law being the abatement of the erection or grievance complained of, whether it is or is not a nuisance, whilst upon an information in equity, where the trespass does not produce any public injury, the court may direct an inquiry whether it is most beneficial to the Crown to abate the purpresture, or to suffer the erection to remain and be assessed as a part of the legal revenue." Cases of public nuisance may be enjoined at the suit of the attorney-general, who in England sues by information. It has been held that the United States may sue to enjoin acts in pursuance of an unlawful conspiracy to forcibly obstruct interstate commerce and the transport of the mails; and to enjoin a nuisance which threatens injury to works in aid of commerce constructed under the authority of the national government. A public nuisance may also be restrained at the suit of any who have suffered by it special damage distinct from that which it causes to the public at large; but not otherwise. A bill, for example, may be filed by a State to enjoin the erection of a bridge across a navigable stream which will injure her commerce; but not by a city for a similar reason,10 unless its property, for example, a wharf, is thereby injured." A private nuisance is an act, or series of acts, unaccompanied by an act of trespass, which causes a substantial injury to a person's property, health, or comfort. It will always be restrained when it would otherwise cause an irreparable injury or a multiplicity of suits.12 "It used to be thought, that if a man knew there was a nuisance, and went and lived

4 Daniell's Ch. Pr. (2d Am. ed.) 1857, citing Atty. Gen. v. Richards, 2 Anst. 603; Atty. Gen. v. Johnson, 2 J. Wil. 87. See also U. S. v. Gear, 3 How. 120.

5 Daniell's Ch. Pr. (2d Am. ed.) 1858. 6 In re Debs, 158 U. S. 581; In re Lennon, 166 U. S. 548.

7U. S. v. Miss. & R. R. Boom Co., 3 Fed. R. 548; s. c., 1 McCrary, 601.

8 Baines v. Baker, Amb. 158; Miss. & Mo. R. Co. v. Ward, 2 Black, 485; Georgetown v. Alexandria Canal Co., 12 Pet. 91; Irwin v. Dixion, 9 How. 10; Spooner v. McConnell, 1 McLean, 337; Works v. Junction R. Co., 5 McLean, 425.

9

9 Pennsylvania v. W. & B. B. Co., 13 How. 518.

10 Georgetown v. Alexandria Canal Co., 12 Pet. 91.

11 St. Louis v. Knapp Co., 104 U. S. 658. A railroad company cannot have an injunction against the keeping of a saloon where its workmen buy liquors. Northern Pac. R. Co. v. Whalen, 149 U. S. 157.

12 Osburne v. Barter & Goddins, anno 26 Eliz., Choyce Cas. in Ch. (ed. of 1870), p. 176; Parker v. Winnipiseogee Lake C. & W. Co., 2 Black, 545: Woodruff v. North Bloomfield G. M. Co., 18 Fed. R. 753; St. Helen's S. Co. v. Tipping, 11 H. L. C. 642.

near it, he could not recover, because, it was said, it is he that goes to the nuisance, and not the nuisance to him. This, however, is not the law now." Formerly, an injunction was rarely issued to restrain a nuisance until the plaintiff's right of action had been established at law; "but now a suit at law is no longer a necessary preliminary, and the right to an injunction, in a proper case, in England and most of the States, is just as fixed and certain as the right to any other provisional remedy." Formerly, it was a fundamental objection to an order for an injunction to restrain a nuisance to land when the legal title was disputed, that the order contained no provision for putting the question in a course of legal investigation.15

§ 215. Injunctions to restrain trespass.-Injunctions to restrain trespass are of comparatively recent origin. The first that is to be found in the books was granted by Lord Thurlow. They are only granted when the trespass is destructive or continuous. The rule upon the subject has been thus stated by Vice-Chancellor Kindersley: "Where, therefore, the plaintiff is in possession and the person doing the acts complained of is an utter stranger, not claiming under color of right, the tendency of the court is not to grant an injunction, unless there are special circumstances, but to leave the plaintiff to his remedy at law; though, where the acts tend to the destruction of the estate, the court will grant it. But where the party in possession seeks to restrain one who claims by adverse title, then the tendency will be to grant the injunction, at least where the acts done either did or might tend to the destruction of the estate." The destruction of credit by an illegal seizure of

13 Byles, J., in Hole v. Barlow, 4 C. B. (N. S.) 334. See St. Helen's S. Co. v. Tipping, 11 H. L. C. 642; Campbell v. Seaman, 63 N. Y. 568.

14 Judge Earl in Campbell v. Seaman, 63 N. Y. 568, 582. See, however, Irwin v. Dixion, 9 How. 10; Murtagh v. Philadelphia, 1 Weekly Notes of Cases, 37. But see McBride v. Board of Com'rs of Pierce County, 44 Fed. R. 17.

15 Harman v. Jones, Cr. & Ph. 299; Sanxter v. Foster, Cr. & Ph. 302.

§ 215. 1 Flamang's Case, cited by Lord Eldon in Hanson v. Gardiner, 7 Ves. 305. For injunctions against the collection of an illegal tax, see supra, § 12.

2 See Jerome v. Ross, 7 J. Ch. (N. Y.) 315; Troy & B. R. Co. v. Boston, H. T. & W. Ry. Co., 86 N. Y. 107; Van Norden v. Morton. 99 U. S. 378; Erhart v. Boaro, 113 U. S. 537; St. Louis. M. & M. Co. v. Montana M. Co., 58 Fed. R. 129.

3 Lowndes v. Bettle, 33 L. J. Ch. 461.

one's stock in trade, and the injury to a farm done by the illegal taking of all the stock and tools upon it, have been held instances of such irreparable injury. An attempt by a railroad company to build its road upon private property without payment of compensation, may be thus prevented. It is not certain, whether the fact that a person who threatens to commit a wrong is insolvent and unable to pay any damages which could be recovered at law, is in itself a sufficient ground for the interference of equity by injunction; but the weight of authority seems to hold that it is. It was held, where there was a dispute as to the possession and as to right to the possession of a railroad track, that the court would not interfere by injunction to assist in "a scramble for possession." A number of cases decided in the courts of different States hold that an injunction cannot be obtained to restrain an illegal arrest; since it is said that the writ of habeas corpus followed by an action for damages always affords an adequate remedy for any injury resulting therefrom; but if the result of the arrests would be an irreparable injury to the business of the complainant, an injunction might perhaps be issued.10

4 Watson v. Sutherland, 5 Wall. 74; Cropper v. Coburn, 2 Curt. 465; North v. Peters, 138 U. S. 271.

5 Breeden v. Lee, 2 Hughes, 484. "N. P. R. Co. v. Burlington & M. R. Co., 2 McCrary, 203; s. C., 4 Fed. R. 298. See also Mo., K. & T. Ry. Co. v. T. & St. L. Ry. Co., 10 Fed. R. 497. But see D. M. Osborne Co. v. Mo. Pac. R. Co., 147 U. S. 248; Burlington G. L. Co. v. Burlington, C. R. & N. Co., 165 U. S. 370.

7 Connolly v. Belt, 5 Cranch C. C. 405; M'Elroy v. Kansas City, 21 Fed. R. 257, 262: Coeur d'Alene Cons. & Mining Co. v. Miners' Union of Wardner, 51 Fed. R. 260; Agar v. Regent's Canal Co., cited in 1 Swanst. 250; Musselman v. Marquis, 1 Bush (Ky.), 463; Hicks v. Compton, 18 Cal. 206; Britton v. Hill, 12 C. E. Green (N. J.), 389; Lloyd v. Heath, Bush. Eq. (N. C.) 39; Gause v. Perkins, 3 Jones' Eq. (N. C.) 177; Ches. & O. R. Co. v. Patton, 5 W. Va. 234; Bispham's Eq.,

9

§ 436; Caro v. Met. El. Ry. Co., 46 N. Y. Super. Ct. 138. Contra, Heilman v. Union Canal Co., 37 Pa. St. 100; Thompson v. Williams, 1 Jones' Eq. (N. C.) 176; Nessle v. Reese, 19 Abb. Pr. (N. Y.) 240; High on Injunc tions, § 18.

8 St. Louis, K. C. & C. Ry. Co. v. Dewees, 23 Fed. R. 691. See Latham v. Northern Pac. R. Co., 45 Fed. R. 721.

9 Cohen v. Com'rs of Goldsboro, 77 N. C. 2; Burnett v. Craig, 30 Ala. 135; Burch v. Cavanaugh, 12 Abb. Pr. (N.S.) (N. Y.) 410; Davis v. Am. Soc. for P. of C. to A., 6 Daly (N. Y.), 81; s. c. on appeal, 75 N. Y. 362. See also Yick Wo v. Crowley, 26 Fed. R. 207; Electric N. & M. T. Co., 75 Fed. R. 898.

10 Louisiana S. L. Co. v. Fitzpatrick, 3 Woods, 222; Dinsmore v. New York B. of P., 12 Abb. N. Cas. (N. Y.) 436; Manhattan I. W. Co. v. French, 12 Abb. N. Cas. (N. Y.) 446.

During the last few years this branch of equitable jurisdiction has been widely extended by the issue of injunctions against striking laborers upon the complaint of their employers. Injunctions have been granted forbidding all of the strikers from acts of violence against their employer's property," and acts of violence, or threats of violence, against persons employed to take their places; 12 and even to forbid gathering or marching in procession upon the highway near their employer's premises," and picketing the works by stationing men outside to request travelers on the highway not to buy of their employer and not to enter his service." A few of the judges have gone so far as to enjoin striking 15 and boycotting; 16 but the principal injunction against striking was reversed upon ap

12 Consol. S. & W. Co. v. Murray, 80 Fed. R. 811; Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212; s. C., 32 S. W. R. 1106; Am. S. & W. Co. v. Wire Drawers' & D. M. Unions, 90 Fed. R. 608; Springfield S. Co. v. Riley, L. R. 6 Eq. 551. But see Richter v. Journeymen T. Union, 24 Ohio L. Bull. 189.

13 Mackall v. Ratchford, 82 Fed. R. 41; Consol. S. & W. Co. v. Murray, 80 Fed. R. 811; Am. S. & W. Co. v. Wire Drawers' & D. M. Unions. 90 Fed. R. 608; Sherry v. Perkins, 147 Mass. 212; Bruce Bros. v. Evans, 5 Pa. Co. Ct. R. 163.

11 Consol. S. & W. Co. v. Murray, 80 45 Fed. R. 135; Thomas v. Cincinnati, Fed. R. 811. N. O. & T. Ry. Co., 62 Fed. R. 803; Oxley Stave Co. v. Coopers' I. Union (C. C. A.), 72 Fed. R. 695; s. c., Hopkins v. Oxley Stave Co., 83 Fed. R. 912, Caldwell, J., dissenting; Barr v. Essex Trades Council, 53 N. J. Eq. 101; s. C., 30 Atl. R. 881; Beck v. Ry. Teamsters' Pr. Union, 118 Mich. 497; s. C., 43 L. R. A. 406, with note. Cf. Hagan v. Blindell (C. C. A.), 56 Fed. R. 696; Arthur v. Oakes (C. C. A.), 63 Fed. R. 310; Elder v. Whitesides, 72 Fed. R. 724; Davis v. Zimmerman, 91 Hun (N. Y.), 489; Sinsheimer v. United G. W. of Am., 77 Hun (N. Y.), 215; U. S. v. Cassidy, 67 Fed. R. 698; Graham v. St. Charles St. R. Co., 47 La. Ann. 215. But see Reynolds v. Everett, 144 N. Y. 189; Allen v. Flood, [1898] Appeal Cases, 1; Mogul S. S. Co. v. McGregor, 23 Q. B. D. 598; s. C., [1892] Appeal Cases, 25; Mayer v. Journeymen S. C. Ass'n, 47 N. J. Eq. 519; Bohn Mfg. Co. v. Hollis, 54 Minn. 223; s. c., 55 N. W. R. 1119; Sweeny v. Torrence, 11 Pa. Co. Ct. R. 497; Francis v. Flinn, 118 U. S. 385; Worthington v. Waring, 157 Mass. 421; Pr. & Pub. Co. v. Howell, 26 Ore. 527; s. C., 28 L. R. A. 464; DePear v. Cooks Union, 27 Chic. Leg. N. 387.

14 Vegelahn v. Guntner, 167 Mass. 92; s. c., 44 N. E. R. 1077, with a strong dissent by Field, C. J., and Holmes, J.; Am. S. & W. Co. v. Wire Drawers' & D. M. Unions, 90 Fed. R. 608. Cf. Charnock v. Court, [1899] 2 Ch. 35; Trollupe v. London B. T. Fed'n, 72 Law Times, 342; Lyons v. Wilkins, [1899] 1 Ch. 255. But see Allen v. Flood, [1898] Appeal Cases, 1.

15 Farmers' L. & Tr. Co. v. N. Pac. R. Co., 60 Fed. R. 803, per Jenkins, J.; reversed in Arthur v. Oakes (C. C. A.), 63 Fed. R. 310. Cf. U. S. v. Cassidy, 67 Fed. R. 698.

16 Casey v. Cincinnati Typ. Union,

17

peal, and an attempt made to impeach the judge who granted it. The importance of this class of injunctions is very great. For the acts forbidden are in most cases offenses punished by the criminal law, those charged with which would, in the absence of an injunction, have the right to a trial by jury; and the object of an injunction is to deprive them of that right.18 This so-called "government by injunction" has been sharply criticised. The jurisdiction of courts of equity to entertain a suit for such an injunction has been sustained by the Supreme Court of the United States; 19 but the propriety of those which have been issued has not yet been decided by that tribunal.

§ 216. Injunctions to restrain the infringement of patents. Injunctions to restrain the infringement of patents and copyrights are of ancient use in equity. They are founded upon both the irreparable injury that would otherwise be caused to the complainant, and the desire of the court to prevent a multiplicity of suits. This inherent power of the courts is confirmed in the United States by statute. The provision of the Revised Statutes authorizing injunctions to restrain the infringement of patents is as follows: "The several courts vested with jurisdiction of cases arising under the patent laws shall have power to grant injunctions according to the course and principles of courts of equity, to prevent the violation of any right secured by a patent, upon such terms as the court may deem reasonable; and upon a decree being rendered in any such case for an infringement, the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby; and the court shall assess the same or cause the same to be assessed under its direction. And the court shall have the same power to increase such damages, in its discretion, as is given to increase damages found by verdicts

17 Arthur v. Oakes (C. C. A.), 63 Fed. R. 310.

18 In re Debs, 158 U. S. 564, 581, 582; U. S. v. Debs, 64 Fed. R. 724. See U. S. v. Cassidy, 67 Fed. R. 698, 783, for a refusal of a jury to convict in a similar case, upon much stronger evidence than that offered against Debs.

19 In re Debs, 158 U. S. 564, 581; In re Lennon, 166 U. S. 548.

20 But see In re Debs, 158 U. S. 564, 581, 592, 597.

§ 216. 1 Eden on Injunctions, chs. xii and xiii; Daniell's Ch. Pr. (5th Am. ed.) 1642–1648; Hogg v. Kirby, 8 Ves. 215; Wilkins v. Aikin, 17 Ves. 422.