not supported by proof that the land is in the occupation of a tenant to whom the landlord has demised it(ƒ).

Damages recoverable.-Wherever the exercise and enjoyment of a right naturally incident to the possession of land has been obstructed, substantial damages are recoverable, though no actual perceptible damage has been sustained or proved, whenever the repetition of the wrongful act, if uninterrupted and undisturbed, would lay the foundation of a legal right. A wrongful defilement of a stream is an injury to a right, in respect of which damages are recoverable, although no actual specific damage can be proved. Thus, where certain manufacturers erected works on the bank of a stream, and fouled the water with soap-suds, but no actual damage was proved to have been sustained by the plaintiff, it was held that he was nevertheless entitled to recover damages, as a continuance of the practice without interruption would eventually establish a right on the part of the defendants to the easement of discharging their foul water into the stream(g). So, where the defendant, a riparian owner on the banks of a stream which fed a spout, the water of which the plaintiff, in common with the other inhabitants of a certain district, was entitled by custom to use for domestic purposes, abstracted the water to such a degree as to render what remained insufficient for the inhabitants, it was held that the plaintiff might maintain an action, although he had not himself suffered any personal inconvenience(h).

107 But when the act of which the plaintiff complains has been done by the defendant on his own land, and the constant repetition of it, however long continued, would establish no prescriptive right against the plaintiff, there is no cause of action until some substantial, perceptible damage has been sustained by the plaintiff. Proof of such damage in such a case is essential to the establishment of a cause of action. Thus, where a landowner digs in his own land, or the owner

(f) Stott v. Stott, 16 East, 350.

(g) Wood v. Waud, 3 Exch. 772. Rochdale Co. v. King, 14 Q. B. 135, 138. See post, ch. 3, 8. 1; and ante, p. 8. For some of the American cases sustaining the principle stated in the text, see Johns v. Stevens, 3 Vt. 308; Chatfield v. Wilson, 27 Vt. 670; Parker v. Griswold, 17 Conn. 288; Welton v. Martin, 7 Mo. 307; Hulme v. Shreve, 3 Green. Ch. 116; Thomas v. Brackney, 17 Barb. (N. Y.) 654; Parker v. Foote, 19 Wend. 309, 313; Hastings v. Livermore, 7 Gray 194; Elliott v. Fitchburgh R. R. Co. 10 Cush, 191; Bolivar Manufacturing Co. v. Neponset Manufacturing Co. 16 Pick. 241; Butman v. Hussey, 12 Maine, 407; Munroe v. Stickney, 48 Me. 462; Hendrick v. Cook, 4 Ga. 241; Plumleigh v. Dawson, 1 Gilm. 544, 552; Stein v. Burden, 24 Ala. 130, 148; Roundtree v. Brantley, 34 Ala. 553; Graver v. Sholl, 42 Penn. 67; Delaware Canal Co. v. Torrey, 33 Penn, 143; Woodman v. Tufts, 9 N. H. 88; Tillotson . Smith, 32 N. H. 90.

(h) Harrop v. Hirst, L. R., 4 Exch. 43.

of the subsoil and minerals excavates his own freehold, there is no wrongful act, and no cause of action until it is proved that the surface of the adjoining land has sunk down, or that the walls of a neighboring house have cracked, or the foundations thereof have been displaced, or have given way, or that some actual perceptible damage has been done to the adjoining land or tenement(i).

108 By tenant and reversioner.—Whenever the enjoyment of a privilege or right annexed to the ownership or occupation of land has been obstructed by the wrongful act of the defendant, and the land to which the right or privilege is annexed is in the occupation of a lessee, damages are recoverable in respect of the injury to the residential or possessory interest of the latter, and by the landlord or reversioner in respect of the permanent injury to the inheritance(k). Thus, where the freehold premises are let on lease, and the owners and reversioners stand in the relative positions of tenant for life, remainderman in tail, and reversioner in fee, and a permanent injury has been done to the beneficial occupation and enjoyment of the property, the damages recoverable by the immediate reversioner the tenant for life, are confined to the injury done to his life-interest(?). But a mere temporary impediment to a drain which is remediable, and does not cause any permanent injury to the property, does not give the reversioner any right of action for damages.

If the constant repetition of the unlawful act would form the foundation for the establishment of a prescriptive right which, when once established, would operate to the lasting injury of the inheritance, and permanently diminish the value of the property, the reversioner is, as we have seen, entitled to an action for the recovery of damages. 109 Injunction to prevent the disturbance of rights naturally incident to the possession and ownership of land.-The Court of Chancery has, from the earliest period, interfered by injunction to restrain the owner of land from so dealing with his property as to prejudice or destroy the rights of his neighbor, thereby enforcing the maxim, "Sic utere tuo ut alienum non lædas." The foundation of this jurisdiction is that head of mischief, alluded to by Lord Hardwicke-that sort of material injury to the comfort and enjoyment of property which requires the application of a power to prevent, as well as remedy-an evil for

(i) Bonomi v. Backhouse; Backhouse v. Bonomi, ante, p. 75. Fisher v. Beard, 32 Iowa, 357. (k) As to the apportionment of damages between tenants and reversioners, see post, ch. 22, s. 1.

(7) Evelyn v. Raddish, Holt. N. P. C. 543. See Wood v. Williamsburgh, 46 Barb. (N. Y.) 601; Tobias v. Cohn, 36 N. Y. 363.

which damages, more or less, would be given in an action at law(m). But before the plaintiff can ask for any injunction restraining the defendant from using his own land or property in a way in which he would be clearly entitled to use it, but for some dominant right on the part of the plaintiff, the latter must establish such last-named right, and show to the satisfaction of the court that it has been infringed, and that he has sustained such injury therefrom as would entitle him to a verdict for substantial damages in an action at law(n). The court will not interfere to protect a dry, strict, legal title, merely because the legal right has been infringed. It must be shown that some actual damage has been done or threatened, in order to lay a ground for equitable relief(o).

The jurisdiction of the Court of Chancery to prevent the infringement of a legal right by the issue of an injunction is not an original jurisdiction; it existed, not for the purpose of trying the fact of the existence of the right, but for the purpose of giving effect to the legal title after its existence had been established in a court of law. A person, therefore, who came before the court in the first instance for an injunction, instead of going before the ordinary legal tribunal, was bound to show some pressing necessity for summary interference, for the court would not try upon conflicting affidavits the fact of the existence or non-existence of the legal title(p); nor would it interfere where the legal right was doubtful, and the nature of the alleged injury was such as not to require immediate prevention(9). But the practice of the court in these respects has been materially modified by the chancery amendment acts, which impose upon the Court of Chancery the obligation of adjudicating upon the legal rights of the parties before them, as well as upon their title to equitable relief(r).

(m) Att.-Gen. v. Nichol, 16 Ves, 342.

(n) Elmhirst v. Spencer, 2 Mac. & G. 51. Dent v. Auction Mart Co., L. R., 2 Eq. Ca. 238; post, ch. 3, s. 2; ch. 4, s. 3; and ch. 23.

(0) Wandsworth Board of Works v. Lond. and S. W. Rail. Co., 31 Law J., Ch. 855. See Lingwood v. Stowmarket Paper Co., L. R., 1 Eq. Ca. 77; Crossley v. Lightowler, ante, p. 81; Bassett v. Salisbury etc. Co., 47 N. H. 426. See Corning v. Troy Iron and Nail Factory, 40 N. Y. 191, 220; Clinton v. Myers, 46 N. Y. 511; Hahn v. Thornberry, 7 Bush. 406.

(p) Semple v. Lond. & Birm. Rail. Co., 1 Rail. Cas. 134. White v. Cohen, 1 Drew, 318. Broadbent v. Imp. Gas Co., 26 Law J., Ch. 276; 29 ib. 377. See Washb. on Easem. & Serv. (third ed.), 698.

(q) Wynstanley v. Lee, 2 Swanst. 335. Ripon (Earl of) v. Hobart 3 Myl. & K. 179. Att.Gen. v. United King. Elec. Tel. Co., 31 Law J., Ch. 329. See Jordan v. Woodward, 38 Me. 432; Van Bergen v. Van Bergen, 3 Johns. Ch. 282; Reid v. Gifford, 6 Johns. Ch. 19; Ingraham v. Dunnell, 5 Metc. 118; Dana v. Valentine, id. 8.

(r) Post, ch. 23, s. 1. Beardmore v. Tredwell, 31 Law J., Ch. 893. In New York and other States where both legal and equitable jurisdiction have been vested in the same courts, it is no longer necessary that the existence of a right must be established by the judgment of a

110 Injunction to restrain the diversion of water.-Wherever a spring rises from the ground in one man's land, and flows therefrom into another's land, and the supply of water from the spring is constant, the court will by injunction prevent a landowner through whose land the water flows, from cutting off the supply of water to the land lower down, although the spring may flow through boggy land, and not follow any defined channel or watercourse; but if the supply is casual and intermittent, and dependent upon the rainfall, and is mere common surface-water, the court will not interfere(s). When a millowner or riparian proprietor is entitled to the benefit of the natural flow of water through a mill-stream, or through a natural watercourse, the Court of Chancery will by injunction restrain the owner of the subsoil or minerals from excavating or mining beneath the stream so as to endanger the existence of the watercourse or the loss of the water; but the person seeking relief must show that some injury has actually happened, or that it will inevitably result from the prosecution of the mining. operations(t).

111 Injunction to restrain a disturbance of the right to support.-Where there are separate owners of surface and subsoil, and the owner of the subsoil begins to excavate so as to deprive the owner of the surface of his natural right to the support of the subsoil (ante, p. 74), the court

court of law before an injunction can issue to restrain its violation. Corning v. Troy Iron and Nail Factory, 40 N. Y. 191.

(s) Ennor v. Barwell, 2 Giff. 424. Robinson v. Ld. Byron, 1 Bro. Ch. C. 588. See Arnold v. Foot, 12 Wend. 330. Nor as a general rule will the court interfere to restrain a land owner from digging on his own land for a justifiable purpose, although he thereby prevents water from reaching a spring or open running stream on the land of another by intercepting its percolation or underground currents. Village of Delhi v. Youmans, 45 N. Y. 362. And see ante, p. 77, note.

(f) Ellwell v. Crowther, 31 Law J., Ch. 763. That past injuries are no ground for equitable interference for the protection of the rights of a riparian proprietor in the enjoyment of a stream, see Potiers, Exr. v. Burden, 38 Ala. 651.

An injury to the purity or quality of running water, to the injury of other riparian proprietors may be prevented by injunction. Merrifield v. Lombard, 13 Allen 16. Holsman v. Boiling Spring Co. 1 McCart. 342. See Lewis v. Stein, 16 Ala. 214.

When the right to the use of water is clear, and the stream has been wrongfully diverted, the party injured may have a mandatory injunction to compel the restoration of the stream to its proper channel. Corning v. Troy Iron and Nail Factory, 40 N. Y. 191.

Where a riparian proprietor so constructs an embankment along the margin of a stream as to throw the water upon the land of the opposite proprietor, the latter may have his remedy by injunction. Burwell v. Hobson, 12 Gratt. 322, 332.

A millowner may restrain another from unlawfully obstructing his mill-privilege. Crit tenden v. Field, 8 Gray 621. Bemis v. Upham, 13 Pick. 169. Ballou v. Hopkinton, 4 Gray, 324. Hill v. Sayles, 12 Cush. 454. See Hall v. Augsbury, 46 N. Y. 622; Wright v. Moore, 38 Ala, 593. Where the application for an injunction is made to a court not having concurrent jurisdiction in law and in equity and the rights of the parties are doubtful, the court may refuse to grant the prayer for an injunction until the question of right has been settled by a court of law. Van Bergen v. Van Bergen, 2 Johns. Ch. 272. Burden v. Stein, 27 Ala. 104. Bliss v. Kennedy, 43 Ill. 74. See Simpson v. Justice, 8 Ired. Eq. 115.

will interfere by injunction to prevent any further excavation of the subsoil interfering with the use and enjoyment of the surface(u). 112 Injunction to prevent obstruction to the repair of a watercourse in alieno solo.-Where a' mill-stream running through the defendant's land to the plaintiff's mill, broke through its banks and made a new channel for itself through the defendant's land, and the defendant would not allow the plaintiff to come on his land to repair the river-bank without the payment of a large sum of money, and the mill came to a standstill for want of water, it was held that the plaintiff, being entitled to the use of the watercourse, was entitled to come on the defendant's land to repair the watercourse and preserve it (post, ch. 3, s. 1), and the defendant was restrained by injunction from preventing the plaintiff, his servants and workmen, from coming on his land and repairing the river-bank, and doing what was necessary to be done to restore the water to its ancient channel(x).

(u) Hunt v. Peake, 1 Johns. 708.

(x) M'Swiny v. Haynes, 1 Ir. Eq. Rep. 322. See Roberts v. Rose, post, ch. 4, s. 2; Roberts v. Roberts, 55 N. Y. 275.