given to them by acts of parliament, from defeating the rights and interests of individuals. But it is the duty of the court to take care that, if individuals avail themselves of any omission of any power on the part of the company, this court should not assist those individuals in extorting money from the company. It is the duty of the court in every case to steer clear of these two opposite extremes; and if there should be some omission which may give a party a legal right against a company, the court would leave that individual to his legal means of taking advantage of it.”

5. Where an ex parte injunction is granted, upon a state of facts not fully disclosing the case, and is subsequently dissolved, upon a further development of the real facts on the part of the defendant, it should generally be done with costs to defendant.5

And if the party obtains an ex parte injunction upon one state of facts, which turns out upon trial not to be true, or not to be the fair state of the full case, he cannot fall back upon another state of facts which is established, and which would also entitle him to an injunction. But sometimes in such cases the injunction is discharged without costs.6

5 Illingworth v. Manchester & Leeds Railw., 2 Railw. C. 187. Upon this point the Chancellor says: "Is the evil which has arisen from the injunction having been made, and the expense of having it discharged to be attributed to the error of the court, or to the false representation of the case by the plaintiffs? Certainly the latter. The costs were therefore properly given to the defendants." Semple v. London & Birmingham Railw., 1 Railw. C. 480, 493. • Greenhalgh v. M. & Birmingham Railw., 1 Railw. C. 68; Attorney-General v. The Mayor of Liverpool, 1 My. & Cr. 171, 210.

*SECTION XVI.

Right to interfere by Injunction lost by Acquiescence.

1. Acquiescence to extinguish right must have 3. Acquiescence has been held not always peroperated upon other parties. fectly to express the idea. 2. Delay, to learn the extent of injury, will 4. How far injunctions granted against cities not estop the party. and towns.

§ 220. 1. The right to interfere by injunction is one that should always be asserted, on fresh suit, or it will be regarded as voluntarily waived, and lost by acquiescence.1 But if the acquiescence is explainable upon other grounds than that of waiver of right, and can be clearly seen not to have, in any sense, invited or confirmed the conduct of the other party, it will not conclude the right to interfere in this mode.1

1

Ante, § 198; Illingworth v. The Manchester & Leeds Railw., 2 Railw. C. 187; Semple v. The London & Birmingham Railw., 1 Id. 120; Greenhalgh v. The Manchester & B. Railw., 1 Id. 68; 3 My. & Cr. 784; The Birmingham Canal Co. v. Lloyd, 18 Vesey, 515; Wintle v. Bristol & South Wales Union Railw., 10 W. R. 210; Ware v. Regent's Canal Co., 3 De G. & J. 212; Imperial Gas Light & Coke Co. v. Broadbent, 7 H. L. Cases, 600; Anglo-Californian Gold Mining Company in re, ex parte Baldy and Wormald, 10 W. R. 309; s. c. 6 L. T. N. S. 340; Gregory v. Patchett, 10 Jur. N. S. 1118. Attorney-General v. The Manchester & Leeds Railw., 1 Railw. C. 436. A delay of three weeks after information of proposed buildings, without any inquiries about the place proposed, was held to disentitle plaintiffs to an injunction on the ground of obstruction to their light and air. Johnson v. Wyatt, 11 W. R. 852. See also Great N. Railw. v. Lancashire & Yorkshire Railw., 1 Sm. & Gif. 81; ante, § 62. In Pentney v. Commissioners, 13 W. R. 983, it was held that a claim for compensation for an illegal and enjoinable act, made in ignorance of its illegality, was no bar to an application for an injunction made as soon as the claimant had learned his rights. And though the plaintiff's acquiescence may have disentitled him to an injunction against the defendant, it does not follow that equity will restrain him from suing for damages at law. Bankart v. Houghton, 27 Beav. 425. Where a resolution was passed by the shareholders of a company, authorizing acts to be done which were partly within and partly without the scope of their powers, such acts being capable of being carried out singly, it was held that a shareholder was not bound to apply for an injunction to restrain the company from exceeding their powers until he became aware that an attempt was being made to carry out the illegal portion of the resolution. Charlton v. Newcastle, &c. Railw., 5 Jur. N. S. 1096.

2. Mr. Hodges says upon this subject, not inappropriately altogether, it is to be feared: "To a very considerable extent each case will be governed by its own particular circumstances; and it has been said on this subject, that there are two arguments invariably adduced by public companies. If the plaintiff comes to the court complaining of an injury, at the first commencement, it is said, that the damage is trifling, and the motion is trifling and vexatious; if he waits till it has assumed a graver shape, it is then said that he has acquiesced, and is therefore precluded from complaining.

"2

3. The kind of acquiescence which will conclude a party, has been defined by eminent equity judges as being something not well expressed by that term.3 "Now acquiescence is not the term which ought to be used. If a party, having a right, stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word acquiescence."

4. Where the extension of a railway is a nuisance, it should be enjoined. To obtain an injunction against the municipal authorities on the ground of the execution of public ordinances

3

2 Great Western Railw. v. Oxford, Worcester, & Wolverhampton Railw., De G. Mac. & Gord. 341; 10 Eng. L. & Eq. 297; Ffooks v. London & S. W. Railw., 19 Eng. L. & Eq. 7; Innocent v. The North Midland Canal Co., 1 Railw. C. 250; cases cited n. 1, Am. ed.; Mott v. Blackwall Railw., 2 Phill. 632; Graham v. Birkenhead Junction Railw., 2 Mac. & G. 160; Bankart v. Houghton, 27 Beav. 425. In the last mentioned case it was laid down that where the occupier of land has acquiesced in the erection of works upon adjoining land which appear not to be and are not, in fact, injurious, there is no implied acquiescence in the natural extension of those works in the ordinary course of operations.

3 Lord Cottenham, Chancellor, in Duke of Leeds v. Earl of Amherst, 2 Phill. Ch. Cases, 117, 123; Lee v. Porter, 5 Johns. Ch. 268, 272; Perine v. Dunn, 3 Johns. Ch. 508; Lee v. Munroe, 7 Cranch, 366; opinion of Coalter, J., Taylor v. Cole, 4 Munford, 351. Hentz v. The Long Island Railw. Co., 13 Barb. 647, was where a party, whose land had been taken by a railway company, might have insisted on compensation being paid, at the time, but neglected to do so, and forbore to assert his right until after the road was completed and in full operation, and when an interruption of its business would be seriously injurious, and it was held that an injunction should not be granted until all the ordinary means for obtaining an indemnity have failed.

4 * People v. Third Avenue Railw. Co., 45 Barb. 63.

made by them allowing railway companies to occupy the streets by their tracks, it should appear that such acts are about to be executed, and that they will produce an obstruction in the streets, and that the railway company in executing the ordinance act as the agents of the municipal authorities.5

SECTION XVII.

Mandatory Injunctions sometimes allowed.

1. Injunctions may produce mandatory effect, | 4. Mandatory injunctions granted only where but must be specific. any serious injury would else accrue.

2. A decree for specific performance is a 5. The fact that the act is done, no ground to mandatory injunction. refuse injunction.

3. Injunction not granted to transfer litiga

tion to another forum.

§ 221. 1. It has been held, that it is no objection to an injunction that it was in effect of a mandatory character.1

But all injunctions should be specific and intelligible; and it is well said, in regard to an injunction restraining the company from taking and using any more of the plaintiff's land than is necessary for the purpose of making and maintaining the railway and works, authorized by the act, by Lord Chancellor Cottenham :

"I do not believe the Vice-Chancellor intended that the injunction should be in this form, when he decided the question; and this appears to be a very objectionable form of order."

It is there held, that the injunction should be so expressed as to inform the defendant of the precise limits of his right, and

5 People v. New York & Harlem Railw. Co., Id. 73.

1 Great North of England, Clarence, & Hartlepool J. Railw. v. The Clarence Railw., 1 Coll. 507; The Earl of Mexborough v. Bower, 7 Beavan, 127. But it is said in Isenberg v. East India House Estate Co., 10 Jur. N. S. 221, that a mandatory injunction should be granted with great caution, and should probably be confined to cases where the injury cannot be estimated and sufficiently compensated by a pecuniary payment. And see Jacomb v. Knight, on appeal, 32 L. J. Ch. 601; s. c. 8 L. T. N. S. 621; Attorney-General v. Metropolitan Board of Works, 9 L. T. N. S. 139.

not expose him, in the exercise of such right, to the consequence of violating so vague an injunction.2

*

3

4

2. But it has been common to produce a positive effect, through an injunction out of chancery, by means of a prohibitory order. And notwithstanding the practice has been questioned sometimes, it has continued to receive the countenance of the courts of equity.5 A mandatory order is nothing more than a decree of specific performance, which is every day's practice in courts of equity, and which is seldom denied, unless where the remedy at law is perfectly adequate.

6

3. A court of equity will not grant an injunction against a non-resident trustee of railway mortgage bonds, the purpose of which is to transfer a litigation pending in the courts of the state where such trustee resides into another forum for decision.7

8

4. The question of courts of equity issuing mandatory injunctions, was considerably discussed in a recent case in the Court of Chancery Appeal. The point is thus stated in the head note. In this as in other cases of injury to easements the court looks to the particular circumstances of each case; but it will interfere by way of mandatory injunction only in cases where extreme or any serious damage will ensue from non-interference.

5. The court here very distinctly repudiate the proposition maintained by the Master of the Rolls in the same case, when

2 Cother v. Midland Railw., 2 Phillips, 469; 5 Railw. C. 187. And the same doctrine is maintained in Dover Harbor v. London, &c. Railw., 30 L. J. Ch. 474; Tillett v. Charing Cross Co., 5 Jur. N. S. 994.

6

Lane v. Newdigate, 10 Vesey, 192.

Blakemore v. The Glamorganshire Canal, 1 My. & K. 154.

↳ Shadwell, V. C., in Spencer v. London & Brighton Railw., 1 Railw. C. 171.

2 Story, Eq. Jur. § 727 et seq.; Sears v. Boston, 16 Pick. 357. But where the plaintiff's part of an agreement consisted in devoting himself to the service of a company, agreed to be formed for the purpose of testing and turning to account certain patents of plaintiff's, which were also agreed to be conveyed to the company when formed, the court declined to decree specific performance of the contract on the part of defendant, inasmuch as they had no power to compel specific performance of the contract on the plaintiff's part. Stocker v. Wedderburn, 30 Law Times, 71. See also Dietriehsen v. Cabburn, 2 Phill. 52. Lumley v. Wagner, 1 De G. M. & G. 604.

Bellows Falls Bank v. Rutland & Burlington Railw., 28 Vt. R. 470. • Durrell v. Pritchard, 12 Jur. N. S. 16 (1866).