their authority, to do all necessary acts in the execution of their functions. Nevertheless, if they so execute what they conceive to be their duty, as to create or occasion a public nuisance, this court has an undoubted right to interpose."

8. In another case, it is said: "It does not follow because a thing is a nuisance to several individuals, that, therefore, it is a public nuisance. One may illustrate that very simply by supposing the case of a man building up a wall which has the effect of darkening the ancient lights of half a dozen different dwelling-houses. It does not follow, that, therefore, it is a public nuisance which can be indicted, or for which the Attorney-General can file an information in this court."

9. "To constitute a public nuisance, the thing must be such as, in its nature or its consequence, is a nuisance-an injury or a damage to all persons who come within the sphere of its operation, though it may be so in a greater degree to some than it is to others. For example, take the case of the operations of a manufactory, in the course of which operations volumes of noxious smoke or of poisonous effluvia are emitted. To all persons who are at all within the reach of those operations it is more or less objectionable, more or less a nuisance in the popular sense of the term. It is true that, to those who are nearer to it, it may be a greater nuisance than it is to those who are more remote; but still, to all who are at all within the reach of it, it is more or less a nuisance. Take another ordinary case-the stopping of the king's highway. This is a nuisance to all who may have occasion to travel that highway. It may be a much greater nuisance to a person who has to travel the road every day of his life, than it is to a person who has to travel it only once a year, or once in five years. If, however, the thing complained of is such that it is a great nuisance to those who are more immediately within the sphere of its operations,

Per V. Chanc., Soltan v. De Held, 2 Sim. N. S. 144.

but is no nuisance or inconvenience, or is even advantageous or pleasurable to those who are more removed from it, there, I conceive, it does not come within the meaning of the term public nuisance. The case before me is a case in point. A peal of bells may be, and no doubt is, an extreme nuisance, and, perhaps, an intolerable nuisance to a person who lives within a very few feet or yards of them; but to a person who lives at a distance from them, although he is within the reach of their sound, so far from its being a nuisance or an inconvenience, it may be a positive pleasure."

10. Motion for an injunction to stay the building of a house in which to inoculate for the smallpox. The Chancellor intimated that the Attorney General could at his discretion file an information as for a public nuisance, but, as it had not been settled that the house would be a nuisance, the injunction was denied.2

§ 11. Information on the relation of the Scotch Hospital, to enjoin the obstruction and darkening of the ancient lights of the hospital. The injunction having been granted, a dissolution was moved, but the jurisdiction was held undoubted, though an indictment would also lie.3

§ 12. It is held, in recent American cases, that chancery may grant an injunction against an act threatened, which, if committed, would be punishable under the criminal laws as a nuisance. Where the complainant shows that acts about to be done by the defendant, amounting to a public nuisance, will also cause special damage to himself. So chancery will restrain a party from doing an act injurious to an individual, or which may be prejudicial as a public nuisance, pending judicial proceedings before those tribunals, by which

Per V. Chanc., Soltan v. De Held, 2 Sim. N. S. 143.

2 Baines v. Baker, Amb. 158; 3 Atk. 750.

3 Atty.-Gen. v. Nichol, 16 Ves.

351.

The People v. St. Louis, 5 Gilm.

5 Walker v. Shepardson, 2 Wis. 384.

the authority to do the act, or its lawfulness, is to be determined.1

§ 13. In one of the cases already cited it is held, that one specially injured by a public nuisance may enjoin it, without making the Attorney-General party to the bill. And, in another case, it is said, "In informations and proceedings for the purpose of preventing public nuisances, the ordinary course is for the Attorney-General to take it on himself to sue, as representing the public; but it is equally certain that individuals, who conceive themselves aggrieved, may come forward and ask the assistance of the court to prevent a public nuisance from which they have individually sustained damage."

§ 14. We shall hereafter (Chap. XXVI.) consider the remedy of injunction, as applied specially to railroads. In the present connection, it may be remarked that a steam. railroad in a city is not necessarily a nuisance, nor subject to injunction as such."(a)

1 Williamson v. Carnan, 1 Gill & J. 184.

132.

Soltan v. De Held, 2 Sim. N. S.

3 Per Lord Cottenham, Atty.-Gen. v. Forbes, 2 My. & Cr. 131. New Albany, &c. v. O'Daily, 12 Ind. 551.

(a) In deciding the same point, the following remarks were made by a learned judge in New York, which, for their rhetorical animation and vivid metaphor, may be quoted as a happy departure from the ordinary tameness and dryness of judicial language: "To protest against this power of adaptation, inherent in the common law, to cases as they arise in our onward progress, is to restrain and impede, not develop and improve. It would be quite as wise to insist that the maritime law, which was sufficient to regulate the commerce of the world when a Roman galley swept timidly and cautiously along the shore and was deemed hopelessly lost in a starless night, shall now constitute our entire code, when every ocean is whitened with our canvas, every sea vexed with our fisheries,' and the keels of our adventurous navigators plough as well the regions of equatorial heat as of eternal frost, visit all climes, and exact tribute from all lands." Per Bacon, J., Williams v. N. Y. Central, &c., 18 Barb. 248.

§ 15. The remedy of injunction does not supersede that of abatement. It is said, in a case in Massachusetts, "The plaintiffs' right being fully established, they are entitled not only to the abatement of the nuisance, but to a perpetual injunction to prevent its renewal, and thereby to prevent multiplicity of suits and oppressive litigation; especially as the defendants have undertaken to maintain their supposed right by force, whereby the plaintiffs have been for a long time disturbed in the enjoyment of their just right of property."1

Per Wilde, J., Stevens v. Stevens, 11 Met. 257.

CHAPTER X.

1. General rule.

3. Irreparable injury.

TRESPASS.

4. Dissolving of injunction.

§ 1. AN injunction will not be granted to restrain a trespass, (a) unless the trespasser is insolvent, or the injury irreparable and destructive to the plaintiff's estate-to its very nature and substance; and such as calls for immediate relief.1 There must be something particular or special in the case, for which a court of law cannot afford adequate redress, and for which, either from difficulty of proof or some other cause, the party cannot obtain adequate satisfaction in the ordinary course of law.2 "Lord Eldon said that there was no instance of an injunction in trespass, until a case before Lord Thurlow, relative to a mine (Fleming's case), and which was a case approaching very nearly to waste (the defendant having worked from his own land into the coal-mine of the plaintiff), and where there was no dispute about the right. (The case rested upon the principle of irremediable mischief to the mine.) Lord Thurlow had great difficulty as to injunction for trespass; and though Lord Eldon thought it surprising that the jurisdiction by injunction was taken so freely in waste, and not in trespass, yet he proceeded with

1 James v. Dixon, 20 Mis. 79; Foster, 6 Eng. 304; Wilson v. Hughell, 1 Morr. 461; Catching v. Terrell, 10 Geo. 576; Shipley v. Ritter, 7 Md. 408; 5 Geo. 576; 26 Miss. 84; Centreville, &c. v. Barnett, 2 Cart. 536; Brooks v. Diaz, 35 Ala. 599.

2 Bethune v. Wilkins, 8 Geo. 118; The Justices, &c. v. The Griffin, &c., 11 Geo. 246; Anthony v. Brooks, 5 Geo. 576; 10 Geo. 576; The Justices, &c. v. The Griffin, &c., 11 Geo. 246; 26 Miss. 84.

(a) More especially if without color of right. Sutherland v. Maschop, 2 Stockt. 57.