of equity will exercise its powers to require the plaintiff to remove the wall, and contends that this question should be resolved in the affirmative.

The defendant and appellant Bradley asked for affirmative relief by way of mandatory injunction to compel the removal of the encroachment. Had he not done so the issues in this suit would have been limited to those concerning the title to lot 8. His contention is, in substance, that, as the owner of lot 8, he may properly invoke the jurisdiction of a court of equity, as a matter of right, to compel the removal of the encroachment, since legal remedies are not adequate to give full relief. See Hahl v. Sugo, 169 N. Y. 109, 61 L.R.A. 226, 88 Am. St. Rep. 539, 62 N. E. 135. The question thus presented is one that is not free from difficulty. Assuming an encroachment and the inadequacy of legal remedies to reinstate the owner in possession and enjoyment of his property, it would seem that equity should afford the necessary relief, and that the principle of the balance of inconvenience, applicable generally to temporary injunctions, should have no application where equity is called upon to vindicate a clear legal property right. However, we are of the opinion that the best-considered cases and the weight of authority support the proposition that equity will not interfere by granting a mandatory injunction in such a case, remove wall. even to vindicate a clear legal right, where the defendant is innocent, and where a greater injustice will be done by compelling a removal than by awarding damages for what is in reality a compensable injury. On this subject Pomeroy in his work on equitable remedies (5 Pom. Eq. Jur. 2d ed. § 1922), says:

Injunctionmandatory-to

should a court of equity disregard wholly the injury which granting relief to the plaintiff will cause the defendant, and issue the injunction? Or, should it balance the injury which its course will cause in granting or in withholding relief, and be influenced by this consideration in its decision? It

should be premised in the beginning that the question cannot arise except in a case in which some sufficient reason for equity jurisdiction, such as irreparable injury or the prevention of a multiplicity of suits, exists; in other cases, the injunction will be refused on the simple ground that the legal remedy is adequate.

"Assuming, then, that the only question before the court is the propriety of balancing the injury that may be caused to the parties by the decree, and remembering that the question does not arise except when equity has jurisdiction of the case because the plaintiff's legal remedy is inadequate, it should be noted that to deny the injunction is (1) 'to allow the wrongdoer to compel innocent persons to sell their right at a valuation' (Tucker v. Howard, 128 Mass. 361), and (2) to refuse him altogether any equitable relief in a case where, on the ground of avoiding a multiplicity of suits at least, he is clearly within one of the most frequently given reasons for assuming jurisdiction, and where, also, his injury may be irreparable. In view of the situation it is clear that the plaintiff's prayer will not readily be denied, and it can safely be said that the argument based on the balance of injury to the defendant will be availing only in a limited class of cases. On the other hand, it is a general rule of equity not to exercise its extraordinary jurisdiction when it will operate inequitably and oppressively. Starkie v. Richmond, 155 Mass. 188, 29 N. E. 770. The problem presented is, therefore, to strike a medium rule between these principles that, as fairly as may be, will do justice."

The author then calls attention to

66

the fact that the question has arisen most frequently in Massachusetts and New York, and quotes from the decisions in those states to show that the principle applied is substantially the same in both. For instance, in the case of Lynch v. Union Inst. for Sav. 159 Mass. 306, at page 308, 20 L.R.A. 842, 34 N. E. 365, the court says: Where, by an innocent mistake, erections have been placed a little upon the 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."

And again, quoting from the supreme court of New York in the case of Goldbacher v. Eggers, 38 Misc. 36, 43, 76 N. Y. Supp. 886, we find the principle stated as follows: "It must be remembered that a wilful trespasser cannot in this way acquire an inch of land, because the mandatory injunction must issue as to him; that in other cases, where the injury to the plaintiff is irreparable, the mandatory injunction will issue, and permanent damages will not be awarded; that where the granting of an injunction would work greater damage to an innocent defendant than the injury from which the plaintiff prays relief, the injunction could be refused absolutely, and the plaintiff compelled to seek his remedy at law. In such case the plaintiff would have to proceed either in ejectment, where the sheriff might not consider it his duty to deliver possession by taking down the wall (Bowie v. Brahe, 4 Duer, 676; Baron v. Korn, 127 N. Y. 224, 228, 27 N. E. 804), and it would be impracticable, if not impossible, for the plaintiff to regain actual possession of the strip occupied by the wall, or by successive actions for the continuing trespass, where damages only could be awarded to the time the action was commenced (Uline v. New York C. & H. R. R.

Co. 101 N. Y. 98, 54 Am. Rep. 661, 4 N. E. 536. But in equity, in order to do full justice between the parties, the plaintiff is awarded such full compensation as will make him whole, and the defendant is given the opportunity to pay the same, instead of taking down his wall. The plaintiff cannot be permitted to both receive the value and keep the land. He has preferred to seek the equitable interposition of this court, and he must himself do equity."

For other cases where the granting or withholding of a mandatory injunction to compel the removal of an encroaching wall was determined by the equitable consideration of comparative injury to an innocent defendant balanced against the plaintiff's injury, and where relief was denied, see Harrington v. McCarthy, 169 Mass. 492, 61 Am. St. Rep. 298, 48 N. E. 278; Methodist Episcopal Soc. v. Akers, 167 Mass. 560, 46 N. E. 381; Mercantile Library Co. v. University of Pennsylvania, 220 Pa. 328, 69 Atl. 861; Crocker v. Manhattan L. Ins. Co. 31 Misc. 687, 66 N. Y. Supp. 84, id. 61 App. Div. 226, 70 N. Y. Supp. 492; Coombs v. Lenox Realty Co. 111 Me. 178, 47 L.R.A. (N.S.) 1085, 88 Atl. 477. See also note in 14 A.L.R. 831.

In the case at bar the encroachment was due to an innocent mistake as to the boundary line, and was not discovered until after the building was erected upon lot 8. The property is located in a small town, where there is little, if any, growth in population and business activity. The encroachment is upon a lot that had long been vacant at the time of the trial of this action, and which in all probability will continue vacant for a long period of time. Its value does not exceed $250. Hence, the damage to the owner is exceedingly small as compared to the cost of removing the encroaching structure. We are of the opinion that, in these circumstances, the mandatory injunction

should not issue. However, we are

further of the opin-denial-remedy ion that the defend

at law.

ant Bradley, who asked only for a mandatory injunction, should not be compelled in this action to part with title to the strip occupied by plaintiff's wall, although he might elect to do so upon being adequately compensated. On the

other hand, we are of the opinion that the plaintiff in this action to determine adverse claims, and who has accepted the issues presented by the defendant's answer, and who is apparently willing to pay a liberal award of damages, should have the strip in dispute if the defendant recovers as damages its full value. We are therefore of the opinion that the judgment appealed from should be modified so as to make express provisions to these ends. The judgment, as modified, will be that the mandatory injunction prayed for by the defendant shall not issue, but that the defendant Bradley have and recover of the plaintiff, as damages for the encroachment,

$125, upon condition that the said defendant file in the court below a conveyance of the strip occupied by plaintiff's wall, embodying therein a release of all damages on account of the trespass. In default of the payment of the $125 on the condition aforesaid, within twenty days after the filing of the remittitur herein, the mandatory injunction to issue, and, in case of the failure of the defendant to file the conveyance and the release aforesaid within thirty days after the remittitur, that the judgment for damages against the plaintiff be satisfied, and the defendants remitted to their remedy at law.

As so modified, the judgment is affirmed, with costs to the respondent.

Christianson and Johnson, JJ., and Pugh, District Judge, concur.

Bronson, Ch. J., concurs in result.

Nuessle, J., being disqualified, did not participate; Honorable Thomas H. Pugh, Judge of the Sixth Judicial District, sitting in his stead.

The earlier cases on this question are discussed in the annotation in 14 A.L.R. 831. As there shown, it is a general rule that mandatory injunction is a proper remedy for a landowner to invoke against an adjoining owner, to compel the removal of structures which encroach upon complainant's land.

It is stated, obiter, in Trunnell v. Tonole (1922) 104 Or. 628, 208 Pac. 583, that, as between the original parties, if, by mistake, one erects his building on the land of another, the landowner, on his part, may by mandatory injunction compel the removal of the building.

The right to a preliminary injunction directing the removal of a sidewalk which encroached on complainant's lot was denied in Nebeker v. Berg (1921) — Del. Ch. 115 Atl.

An owner of property who erected a framework of posts, stringers, and boards to protect his property from noise and odors arising on the adjoining property, and who unintentionally located the structure on the land of the adjoining owner, was enjointed from maintaining it, in Metropoulos v. MacPherson (1922) 241 Mass. 491, 135 N. E. 693.

As shown in the earlier annotation, although mandatory injunction is a proper remedy to compel removal of encroaching structures, the court will not always grant the remedy.

Mandatory injunction was refused in Rothaermel v. Amerigo (1922) 55 Cal. App. 293, 203 Pac. 833, to compel the removal of the foundation footings of a wall which extended onto the adjoining property to the extent of 11 inches, where the adjoining

said officer was clearly acting as an agent for the discharge of the governmental duties of the city, out of which, according to all authority, no liability in damages can arise. It was unnecessary, under that finding of fact, to determine the question of what the rights of the parties would have been, had the agent been discharging any ordinary duty connected with the operation of the railroad system; and what was said upon that point must necessarily be considered as obiter.

We shall not go into the matter of whether, if the board of port commissioners should find it necessary to take over and operate the railroad system to insure the payment of the bonds, it would be liable for a tort; it will be time enough to determine that question when and if such an issue should arise. We shall confine ourselves to the question of liability of the city, through the public railroad belt commission, under the facts of this case.

The city of New Orleans, on October 8, 1904, by its Ordinance No. 2683, New Commission Series, created the belt railroad commission, and made an appropriation of $40,000 for its operation. The purpose of creating this commission was to provide a system for handling freight in railroad cars between different points within the city for its convenience and that of its inhabitants, and to establish uniform charges for that service. In 1908 the legislature passed Act No. 179, authorizing the city of New Orleans to issue certain bonds for the purposes of the public belt railroad commission which the said city "may heretofore have organized, or may hereafter organize

the

powers, duties, and functions of which shall be prescribed by the city of New Orleans;" and in § 6 of said act it was further provided "that there shall be and there is hereby irrevocably dedicated to the people of the city of New Orleans for perpetual and exclusive public use said Public Belt Railroad System, as the same has been hereto

fore, or may hereafter be, established by the city of New Orleans, the title and use to which said Public Belt Railroad System shall be and shall forever be in the people of the city of New Orleans."

Section 7 further provided "that the city of New Orleans shall construct, equip, maintain and operate said Public Belt Railroad System of the city of New Orleans through and by means of such board or commission, as may have been or may be organized by the city of New Orleans, the members of which shall be appointed by the mayor of the city of New Orleans, with the consent of the council, the powers, duties and functions of which shail be prescribed by the city of New Orleans. The control, administration, management, and supervision of the construction, maintenance, operation, and development of the Public Belt Railroad of the city of New Orleans shall be exclusively vested and remain in such board or commission, which shall always be separate and distinct from that of any railroad entering the city. And said Public Belt Railroad System shall be and remain the sole property of the people of the city of New Orleans at all times, and shall in no way or manner ever be hypothecated,

provided, however, that the revenues of said Public Belt Railroad of the city of New Orleans, after the deduction of expenses of maintenance and operation, shall be and remain pledged for the payment of the bonds in principal and interest, the issue of which is herein authorized; to such extent as may be necessary under this act."

By an amendment to the Constitution submitted and adopted in 1916 (see Amendments to Const. p. 16), the city of New Orleans was granted "plenary and exclusive power, by such means and methods as it may deem meet and proper not in conflict with the provisions of this amendment," to build and operate bridges and tunnels across the Mississippi river, with all ap