It is also a species of nuisance to erect a ferry or market, of injunctions to stay nuisances. ket. v. The Clarence Railway Company, 1 Russ. & Mylne, 181. So, an injunction will be granted against the erection of a new ferry injurious to an old estab- Ferry or marlished ferry. 1 Com. Dig. Chancery, D. 12. So, an injunction will be granted in favor of a turnpike corporation, to secure the due enjoyment of their privileges, by preventing the establishment of short by-roads, (commonly called shunpikes) to destroy their tolls. Croton Turnpike Company v. Ryder, 1 John. Ch. R. 615. So (as we have seen,) an injunction will lie to prevent the darkening or obstruction of ancient lights of a dwelling-house. Sutton v. Montford, 4 Sim. R. 559. So, to prevent a party from making erections on an adjacent lot in violation of his covenant or other contract. Rankin v. Huskisson, 4 Sim. R. 13. So, to prevent the erection of a statute upon a public street or square, if it be clearly in violation of a covenant or other contract. Squire v, Campbell, 1 Mylne & Craig R. 459, 477 to 486. So, to prevent a voluntary religious association from being disturbed in their burial-ground. Curtz, 2 Peters, R. 566, 584. So, to prevent rights of possession and property being injured, obstructed or taken away illegally by a railroad company. Bonaparte v. Camden and Amboy Railroad Company, 1 Bald. Cir. R. 231. So, to prevent a tenant from removing mineral and other deposits from the bed of a stream running through a farm which he occupies. Thomas v. Jones, 1 Y. & Coll. New R. 510. So, an injunction will be granted in favor of parties possessing a statute privilege or franchise to secure the enjoyment of it from invasion by other parties. Ogden v. Gibbons, 4 John. Ch. R. 150. In all cases of this sort, if the right be doubtful, the court will direct it to be tried at law; and will, in the meantime, restrain all injurious proceedings. And when the right is fully established, a perpetual injunction will be decreed. Jeremy on Eq. B. 3, ch. 2, sec. 1, p. 310. Beatty v. The court of chancery will restrain, by injunction, the farther continuance of a private nuisance, in behalf of one whose adjacent tenement or trade is injured in its enjoyment, or impaired in its advantage, by such nuisance, and and there is no adequate remedy at law. Gilbert v. Mickle, 4 Sand. Ch. Rep. 357. A placard paraded or posted in a public street, before the door of an auctioneer, cautioning strangers to beware of mock auctions, constitutes a nuisance remediable by injunction. Ib. It is no objection to the jurisdiction that the placard may also be treated as a libel. Ib. When it appeared that such placard was paraded by direction of the mayor of a city, who was also the head of the police therein, under a statute which authorized the police to caution strangers against mock autioneers and like vicious persons; the party having been charged with keeping a mock auction store, and the mayor believing him to be guilty of such offence; the court of chancery will not interpose to restrain such placard by injunction, but will leave the party to his remedy at law. Ib. Whether such a statute be constitutional? quære. Ib. Equity always interferes with reluctance, for the protection of rights of property by injunction, when those rights are mingled with the administration of criminal jurisprudence. Ib. Where the owner of a block of ground in the city of New York, divided it into lots, and sold the lots, from time to time, to different individuals, and the conveyances of the lots contained mutual covenants between the grantors and grantees, respectively, against the erection of any livery stable, slaughterhouse, glue factory, &c., upon any part of the lots conveyed, or any other manufactory, trade or business, which might be anywise offensive to the sances. Of injunctions so near as to prejudice an ancient ferry or market. (a) [4] to stay nuiIn a case before Lord Hardwicke, an injunction was moved for, before answer, to restrain the defendants from using ferry-boats to the prejudice of the plaintiffs, whose right to (a) Com. Dig. ub. sup. Yard v. Ford, 2 Saund. 171. neighboring inhabitants: Held, that the covenants in the deeds of the different lots were for the mutual benefit and protection of all the purchasers of lots in the block. And, although a previous purchaser from the owner of the block could not sue at law upon the covenant in the deed to a subsequent purchaser, the court of chancery might protect him by injunction against the carrying on of any noxious business or trade, upon the lot of such subsequent purchaser. Barrow v. Richard, 8 Paige, 351. The railroad used in the streets of Louisville could be no breach of the contract with Virginia, nor of any contract with the purchasers of lots, unless private rights were injuriously affected by it. But if it was a prepresture or nuisance injurious to individuals, the chancellor might protect them by stopping the use of the road by injunction. But where the road and manner of using it, were authorized by both the legislature and city authorities, that power of the chancellor should not be exercised for such a purpose without strong grounds clearly established. Lexington and Ohio Railroad v. Applegate et al., 8 Dana, 299. An injunction lies to restrain the corporation of the city of New York from entering upon, digging, throwing down or destroying ground possessed by the plaintiff, until they shall have established their right to the ground by due course of law. Varick v. The Corporation of New York, 4 John. Ch. Rep. 53. (See Am. Ch. Dig. by Waterman, tit. INJUNCTION.) [4] Where one has a grant of a ferry, bridge or road, with the exclusive right of taking toll, the erection of another ferry, bridge or road, so near it as to create a competition injurious to such franchise, is, in respect to such franchise, a nuisance; and this court will grant a perpetual injunction to secure the enjoyment of the statute franchise, and prevent the use of the rival establishment. Newburgh Turnpike Co. v. Miller, 5 John. Ch. Rep. 100. It was observed in the case of Ogden v. Gibbons, (4 Johns. Ch. Rep. 150, 160,) and shown to be a principle of the common law, that if one had a ferry by prescription, and another erected a ferry so near it as to draw away its custom, it was a nuisance, for which the injured party had his remedy by action. The same law and remedy were applied to the case of a fair or market in which an individual had a freehold interest, if another fair or market was erected or used within its vicinity. The same doctrine applies to any exclusive privilege created by statute: all such privileges come within the equity and reason of the principle; no rival road, bridge, ferry or other establishment of a similar kind, and for like purposes, can be tolerated so near to the other as materially to affect or take away its custom. It operates as a fraud upon the grant, and goes to defeat it. The consideration by which individuals are invited to expend money upon great and expensive and hazardous public works, as roads and bridges, and to become bound to keep them in constant and good repair, is the grant of a right to an exclusive toll. This right, thus purchased for a valuable consideration, cannot be taken away by direct or indirect means, devised for the purpose, both of which are equally unlawful. [*272] the sole use of the ferry had been established by a decree: Of injunctions to stay nuiLord Hardwicke was of opinion that the record was a suf- sances. ficient foundation to grant an injunction before answer; but as it was not shown to his satisfaction upon the affidavits, that the plaintiff had kept up a sufficient number of ferryboats to carry passengers, the motion was refused;(a) but in a case where the right had not been established, Lord Hardwicke, with great clearness, refused to interpose to stay *the use of a market or ferry.(b) In the case of Churchman v. Tunstal, where a bill was filed by the tenant of an ancient ferry to suppress a new one, and to obtain an injunction against renewing it, the court dismissed the bill.(c) This determination, which was during the usurpation, proceeded in a great measure upon the claim being considered as a monopoly, the plaintiff being a lessee of the crown: another bill was filed for the same matter after the Restoration, when Hale was C. B. upon which the court decreed that the new ferry should be suppressed.(d)[1] (a) Anon. 1 Ves. 476. (b) Anon. 2 Ves. 414. (c) Hard. 162. (d) Minute Book, 1662, fol. 181, cit. 2 Anst. 608. [1] Where a turnpike company incorporated with the exclusive privilege of erecting toll-gates, and receiving toll, had opened and established a road, and certain persons, to avoid paying toll, opened a bye-road at their own expense, near the turnpike, by which travellers were enabled to avoid passing through the gate, the court granted a perpetual injunction to prevent the use of such road, and ordered it to be shut up. Croton Turnpike v. Ryder, 1 Johns. Ch. Rep. 611. An injunction will lie to restrain a defendant from assuming the name of the complainant's newspaper, for the fraudulent purpose of imposing upon the public, and of supplanting him in the good will of his paper. But to entitle the complainant to the interposition of the court of chancery, the name of his paper must be used in such a manner as to be calculated to deceive or mislead the public, and to induce them to suppose that the paper printed by the defendant is the same as that which was previously being published by the complainant, and thus to injure the circulation and patronage thereof. Bell v. Locke, 8 Paige's Rep. 75. By the chancellor : The allegation in the complain. ant's bill is, that the defendant has assumed the name of the complainant's newspaper, for the fraudulent purpose of imposing upon the public and supplanting him in the good will of his established paper, by simulating the name and dress thereof, with the intent to cause it to be understood and believed by the community that the defendant's newspaper was the same as the complainant's, and thereby to injure the circulation of the latter. If this were a fact so, I should have no difficulty in making this order absolute. For although the business of publishing newspapers ought, in a free country, to be always open Of injunctions to stay nui sances. Whether the court will enjoin without trial. [*273] Where the court is satisfied that the matter complained of is not a nuisance, the injunction is immediately refused or dissolved. It has also been said, that there is no instance of the court holding it a nuisance, and therefore enjoining it without trial.(a) This proposition, however, it is submitted, is laid down too extensively; for though some orders of Lord Jeffries, who, on petition, restrained persons from proceeding in buildings which would intercept the prospect from Gray's Inn Gardens, may not be considered as authorities, (b) yet in all the cases cited from Lord Hale also, and in the modern decisions in the exchequer, which, although perprestures, were also nuisances, the decrees were made without any trial. Lord Hale also, in another part of the treatise, in enumerating the various nuisances which may be committed to harbors, notices but one in which a trial is necessary, and this not on the ground of any want of jurisdiction in the court to restrain a nuisance in general without a previous (u) 18 Ves. 220. to the most unlimited competition, fraud and deception certainly are not essen- A newspaper establishment is a subject of property and of contract, and the to stay nui sances. verdict, but because in that particular case, (viz. the strait- Of injunctions ening a port or harbor by building too far into the water,) it is a question of fact, whether the matter complained of is or is not a nuisance; for, as he observes, in many cases it is an advantage to the port to keep the sea water from diffusing at large. At the matter complained of is therefore not ipso facto a nuisance, but may be so, according to circumstances, it becomes necessary to ascertain those circumstances by verdict; but where it is in itself a nuisance, the court (if there is sufficient evidence of its existence) is competent to restrain it without a verdict. There is a similar distinction noticed in the argument in Yard v. Ford, in Saunders, and in a passage from Fitz Herbert's Natura Brevium there cited. It is there said, that if a market be on the same day, it shall be intended a nuisance; but if it be on another day, it shall not be so intended, and therefore it shall be put in issue whether it be a nuisance or not.(b) The above case from Moore, of the pigeon-house, *is also another instance in which the court restrained without a previous trial.[1] [*274] the court will Whatever may be the actual jurisdiction upon this point, In what cases it is, however, certain that courts of equity are at present enjoin till trial. extremely unwilling to interpose without a trial at law; a question, therefore, has always arisen in these cases, whether the court will grant or continue an injunction till the trial. Where the alleged nuisance consists in the exercise of a (a) Saund. 174. [1] Chancery may stay or prevent nuisances by injunction, and the complainant will not be first required to establish his right at law, unless doubtful and in dispute. White v. Forbes, Walker's Ch. Rep. 112. This court may issue an injunction to prevent the obstruction of an ancient water course, though the plaintiff has not established his title at law. Gardner v. Village of Newburgh, 2 Johns. Ch. Rep. 165. A party is not entitled to an injunction to restrain an injury caused to his reversionary interest in an estate, by a nuisance, unless such injury will probably be irreparable, or cannot be compensated by damages recovered in a suit at law. Ingraham v. Dunnell, 5 Met. Rep. 118. Where a bill in equity is brought, praying for an injunction to suppress a private nuisance, and it is doubtful, on the evidence, whether the defendant has not a good defence by prescription or estoppel, the court will not order a perpetual injunction until the plaintiff has established his right to redress by a trial at law. In such case, if there is no valid objection to the bill, and there is danger of irreparable mischief, the court will direct an issue to be tried at law, and will order a temporary injunction to restrain the defendant in the meantime. Ib. |