546 CHAPTER V. ON INJUNCTION AND OTHER PROCEEDINGS IN EQUITY. AN injunction is a prohibitory writ, issuing out of Chancery, to restrain the defendant from using some legal right, the exercise of which would be contrary to equity and good conscience; or from doing some act inconsistent with the admitted or probable legal rights of the complainant, and with the due preservation of the property affected by the act sought to be restrained. Injunctions are of two kinds. An injunction of the first kind is grantable as an order of course, without reference to merits, upon the defendant's making default in appearing &c. An injunction of the second kind is, on the contrary, always granted upon merits, and may, under circumstances, be granted at any stage of a suit. An injunction of the first kind is properly called a common injunction, and is that which is most generally obtained in suits where the object is to stay proceedings at law. An injunction of the second kind is called a special injunction, because it is granted upon special application, and not as an order of course. In practice, the special injunction may be considered as subdivisible into two kinds, the first of which is grantable in certain urgent cases before appearance, and even without notice to the defendant, upon the merits shewn by the ex parte statement of the plaintiff; and injunctions of this kind are called ex parte injunctions. The second kind of special injunction is only granted upon the merits shown on both sides (a). (a) Drewry on Injunctions, Introd. vi. INJUNCTION. Ex parte injunctions are applied for in cases of waste, and similar acts of injury to property, and they are frequently resorted to for the purpose of restraining railway companies from doing illegal acts. The general principle by which equity is guided in administering such relief, appears to be this, i.e. that, where a company go beyond the powers which the Legislature has given them, and interfere with the property of individuals, it is the duty of the Court to interfere, for the purpose of strictly keeping the company within those limits which the Legislature has thought proper to prescribe for the exercise of their powers (b). Lord Cottenham, C., in one of the earliest applications for an injunction against a railway company (c), observed upon this subject, "I am not at liberty, (even if I were in the least disposed, which I am not), to withhold the jurisdiction of this Court, as exercised in the first case in which it was exercised, that of Agarv. The Regent's Canal Company, (Cooper's Reports, 77), where Lord Eldon proceeds simply on this,— that he exercised the jurisdiction of this Court for the purpose of keeping these companies within the powers which the acts give them; and a most wholesome exercise of the jurisdiction it is; because, great as the powers necessarily are, to enable the companies to carry into effect works of this magnitude, it would be most prejudicial to the interests of all persons with whose property they interfere, if there were not a jurisdiction continually open and ready to exer illegal proceedings. See The London (b) See Webb v. The Manchester and Leeds Railway Company, 4 My. & Cr.116; 1 Railway Cases, 576; ante, 394. Parties whose private rights are injured must apply to the Courts for redress, and they may not take the law into their own hands, and determine and enforce the mode and manner in which they would stop (c) The River Dun Navigation Company v. The North Midland Railway Company, 1 Railway Cases, 153. 547 Where Injunction is the proper Remedy to restrain Railway Companies from doing illegal Acts. is the proper Where Injunction cise its power, for the purpose of keeping them within that Remesty to restrain limit which the Legislature has thought proper to prescribe from doing illegal for the exercise of their powers. On that ground I should Railway Companies never be reluctant to entertain any such application. I think it most essential to the interest of the public, that such jurisdiction should exist, and should be exercised whenever a proper case for it is brought before the Court, otherwise the result may be, that, after your property has been taken and destroyed,—after your house has been pulled down, and a railway substituted in its place, you may have the satisfaction, at a future period, of discovering that the railway company were wrong. It would be a very tardy recompense, and one totally inadequate to the injury of which the party has to complain; and individuals would be made to contend with companies who often have vast sums of money at their disposal, and that too, not the money of the persons who are contending. It is a most material point to consider, when you enter into a contest with an individual, whether he is spending his own money, or money over which he has a control, or in which he has comparatively a small interest. If these companies go beyond the powers which the Legislature has given them, and in a mistaken exercise of those powers interfere with the property of individuals, this Court is bound to interfere. That was Lord Eldon's ground in Agar v. The Regent's Canal Company: and I see no reason whatever to depart from the rule there laid down and acted upon; but then, of course, it must be a case in which the Court is very clearly of opinion, that the company are exceeding the powers which the act has given them." In accordance with the doctrine which is thus clearly laid down, injunctions have been obtained against railway companies in the following instances, i. e. where lands are sought to be taken compulsorily, after the time limited by the Legislature, or lands not authorised to be taken (d); where an entry has been unlawfully made on lands authorised to be taken without paying the price (e); where roads, bridges, stations, or other works are constructed contrary to the stipulations contained in the railway acts (f); where proceedings are commenced to take lands, or execute works, contrary to an agreement previously made between the parties (g); where works are without authority constructed, which have a direct tendency to injure adjoining lands (h) ; where roads are improperly obstructed or interfered with by depositing materials thereon (i); and where more damage is done in carrying on the works, than the necessity of the case requires (j). In all such and similar cases the remedy by injunction is applicable. It has been said in some of the earlier cases, that, before a court of equity will interfere by injunction, the party who applies for this summary relief must clearly shew, that, in the proceedings complained of, there is something in (d) The River Dun Navigation Company v. The North Midland Railway Company, 1 Railway Cases, 135. (e) Hyde v. The Great Western Railway Company, 1 Railway Cases, 277; Robertson v. The Great Western Railway Company, 1 Railway Cases, 459; Jones v. The Great Western Railway Company, 1 Railway Cases, 684. (f) Kemp v. The London and Brighton Railway Company, 1 Rail. way Cases, 495; Bell v. The Hull and Selby Railway Company, 1 Railway Cases, 616; Gordon v. The Cheltenham and Great Western Railway Company, 2 Railway Cases, 812, ante, 362; The AttorneyGeneral v. The Eastern Counties Railway Company, 2 Railway Cases, 823; ante, 362; The London and (g) Lord Petre v. The Eastern (h) Dawson v. Paver, 4 Railway Cases, 81. (i) Semple v. The London and Birmingham Railway Company, 1 Railway Cases, 480. (j) Manser v. The Northern and Eastern Counties Railway Company, 2 Railway Cases, 380; ante, 369. Were Injunction is the proper Railway Companies from doing illegal Acts. is the proper Where Injunction the nature of irreparable spoil or waste, something more Remedy to restrain, than a mere trespass, for which there is a remedy at law (1); but this doctrine has not been adopted in modern cases (m). Railway Companies from doing illegal Acts, Legal rights in dispute are sent to be decided by a court of law. If it appears, when the injunction is applied for, that any legal rights are in dispute between the parties, the Court will order the question to be tried in a court of law. Lord Cottenham, C., has said upon this point:-" The course I have always adopted in cases where the question turns upon a legal right, is, to put the parties in a situation to try, as quickly as possible, that legal right, and to protect the property to be affected, until the legal right be ascertained. If there be equitable grounds on which the jurisdiction of this Court ought to be withheld, that is a subject-matter connected solely with the jurisdiction of this Court (n)." And in determining whether there ought to be a proceeding at law, before the injunction is granted, or whether directions shall be given to proceed at law, as a condition on which the injunction issues, the Court has regard to the circumstances of each case. Sometimes it finds it most subservient to the justice of the case to grant the injunction at once; but the party who has obtained it, is put on terms of bringing an action to support the right, which has appeared so strong to a court of equity, that it has acted on it at the time, but still required the corroboration of the decision of a court of law (o); and sometimes, from the great inconvenience, and at other times from the extreme doubt, the Court considers (1) See The River Dun Navigation Company v. The North Midland Railway Company, 1 Railway Cases, 145; Mouchet v. The Great Western Railway Company, 1 Railway Cases, 567. (m) See The North Union Railway Company v. The Bolton and Preston Railway Company, 3 Rail way Cases, 355. (n) Kemp v. The London and Brighton Railway Company, I Railway Cases, 504. (0) Bell v. The Hull and Selby Railway Company, 1 Railway Cases, 616; The Clarence Railway Company v. The Great North of England Railway Company, 2 Railway Cases, 763. |