Cozens-Hardy said that he wished to have the declaration inserted.1 NOTE ON IMMINENCE OF THE TORT. JAMES, L. J., SALVIN V. NORTH BRANCEPETH, L. R. 9 Ch. App. 705, 709 (1874): "The court has, in dealing with questions of this kind, no right to take into account contingent, prospective, or remote damage. I would illustrate this by analogy. The law does not take notice of the imperceptible accretions to a river bank or to the sea-shore, although after the lapse of years they become perfectly measurable and ascertainable; and if, in the course of nature, the thing itself is so imperceptible, so slow and so gradual as to require a great lapse of time before the results are made palpable to the ordinary senses of mankind, the law disregards that kind of imperceptible operation. So, if it were made out that every minute a millionth of a grain of poison were absorbed by a tree, or a millionth of a grain of dust deposited upon a tree, that would not afford a ground for interfering, although after the lapse of a million minutes the grains of poison or the grains of dust could be easily detected. It would have been wrong, as it seems to me, for this court in the reign of Henry VI to have interfered with the further use of sea coal in London, because it had been ascertained to their satisfaction, or predicted to their satisfaction, that by the reign of Queen Victoria both white and red roses would have ceased to bloom in the Temple Gardens." LORD BUCKMASTER, ATTY. GEN. v. CORY, [1921] 1 A. C. 521, 552: "The nature of such a burden must vary with the varying conditions of each dispute, nor in the present case is it incumbent on the plaintiffs to establish with certainty the true origin of the slide. Hidden and indeterminate forces such as those which have destroyed the equilibrium of this hill evade inquiry, and in such a case decision can only be reached on a balance of probability and hypothesis, but the plaintiffs must, none the less, show that the balance inclines in their favour, and it is this that in my judgment they have failed to do." ELDON, C., COFFIN v. COFFIN, Jac. 70 (1821): And the court never grants injunctions on the principle that they will do no harm to the defendant, if he does not intend to commit the act in question; but if there be no ground for the injunction, it will not support it." 2 GASTON, J., BARNES v. CALHOUN, 2 Ired. Eq. 199. (1842): "But it [equity], will only act in a case of necessity, where the evil sought to be prevented is not merely probable, but undoubted." 3 1 Other cases of conjectural future injury are: Crowder v. Tinkler, supra, 56; Hepburn v. Lordan, 2 H. & M. 345 (1865); Heeg v. Licht, 80 N. Y. 579 (1880); Missouri v. Illinois, 180 U. S. 208 (1901); Frost v. King Edward, etc., Assn., [1918] 2 Ch. 180; Brink v. Shepard, 215 Mich. 390 (1921). See the amusing case of Columbia v. Prison Commn., 92 Fed. 798, 804 (Ga., 1899). Other cases on the requisite degree of certainty in nuisance suits are collected in 7 A. L. R. 757; 5 Pom. § 1937; on threatened trespasses, 5 Pom. § 1915, disturbances of easements, §§ 1964, 1965. 2 Accord, Hagemeyer v. St. Michael, 70 Minn. 482 (1897); Otaheite v. Dean, 102 Fed. 929, 934 (Nev., 1900). Cf. Sowerby v. Fryer, L. R. 8 Eq. 417, 422 (1869). 3 Contra: Owen v. Phillips, 73 Ind. 284, 289 (1881); Nelson v. Swedish Cem., 111 Minn. 149, 153 (1910). WALWORTH, C., MOHAWK BRIDGE Co. v. Utica, etc., R. R. Co., 6 Paige 554, 563 (1837): "If the magnitude of the injury to be dreaded is great, and the risk so imminent that no prudent person would think of incurring it, the court will not refuse its aid for the protection of the complainant's rights, by injunction, on the ground that there is a bare possibility that the anticipated injury from the noxious erection may not happen." VANCLIEF, C., LORENZ v. WALDRON, 96 Cal. 243, 249 (1892): "But a mere possibility, or anything short of a reasonable probability, of injury is insufficient to warrant an injunction against any proposed use of property by its owner. 'Injury, material and actual, not fanciful or theoretical, or merely possible, must be shown as the necessary or probable result of the action sought to be restrained.'"'1 REED, V. C., SAYRE v. NEWARK, 58 N. J. Eq. 136, 148 (1899): "The rule to be applied to anticipated nuisances is the same as that applied to existing nuisances. It must be clear that the nuisance will exist in the one instance just as it must be clear that it does exist in the other. In most cases of anticipated nuisances the particular condition which it is alleged will cause a nuisance differs in some respects from any other condition which has already caused a nuisance. The result to be apprehended from the conditions to come into existence can only be prejudged by theoretical opinions, and such opinions are seldom so undisputed and clear as to lead to a high degree of certainty. But as like causes produce like results, it may be regarded as certain that if a certain condition of existing affairs has produced a nuisance, the same condition if reproduced will with certainty cause a like result." DORSEY, J., AMELUNG v. SEEKAMP, 9 G. & J. 468 (1838): "The mere allegation of a complainant, that irremediable damage or irreparable mischief will ensue, is not sufficient. To satisfy the conscience of the court, the facts must be stated, to shew that the apprehension of injury is well founded." MILBURN, J., HAUPT v. IND. TEL. MES'G'R Co., 25 Mont. 122, 126 |(1900): "It is not possible to give a general outline of a bill in equity that would be applicable in all cases, or even in a majority of them. There are, at least, three rules to be observed, however: (1) To state the plaintiff's rights in the subject-matter; (2) to set up the acts which the defendant is doing or is threatening to do against such rights; and (3) to give a distinct statement, in ordinary and concise language, of such facts as show to the court that the injury will be irreparable." 2 1 Accord, Bigelow v. Hartford, 14 Conn. 565, 580 (1842); Morgan v. Binghamton, 102 N. Y. 500, 504 (1886); Genet v. D. & H., 122 N. Y. 505, 529 (1890); Sherman v. Clark, 4 Nev. 138 (1868); Bridge Co. v. Wyandotte, 10 Kans. 326, 333 (1872). In Lutheran Church v. Maschop, 10 N. J. Eq. 57, 62 (1854), Williamson, C., said: "The court cannot grant an injunction to allay the fears and apprehensions of individuals." 2 See other cases on pleading in 5 Pom. § 1914; 7 A. L. R. 765. Pbrings action to quiet litle to land purchased unders sheriff's sale. Din appelate ct. later claims legal renuity adeguster because Pinot in poss could bring an action of ejectment. 4. As sid not loving this defenser earlier carnet do so now, SECTION II HE INADEQUACY OF OTHER REMEDIES Le SUPREME COURT, ILLINOIS, 1866. [41 Illinois Reports, 447.] THE bill was filed to quiet the title to a piece of land and remove the cloud arising from a claim under a sheriff's sale. In a former opinion the court held the sale void for uncertainty in the description of the premises. On rehearing.* Mr. JUSTICE LAWRENCE delivered the opinion of the Court: The opinion on the chief point in this case was delivered at a former term, and is reported in 37 Ill. 284. A rehearing was afterward allowed on a question not specially presented to the court at that time, nor considered in the opinion, namely the jurisdiction of the court of chancery in a case of this character. It is urged, that, as we hold the title derived under the sheriff's sale to be void, and as the complainants were not in possession, they might have brought an action of ejectment. This is true, and if this question had been presented in the court below, by demurrer or plea, or insisted upon in the answer, it would probably have been fatal to the bill. But this objection cannot be taken for the first time in this court. This point was thus ruled in the case of Ohling v. Luitjens, 32 Ill. 28. The same rule was laid down in Kimball v. Walker, 30 Ill. 503, with the further remark, that the court might nevertheless, for its own protection, and to prevent matters being drawn into the vortex of chancery at the pleasure of the parties interested, which were purely cognizable at law, interpose this objection at any time.1 What was meant by this remark was, that, if the subject-matter were of such character as to be wholly foreign to the jurisdiction of a court of chancery, as for example, a claim of damages for slander, or for an assault and battery, the court might properly dismiss the cause at any stage of the proceedings. But if the subject-matter belongs to that class over which a court of equity will always take jurisdiction when the relation of the parties to each other renders the exercise of such jurisdiction necessary, the objection, that, in the case before the court, there was a complete remedy at law, comes too late after having filed an answer without taking the exception. The authorities on this point are fully cited in a note on page 574, vol. 1, of Daniel's Ch. 1 Breese, J., continued: "If such power did not exist, the lines dividing the jurisdiction of courts of law and of chancery would be speedily obliterated." Prac., 3d edition. Many cases are cited, and they fully establish the rule, and the qualification of it, which are stated in the note in the following language: "If a defendant in a suit in equity answers and submits to the jurisdiction of the court, it is too late for him to object that the plaintiff has an adequate remedy at law. This objection should be taken at the earliest opportunity. The above rule should be taken with the qualification, that it is competent for the court to grant the relief sought, and that it has jurisdiction of the subject-matter." As the complainants were out of possession, they might have. brought ejectment, but while they thus had a remedy at law, the subject-matter of the suit is a common head of equity jurisdiction, and as no objection on this point was taken in the court below it is now too late. If the complainants had been in possession of the premises there is no controversy but that they might have come into a court of chancery. The subject of the suit would have been the same then as now, the only difference being in the attitude of the parties toward each other. This subject-matter being clearly within the cognizance of a court of equity, the objection that there was also a remedy at law cannot be made for the first time in this court. The decree of the court below must be affirmed. Decree affirmed.0 1 Accord, Barber v. Bailey, 86 Vt. 219 (1912). The objection must be raised by demurrer or answer, and ordinarily comes too late if made during the course of the hearing, especially if testimony has been taken. Lehigh Zinc v. Trotter, 43 N. J. Eq. 185, 204 (1887). The principle applies a fortiori in Code states. St. Paul etc. R. R. v. Robinson, 41 Minn. 394 (1899); Corey v. Sherman, 96 Ia. 114, 121 (1895); Savannah, &c. Ry. v. Talbot, 123 Ga. 378, 385 (1905). Finch, J., Town of Mentz v. Cook, 108 N. Y. 504, 508 (1888): “The rule proceeds upon the basis that parties may by their mutual assent litigate their differences in a court of equity, where the assent of the defendant, if withheld, might induce the court to refrain from the exercise of its jurisdiction. That jurisdiction existing over the general subject, the question of its exercise in the given case cannot be raised, unless the answer raises it. . . . The plaintiff might [then] have come to the trial prepared to prove facts and circumstances bearing upon the inquiry, which are not now in the case, because assumed to be needless under the pleadings." See also O'Brien, J., Lough v. Outerbridge, 143 N. Y. 271, 277 (1894). U. S. JUDICIAL CODE, 1911, § 267 (originally Judiciary Act, Sept. 24, 1789, c. 20, § 16): "Suits in equity shall not be sustained in any court of the United States in any case where a plain, adequate, and complete remedy may be had at law." On the effect of this statute upon the principle stated in the cases above, see So. Pac. v. U. S., 200 U. S. 341, 349 (1906); Singer v. Benedict, 229 U. S. 481, 484 (1913); McGowan v. Parish, 237 U. S. 285, 295 (1915). The statute is only declaratory, Johnson, J., Boyce v. Grundy, 3 Pet. 210, 215 (1830); see also on its construction, 1 Story, Eq. Jur. (14th ed.) 33n. The cases on the inadequacy of the legal remedy as a basis of equitable jurisdiction are collected in 1 High, Injunctions (4th ed.), § 28; 1 Pom, §§ 220, 221; 2 R. C. L. 89; 10 ib. 273 ff.; 14 ib. 399 ff. I's land and taking the stone from it, & prays ffowanlinjusation. Thering when favshould have hun walted for irreparable damages gros RICHARDS v. DOWER. occur because if allowed to SUPREME COURT, California, 1883. rempin Dewill get ap racement in the land of P. I should not be deprived [64 California Reports, 62.] of partakkin intentanTHE action was brought to enjoin the defendant from constructthat could not be replaced, and D's in a tunnel through a lot owned by the plaintiff, twenty feet below edvency is not at is the surface, which would pass when completed one hundred and fifty feet through the lot. The dimensions of the tunnel do not appear, but the court finds that it was constructing for the purpose of working a quartz ledge and conveying away the rock and other matter therefrom. A preliminary injunction was granted, but dissolved at final hearing and judgment rendered for the defendant. The plaintiff appeals.* SHARPSTEIN, J. The court found, that at the time of the commencement of this action the defendant had excavated and projected a tunnel under the lot of the plaintiff, a distance of fifteen feet, and was engaged in the further extension thereof, and threatened to continue the same, but that said tunnel has not affected and will not, if completed, affect injuriously or otherwise the surface ground of plaintiff's said lot. There is a further finding: "that the driving of the tunnel was not and will not, if completed, cause the plaintiff irreparable injury or injure said lot in any way." And another, "that the defendant is not insolvent." And as a conclusion of law from the foregoing facts, the court found that the defendant was entitled to a dissolution of an injunction previously granted, and ordered judgment to be entered to that effect. From that judgment the plaintiff appealed, and the questions which the record presents are: 1. Did the court err in its said conclusion of law? 2. Was the continuation or dissolution of the injunction, by the court which granted it, so much a matter of discretion as to preclude any interference here with the action of that court in the premises? In Thomas v. Oakley, Lord Eldon expressed the opinion that it had then been settled in England that an injunction would be granted to restrain a mere trespasser from cutting timber, or taking coal or lead ore from another person's land, and in that case he granted an injunction to restrain the defendant from removing stone from the plaintiff's quarry, on the ground that the defendant was taking the substance of the inheritance-removing that which was the plaintiff's estate. He said the difference in value between stone and coal, or stone and lead ore, could not be considered in that case; from which we infer that in his opinion the right to an injunction in such a case did not depend on the value of the substance which was threatened with removal, but upon the fact of |