injunction, and decreed damages to the plaintiff for the injuries thereby sustained.1 So where one in mining dug so near another's dwelling-house as to endanger the same by weakening its lateral support by the natural soil, the court restrained any further excavation by injunction.2 So courts of equity will restrain one mill-owner from unlawfully obstructing the mill-privilege of another.3 In Corning v. Lowerre, above cited, the injury complained of and enjoined was the building of a house upon a street, which materially injured the plaintiffs, as owners of lots adjoining the same upon the street.1 And in Attorney-General v. Nichol, the court held that they would interpose to prevent one man from obstructing the light of another, where, from the circumstances of enjoyment, usage, or interest, some contract can be implied that the adverse party should not build upon the premises on which he has erected [*580] the obstruction, if the consequences of the act of obstruction appear to be such as should not only be redressed, but prevented. But they will not do this upon every degree of darkening one's lights and windows, though ancient, nor in every case where an action upon the case could be sustained.5 8. On the other hand, equity will sometimes interpose to prevent the doing of an act injurious to the plaintiff's estate, although he would be without remedy for the injury by an action at common law. Thus in the case of Barrow v. Richard, where M., having a large parcel of land in a city, cut it up into building-lots, and sold them to sundry individuals, taking a covenant in the deed of each that no offensive trade should be carried on in the premises. The plaintiff was one of these purchasers, and the defendant another. The defendant having begun to carry on such a business, it was held that, upon the plaintiff's complaint, the court would enjoin 1 Gurney v. Ford, 2 Allen, 576; Richardson v. Pond, 15 Gray, 387. 2 Hunt v. Peake, Johns. Ch. (Eng.) 705. 3 Crittenden v. Field, 8 Gray, 621; Bemis v. Upham, 13 Pick. 169; Ballou v. Hopkinton, 4 Gray, 324; Hill v. Sayles, 12 Cush. 454. 4 * Corning v. Lowerre, 6 Johns. Ch. 439. See Hills v. Miller, 3 Paige, 254. 5 Attorney-General v. Nichol, 16 Ves. 338. him, although the plaintiff could not maintain an action upon the covenant into which the defendant had entered with the vendor.1 9. But in Biddle v. Ash the court refused to restrain one from building so as to stop the plaintiff's lights, because the title was doubtful and in controversy, though they held that, if the plaintiff were to make out a case of clear right by contract or ancient possession, they would enjoin against the erection of any nuisance which should darken his lights or interfere with his right of way.2 10. Accordingly the court, in Robeson v. Pittenger,3 granted an injunction against building a wall which darkened the lights of the plaintiff. And in Shields v. Arndt they granted a like injunction, to prevent the diversion of the water of a [* 581] stream, and that without first having the title of the party to do so tried at law, the right claimed by the plaintiff having been long enjoyed. They recognize, however, the ordinary rule to be, to have questions of doubtful title settled at law before equity will interpose by way of injunction. 11. But if the injury be a reversionary one, and is not in its nature irreparable, or can be compensated in damages, the court will not grant an injunction. Nor will they where the plaintiff's title is doubtful, and there is no danger of irreparable mischief therefrom, until after an issue of fact tried at law.5 11 a. Courts will not refuse a mandatory injunction to what injuriously affects an easement, merely because the obstruction is completed before such injunction is applied for. Nor will they interfere by such injunction except in cases in which extreme or, at all events, serious damage will ensue from withholding such interference. And where an injury has been done, but not such as to call for a mandatory injunction, courts of equity will not give damages, but leave the party to his remedy at common law. 12. In Massachusetts there is provision made by statute that, after a judgment upon proceedings at common law for the recovery 1 Barrow v. Richard, 8 Paige, 351; Trustees, &c. of Watertown v. Cowen, 4 Paige, 510, 514; Bedford v. Trustees of British Museum, 2 Mylne & K. 552. See ante, p. *63, *576. Western v. McDermot, L. R. 2 Ch. Ap. 74. Biddle v. Ash, 2 Ashm. 211. 3 Robeson v. Pittenger, 1 Green, Ch. 57. 4 Shields v. Arndt, 3 Green, Ch. 234, 245, 246. 5 Ingraham v. Dunnell, 5 Metc. 118; Dana v. Valentine, 5 Metc. 8. Durell v. Pritchard, L. R. 1 Ch. Ap. 244; Clark v. Clark, L. R. 1 Ch. Ap. 15. of damages for a private nuisance, the court may issue a warrant to an officer, authorizing him to abate and remove the nuisance, at the expense of the defendant. And in this the statute is little more than carrying out the principle of the common law.1 In South Carolina there is a statute authorizing certain authorities to cause dams or embankments to be abated, which one may erect upon his own land across streams, which prevent the natural flow of the water in the same, to the injury of another's land above such dam, unless the owner of such dam or embankment shall have made an artificial drain on his own land, and kept the same in repair, suitable to draw off such water into the natural stream. These regulations have reference to the culture of riceswamps in that State.2 [* 582] *SECTION IV. REMEDY BY ABATEMENT FOR INJURIES TO EASEMENTS. 1. General right of party injured to abate a nuisance. 1 a. Using one remedy when no bar to another. 2. Care in one abating not to exceed his right to do so. 3. Greenslade v. Halliday. Case of exceeding this right. 4. One having the right may do it effectually. 5. Abating a mill-dam in part, though spoiling the privilege. 7. Within what time the right of abatement is to be exercised. 1. In cases of violation of a right like that of an easement, by the wrongful acts of another in erecting upon his own land that which causes such injury, the party whose right is thereby invaded is not obliged to seek his redress by a suit at law, or proceedings in equity, but may vindicate the same by his own act, by entering upon the land of such wrong-doer, and abating, as it is called, the cause of such injury. The language of Coke is: "Note, reader, there are two ways to redress a nuisance, one by action; and that is to recover damages, and have judgment that the nuisance 1 Mass. Gen. St., c. 139; Stevens v. Stevens, 11 Metc. 251; Baten's Case, 9 Rep. 55. See Bemis v. Clark, 11 Pick. 452. 2 Brisbane v. O'Neall, 3 Strobh. 348. shall be removed, cast down, or abated, as the case requireth; or the party grieved may enter and abate the nuisance himself, as it appeareth by 17 Edw. III. 44 and 9 Edw. IV. 35." 1 1 a. Though the injured party may have an election of remedies by action, or by abating the cause of the injury, he would not, by adopting the latter, preclude his bringing an action and recovering damages for the injuries he may have suffered up to the time of making the abatement.2 But where one takes the law into his own hands, and abates a nuisance, he must be careful not to carry his abatement any further than the subject-matter to which it is applied is clearly unlawful.3 And where one had a right to draw water from a stream, by means of a trench through another's land, and a stranger entered upon this land and stopped the trench without any authority from the owner of the land, it was held that the mill-owner could not have an action against the land-owner for suffering the obstruction to remain. His remedy was to enter upon the land and remove the obstruction himself.4 2. But the party exercising this right of abating a nuisance to his property must be careful not to exceed the right by doing more than he is justified to do. Thus one * injured [* 583] in his property by another raising his dam higher than he had a right to do, and thereby flowing back water upon the same, may enter upon the premises of the owner of the dam, and abate the same to its proper height. But he may not abate it altogether, nor beyond what is necessary to reduce the flowing to its proper limits; and the same rule applies to all cases of abating nuisances by the party's own act.5 1 Baten's Case, 9 Rep. 55; Perry v. Fitzhowe, 8 Q. B. 757; Penruddock's Case, 5 Rep. 101; Great Falls Co. v. Worster, 15 N. H. 412; Adams v. Barney, 25 Verm. 225; Amick v. Tharp, 13 Gratt. 564, 567; Rex v. Rosewell, 2 Salk. 459; ante, chap. 3, sect. 5, pl. 14; 2 Rolle, Abr., Nuisance, S; Raikes v. Townsend, 2 Smith, 9; Com. Dig., Action on the Case for a Nuisance, D. 4; Rhea v. Forsyth, 37 Penn. St. 503;. McChord v. High, 24 Iowa, 348; Company v. Goodale, 46 N. H. 56. * Tate v. Parish, 7 Monr. 328; White v. Chapin, 102 Mass. 138. 3 Hutchinson v. Grainger, 13 Verm. 394. 4 Saxby v. Manchester, &c., R.R., 38 L. J. N. s. C. P. 153. 5 Dyer v. Depui, 5 Whart. 584; Heath v. Williams, 25 Maine, 209; Jewell v. Gardiner, 12 Mass. 311; Hodges v. Raymond, 9 Mass. 316; Greenslade v. Halliday, 6 Bing. 379; Colburn v. Richards, 13 Mass. 420; Gates v. Blincoe, 2 3. Thus, in Greenslade v. Halliday, one had a right to divert the water of a stream for the purpose of irrigating his land, by placing loose stones or a board across the stream. He drove stakes in the stream to support the board more firmly than it had been previously done, but which he had no right to do; and another, who was interested in the water, entered upon the premises, and removed the stakes and the board; and it was held that he was liable for the removal of the board, though he might have removed the stakes. So in Dyer v. Depui one having erected a house so high as to obstruct the ancient windows of another, it was held that the latter might abate so much of the house as obstructed his lights, but could not destroy the entire house.1 But the party will not be justified in abating by his own act an erection upon his neighbor's land, until he shall have actually been injured by it. It is not enough that he apprehends, the structure will injure him, or that the one erecting it intends to use it so as to injure him * in the enjoyment of his estate. He [* 584] must wait until it has begun to injure him before he can enter upon his neighbor's land to abate it.2 Though if his neighbor erects his house with eaves projecting over his land, he need not wait till the rain shall have actually fallen upon his neighbor's roof, and been thereby thrown upon his land, before he may abate the part that projects over his land.3 So a dam may be a nuisance, and be abated accordingly, though not actually causing damage to the party, whose rights are thereby invaded, at the time of abating it.4 4. But if one having a right of easement in another's premises unlawfully extends the use of the same, or uses it in connection with rights not belonging to them, the owner of the tenement may stop the excess of such use; and if he cannot do this without Dana, 158; Prescott v. Williams, 5 Metc. 429; Prescott v. White, 21 Pick. 341; Rex v. Pappineau, Strange, 686; Perry v. Fitzhowe, 8 Q. B. 757; James v. Hayward, W. Jones, 221, 222; Rex v. Rosewell, 2 Salk. 459; Mason v. Cæsar, 2 Mod. 65; Davies v. Williams, 16 Q. B. 546; Moffet v. Brewer, 1 Green, Iowa, 348; Elliot v. Fitchburg R.R. Co., 10 Cush. 191; Wright v. Moore, 38 Ala. 599. 1 See also Rex v. Pappineau, supra. 2 Norris v. Baker, 1 Rolle, 393; Jones v. Powell, Palm. 536. 3 Penruddock's Case, 5 Rep. 101. Company v. Goodale, 46 N. H. 56. |