be destructive to the estate or inflict irreparable injury, and the legal remedy may, therefore, be adequate for each single act if it stood alone, the entire wrong may be prevented or stopped by injunction.

A court of equity has jurisdiction to enjoin the commission of a series of trespasses, although the legal remedy be adequate for each single act if it stood alone.

If the trespass be fugitive and temporary, and adequate compensation can be obtained in an action at law, there is no ground to justify the interposition of courts of equity. Formerly courts of equity were extremely reluctant to interpose at all, even in regard to cases of repeated trespasses. But now there is not the slightest hesitation if the acts done or threatened to be done to the property would be ruinous or irreparable, or would impair the just enjoyment of the property in the future. In short it is now granted in all cases of timber, coals, ores and quarries where the party is a mere trespasser, or where he exceeds the limited right with which he is clothed, upon the ground that the acts are, or may be, an irreparable damage to the particular species of property.

When it appears that the title is in dispute, the court may, in its discretion, issue a temporary injunction and continue it in force for such time as may be necessary to enable the orator to establish his title in a court of law, and may make the injunction perpetual when the orator has established his title; or the court may proceed and determine which party has the better title; or it may dismiss the bill and leave the orator to his legal remedy.

The conduct and dealings of the parties at a hearing, the frame of the pleadings, the nature of the patent right and of the evidence by which it is established, these and other things may combine to produce the result, that the court will be of the opinion that the injunction may properly be granted without having recourse to a trial at law.

If a plaintiff's title is established, the authority of the court in a suit in equity to interfere and prevent an appropriation of his lands to the use of another for building pur

poses cannot be questioned, not only for the purpose of avoiding a multiplicity of actions, but also because he is without adequate remedy at law.

In equity the obligation to remove can be placed directly on the party who caused a wall to be erected, and it frequently affords preventive relief against the commission of trespasses, such as the excavation of soil by an adjoining owner, the destruction of his wall in building operations on adjacent premises, and the encroachment on his rights by the diversion of a stream of running water from its natural channel.

After parties have submitted to the jurisdiction of the court, the plaintiff will not be turned out to seek his remedy elsewhere, when the objection asserting an adequate remedy at law is taken for the first time at the trial.

There is no principle by which a mere intruder can go upon the land of another, and by means of a ditch take water from an artificial canal or pond thereon. Such an act is an injury to the right and if threatened to be continued should be enjoined. The right to an injunction, therefore, in such a case does not depend upon the extent of the damage measured by the money standard; the maxim de minimus does not apply. The court unable to make any money estimate of the damage could find that if the defendant was not restrained and enjoined from using the water and conducting the same through the ditch, the use thereof disturbed the plaintiff's possession and, if permitted to continue, will ripen into an easement.

The threatened filling up of a plaintiff's land with dirt, thus destroying his fruit trees, etc., is of the same character as the digging of the ditch and the diversion of water; and upon the same principle such acts are properly enjoined.

When a plaintiff brings a bill to prevent a continuing trespass or a permanent injury to his real estate, the question whether he shall have a prohibitory injunction, or, if the work affecting the property has been done, a mandatory injunction requiring the restoration of the estate to its former condition,

depends on a consideration of all the equities between the parties.

In general, where a defendant has gone on without right and without excuse in an attempt to appropriate the plaintiff's property, or to interfere with his rights, and has changed the condition of the real estate, he is compelled to undo, so far as possible, what he has wrongfully done affecting the plaintiff, and to pay the damages.

In such a case the plaintiff is not compelled to part with his property at a valuation, even though it would be much cheaper for the defendant to pay the damages in money than to restore the property. The principal reason for this is that which lies at the foundation of the jurisdiction for decreeing specific performance of contracts for the sale of real estate.

A particular piece of real estate cannot be replaced by any sum of money, however large, and one who wants a particular estate for a specific use, if deprived of his rights, cannot be said to receive an exact equivalent or complete indemnity by the payment of a sum of money. A title to real estate, therefore, will be protected in a court of equity by a decree which will preserve to the owner the property itself, instead of a sum of money which represents its value.

One who has gone on wrongfully in a wilful invasion of the plaintiff's right in real estate has no equity to set up against the plaintiff's claim to have his property restored to him as it was before the wrong was done.

Where, by an innocent mistake, erections have been made upon a plaintiff's land, and the damage caused to the defendant by the removal of them would be greatly disproportionate to the injury of which the plaintiff complains, the court will not order their removal, but will leave the plaintiff to his remedy at law.

The doctrines applied by the court of equity in cases of that kind call for a consideration of all the facts to show what is just and right between the parties.

In a case where it appeared that the defendant proceeded with full knowledge of the facts, and with notice of the plain

tiff's claim, but with good reason to doubt whether the law would recognize such rights as the plaintiff claimed, it was held, when the claim was sustained, that, as the plaintiff's title was only under a lease that had less than a year to run, and as the cost of restoration of the premises would be greatly disproportionate to the advantages the plaintiff could derive from the enjoyment of his estate, he should not have a decree for a restoration of the premises, but should be compensated in money.

[Nuisance.]

A wall between a man and his neighbor may belong to the one, both in respect of property and the obligation to repair; and yet the other might support an action on the case for making a window in it, or for raising the wall; but the consequence does not follow, that a court of equity has any jurisdiction.

The foundation of this equity jurisdiction, interfering by injunction, is that head of mischief, that sort of material injury to the comfort of the existence of those who dwell in the neighboring house, requiring the application of 2 power to prevent, as well as remedy, an evil, for which damages, more or less, would be given in an action at law.

When a complaint charges a total deprivation of light, not merely an obstruction, the position of the wall or building, whether opposite, at right angles, or oblique, is not material. The question is, whether the effect is such an obstruction as the party has no right to erect, and cannot erect without those mischievous consequences, which upon equitable principles should be not only compensated by damages, but prevented by injunction.

A right to a stream of water is as sacred as a right to the soil over which it flows. It is part of the freehold of which no man can be disseised but by lawful judgment of his peers, or by due process of law. This is an ancient and fundamental maxim of common right to be found in magna charta. The legislature however, possesses competent power to take private property for necessary or useful public purposes, but

to render the exercise of that power valid, a fair compensation must, in all cases, be previously made to the individuals affected, under some equitable assessment to be provided by law.

This is a necessary qualification accompanying the exercise of legislative power in taking private property for public uses; the limitation is admitted by the soundest authorities, and is adopted by all temperate and civilized governments, from a deep and universal sense of justice. The Constitution of the United States declares "that private property shall not be taken for public use, without just compensation."

A court of equity would hardly be warranted in interfering to the destruction of a mill in a case where the damages sustained by flowage were barely nominal, but would leave the parties to their remedies at law. Nor would it be warranted in such case to found jurisdiction upon the fact that the injury was too trifling to carry costs in an action at law. But where the nuisance is of such a character as to occasion a personal inconvenience or annoyance, it would present a totally different case.

But equity has no respect for a litigious spirit which seeks the injury of another without benefit to itself. Equity will not controvert the policy of the law, and found its jurisdiction upon the fact merely that the law so far discourages trifling litigation as to give no costs.

A plaintiff, before he can ask for an injunction restraining the defendant from interrupting or disturbing him in the free use of streams or watercourses flowing through his lands, must prove that he sustained such a substantial injury by the acts of the defendant as would entitle him to a verdict at law in an action for damages.

In manufacturing districts where there are as many mills along a stream as the water will supply, it would be extremely hard that a proprietor of one of such mills might not divert the stream within his own land, restoring it to its ancient channel before it entered into the lands of his neighbor without a diminution of the usual quantity.

In such cases, and in the similar case of alleged obstruction