the injunction is, even at the present time, framed in the cumbrous negative form, a relic of the former hesitation of the court in this exercise of authority. The value of this remedy in cases of obstruction to window lights is evident, as the offending party may often have completed an erection sufficient to obstruct the access of light and air, before the decision of the court can be obtained, and even before a bill praying for its protection can be filed. The present Master of the Rolls, indeed, on one occasion decided that in the case last alluded to, that of a building obstructing ancient lights being completed before the bill was filed, the Court of Chancery could not exercise jurisdiction on the matter, and could not grant a mandatory injunction to remove the obstruction. He considered, laying aside any ingredient of fraud, the rule of equity to be, "that if the injury was complete, if it was done and altogether finished, so that this court could not grant the injunction when the bill was first filed, then equity had no cognizance of the matter" (l). But on appeal, the Lords Justices expressly negatived the existence of any such rule as that laid down by the Master of the Rolls, whose decision, however, they affirmed on other grounds. "The course of the court in granting mandatory injunctions," said Turner, L. J., 66 was gone into much at large on the part of the (1) Durell v. Pritchard, 34 Law J. Rep., N. S., Ch. 599; 6 N. R. 308. The same view as that of the Master of the Rolls seems to have been entertained by Lord Langdale in Ranken v. The East and West India Docks Railway Company, 12 Beav. 306, as he represents Lord Cottenham as unable to do more than restrain the use of a bridge built before application made to the court. The plaintiffs, and a great number of cases upon the subject were cited. I have looked into these cases with as much attention as I have been able, and I do not find that any distinction has been taken in them as to the granting of such injunctions in cases of easements, and in other cases, and certainly they do not seem to me to warrant any such general rule as the Master of the Rolls has laid down being adopted in all cases. case of Deere v. Guest (m), on which his Honor seems mainly to have relied in support of the rule laid down by him, does not seem to me to support it. It certainly does not in terms lay down any such general rule as his Honor has pronounced, and it does not seem to me to prove anything more than that the facts alleged in that particular case were not considered by the court to be such as to warrant the granting of the mandatory injunction which was asked by the bill. It would certainly not be consistent with the authorities to lay down any such general rule as applicable to all cases; and I can see no principle which can warrant its being laid down as applicable to cases of easements and not to other cases, for in many cases the damage occasioned by interfering with an easement is as great, if not greater, than would be occasioned by interfering with other rights. "I cannot, therefore, venture to go as far as the Master of the Rolls appears to have gone in this case, or to say that relief by way of injunction ought to have been refused in this case upon the mere ground that the damage had been completed before the bill was (m) 1 M. & Cr. 516. The court seems there to have considered that there was a sufficient remedy at law. filed. The authorities upon this subject lead, I think, to these conclusions: that every case of this nature must depend upon its own circumstances, and that this court will not interfere by mandatory injunction, except in cases in which extreme, or, at all events, very serious damage will result from its interference being withheld" (n). This rule, stated by the Lord Justice, that injunctions of this character will only be granted in very serious, if not extreme cases, has always been acknowledged by judges of courts of equity, and is amply borne out by the remarks of Lord Chancellor Westbury in Isenberg v. The East India House Estate Company (o). That judgment is especially valuable as pointing out the very beneficial effect of Sir Hugh Cairns' Act, 21 & 22 Vict. c. 27, in cases where, before the passing of that act, a court of equity must either have dismissed a plaintiff without remedy at their hands, or have inflicted an extreme penalty on the defendant. His Lordship said, "Every one of these cases must depend upon its own peculiar circumstances. The remedy given by the common law for a grievance of this description is an action for damages. That action is liable to be resorted to so long as the cause of damage continues. Upon that ground, and by reason also of the damage in many cases not admitting of being estimated in money, this court has assumed jurisdiction. Now, this jurisdiction, so far as it partakes of the nature of a preventive remedy, that is, prohibition of further damage, or an intended damage, is a jurisdiction that may be (n) L. R., 1 Ch. 250; 35 Law J. Rep., N. S., Ch. 225. I exercised without difficulty, and rests upon the clearest principles. But there has been superadded to that the power of the court to grant what has been denominated a "mandatory injunction," that is, an order compelling a defendant to restore things to the condition in which they were at the time when the plaintiff's complaint was made. The exercise of that power is one that must be attended with the greatest possible caution. think, without intending to lay down any rule, that it is confined to cases where the injury done to the plaintiff cannot be estimated and sufficiently compensated by a pecuniary sum. Where it admits of being so estimated, and where the evil sustained by the plaintiff may be abundantly compensated in money, there appears to be no necessity to superadd to the case the exercise of that extraordinary power by this court. I can easily understand cases in which an ancient mansion or family seat may be prejudicially affected, and where the remedy therefore can hardly be other than that of restoring things to their former condition. I can imagine the interruption of a supply of water that would entirely stop a flourishing manufactory, where it is impossible to estimate the future profits of the trade, or it would be difficult to define now a sum of money that may be a sufficient compensation for all injury hereafter. But that is not the case that is before me. I have got a case in which, I think, it is a matter of very doubtful result whether any damage has been sustained; but it is a case in which, beyond all question, without taking into consideration the confession of the parties, the whole of the injury that has been sustained by the plaintiff, the whole of the prejudice and damage to the plaintiff's premises by the erection of the defendant's buildings, may be abundantly compensated in money. To what end, then, am I to exercise a jurisdiction which, in such a case as this, would simply be mischievous to the defendants, without being attended with correspondent benefit to the plaintiff, unless, indeed, I could approve of the plaintiff's taking advantage of the mischief and loss that the defendants would have to sustain, in order to aggravate and exaggerate his claim for pecuniary compensation? This is a case in which the benefit of the recent statute, giving power to this court to assess and ascertain damages, is peculiarly felt; and I hold it, therefore, to be the duty of the court, in such a case as the present, not to deliver over the defendants to the plaintiff, bound hand and foot, in order to be made subject to any extortionate demand that the plaintiff might by possibility make; but in which it is the duty of the court, instead of granting a mandatory injunction, to substitute an inquiry before itself, in order to ascertain the measure of damage that has been actually sustained." In accordance with the principle of Lord Westbury's judgment in this case was the decision of Kindersley, V. C., in The Curriers' Company v. Corbett (p), where he said, "If the defendant's buildings had not been completed, there would have been ground for interference by injunction; but as they have been completed, the question is whether the court ought to or would order the pulling down of the buildings, or give compensation in damages. The defendant's new buildings are of considerable magnitude and importance, (p) 2 Dr. & Sm. 360. |