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revive the lien. Moore v. Norman, 43 Minn. 428 (45 N. W. Rep. 857). But, even as to such a case, the authorities are not agreed. So it is held that the refusal by the creditor of a proper tender from the principal debtor discharges the surety, for it is the refusal to accept the tender which prejudices the surety. We apprehend that no case can be found where a tender was essential to or the foundation of an action, and where it was held that the tender was effectual unless kept good. Equity is no less strict than the law in this respect."

Sec. 700. Injunctions-General principles. In order to the granting of an injunction, the injury complained of must exist or be threatened at the time of the trial. Matthews v. Metcalf, 97 Ia. 742 (66 N. W. Rep. 189). Relief by injunction will not be granted to one having a complete remedy at law. Brown v. Niles, 165 Mass. 276 (43 N. E. Rep. 90); Haskell v. Denver Tramway Co., 23 Colo. 60 (46 Pac. Rep. 121). Where the defendant is insolvent and cannot respond in damages, in an action at law where the plaintiff proves title to the land and that he will suffer an irreparable injury, a court of equity will issue injunctions or restraining orders in actions of ejectment. Gaines v. Leslie, I. T.

(37 S. W. Rep. 947). Where a complainant shows a reasonable and well founded apprehension of immediate, threatened and irreparable injury and loss, it is the duty of courts of equity in cases within their jurisdiction to restrain the commission of such injury and infliction of such loss. Jessup & Moore Paper Co. v. Ford, 6 Del., ch. 52 (33 Atl. Rep. 618).

Sec. 701. Injunctions-Practice-Preliminary injunctions. If different parties by several acts foul the same stream, each may be enjoined against the commission of the wrong with which he is individually chargeable. Morgan v. City of Danbury, 67 Conn. 484 (35 Atl. Rep. 499). The granting of an injunction is not a matter of right and it will not be issued when, upon a broad consideration of the situation of all the parties in interest, good conscience does not require it. Heilman v. Lebanon &c Ry., 175 Pa. St. 188 (34 Atl. Rep. 647). Where defendant railroad company has been penetu

ally enjoined from entering upon and constructing its road over private lands, such injunction must be modified so far as it prohibits the exercise of rights subsequently acquired by defendant under right of eminent domain. Southern Cal. Ry. Co. v. Southern Pac. R. Co., Cal. (43 Pac. Rep. 1123). In order to justify the granting of a preliminary injunction, the exigency relied on to make this extraordinary remedy a necessity must be to prevent actual and not merely theoretic harm and the injury threatened must be shown to be irreparable. Mayor of Brigantine v. Holland Trust Co.,

N. J. Eq. (35 Atl. Rep. 344). To justify the issuing of an injunction against a trespass there must be a cause to fear substantial, serious, and irreparable damage, for which courts of law would furnish no adequate relief, and the complaint should show facts to justify this conclusion. Mc Gregor v. Silver King Min. Co., 14 Utah 47 (45 Pac. Rep. 1091).

Sec. 702. Balancing of injuries. It is sometimes held that where the granting of an injunction will result in more injury to the party enjoined than the doing of the threatened act complained of will result to the complaining party, the right will be denied and the parties will be left to settle the controversy in an action at law. Robinson v. Clapp, 67 Conn. 538 (35 Atl. Rep. 504; 52 Am. St. Rep. 298). An equity court is not bound to issue an injunction when it will produce great public or private mischief merely for the purpose of protecting a technical or unsubstantial right. Wormser v. Brown, 149 N. Y. 163 (43 N. E. Rep. 524). Where a clear legal right is being invaded and the injured party has no adequate remedy at law, equity should not withhold an injunction on the ground that its granting will work a greater inconvenience to the wrongdoer than its refusal will work to the injured party. Bigler's Ex'r v. Penn. Canal Co., 177 Pa. St. 28 (35 Atl. Rep. 112). The court say: "The wrongdoer, although he may be inconvenienced, can never be injured by being compelled to make restitution. Where a case is doubtful on its facts, or the injured party has, in some particulars, condoned the wrong, or has not been very vigilant in asserting his right, or the injury complained of be a trifling annoyance and such like cases, the balance of injury principle

may be invoked to stay the hand of the chancellor. But all our Pennsylvania cases hold that an undoubted substantial injury to a right of property will be redressed in equity, where there is no adequate remedy at law, without regard to the inconvenience or damage the wrongdoer may sustain." Citing, Pennsylvania Lead Co.'s Appeal, 96 Pa. St. 116 (42 Am. Rep. 534); Price v. Grantz, 118 Pa. St. 402 (11 Atl. Rep. 794; 4 Am. St. Rep. 601); Walters v. McElroy, 151 Pa. St. 549 (25 Atl. Rep. 125); Evans v. Fertilizing Co., 160 Pa. St. 209 (28 Atl. Rep. 702).

Sec. 703. Causes for which injunctions may be granted. Equity will enjoin repeated and continuing acts of trespass where the party committing the same is insolvent. Martin v. Davis, 96 Ia. 718 (65 N. W. Rep. 1001).. It will also enjoin the interference with a settled right to use and enjoy real estate. Downing v. Dinwiddie, 132 Mo. 92 (33 S. W. Rep. 470). Or the levying of an illegal tax. Verdin v. St. Louis, 131 Mo. 26 (33 S. W. Rep. 480). Or to prevent the destruction or frightening away of game. Kellog v. King, 114 Cal. 378 (46 Pac. Rep. 166; 55 Am. St. Rep. 74). A city will be enjoined from changing the course of a natural stream flowing within its limits so as to make it flow along a public street in such a manner as to impair free access to property abutting thereon, where compensation for damage to such property has not, as required by Const. Cal., Art. 1, § 14, been first made or paid into court for the owners. Geurkink v. City of Petaluma, 112 Cal. 306 (44 Pac. Rep. 570). The opening of a public highway may be enjoined until the resulting damages have been ascertained and paid. In such action the road overseer and not the county board is the proper party defendant. Hodges v. Board of Sup'rs, 49 Neb. 666 (68 N. W. Rep. 1027). An injunction will lie to prevent the wrongful construction of a drain which will cause the surface water to flow upon the land of the complainant or to prevent the maintenance of the flow of such water after the drain has been constructed. Holmes v. Calhoun Co., 97 Ia. 360 (66 N. W. Rep. 145). An injunction will lie to settle the rights of two discordant factions of a congregation in respect to the use and control of church property. Fulbright v. Higginbotham, 138

Mo. 668 (34 S. W. Rep. 875). An action in ejectment may be enjoined where it appears by decree in a third suit that the party bringing it has not the necessary title to sustain the action. Zurbrugg v. Reed, N. J. Eq. (35 Atl. Rep. 298). A threatened levy of execution upon real estate which is not legally subject to such a levy, may be enjoined. Stevens v. Mulligan, 167 Mass. 84 (44 N. E. Rep. 1086). An injunction will be granted to prevent the fouling of water, even though the offense be punishable by indictment. Barrett v. Mt. Greenwood Cem. Ass'n, 159 Ill. 385 (42 N. E. Rep. 891; 50 Am. St. Rep. 168; 31 L. R. A. 109).

Sec. 704. As to when injunctions will not be granted. An injunction will not be granted to prevent the construction of a railroad where the purpose of the landowner in obtaining the injunction is to prevent competition with another road. Ocean City R. Co. v. Bray, 55 N. J. Eq. 101 (35 Atl. Rep. 839). It is held that courts will not grant injunctions to prevent the appropriation of land of a mere trifling value and incapable of beneficial use. Ocean City R. Co. v. Bray, 55 N. J. 101 (35 Atl. Rep. 839). Citing, Story's Equitable Pleadings, § 500; Swedesborough Church v. Shivers, 16 N. J. Eq. 452; Allen v. Demarest, 41 N. J. Eq. 162 (2 Atl. Rep. 655). In a recent case in New Jersey the decisions of that state are collated and reviewed and it is held that equity will not enjoin a continued trespass which consists in the maintenance of a pipe-line under the surface, it being shown that the complainant's right to relief depended upon his being the owner of the legal title to the land, which question of title had not been determined in a court of law, on the ground that the trespass was one arable injury, and for which an afford full and complete relief. v. Breckenridge, N. J. Eq. (35 Atl. Rep. 756). Even as against a wrongdoer, an injunction will not, at the suit of a stranger to the title or possession, issue to restrain a trespass and stay waste about to be committed by cutting timber upon land. Flannery v. Hightower, 97 Ga. 592 (25 S. E. Rep. 371). In Alabama it is held that injunctions cannot be maintained to prevent the collection of executions issued

which did not involve irrepaction in ejectment would Delaware, L. & W. R. Co.

on decrees void on their face. Martin v. Atkinson, 108 Ala. 314 (18 So. Rep. 888).

Sec. 705. Mandatory injunctions. Mandate will lie against a private corporation to compel the performance of an act especially enjoined by law, and when there is no other adequate remedy. "Duties imposed on a corporation, not by virtue of express law, nor by the conditions of its charter, but arising wholly out of contract relations, will not be enforced by mandamus, since the use of such writ is limited to the enforcement of obligations imposed by law. Where the duties of a corporation or its trustees grow out of or result from matters of contract, writs of mandate will not lie against the corporation or its trustees, either in their corporate capacity or as individuals, to compel the performance of their contract, but the party aggrieved will be left to the ordinary. remedies, either at law or in equity." Indiana, I. & I. Ry. Co. v. Rinehart, 14 Ind. App. 588 (43 N. E. Rep. 238).

Sec. 706. Enjoining the removal of minerals. The foundation for the jurisdiction of equity to enjoin a trespass is, in general, the irreparable nature of the injury, the inadequacy of pecuniary compensation, the destruction of the estate in the character in which it has been enjoyed, or the prevention of a multiplicity of suits. The mining and taking of phosphate rock from the soil of land valuable chiefly on account of the phosphate, amounts to a destruction of the estate in the character in which it has been enjoyed, and the injury resulting therefrom is of such an irreparable nature as to authorize a court of equity to enjoin it, on proper bill by the real owner; and where a court has acquired jurisdiction in such a case it may decree an account of the phosphate already taken from the soil, and the damage resulting from the trespass. Brown v. Solary, 37 Fla. 102 (19 So. Rep. 161).

Sec. 707. Enjoining trespass-The rule in Florida. In a suit to enjoin a trespass upon land, the complainant must have title, and, as a general rule, be in possession, in order to successfully invoke the aid of the court by injunction; and if

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