suit at law and the bill in equity is filed to ascertain the extent of the right and enforce or protect it in a manner not attainable by legal procedure. And see the sixth and ninth head. In Haitsch v. Duffy (1914, Delaware), 92 Atl. Rep. 249, the chancellor, in a case in which an injunction was prayed against defendant enjoining him from asserting a right of air and light over complainant's land and compel the removal of a structure which interfered with complainant's rights, held that a court of equity had the power to grant relief prior to the determination of the right at law. He said, referring to Herr v. Bierbower, 3 Md. Ch. 456: "The court considered that it was no answer to say that by a suit in ejectment the complainant would recover possession of the land encroached upon and would so get any wall or building erected on the land so recovered. The structure would still remain, and in order that the complainant be restored to the full use of his land, it would be necessary that the wall or structure be removed." He further said: "This equitable jurisdiction is probably based not on the irreparable character of the damage by the aggression, nor to relieve the necessity of multiplicity of suits as if it were a continuous trespass. The right to a mandatory injunction to require the removal of the encroachment on land is based on the peculiar nature of the right invaded and the subject-matter affected, viz., land." I am inclined to think that the jurisdiction is in the last analysis based upon the impossibility of securing at law any adequate relief for the damage done, either by ejectment or by numerous suits in trespass. In Baron v. Korn, 127 N. Y. 224, opinion by Parker, judge, the New York court of appeals in an action to restrain the erection of a portion of a building on land of complainant said: "Assuming plaintiff's title to be established, the authority of the court in a suit in equity to interfere and prevent an appropriation of their lands to the use of another for building purposes cannot be longer questioned, not only for the purpose of avoiding multiplicity of actions, but also because they are without adequate remedy at law. . . The sheriff might not regard it as his duty to deliver possession by taking down the wall, which would burden him with the risk of injury to other portions of defendant's building, not included within the nine inches. (It is to be observed that the amount of land involved in that case was almost precisely what it is in this, at least so far as width is concerned.) But in equity the obligation to remove can be placed directly on the parties who caused the wall to be erected."

The court did not consider the question as to whether it was necessary that the title should first be determined at law, holding that the question had not been properly raised. Upon the authority of the foregoing cases, I think that the bill may be maintained. The title and right of complainant has been settled at law. The law courts are not by reason of the nature of their processes able to give complete and adequate relief. Neither the sheriff nor the com

plainant should be compelled to take the risk, on removal of this structure, of injuring property of the defendant. To give the complainant constructive possession is no remedy at all, he has always had that. To remit him to actions for trespass will not afford adequate relief. He is entitled to the enjoyment of the land in the position it was before the defendant encroached upon it. It is only by the process of mandatory injunction that the obligation to remove, in the language of the New York court, can be placed directly on the party who caused the wall to be erected. The case of D. L. W. v. Breckenridge, 55 N. J. Eq. 141, 593, is not in conflict with this holding. Vice-Chancellor Emery, in dealing with an application for an injunction directing the removal of certain water pipes, did say that the equitable remedy could give no different relief from the execution in ejectment, but the inability to execute the execution without danger to complainant was not considered by him, moreover, the effect of his order was merely to retain the cause until the legal title had been settled at law.

[Motion denied. ]1

1 For subsequent litigation between the same parties, see 91 N. J. L. 66 (1917).

Cases on the proper remedy when the defendant does not occupy the surface of the plaintiff's land, but crosses the boundary-line by a structure above or below the surface are collected in 13 L. R. A. 664; 11 L. R. A. N. s. 917, 920 (all on ejectment); 36 L. R. A. N. s. 402; 14 A. L. 831 (both on mandatory injunctions, including encroachments at surface as well).

The variety of views is shown by the following cases: (1) Mandatory injunction denied, D. L. & W. v. Breckenridge, 55 N. J. Eq. 141, 593 (1896, pipes). (2) Ejectment granted, Butler v. Frontier Telephone, 186 N. Y. 486 (1906, wires); Murphy v. Bolger, 60 Vt. 723 (1888, eaves); Johnson v. Tribune, 91 Minn. 476 (1900, cornice, quaere as to injunction); Wachstein v. Christopher, 128 Ga. 229 (1907, foundation). (3) Ejectment denied, Harrington v. Port Huron, 86 Mich. 46 (1891, pipes); Aiken v. Benedict, 39 Barb. 400 (1863, eaves, semble a nuisance). (4) Mandatory injunction granted, Wells v. Eros, 204 Ala. 239 (1920, roof fastened to plaintiff's wall); Norwalk v. Vernam, 75 Conn. 662 (1903, eaves, dictum denying ejectment); Wilmarth v. Woodcock, 58 Mich. 482 (1885), 66 Mich. 331 (1887, cornice, quaere as to ejectment); Harrington v. McCarthy, 169 Mass. 492 (1897, cornice and sills); Plummer v. Gloversville, 20 App. Div. 527 (1897, wires); Pradelt v. Lewis, 297 Ill. 374 (1921, sagging wall); Smoot v. Heyl, 227 U. S. 518 (1912, bay window); Wandsworth v. Telephone, L. R. 13 Q. B. D. 904 (1884, C. A., wires semble). (5) In Wisconsin, the plaintiff apparently has an election to obtain either ejectment or a mandatory injunction, McCourt v. Eckstein, 22 Wis. 153 (1867, foundation); Rasch v. Noth, 99 Wis. 285 (1898, eaves); Rahn v. Milwaukee, 103 Wis. 467 (1899, foundation under plaintiff's building); Huber v. Stark, 124 Wis. 359 (1905, eaves).

On the practical obstacles in these cases to the enforcement of ejectment, see Bowie v. Brahe, 4 Duer 676 (1855); note in 30 Abb. N. c. 416; Norton v. Elwert, 29 Ore. 583, 593 (1895); Rothermael v. Amerige, 36 Cal. App. Dec. 749 (1921), noted in 10 Cal. L. Rev. 160.

Under the New York Code of Civil Procedure, the successful plaintiff in ejectment must not bring a second suit for a mandatory injunction to compel removal of the encroachment, but should seek this relief as part of the judgment in the original action at law. Hahl v. Sugo, 169 N. Y. 109 (1901). See also Syracuse v. Hogan, 234 N. Y. 457 (1923).

For cases giving the plaintiff damages, instead of specific reparation against the encroachment, see Hunter v. Carroll, infra, and note.

SECT. II]

THORPE V. BRUMFITT

179

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[Law Reports, 8 Chancery Appeals, 650. ]jetlu skydr shall are enjoined.

THE case made by the bill was that the defendants, tenants of one Morrell, under different leases, caused the plaintiff's right of way to his inn to be obstructed with carts and wagons. The Master of the Rolls granted an injunction.1

SIR W. M. JAMES, L. J. The plaintiff cannot complain, unless he can prove an obstruction which injures him. The case is not like one of trespass, which gives a right of action though no damage be proved. In the present case I cannot come to any other conclusion than that arrived at by the Master of the Rolls, that the right of access to the inn yard has been interfered with in a way most prejudicial to the plaintiff. Nothing can be much more injurious to the owner of an inn than that the way to his yard should be constantly obstructed by the loading and unloading of heavy wagons. If a person who was going to put up his horses at the inn was stopped by the loading or unloading of wagons, he would probably at once go to another inn. Then it was said that the plaintiff alleges an obstruction caused by several persons acting independently of each other, and does not show what share each had in causing it. It is probably impossible for a person in the plaintiff's position to show this. Nor do I think it necessary that he should show it. The amount of obstruction caused by any one of them might not, if he stood alone, be sufficient to give any ground of complaint, though the amount caused by them all may be a serious injury. Suppose one person leaves a wheelbarrow standing on the way, that may cause no appreciable inconvenience, but if a hundred do so, that may cause a serious inconvenience, which a person entitled to the use of the way has a right to prevent; and it is no defence to any one person among the hundred to say that what he does causes of itself no damage to the complainant.2

1 Only a portion of the judgment of James, L. J., is given. Mellish, L. J., delivered a concurring judgment.

2 If one wagon had habitually stood in the way, could the plaintiff have sued for nominal damages at law, or must he have waited till substantial injury was suffered? Fitzpatrick v. B. & M., 84 Me. 33 (1891); Fleming v. R. R., 51 W. Va. 54 (1902).

Could the plaintiff have sued all the defendants in Thorpe v. Brumfitt for damages at law? Sadler v. Great Western [1896], A. C. 450; Debris Case, 16 Fed. 25, 29 (Cal., 1883); Miller v. Highland, 87 Cal. 430 (1891), and cases cited; Lockwood v. Lawrence, 77 Me. 297, 306 (1885); Farley v. Crystal, 85 W. Va. 595 (1920).

Could an injunction have been obtained against one of the defendants in Thorpe v. Brumfitt if the others had not been joined? Lambton v. Mellish, [1894], 3 Ch. 163; Whalen v. Union, 145 App. Div. 1 (1911), reversed by 208 N. Y. 1 (1913).

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THE INADEQUACY OF OTHER REMEDIES

[CHAP. II

temporary and recorionWAINE. THE GREAT NORTHERN RAILWAY.Co.

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CHANCERY, 1864.

[4 DeGex, Jones & Smith, 211.]

before them but THIS was an appeal by the plaintiff from the dismissal of his bill stated that in a with costs by his Honor the Vice Chancellor Wood. louch it might The case made by the bill was in substance as follows:ginen.

The appellant owned a house and land at Stevenage, which was approached by a road adjoining a siding on the respondents' railway at the Stevenage station. The siding had been constructed in 1859 on land belonging to the respondents, and it abutted on the above-mentioned road, contiguous to and fronting the appellant's property. It had originally been used by the respondents for discharging the contents of their wagons, and for some time past has been used by them for discharging from their trucks and wagons large quantities of dung and other manure, which, after being discharged, were carted away without causing any very considerable inconvenience or annoyance to the appellant.

The respondents had subsequently commenced the practice of of depositing and stacking the said manure and other offensive matter brought by trucks on to the siding, and allowing the same to remain so deposited or stacked for a considerable time; and at other times they had allowed the trucks to remain loaded for some weeks on the siding.

The contents of the deposited stacks or heaps of manure, or of the discharged trucks, were stated to be different sorts of animal dung, decomposed fish, dogs, cats, and almost every species of decomposed animal matter; and the bill alleged that the consequent noisome effluvium was so bad as to render the occupation or enjoyment of the appellant's property impossible, without the greatest discomfort, inconvenience, and danger to health.

The bill prayed (1) for an injunction restraining the defendants from so using the siding as to cause any noxious, offensive, or unhealthy fumes, vapors, or stenches to interfere with the wholesome enjoyment of the appellant's premises and (2) for damages.*

THE LORD JUSTICE TURNER.

Upon the facts of this case there are two points - first, whether the appellant is entitled to an injunction; and secondly, whether, if not entitled to an injunction, he is entitled to damages in this

court.

I do not understand it to be contended that, if the manure was brought to the station in a proper manner, and was properly dealt with when there, the appellant would have a case for the interference of the court. The case made by the bill and argued at the bar is this: first, that the manure was not proper manure, and

secondly, that it was not removed from time to time as often as it ought to have been removed.

Upon the evidence, it cannot be denied that in some instances dead dogs and cats have got into this manure, that occasionally the manure which was carried was not proper manure. Nor can it

be denied that in some instances the manure has remained at the

station longer than it ought to have remained. The manure is brought down; the farmer does not send for it on the day it arrives. It must be emptied out of the trucks, and deposited in some place or other.

But the real question is, whether there had been such a continued system of carrying manure of a description not proper to be carried, and therefore prejudicial to the appellant, and such a continued system of keeping manure at the station beyond the time necessary or proper for disposing of it, as to induce the court to interfere by injunction.

With reference to this point, and adhering to the opinion expressed by Lord Cranworth and myself in the case of the AttorneyGeneral v. The Sheffield Gas Company, 3 DeG., M. & G. 304, that it is not in every case of nuisance that the court will interfere by injunction; and holding that occurrences of nuisances, if temporary and occasional only, are not grounds for the interference of this. court by injunction, except in extreme cases, there is not in my judgment here a sufficient case for such interference.1

1 Accord, A. G. v. Sheffield, 3 D. G. M. & G. 304 (1853); Cooke v. Forbes, L. R. 5 Eq. 166 (1867); A. G. v. Cambridge, L. R. 4 Ch. App. 71, reversing Malins, V. C., L. R. 6 Eq. 282 (1868); Harrison v. Southwark [1891], 2 Ch. 409; Nelson v. Milligan, 151 Ill. 462 (1894); Bartlett v. Moyers, 88 Md. 715 (1898); Kenney v. Consumers, 142 Mass. 417 (1886); see Penn. Co. v. Chicago, 181 Ill. 289 (1899). Cf. Nininger v. Norwood, 72 Ala. 277 (1882).

Small injuries. The following cases illustrate the obvious principle that small injuries will not be enjoined: Lyons v. Walsh, 92 Conn. 18 (1917); Christman v. Howe, 163 Ind. 330 (1904); Washburn v. Miller, 117 Mass. 376 (1875); Gates v. Johnston, 172 Mass. 495 (1899); Boyden v. Bragaw, 53 N. J. Eq. 26 (1904).

Injunctions when no action lies at law.

Jessel, M. R., Cooper v. Crabtree, L. R. 20 Ch. D. 589, 592 (1882, C. A.) : "Nor can he maintain an action for the nuisance, because it does not affect him. What he asks for is an injunction to restrain the trespass, though he cannot maintain an action for trespass. No authority has been cited for such a proceeding; nor do I know of any."

Kindersley, V. C., Soltau v. De Held, 2 Sim. N. s. 133, 151 (1851): "Equity will only interfere, in case of nuisance, where the thing complained of is a nuisance at law; there is no such thng as an equitable nuisance." See International News Service v. Associated Press, supra, 136, 140. Injunctions against torts by charities. May a charitable corporation be enjoined from continuing a tort, for which it could not be made liable in damages? See Deaconess v. Bontjes, 207 Ill. 553 (1904); Herr v. Lunatic Asylum, 97 Ky. 458 (1895); Kestner v. Homeopathic, 245 Pa. 326 (1914); Love v. Nashville, 146 Tenn. 550 (1921); 22 Colum. L. Rev. 748; 7 Minn. L. Rev. 57.

Injunctions against torts by municipal corporations: Lefrois v. Monroe, 162 N. Y. 563 (1900); Kirk v. Board of Health, 83 S. C. 372, 383 (1909), 23 L. R. A. N. s. 1188.