option to complain of it as a permanent injury and recover damages for the whole time, estimating its duration according to the defendant's purpose in creating or continuing it; or to treat it as a temporary wrong to be compensated for while it continues. Id. 3874.

It is clear that the plaintiff herein has elected to treat the nuisance, not as a permanent injury to be fully compensated in damages, but as a temporary wrong to be abated.

Of course, the Statute of Limitations could not be a complete bar in any case where the encroachment had progressively increased up to the time of commencing the action. Respondent contends that the trial court found the fact against this contention of plaintiffs. The finding is:

"That it is not true that, by reason of the negligent or imperfect construction of defendant's building, the south wall thereof... daily or continually further encroaches thereon." (Italics added.) This finding does not cover the issue. Being limited by the italicized phrase, it is in the nature of a negative pregnant.

Defendant pleaded that he had gained by prescription the right to overhang plaintiffs' premises, and the trial court made no finding thereon. The burden was upon defendant to prove the facts supporting this defense. This action was commenced April 9, 1919, and there is no evidence that any encroachment occurred prior to December, 1914. If an adjoining landowner could successfully set up the defense of the Statute of Limitations, or of title by prescription, as a complete bar to an action for relief against a constantly increasing encroachment, he might thus eventually gain the whole of his neighbor's premises.

The judgment is reversed, and remanded for a retrial as to the issues involved in the portion of the action which seeks an abatement of the nuisance.1

NOTE ON THE STATUTE OF LIMITATIONS AND LACHES.

Some of these extracts are taken from cases 2 not relating to equitable relief against torts, but the principles laid down may perhaps apply.

1 See 33 Yale L. J. 557; 29 A. L. R. 839. Other interesting cases of laches as a bar to injunctions against torts are: Wehrman v. Conklin, 155 U. S. 314, 326 (1894).

Fesler v. Brayton, 145 Ind. 71, 74 (1896).

Fisk v. Hartford, 70 Conn. 720, 729 (1898).

N. Y. v. Pine, 185 U. S. 93 (1902).

S. v.

Blaisdell, 18 N. D. 55, 59 (1908).

Essex v. N. E. Tel. Co., 239 U. S. 313, 321 (1916).

Benedict v. N. Y., 250 U. S. 321 (1919); 4 Minn. L. Rev. 297.

2 For references on the general subject of laches in equity, see 347n. Other useful passages will be found in Cholmondeley v. Clinton, 4 Bligh 1, 118 (1821); Lindsay Petroleum Co. v. Hurd, L. R. 5 P. C. 221, 239 (1874); Gibbs v. Guild, 9 Q. B. D. 59, 64 (1882); Black v. Gale, 32 Ch. D. 571, 581 (1886, C. A.).

GRANT, M. R., BECKFORD V. WADE, 17 Ves. Jr. 87, 96 (1805): "But courts of equity by their own rules, independently of any Statutes of Limitation, give great effect to length of time, and they refer frequently to Statutes of Limitation for no other purpose than as furnishing a convenient measure for the length of time, that ought to act as a bar in equity of any particular demand."

WESTBURY, C., KNOX v. GYE, L. R. 5 H. L. R. 656, 674 (1872), partnership accounting: "For where the remedy in equity is correspondent to the remedy at law, and the latter is subject to a limit in point of time by the Statute of Limitations, a court of equity acts by analogy to the statute, and imposes on the remedy it affords the same limitation. This is the meaning of the common phrase, that a court of equity acts by analogy to the Statute of Limitations, the meaning being that where the suit in equity corresponds with an action at law which is included in the words of the statute, a court of equity adopts the enactment of the statute as its own procedure. But if any proceeding in equity be included within the words of the statute, there a court of equity, like a court of law, acts in obedience to the statute."

FULLER, C. J., RIDDLE V. WHITEHILL, 135 U. S. 621, 635 (1890), partnership accounting: "Courts of equity sometimes act in obedience to the Statute, and sometimes apply it by way of analogy. Where the cause of action is legal and the statute has barred the remedy at law, the defense is as complete in equity as at law, but where the case falls within the proper, peculiar, and exclusive jurisdiction of equity, the statute is not necessarily applied."

TURNER, L. J., LIFE ASSN. v. SIDDAL, 3 D. G. F. & J. 58, 72 (1861), in relieving against a breach of trust: Length of time where it does not operate as a statutory or positive bar operates, as I apprehend, simply as evidence of assent or acquiescence. The two propositions of a bar by length of time and by acquiescence are not as I conceive distinct propositions. They constitute but one proposition."

WESTBURY, C., ARCHBOLD V. SCULLY, 9 H. L. C. 360, 383 (1861), granting the establishment of a rent-charge: "So far as laches is a defense, I take it that where there is a Statute of Limitations, the objection of simple laches does not apply until the expiration of the time allowed by the statute. But acquiescence is a different thing; it means more than laches. If a party, who could object, lies by and knowingly permits another to incur an expense in doing an act under the belief that it would not be objected to, and so a kind of permission may be said to be given. to another to alter his condition, he may be said to acquiesce; but the fact, of simply neglecting to enforce a claim for the period during which the law allows him to delay, without losing his right, I conceive cannot be any equitable bar."1

MCKINISTRY, J., LUX v. HAGGIN, 69 Cal. 255, 269 (1886), diversion of waters: "Each of the words,' delay,' 'laches,' and 'acquiescence,' has its appropriate meaning. Laches would strictly seem to imply neglect to do that which ought to have been done; acquiescence a resting satisfied with or submission to an existing state of things. Laches (at least with other facts) may be evidence of acquiescence, and acquiescence may be evidence of consent. In the decisions of the reported cases, however,

1 See 14 R. C. L. 361.

6

laches' has sometimes been employed as the equivalent of mere delay,' and sometimes laches' or gross laches' as the equivalent of acquiescence.' It is therefore important to consider the context, in connection with which either of these expressions has been used by a judge, in order to ascertain in what sense it is employed."

ARDEN, M. R., PICKERING V. LORD STAMFORD, 2 Ves. Jr. 272, 283 (1793), in setting aside a void charitable devise after 35 years: "I know no rule that has established that mere length of time will bar."

GRAY, J., SPEIDEL v. HENRICI, 120 U. S. 377, 387 (1887), open breach of trust: Independently of any Statute of Limitations, courts of equity uniformly decline to assist a person who has slept upon his rights and shows no excuse for his laches in asserting them," quoting Smith v. Clay, quoted supra, 345.

BROWN, J., GALLIHER V. CADWELL, 145 U. S. 368, 373 (1892), denial of homestead claim in former public lands: "Laches is not like limitation, a mere matter of time; but principally a question of the inequity of permitting the claim to be enforced an inequity founded upon some change in the condition or relations of the property or the parties."

BREWER, J., HALSTEAD V. GRINNAN, 152 U. S. 412, 416 (1894): "The length of time during which the party neglects the assertion of his rights, which must pass in order to show laches, varies with the peculiar circumstances of each case, and is not, like the matter of limitations, subject to an arbitrary rule. It is an equitable defense, controlled by equitable considerations, and the lapse of time must be so great, and the relation of the defendant to the rights such, that it would be inequitable to permit the plaintiff to now assert them."

VAN FLEET, V. C., DAGGERS v. VAN DYCK, 37 N. J. Eq. 130, 137 (Ch., 1883), specific performance: "It is only when the complainant has slept over his rights so long that if relief be given to him great and serious wrong will be done to the defendant, that laches will constitute a complete defense. Here the parties are in almost exactly the same position now that they were at the time the wrong, for which redress is sought, was done, and relief may be given to the complainant without doing any harm whatever to the defendant."

CHELMSFORD, C., CLARKE V. HART, 6 H. L. C. 633, 655 (1858), forfeiture of partnership shares for non-payment: The distinction to which I advert was that which has been expressed very shortly and very intelligibly by the difference between 'executed' and 'executory interests.' When a person is obliged to apply for the peculiar relief afforded by a court of equity to enforce the performance of an agreement, or to declare a trust, or to obtain any other right of which he is not in possession, and which may be described as an executory interest, it is an invariable principle of the court that the party must come promptly, that there must be no unreasonable delay. And if there is anything which amounts to laches on his part, courts of equity have always said, 'We refuse you relief.' With regard to interests which are executed, the consideration is entirely different. There mere laches will not of itself disentitle the party to relief by a court of equity; but a party may by standing by, as it has been metaphorically called, waive or abandon any right which he may possess, and which under the circumstances, therefore, a court of equity may say he is not entitled to enforce."

Pasked for awing to restrain the publication of Byron's "Cain". Facts in case are not very clear. sild: This rasch might be calculated to produce am exiligten

1870 Community DEFENSES TO SPECIFIC RELIEF but Equity et commot sit asos crim. inal ct. If there could have been an action at low against this book then quity might Injoin it, but that hust be shain to at first. piracy

MURRAY v. BENBOW.

CHANCERY, 1822.

[6 Petersdorff's Abridgment of Cases, 558, note.]

[CHAP. IV

An injunction was applied for to restrain the publication of Lord Byron's "Cain."

LORD ELDON. This court, like other courts of justice in this country, acknowledges Christianity as part of the law of the land. The jurisdiction of this court in protecting literary property, is founded on this, that where an action will lie for pirating a work, then the court, attending to the imperfection of that remedy, grants its injunction, because there may be publication after publication, which you may never be able to hunt down by proceeding in the other courts. But where such an action does not lie, I do not apprehend that it is according to the course of the court to grant an injunction to protect the copyright. Now this publication, if it is one intended to vilify and bring into discredit that portion of scripture history to which it relates, is a publication, with reference to which, if the principles on which that case at Warwick (Dr. Priestly's case),1 was decided be just principles of law, the party could not recover any damages in respect of a piracy of it. This court has no criminal jurisdiction; it cannot look on any thing as an offence; but in those cases it only administers justice for the protection of the civil rights of those who possess them, in consequence of being able to maintain an action. You have alluded to Milton's immortal work; it did happen in the course of last long vacation, amongst the solicita jucunda oblivia vita, I read that work from beginning to end; it is therefore quite fresh in my memory, and it appears to me that the great object of its author was to promote the cause of Christianity; there are, undoubtedly, a great many passages in it, of which, if that were not its object, it would be very improper by law to vindicate the publication; but, taking it altogether, it is clear that the object and effect were not to bring into disrepute, but to promote, the reverence of our religion. Now the real question is, looking at the work before me,

1 Dr. Priestly brought an action against the hundred for damages for the injuries sustained by him in consequence of the riotous proceedings of the mob at Birmingham; and, among other property alleged to have been destroyed, claimed compensation for the loss of certain unpublished MSS. offering to produce booksellers as witnesses to prove that they would have given considerable sums for them. On behalf of the hundred it was alleged, that the plaintiff was in the habit of publishing works injurious to the government of the state; upon which Lord Chief Justice Eyre said, "if any such evidence had been produced, he should have held it fit to be received as against the claim made by the plaintiff." 2 Meriv. 437. Cf. Ely v. Niagara, 36 N. Y. 297 (1867).

its preface, the poem, its manner of treating the subject, particularly with reference to the fall and the atonement; whether its intent be as innocent as that of the other with which you have compared it; or whether it be to traduce and bring into discredit that part of sacred history. This question I have no right to try, because it has been settled, after great difference of opinion among the learned, that it is for a jury to determine that point; and where, therefore, a reasonable doubt is entertained as to the character of the work (and it is impossible for me to say I have not a doubt, I hope it is a reasonable one), another course must be taken for determining what is its true nature and character. There is a great difficulty in these cases, because it appears a strange thing to permit the multiplication of copies, by way of preventing the circulation of a mischievous work; which I do not presume to determine that this is: but that I cannot help; and the singularity of the case, in this instance, is more obvious, because here is a defendant who has multiplied this work by piracy, and does not think proper to appear. If the work be of that character which a court of common law would consider criminal, it is pretty clear why he does not appear, because he would come confitens reus, and for the same reason. the question may, perhaps, not be tried by an action at law; and if it turns out to be the case, I shall be bound to give my own opinion. That opinion I express no further now than to say that, after having read the work, I cannot grant the injunction until you show me that you can maintain an action for it. If you cannot maintain an action, there is no pretence for granting an injunction; if you should not be able to try the question at law with the defendant, I cannot be charged with (impropriety, if I then give my opinion upon it. It is true that this mode of dealing with the work, if it be calculated to produce mischievous effects, opens a door for its wide dissemination; but the duty of stopping the work does not belong to a court of equity, which has no criminal jurisdiction, and cannot punish or check the offence. If the character of the work is such, that the publication of it amounts to a temporal offence, there is another way of proceeding, and the publication of it should be proceeded against directly as an offence; but whether this or any other work should be so dealt with, it would be very improper for me to form, or intimate, an opinion. Injunction refused.1

1 Accord, Southey v. Sherwood, 2 Mer. 435 (1817); Lawrence v. Smith, Jac. 471 (1822); Peters v. Case, 62 W. Va. 33, 39 (1907); Davies v. Bowes, 209 Fed. 53 (S. D. N. Y., 1913), writer of fiction inserted as if actual truth in copyrighted newspaper not protected against defendant who was producing a dramatization of the incident. See the numerous cases to protect literary property or copyrights collected by E. S. Rogers in "Copyright and Morals," 18 Mich. L. Rev. 390 (1918).

Effect of plagiarism by the plaintiff, Thompson v. Am. L. Book Co., 122 Fed. 922 (C. C. A., 2d, 1903); Merchants' Syndicate Catalog Co. v. Retailers' Factory Catalog Co., 206 Fed. 545 (Ill., 1913).