the utmost caution and diffidence, and only allowed the writ in solitary cases of a special nature, and where irreparable damage might be the consequence, if the act continued. It has also been allowed in cases where the trespass had grown into a nuisance, or where the principle of multiplicity of suits among numerous claimants was applicable."(a) So it is said, in a very recent case, "The interference of a court of equity by injunction, in a case of trespass to land, and where an action at law will lie, is of modern origin, and an exercise of power to be justified only in a case of great and irreparable injury. Doubtless, too, the petitioner who invokes it, in conformity with principle and precedent, should show at least a strong prima facie case of right." But the court. may grant an injunction, if the trespass should continue so long as to become a nuisance or a constant grievance.3 Or in case of repeated acts and trespasses. Though the fact, that a trespasser is insolvent, will not give chancery jurisdiction to enjoin his acts, where the other circumstances of the case preclude it." § 2. Thus the plaintiff complained, that the defendant was accustomed to land his steamboat at a dock of great value belonging to the plaintiff, pretending that the dock was public; but, as no serious damage was to be apprehended Stevens v. Beekman, 1 John. Ch. 319; Will. Eq. 382. 2 Per Butler, J., Falls, &c. v. Tib betts, 31 Conn. 168. 7 Md. 408; Moore v. Ferrell, 1 Kel- Schetz's, &c., 35 Penn. 88. 3 Whitfield v. Rogers, 26 Miss. 48; Cart. 536. (a) "On the same ground, the injunction is granted against the taking of stones of peculiar make, or stones from a quarry. The mischief reaches the very substance and value of the estate. The practice is now more liberal. For the purpose of quieting a possession, or preventing a multiplicity of actions, or where the nature of the inheritance is in jeopardy, or irreparable mischief is threatened, the court will interfere by injunction, even against a person acting under a claim of right. When the right of a party is doubtful, the court will not grant an injunction, until the right is established at law." Will. Eq. 382. from the continuance of the act, the court refused to grant an injunction in limine. So also to restrain a stranger from taking rails from the owner's land, and for an account, &c.2 So for cutting and carrying away timber, however wilful, an injunction will not be granted. So, although damages are recoverable from one who, in building a house, has inserted the ends of the joists into his neighbor's wall without license; an injunction to remove the joists will not be granted, unless special facts are shown requiring it. Nor for placing earth or other materials on another's land; the proper remedy is an action for trespass." Nor for throwing down fences, and letting in cattle upon a growing crop; the injury being susceptible of perfect pecuniary compensation. Nor for a tenant illegally dispossessed by a sheriff, under a sale made by him. So a bill for injunction alleged, that the defendant, without authority, and against the wishes of the justices in whom the title was vested, seized on a public square, and was proceeding to erect a building for a courthouse, insufficient for that purpose, and that injury would be thereby caused, either irreparable or to be repaired only after great delay and at great expense. Injunction refused. § 3. A prayer for an injunction, to restrain a trespass which does not appear to cause irreparable injury, is fatally defective. And whether the damage is irreparable or not, is a conclusion of law, which the court draws from the facts and circumstances in regard to the trespass, as set forth in the bill.10(a) (a) So an injunction ought not to be granted in aid of an action of trespass, unless it appear that the injury will be irreparable and cannot be compensated in damages. It is not sufficient that the affidavit alleges 4. It is held that an injunction to restrain a trespass will be dissolved, on the coming in of the answer, denying the right of the complainant, unless it appears that there is a suit at law pending to try the title.1 Stewart v. Chew, 3 Bland, 440. irreparable injury; it must be shown to the court how and why it would be so; especially where no action has ever settled the plaintiff's rights. Waldron v. Marsh, 5 Cal. 119. CHAPTER XI. WASTE. § 1. Waste is a familiar ground for injunction; and perhaps an injury better entitled to be termed irremediable than any other.1 § 2. The history of the common law in reference to waste is thus stated by Lord Chief Justice Eyre in Jefferson v. Durham, termed by Judge Story "a celebrated case:"3 "At common law the proceeding in waste was by writ of prohibition from the Court of Chancery, which was considered as the foundation of a suit between the party, suffering by the waste, and the party committing it. If that writ was obeyed, the ends of justice were answered. But, if that was not obeyed, and an alias and pluries produced no effect, then came the original writ of attachment out of chancery, returnable in a court of common law, which was considered as the original writ of the court. The form of that writ shows the nature of it. It was the same original writ of attachment which was and is the foundation of all proceedings in prohibition, and of many other proceedings in this court. It has been said, and truly so, I think, so far as can be collected from the text writers, that, at the common law, this proceeding lay only against tenant in dower, tenant by the curtesy, and guardian in chivalry. It was extended. by different statutes to farmers, &c. That, which these statutes gave by way of remedy, was not so properly the 'See Walker v. Sherman, 20 Wend. 638. 2 1 B. & P. 120. introduction of a new law, as the extension of an old one to a new description of persons. The first act, which introduced anything substantially new, was that which gave a writ of waste or estrepement, pending the suit. But, except for the purpose of staying proceedings pending a suit, there is no intimation in any of our text writers, that any prohibition could issue from those courts." Judge Story remarks, however, that "courts of equity have, by no means, limited themselves to an interference in cases of this sort (estrepement in real actions). They have, indeed, often interfered in restraining waste by persons having limited interests in property, on the mere ground of the common law rights of the parties, and the difficulty of attaining the immediate preservation of the property from destruction or irreparable injury, by the process of the common law. But they have also extended this statutory relief to cases, where the remedies provided in the courts of common law cannot be made to apply; and where the titles of the parties are purely of an equitable nature." So it is remarked, that the interference of equity in case of waste "is a wholesome jurisdiction, to be liberally exercised; the prevention of irreparable injury, and depends on much latitude of discretion in the court." And that "the jurisdiction of English equity in cases of waste began with the injunction pendente lite, but has long since extended itself to cases where no action at law was pending, but where it was needed for the protection of trust estates and estates in reversion and remainder, and has now become one of the well-defined branches of equity jurisprudence." So also, that an injunction to stay waste has become almost a matter of course." § 3. Conformably with these views, "equity will, in many cases, restrain waste, though the lease contain the clause without impeachment of waste, which takes away the remedy 1 2 Story Eq. 227, § 912. 8 Per Woodward, J., Denny v. 2 Kane v. Vanderburgh, 1 John. Brunson, 29 Penn. 384. Ch. 11. 4 Smith v. City, &c., 19 Geo. 89. |