Madison v. Copper Co. opened and that he afterwards obstructed and closed it. So that both the legal title to the way and its obstruction by defendant appear in the present record. But it does not follow as a corollary that therefore the injunction will lie. The special injunction is not a writ of right, but it rests in the sound discretion of the court; and hence, Mr. Story says, 'No injunction will be granted whenever it will operate oppressively or inequitably or contrary to the real justice of the case.' 2 Story, Eq. Jur., section 959." 2 Swan, 545. In Wood on Nuisances (3d Ed.), p. 1182, it is said: "The true intent of a court of equity being to do justice between parties, it will not issue a restraining order except where the rights of the parties demand it, and, in determining this question, all the circumstances of location, the effect of the act claimed to be a nuisance, and the effect upon the defendant's business and interests will be considered; and, while the usefulness of the business, or its importance, magnitude, or extent, will not in all cases prevent interference, yet, if the injury on the one hand is small and fairly compensable in damages, and the loss to the other party would be large and disastrous, an injunction will be refused and the party left to his legal remedy." In Demarest v. Hardham it is said: "The important question presented by the case is, does the manner in which the defendant conducts his business interfere with or injure the business of the complainants to such an extent as to create a nuisance Madison v. Copper Co. which it is the duty of a court of equity to enjoin? The defendant's business is not only lawful, but necessary. It is carried on in a part of the city of Newark devoted almost exclusively to manufacturing and business purposes. No objection can therefore be made to it on the ground that its location is not a fit one. It is not necessarily or inherently noxious, offensive, or injurious. It should not, therefore, be enjoined except under a stern necessity. The complainants ask that it be absolutely interdicted, their prayer being that the defendant be restrained from further operating his engine and presses. To grant their prayer is to destroy the defendant's business. Power attended with such disastrous consequences should always be exercised sparingly and with the utmost caution. All doubts should be resolved against its exercise. Attorney-Gen. v. Nicholas, 16 Ves., 338. Relief by injunction in such cases is not a matter of right, but rests in discretion. If the legal right is not clear, or the injury is doubtful, eventual, or contingent, equity will give no aid. Richard's Appeal, 57 Pa., 105, 98 Am. Dec., 202; Rhodes v. Dunbar, 57 Pa., 274, 98 Am. Dec., 221; Huckenstine's Appeal, 70 Pa., 102, 10 Am. Rep., 669. "And so, too, the court is bound to compare consequences. If the fact of an actionable nuisance is clearly established, then the court is bound to consider whether a greater injury will not be done by granting an injunction, and thus destroying a citizen's property and taking away from him his means of livelihood, than will result from a refusal, and leaving the injured party to his or Madison v. Copper Co. dinary legal remedy; and if, on thus contrasting consequences, it appears doubtful whether greater injury will not be done by granting than by withholding the injunc tion, it is the duty of the court to decline to interfere. Hilton v. Earl of Granville, 1 Cr. & Ph., 283. The duty of granting or refusing an injunction is a matter resting in sound discretion. It should never be granted when it will operate oppressively or contrary to the real justice of the case, or where it is not the fit or appropriate method of redress under all the circumstances of the case, or when it will or may work fatal injury to the person enjoined. Jones v. City of Newark, 11 N. J. Eq., 452." 34 N. J. Eq., 469. See, also, Chartiers Block Coal Co. v. Mellon (Pa.), 25 Atl., 597, 18 L R. A., 702, 34 Am. St. Rep., 645; Fesler v. Brayton (Ind.), 44 N. E., 37, 32 L. R. A., 578. In Powell v. Bentley & Gerwig Furniture Co. (W. Va.), it is said: "Although a court of equity in such cases follows precedent and goes by rule, as far as it can, yet it follows its own rules, and among them is the one that to abate or restrain in case of nuisance is not a matter of strict right, but of orderly and reasonable discretion, according to the right of the particular case, and hence will refuse relief, and send the party to a court of law, when damages would be a fairer approximation to common justice, because to silence a useful and costly factory is often a matter of serious moment to the State and town Madison v. Copper Co. as well as to the owner." 12 S. E., 1087, 12 L. R. A., 5456. In Clifton Iron Co. v. Dye it is said: "Counsel have pressed the proposition that mere convenience in the use of its property by the company does not entitle it to pour down upon the appellee's land, and into the stream on his land, the debris from the washers erected by it, and we think the contention is reasonable. But it is not every case of nuisance or continuing trespass which a court of equity will restrain by injunction. In determining this question the court should weigh the injury that may accrue to the one or the other party, and also to the public, by granting or refusing the injunction. Wood v. Sutcliffe, 2 Sim. (N. S.), 162; E. & W. R. Co., v. E., T., V. & G. R. Co., 75 Ala., 275; C. & W. R. Co. v. Witherow, 82 Ala., 190, 3 South., 23; 1 High on Injunc., section 498; Davis v. Sowell, 77 Ala., 262; Torrey v. Camden R. Co., 18 N. J. Eq., 293; McBryde v. Sayre, 86 Ala., 458, 5 South., 791, 3 L. R. A., 861. "The court will take notice of the fact that in the development of the mineral interests of this State, recently made, very large sums of money have been invested. The utilization of these ores, which must be washed before using, necessitates in some measure the placing of sediment where it may flow into streams which constitute the natural drainage of the section where the ore banks are situated. This must cause a deposit of sediment on the lands below, and, while this Madison v. Copper Co. invasion of the rights of the lower riparian owner may produce injury, entitling him to redress, the great public interests and benefits to flow from the conversion of these ores into pig metal should not be lost sight of. As said by the vice-chancellor in Wood v. Sutcliffe, supra, 'Whenever a court of equity is asked for an injunction in cases of such nature as this [a bill to enjoin the pollution of a stream] it must have regard not only to the dry, strict rights of the plaintiff and defendant, but also to the surrounding circumstances.'" 87 Ala., 471, 6 South., 192. A recent statute passed in this State (Acts 1901, p. 246, c. 139) gives legislative expression to the same considerations of duty and public policy which are contained in the foregoing citations. Before setting out this statute, it is necessary that we reproduce the section of the Code of 1858 which it amends. That section reads as follows: "Sec. 3403. In all suits brought for the recovery of damages resulting from any nuisance, and the finding that the matter complained of is a nuisance, the court may immediately upon petition of the plaintiff in writing, order the nuisance to be abated in the same manner and to the same extent as the chancery courts, without resort to a court of equity for that purpose." Shannon's Code, section 5158. The act referred to reads as follows: "An act to amend section 3403 of the Code of Tennessee, 1858 [Shannon's Code, section 5158], and to au |