the river, if the quantity coming from any one of the mines was insufficient to cause any actionable injury to his reversionary interest in the land.

There is ample judicial authority in support of the proposition that the equitable remedy of an injunction is always a concurrent remedy for a wrong actionable under the common law. In the case of White v. Mellin, Lord Herschell said, in reference to the application made in that case for an injunction to restrain the further publication of an advertisement which the plaintiff alleged was disparaging to an article manufactured by him, "My Lords, obviously to call for the exercise of that power, it would be necessary to show that there was an actionable wrong well laid, and if the statement only showed a part of that which was necessary to make up a cause of action that is to say, if special damage was not shown a tort in the eye of the law would not be disclosed, the case would not be within those provisions, and no injunction would be granted." In the same case Lord Watson said, “Damages and injunction are merely two different forms of remedy against the same wrong; and the facts which must be proved in order to entitle a plaintiff to the first of these remedies are equally necessary in the case of the second." And, in direct reply to the argument of the plaintiff's counsel, Lord Morris said, "But it was said that although an action for damages could not be sustained an injunction in equity could be obtained. It would certainly be a strange and novel chapter of equity if a party could get a perpetual injunction to restrain an act which is not an illegal act." Judicial language could not be more emphatic in regard to any proposition which it enunciated. But in the case of White v. Mellin it was only the conduct of a single defendant which was under the consideration of the court, and the plaintiff did not prove that he had suffered any positive damage, or that the conduct of the defendant was per se an invasion of any legal right vested in the plaintiff. If the circulation of the advertisement published by the defendant had caused any diminution in the volume of the plaintiff's business, the case was an example of damnum sine injuria. In any such case, the emphatic language used by several of the judges in reference to the necessity of proof of an actionable wrong in order to support an application for an injunction would always be justified and appropriate. But it has never been judicially decided

1 [1895] A. C. 154.

that an injunction will not be granted in any case in which the result of the simultaneous conduct of a number of defendants, acting independently of one another, is to produce positive damage to the property of the plaintiff, if the conduct of each of the defendants is separately innocuous to the plaintiff. On the contrary, in the two cases of Thorpe v. Brumfitt1 and Blair v. Deakin,2 it was decided that two or more persons, acting independently in the pollution of a river, can be joined as defendants in one suit for an injunction to restrain them from continuing to pollute it to the detriment of the plaintiff, although the matter deposited in the river by any one of them would not produce any appreciable pollution of it. It was also decided in the case of Lampton v. Mellish 3 that two or more persons, acting independently of one another, could be joined as defendants in a suit to restrain them from making a noise to the discomfort of the plaintiff, although the noise made by one of them alone would not have caused any serious inconvenience to the plaintiff.

In the last three mentioned cases the conduct of each defendant was technically an invasion of a legal right vested in the plaintiff. But in a jurisdiction in which the same tribunals take cognizance of both legal and equitable rights, and administer simultaneously legal and equitable remedies, there does not seem to be any sufficient reason why a substantial injury to a reversionary interest in land should not be regarded as a remediable wrong, although it may be produced by the simultaneous conduct of a number of persons in circumstances in which the separate conduct of each of them is not an actionable invasion of any present right of the reversioner, if the separate conduct of each of the contributors to the injury to the reversioner's interest in the land is an actionable invasion of a legal right of the person in immediate possession of it. If the injury inflicted in such a case upon the reversioner's interest in the land is not a remediable wrong, it is damnum sine injuria. But in all cases in which damnum sine injuria is recognized as such by the law, the damnum is produced by the exercise of a legal right vested in the person whose conduct causes it. If in any case damnum is suffered by any person as an immediate consequence of the conduct of another person which is not an exercise of a legal right vested in him, such conduct is injuria, or in other words is an actionable invasion of a legal right of the person who

1 L. R. 8 Ch. 650.

2 57 L. T. 522.

8

3 [:894] 3 Ch. 163.

has suffered damnum in consequence of it. In the case of substantial damage done to a reversionary interest in land by the simultaneous conduct of a number of persons in the circumstances above mentioned, the damnum would not be produced by the exercise of any legal right vested in the several contributors to it, if the person in immediate occupation of the land would have a good cause of action against them for damage to his interest in it. On the contrary, the conduct of each of the contributors to the damage would be a direct invasion of a legal right vested in the person in immediate possession of the land, and would therefore be intrinsically an actionable wrong in relation to him, and if in such a case the reversionary interest of the owner of the land is also injuriously affected, it is difficult to see why each contributor to the damage should not be restrained by injunction from continuing to contribute to it, when an injunction is obtainable, in cases like Thorpe v. Brumfitt, Blair v. Deakin, and Lampton v. Mellish, to restrain each contributor of an inappreciable quota to a substantial nuisance.

The common law does not provide preventive remedies, because its purview does not extend beyond deeds done and the results produced by them; and it does not impose any liability on any person for any deed not done by him, or authorized or adopted by him, in any manner or degree, or by any person to whose legal rights and liabilities he has succeeded by operation of law. Nor does equity, when it restrains by an injunction several persons who have been acting independently of one another, impose on any of them any responsibility for the conduct of any of the others. There is, therefore, not any conflict between the common law and equity in this matter, in regard to the distribution of liability for the results of the aggregate conduct of two or more persons. But equity will frequently restrain a person from pursuing conduct which does not per se produce damage to any other person, when an extension of such conduct would produce actionable damage to another person. In every such case there is doubtless a threatened or an imminent invasion of a legal right of the plaintiff. But in the case of Blair v. Deakin Mr. Justice Kay said that an injunction could be obtained to restrain the doing of an act perfectly innocuous in itself to any person, if the doing of it simultaneously with an equally innocuous act done by another person, contributed to a result injurious to the plaintiff.

The conduct of each of the six defendant companies in the six actions above mentioned would have clearly amounted to actionable injuria to the plaintiff's reversionary interest in the land, if it had been sufficiently extended to produce a more substantial amount of its natural and inevitable consequences in the circumstances in which it took place. It was therefore not the intrinsic character of the conduct of each of the defendant companies that exempted it from liability at the suit of the plaintiff; and, in this aspect of it, the conduct of each of the defendant companies was clearly different in character from the kind of conduct which produces damnum sine injuria in all the cases in which it is recognized as essentially such. But the wrongful and consequently actionable character of conduct frequently depends upon the extent of it. It is so in regard to the conduct which, in the majority of such cases, produces an actionable nuisance. It is so also in regard to the use of some particular facilities or privileges which are open to everybody, or to a definite number of persons, such as the use of a public road, or the use of the water of a river by the riparian proprietors of the land which it flows past.

The common law permits the existence of damnum sine injuria in all those cases in which one man suffers a loss in the pursuit of his business, or in the use of his property, by the conduct of another person in the pursuit of his business, or in the use of his property, and in which there is not any trespass to any property of the person who suffers the loss; and the doctrine or maxim of the common law which is applicable to those cases is that the public benefit is to be preferred to any private profit. In other words the common law permits the existence of damnum sine injuria in such cases on the ground of public utility, in the sense of the greater good for the greater number of persons. In fact it may be said that the promotion of the public good, in the sense of the greater benefit to the greater number of the members of the community, is the basis upon which the common law regulates the exercise of all private proprietary rights, in all cases in which other persons may be affected by the exercise of them; and in this matter equity clearly follows the common law, when it grants an injunction to restrain conduct which would be practically a monopoly use by one or a few persons of a right common to everybody, or to a definite class of persons upon whom the common law confers it. The application of the doctrine of public utility may appear at first sight to be somewhat obscure in such

a case as Smith v. Kenrick, in which the tenant of one of two adjoining coal mines was held to have acted strictly within his legal right when he removed a horizontal bar of coal in his own mine, in the course of the proper working of it, although the consequence was to allow an accumulated quantity of water, which had come from a natural spring, to flow into the adjoining mine and to damage it. But if the law had allowed the plaintiff in that case to recover compensation from the defendant, it would have awarded a preference to the private right of the plaintiff to work his coal mine in the manner most advantageous to him, as against the private right of the defendant to work his coal mine in the manner most profitable to himself. In order to make the defendant liable to compensate the plaintiff. it was necessary for the plaintiff to prove that the defendant had been guilty of a violation. of a duty which he owed to the plaintiff. But the court held that the defendant did not owe any duty to the plaintiff to abstain from removing the horizontal bar of coal in his own mine, and therefore his right to remove it was equal in the estimation of the law to the right of the plaintiff to work his mine without interference from any other person. Nevertheless the plaintiff suffered a serious loss from the removal of the bar of coal in the defendant's mine; and if anything in the nature of a juristic justification must be found for the refusal of the law to confer a right of action for the loss sustained by the plaintiff, there does not appear to be any such justification more consistent with the law's general recognition and protection of private proprietary rights, than the doctrine that the public benefit is better served in such a case by a refusal to award a preference to one of two conflicting rights, than it would be by any attempt to discriminate between them, upon the basis of any supposed benefit to the public in consequence of the nature of the right to which the preference would be awarded. The same observations are equally applicable to the cases of Acton v. Blundell" and Chasemore v. Richards.3

2

But if the doctrine of public utility is to be invoked in support of the denial of a remedy by injunction in such cases as those of the actions brought against the six mining companies above mentioned, it involves the proposition that public utility requires that mining operations should be permitted to the detriment of agricultural or pastoral pursuits, wherever it is impossible to carry on both

17 C. B. 515.

2 12 M. & W. 324.

87 H. L. Cas. 349.