PORT

V.

May Term, them several times, and actually made an estimate of the 1855. quantity of cleared land before the contract was completed. In view of this evidence, it can not be said that Williams WILLIAMS. placed a known trust and confidence in Port, and acted on Port's opinion, within the ruling in Shaeffer v. Sleade, 7 Blackf. 178, or Van Epps v. Harrison, 5 Hill, supra. For his controversy with Port about the quantity seems to have put him upon inquiry. He accordingly set about the investigation, inspected the land for himself, and made his own figures.

In this instance, therefore, the vendee was dealing on equal terms with the vendor, about a matter the truth of which was equally open to both. As farmers, accustomed to make rough surveys with the eye, sufficiently accurate for ordinary purposes, both exercised their judgment, and came to different conclusions. Thus put upon inquiry, instead of taking a written warranty from Port, or calling in a surveyor to settle their difference, Williams either trusted to his own powers of observation, or, what is more likely, treated the point in dispute as unimportant. Hence the silence of the contract.

We are therefore of opinion that Williams, having thus trusted to his own judgment on a matter about which he had ample opportunity to judge, and ample means within his reach to come to a correct conclusion, was not deceived by Port's advertisement or Port's representations; and has, therefore, no right of action.

In these views we are fully sustained by the authorities. Sanborn v. Stetson, 2 Story R. 481.-Hugh v. Richardson, 3 id. 659. In this latter case, it is held, that when a purchaser, with full means of knowledge within his reach, relies on his own judgment, even a Court of Equity will not grant relief.

This case is very clearly distinguishable from those referred to in argument. The cases cited relate chiefly to the identity of the tract of land sold—not to its quality or external condition. Thus if the vendor undertake to identify the land, he is bound to a correct description of it. It is impliedly warranted that he is selling the identical tract

of land he has described. Cowger v. Gordon, 4 Blackf. 110.-Id. 231. So, also, as to a privilege represented to be annexed to the land, which in fact is not. Monell v. Monell v. Colden, 13 Johns. R. 395. These cases, no doubt, lay down the law correctly; but it is clearly not the law applicable to the facts before us.

It is not necessary to examine into the proper criterion of damages in cases of misrepresentation. Williams, not being entitled to recover, that question does not arise in the record.

Per Curiam.-The judgment is reversed with costs. Cause remanded, &c.

J. Rariden, for the appellant.

J. A. Fay and N. Trusler, for the appellee.

LAUGHLIN and Others v. THE PRESIDENT AND TRUSTEES

OF LAMASCO CITY.

Bill by the authorities of Lamasco to enjoin the defendants from constructing a wharf, at or near said place, for the reasons, 1. That they were constructing their wharf in violation of an agreement; and, 2. That the wharf, when constructed, would be a nuisance. On the first point the bill alleged that the plaintiffs adopted the same plan of wharf as that of the defendants adjoining, and that the plan was made known to the defendants, or to their agents residing at Evansville, and seemed to be so far satisfactory that they promised to conform thereto in any wharf which they might ultimately build adjoining it. The bill also alleged that the plaintiffs were the owners of the territory on which their wharf was to be erected.

Held, that the allegations were sufficiently certain.

Held, also, that the title of the plaintiffs was sufficiently alleged.

A bill for an injunction, under the R. S. 1843, was not required to be sworn to.
A wharf is not, per se, a public nuisance, which the Courts will enjoin.

An injunction will not be allowed where the injury can be compensated by
damages.

In cases of conflicting evidence, where the injury to the public is doubtful, if not imaginary, an injunction will not be allowed; nor will it be allowed when the alleged nuisance is merely eventual or contingent.

May Term, 1855.

APPEAL from an order of injunction granted by the associate judges of the Vanderburgh Circuit Court in vaLAUGHLIN cation.

V.

THE PRESI-
DENT, &c.,

STUART, J.-The appellees filed their bill to enjoin the OF LAMASCO appellants from constructing a wharf on the Ohio river, at CITY. or near Lamasco. A temporary injunction was granted by Wednesday, the associate judges of Vanderburgh county in vacation. May 30. The Laughlins appeal.

The grounds upon which the authorities of Lamasco seek an injunction are these:

1. Because the appellants were constructing their wharf in violation of an agreement.

2. Because the wharf, when constructed, would be a nuisance.

On the first point, the bill alleges that the appellees adopted the same plan of wharf as that of the appellants adjoining; that said plan was made known to the Laughlins, or to their agents residing at Evansville, and seemed to be so far satisfactory that they promised to conform thereto in any wharf which they might ultimately build adjoining it.

It is objected that this allegation is too uncertain. That would, perhaps, be the first impression. But upon looking at it more closely, in connection with the context, and remembering that "or" may sometimes mean "and," (Rees v. Abbott, Cowp. 832,) we are of opinion that the allegation, though informal, is substantially good. As an allegation of notice, &c., it is superseded by the subsequent clause alleging an agreement on the part of the Laughlins. In what manner the agreement was made, is not alleged; nor was such allegation necessary. Whether it was in writing or supported by a consideration, are questions which can arise only on the evidence, &c. Taking the whole paragraph together, we think the agreement is alleged with sufficient certainty to entitle the plaintiffs to address evidence to that point.

Some objection is made to the vagueness of the allegation of title. It is, in general, necessary to aver title; and when the plaintiff's right appears doubtful, the Court

always refuses to interfere. Eden on Injunctions, 380. It is alleged here that the complainants are the owners of the territory on which their wharf is to be erected. This is informal, and perhaps in a case where the title was the principal issue, it might be adjudged, on demurrer, insufficient. But for the purposes sought to be attained by this bill, we are of opinion that the right of the complainants is sufficiently alleged.

It is further objected that the bill is not sworn to. Under our former practice acts of 1831 and 1838, a bill for an injunction was required to be verified. R. S. 1831, pp. 395-6. This is also the English practice. Eden, 274. But in the revised statutes of 1843, which are the law of this case, the provision requiring the bill to be verified in such cases, is omitted. R. S. 1843, pp. 851, 852, 853. Whether the omission occurred from oversight or design, the Courts can not supply it. Under that statute, the bill without oath is not objectionable.

The particulars in which it is alleged that the Laughlin wharf differs from the Lamasco wharf, and consequently from the kind of wharf agreed to be built, are, that the projection into the river is fifteen feet further, and the grade at an average of from four to five feet higher, than the Lamasco wharf. It is therefore insisted that the consequences, when it is erected, will be, to create a nuisance by the formation of bars, &c., to the permanent and irreparable injury of the Lamasco wharf.

On the hearing before the associate judges, both parties filed affidavits.

Accompanying the bill and affidavits, is a plat of the ground, embracing the Lamasco wharf, Laughlin's wharf, Ross', and other wharfs adjoining.

The city authorities file the affidavits of Woodward, Bradford and Walker. It appears that the Lamasco and Laughlin wharfs were both platted and surveyed by Woodward and Bradford, who are professional engineers. From the plat, it is shown that the Laughlin wharf differs from the Lamasco wharf in two particulars. 1. It is higher. VOL. VI-15

May Term, 2. The toe of the wharf is extended fifteen feet further

1855. into the river beyond low-water mark.

LAUGHLIN

V.

The injuries, in their opinion, resulting from this want

THE PRESI- of uniformity in the wharfs, will be

DENT, &c., OF LAMASCO CITY.

1. The inconvenience to steamers approaching and leaving the Lamasco wharf.

2. The difference in elevation would, in high water, create an eddy over, and thus cause large deposits of mud on the Lamasco wharf, to its continual and permanent injury.

3. The danger of the formation of a mud bar in front. It further appears that the Laughlins adopted the plan of their wharf against the advice of the engineers, who gave as an additional reason against such adoption, that the want of uniformity would offend the eye.

The Laughlins, in resisting the injunction, introduce the affidavits of Ross, Rowley, Laughlin, jr., and Orr.

Ross is the contractor actually engaged in erecting both wharfs. These affidavits go to the following points:

1. That the supposed injuries to result from the want of uniformity are altogether conjectural.

2. That the work on the Laughlin wharf was threefourths done, at a cost of 4,000 dollars; and that to stop the work in its imperfect state would be to expose it to serious injury, perhaps total loss.

3. That A. and J. Laughlin were residents of Pittsburgh, Pennsylvania, and had not been in Indiana for a long time prior to the pretended agreement set up in the bill; that Laughlin, jr., and Orr had for many years been their agents, having entire control of their business in Vanderburgh county; that no such agreement had ever been made with them as such agents; and that none such had ever, in their belief, been made with their principals.

4. That the work had been progressing for months under the eye of the complainants, without objection, &c.

5. The situation of the ground, and the reasons for the projection and elevation of the Laughlin wharf beyond and above the Lamasco wharf, are minutely pointed out.