 in 1836. In that case the magistrates of the County of Berks threatened to cut the timbers of a bridge over the Thames, being partly in Berkshire and partly in Buckinghamshire. Upon a bill by the attorney general for the inhabitants of the latter county, the threatened injury was enjoined. Lord Cottenham said: "This, at least, is clear, that they (the defendants) have, under a regular order at quarter sessions, given a distinct notice (a notice quite sufficient for the purpose of maintaining an injunction) that they intend to adopt this course, if they have a right to do so. Neither can there be any doubt that if their intention is carried into effect, it will occasion a great public nuisance. Why, then, is the Court, with those two facts so stated on the record, not to interfere to prevent the nuisance to the public? . . . It is the duty of the Court

Myl. & Cr. 123; Manchester Railway Co. v. Worksop, 23 Beav. 198; Wicks v. Hunt, Johns. 372; Elliot v. Northeastern Railway Co., 1 J. & H. 145; s. c. 2 De Gex, F. & J. 423; 10 H. L. Cas. 333; Hext v. Gill, L. R. 7 Ch. 699; Wilts Canal Co. v. Swindon Water Works Co., L. R. 9 Ch. 451; Bickett v. Morris, L. R. 1 H. L. (Sc.) 47; McSwiney v. Haynes, 1 Ir. Eq. 322.

Lord Hardwicke so held in cases of waste. Gibson v. Smith, 2 Atk. 182. For American cases, see Van Winkle v. Curtis, 2 Green Ch. 422; Shields v. Arndt, 3 Green Ch. 234, 245; Hulme v. Shreve, 3 Green Ch. 116; Case v. Haight, 3 Wend. 632; Corning v. Troy Iron Factory, 39 Barb. 311; s. c. 34 Barb. 475, 492; 40 N. Y. 191, 220; Rochester v. Erickson, 46 Barb. 92; Burnham v. Kempton, 44 N. H. 78, 101; s. c. 37 N. H. 485, 488; Lyon v. McLaughlin, 32 Vt. 423; Baltimore v. Appold, 42 Md. 442; Varney v. Pope, 60 Maine, 192; McArthur v. Kelley, 5 Ohio, 139; Bell v. Blount, 4 Hawks (N. C.) 384. See

Burwell v. Hobson, 12 Gratt. 322, 332; Gates v. Biincoe, 2 Dana (Ky.) 158. In Lyon v. McLaughlin, 32 Vt. 423, Barrett, J., says: "It would seem to be well settled " "that when the invasion of a right in this kind of property is threatened and intended, which is necessarily to be continuing and operative prospectively and indefinitely, and the extent of the injurious consequences is contingent and doubtful of estimation, the writ of injunction is not only permissible, but is the most appropriate means of remedy. It affords, in fact, the only adequate and sure remedy. For the very doubtfulness as to the extent of the prospective injury, and the impossibility of ascertaining the measure of just reparation, render such injury irreparable in the sense of the law relating to this subject."

1 Elmhirst v. Spencer, 2 MacN. & G. 45 (1849).

2 Attorney General v. Forbes, 2 Myl. & Cr. 123; Ripon r. Hobart, 3 Myl. & K. 169.

to take care that while these magistrates attempt to exercise their respective rights, the public shall not sustain any injury, and that a public nuisance shall not be occasioned."

§ 515. The rule is the same in the case of private nuisances. In Hext v. Gill,' the bill for injunction was filed by a purchaser of land. A former grantor had reserved the mines and minerals, with liberty of ingress and egress, and to dig, search for, and work such minerals. After the conveyance, a bed of china clay, previously unknown, was discovered in the land. The defendants, claiming under the former grantor, had asserted their right to work this bed. It appeared in evidence that china clay was worked by removing the soil covering the clay, turning a stream of water over it, and washing it into channels and reservoirs, producing an almost total destruction of the surface where the excavations were made. It also appeared that the land was underlaid with tin, which was usually worked by "streaming," a process equally destructive to the surface of the land. It was held that while the defendants were entitled to take out the minerals, equity would enjoin them from doing it in such a way as to destroy or seriously injure the surface. The defendants by their answer claimed the right to work the minerals, but said that they had no present intention of doing so; and their counsel argued that therefore equity ought not to grant an injunction. Mellish, L. J., after referring to the answer, said: "We are of opinion that after this it is idle for the defendants to say they do not threaten to get the china clay," "and to contend that this Court is precluded from deciding the question whether they are entitled to get it in the way in which they say they have a right to get it."

§ 516. In Wicks v. Hunt,2 alterations were made in a road which were likely to produce damage to the plaintiff by preventing the escape of water from a marsh. While the alterations were in progress, the plaintiff threatened to take

1 L. R. 7 Ch. 699, 711.

2 Wicks v. Hunt, Johns. 372.