§ 485. Foundation for the relief; jurisdiction closely allied to that in trespass; distinction. 486. Right should be first established at law; injury must be irreparable. 487. Injunction not allowed where questions in dispute are pending in action at law. 488. Relief not granted against an uncertain or contingent nuisance. 489. Writ not allowed in first instance where it is uncertain whether structure will prove a nuisance. § 485. The foundation for the interference of equity in restraint of nuisances rests in the necessity of preventing irreparable mischief and multiplicity of suits. The principles governing courts of equity in the exercise of this jurisdiction are closely allied to those which control their action in restraining trespasses. The distinction between trespass and nuisance consists in the former being a direct infringement of one's rights of property, while in the latter case the infringement is the result of an act which is not wrongful in itself, but only in the consequences which may flow from it. In the one case the injury is immediate, in the other it is consequential and generally results from the commission of an act beyond the limits of the property affected.1 And the injury must be such as is not susceptible of adequate pecuniary compensation in damages, or one the continuance of which would cause a constantly recurring grievance." 486. The concurrent jurisdiction of courts of equity, by the writ of injunction, with courts of law in cases of private nuisance is ancient and well-established. 3 To warrant the interference, a strong case of imperative necessity must appear, and the nuisance must be in derogation of rights long previously enjoyed. As a general rule it is necessary that the person seeking the aid of equity to restrain a private nuisance should have first established his right at law, and where the right is doubtful and has not been established, the relief will be withheld. Thus, where complainant has failed to obtain judgment against defendants in an action at law for 1 Reynolds v. Clarke, 2 Ld. Raym. 1399; Weston v. Woodcock, 5 M. & W. 587. 'New York o. Mapes, 6 Johns. Ch. 46; Mohawk v. Artcher, 6 Paige, 83; Dana v. Valentine, 5 Met. 8. * Gardner v. Newburgh, 2 Johns. Ch. 162 * Van Bergen v. Van Bergen, 3 Johns. Ch. 282; Porter v. Witham, 17 Maine, 292. Rhea v. Forsyth, 37 Pa. St. 503; 'Mayor etc. v. Curtiss, Clarke Ch. 336; Arnold v. Klepper, 24 Mo. 273; Porter v. moth etc. Co.'s Appeal, 54 Pa. St. 183; Van Bergen v. Van Bergen, 3 Johns. Ch. 282; McCord v. Iker, 12 Ohio, 387. In the latter case, Read, J., observes: "The ground upon which the interference of a court of equity is invoked, is that the mischief to complainant's property is irreparable, and that actions at law furnish no adequate relief. Whilst this is an admitted ground of equity jurisdiction, courts of chancery will carefully abstain from interference where the injury will support an action at law, unless the party seeking such aid brings himself within the clearest principle of equitable relief. But if it be necessary to prevent a permanent injury to property, or its entire ruin, from the erection and continuance of a nuisance, and the law can not prevent the evil, equity will interfere, although the property itself may be of small value. But, in cases of this sort, equity will not interfere until the right and the facts have been established, beyond doubt, at law." The rule, however, requiring the right to be first established at law is to be understood as applying only to cases where the right is itself doubtful or in dispute. See § 516, post, and cases cited. 2 the nuisance, and legal proceedings are still pending, the injunction will be denied.i The rule, however, is limited to cases where the right is doubtful or is actually in dispute. And where defendant's right to erect the structure complained of as a nuisance is in dispute, and is not clearly established at law, the court will not interfere. So, too, if it does not appear that the person aggrieved was without adequate remedy at law, the relief will not be granted. Nor will equity interfere where the injury is of a trifling or merely nominal character. Though an injury, slight in itself, may by frequent recurrence assume such proportions as to warrant the interference of equity. To warrant the exercise of the jurisdiction in restraint of nuisance, the same irreparable injury must be shown as in the case of trespass, and where this does not appear the person will be left to his remedy at law." § 487. He who seeks an injunction against a nuisance is not regarded as having sufficiently established his rights at law by obtaining a judgment, if the action in which the judgment was recovered is still pending upon a writ of review. 8 Nor will equity interfere to restrain a nuisance unless it has undivided jurisdiction over the whole litigation, and where some of the questions in dispute are pending in actions at law an injunction will not be allowed." 488. Where the injury complained of is not, per se, a nuisance, but may or may not become so, according to circum 'Durant v. Williamson, 3 Halst. Ch. 547. "White v. Forbes, Walk. Mich. 112. Irwin v. Dixion, 9 How. 10. Parker v. Winnipiseogee etc., 2 Black, 545. McCord v. Iker, 12 Ohio, 387; Attorney General . Sheffield etc., 3 De Gex, M. & G. 304; Swaine v. Great etc., 33 L. J. Ch. 399. Coulson v. White, 3 Atk. 21; Attorney General v. Sheffield etc., 8 De Gex, M. & G. 304. Fort v. Groves, 29 Md. 188. • Eastman v. Amoskeag etc., 47 N. H. 71. • Id. stances, and where it is uncertain, indefinite or contingent, or productive of only possible injury, equity will not interfere.1 1 Kirkman v. Handy, 11 Humph. 406; Laughlin v. President etc., 6 Ind. 223; Dunning v. Aurora, 40 Ill. 481; Lake View v. Letz, 44 Ill. 81; Gwin v. Melmoth, Freem. Ch. 505; Thebaut v. Canova, 11 Fla. 143; Rhodes v. Dunbar, 57 Pa. St. 274; Simpson v. Justice, 8 Ired. Eq. 115; Mohawk etc. v. Utica etc., 6 Paige, 554. This was a bill for an injunction to restrain defendants from the erection of a railroad bridge over the Mohawk river below complainant's bridge, one ground upon which relief was asked being that the proposed erection would endanger the safety of complainant's bridge by damming up the ice. Walworth, Chancellor, says: "The principles upon which this court should proceed in granting or refusing relief by injunction in cases of this kind, are correctly laid down by Lord Brougham in the recent case of The Earl of Ripon v. Hobart, (Cooper's Rep. Temp. Brougham, 343). If the thing sought to be prohibited is in itself a nuisance, the court will interfere to stay irreparable mischief, where the complainant's right is not doubtful, without waiting for the result of a trial. But where the thing sought to be restrained is not in itself noxious, but only something which may according to circumstances prove to be so, the court will refuse to interfere until the matter has been tried at law by an action; though in particular cases the court may direct an issue, for its own satisfaction, where an action could not be brought in such a form as to meet the question." And in the Earl of Ripon v. Hobart, 3 Myl. & K. 169, to which reference is here made by Chancellor Walworth, Lord Brougham observes: "If the thing sought to be prohibited is in itself a nuisance, the court will interfere to stay irreparable mischief without waiting for the result of a trial; and will, according to the cir cumstances, direct an issue or allow an action, and, if need be, expedite the proceedings, the injunction being in the meantime continued. But, where the thing sought to be restrained is not unavoidably and in itself noxious, but only something which may according to circumstances prove so, the court will refuse to interfere, until the matter has been tried at law, generally by an action, though in particular cases an issue may be directed for the satisfaction of the court, where an action could not be framed so as to meet the question. The distinction between the two kinds of erection or operation is obvious, and the soundness of that discretion seems undeniable, which would be very slow to interfere, where the thing to be stopped, while it is highly beneficial to one party, may very possi bly be prejudicial to none. The great fitness of pausing much before we interrupt men in those modes of enjoying or improving their property, which are prima facie harmless or even praiseworthy, is equally manifest. And it is always to be borne in mind that the jurisdiction of this court over nuisance by injunction at all, is of recent growth, has not till very lately been much exercised, and has at various times found great reluc tance on the part of the learned judges to use it, even in cases where the Thus, the erection of a wharf, a railroad bridge, a planing mill, a livery stable, or a turpentine distillery," will not be enjoined where the injury is only a possible and contingent one. So, too, the relief will be withheld where the benefit to the public to be derived from the existence of the thing complained of outweighs the private inconvenience, since the injury to one family or person will not be allowed to counterbalance the public benefit." And if, in addition to the danger being remote, the right is also doubtful, the injunction will not be granted. It is also held that complainant must show that the act from which he seeks relief is illegal, before equity will interfere. 8 $489. Where an injunction is asked to restrain the construction of works of such a nature that it is impossible for the court to know, until they are completed and in operation, whether they will or will not constitute a nuisance, the writ will be refused in the first instance. Nor in such a case will the motion for an interlocutory injunction be allowed to stand over until the work is so far executed that its character may be determined. 10 9 thing or the act complained of was admitted to be directly and immediately hurtful to the complainant. All that has been said in the cases where this unwillingness has appeared, may be referred to in support of the proposition which I have stated; as in the Attorney General v. Nichol, 16 Ves. 338; Attorney General v. Cleaver, 18 Ves. 211; and an anonymous case before Lord Thurlow, in 1 Ves. Jr. 140, and others. It is also very material to observe, what is indeed strong authority of a negative kind, that no instance can be produced of the interposition by injunction in the case of what we have been regarding as eventual or contingent nuisance.” 'Laughlin v. President etc., 6 Ind. 223. Mohawk etc. v. Utica etc., 6 Paige, 554. Rhodes v. Dunbar, 57 Pa. St. 274. 4 Kirkman v. Handy, 11 Humph. 406. ' Simpson v. Justice, 8 Ired. Eq. 115. 6 Attorney General v. Perkins, 2 Dev. Eq. 38; Same o. Lea's Heirs, 3 Ired. Eq. 302; Wilder v. Strickland, 2 Jones Eq. 386. Mayor etc. v Curtiss, Clarke Ch. 336. 8 Bruce v. President etc., 19 Barb. 371. Haines v. Taylor, 2 Ph. 209. |