An indictment will not lie for the non-repair of a bridge unless it be in a highway. "Highways" is a general term for all public ways, as well as cart, horse, and footways, and an indictment lies for any one of these ways if they are common to all the Queen's subjects (r). If a way be in decay an indictment of necessity lies, for an action on the case will not lie without special damage (8), and no action on the case will lie against inhabitants of a county for non-repair of a bridge, because they are not a corporation, and cannot be sued (t).

The Court of Quarter Sessions cannot impose more than one fine for the non-repair of a bridge (u).

In cases of nuisance and injury to the rights of property, the Injunctions. Courts will interfere by injunction in aid of the legal right for the purpose of protecting the property from damage. Thus an interlocutory injunction will be granted to protect the property from irreparable, or at least from substantial or material damage. pending the trial of the right (x). After the establishment of the right, and of the fact of its violation, a man is in general entitled.

sustained by the plaintiff in consequence of a want of repair of a county bridge. . . . The only question is, whether an action for a peculiar damage resulting to the plaintiff for want of proper repair to a county bridge will lie against the county's surveyor.

There is no doubt of the truth of the general rule that when an indictment can be maintained against an individual or a corporation for something done to the general damage of the public, an action on the case can be maintained for a special damage thereby done to an individual, as in the ordinary case of a nuisance on the highway by a stranger digging a ditch across it, or by the default of the person bound to repair ratione tenure .. (Mayor of Lyme Regis v. Henley, 5 Bing. 91; 8 Bligh, 690; 37 R. R. 125, as to repair of sea walls). But it has been held, no such action on the case would lie against the inhabitants of a county for a special injury sustained by a plaintiff by reason of their neglect to repair a county bridge (Russell v. Men of Devon, 2 T. R. 667; 1 R. R. 585). We think it clear, on the full consideration of that case, that the only reason why the action would not lie was because the inhabitants of the county were not a corporation and could not be sued,—a difficulty which was got rid of in the case of the Statutes of Hue and Cry by giving a specific remedy against the hundred. We have then to decide whether the 4th section of 42 Geo. 3. c. 59, removes that difficulty. . . . We have, therefore, come to the conclusion that judgment ought to be arrested."

(r) Reg. v. Saintiff, 6 Mod. 255; Holt, 129. As to remedies against persons liable ratione tenure under the Local Government Act, 1894, see ante, p. 556. (8) Ibid. ; 2 Lord Raymond, 1174.

(t) Pollock, C.B., in Mackinnon v. Penson, 8 Exch. 319. As to evidence admissible on indictments for non-repair of bridges, see Reg. v. Adderbury East, 1 Dav. & M. 324; Reg. v. Bedfordshire, 4 E. & Bl. 535; Rex v. Buckingham, 8 B. & C. 375; 2 M. & M. 412. As to

(u) R. v. Machynlleth and Penegoes, 4 B. & A. 469; 23 R. R. 349. costs, see Reg. v. Bedfordshire, 4 El. & Bl. 535; 1 Jur. (N.s.) 208; 24 L. J. Q. B. 81; Reg. v. Merionethshire, 1 New Sess. Cas. 316; 6 Q. B. 343; 8 Jur. 778; 13 L. J. M. C. 158; R. v. Houlgrave, 1 B. & A. 312; 19 R. R. 332; R. v. Bird, 2 B. & A. 522; R. v. Dorset, 15 East, 594; as to stay of judgment, see R. v. Southampton, 2 Chitty, 215; 13 R. R. 443.

(a) See Kerr on Injunctions, 3rd ed., pp. 9, 14, 612, 613, 630. As to undertakings in damages when interim injunctions are granted, see East Molesey Local Board v. Lambeth Waterworks, [1897] 2 Ch. 289; 62 L. J. Ch. 82; 67 L. T. 493.

Foundation for inter

ference of the Courts by injunction.

Mandatory injunctions.

Injunctions granted to prevent repeated actions,

and to prevent acquisition of rights.

as of course, to a perpetual injunction to prevent the recurrence of the wrong, unless there be something special in the circumstances of the case (y).

If the case made out is such that the recovery of damages will give a full and adequate compensation for the injury, no foundation is laid for the interference of the Court by way of injunction. If, on the other hand, the injury is of so material a nature that it cannot be well or fully compensated by the recovery of damages, or be such as from its continuance and permanent mischief might occasion a constantly recurring grievance, a foundation is laid for the interference of the Court by way of injunction (z). The order may be framed so as to compel a defendant to restore things to their former condition; and when framed in such a form it is called a mandatory injunction (a). The jurisdiction of the Court is founded on the equity of relieving a man from the necessity of bringing repeated actions for damages for every violation of a common law right, and of finally quieting the right, after a case has received such full decision as entitles a man to be protected against further trials of the right (b).

Where, therefore, an action for damages by a riparian proprietor lies for an interference with a stream, the Court will interfere by injunction to restrain the nuisance, even where no actual damage is proved, to prevent the inconvenience of repeated actions (c); and also where the act done is claimed as of right, on the ground that the repetition of the act would at the end of twenty years establish a right in the claimant in derogation of the prior right (d). Where the Court is of opinion that the damage

(y) Kerr on Injunctions, pp. 9, 42–44, 637–646; Wood v. Sutcliffe, 2 Sim. (N.S.) 166; Imperial Gas Co. v. Broadbent, 7 H. L. 612. As to injunc tions against public authorities and generally, see Harrington (Earl of) v. Derby Corporation, ante, p. 170.

(z) Kerr on Injunctions, p. 165; Att.-Gen. v. Nicholl, 16 Ves. 338; 10 R. R. 186; Att.-Gen. v. Sheffield, 3 D. M. & G. 319; Wilson v. Townsend, 1 Drew & Sm. 329.

(a) Kerr on Injunctions, pp. 48-51, 638, 646; Robinson v. Lord Byron, 1 Bro. C. C. 588; Att.-Gen. v. Birmingham, 4 K. & J. 547. As to the question whether the Attorney-General is bound by laches with respect to relief by injunction and as to the discretion of the Court in granting mandatory injunctions, see Att.-Gen. v. Grand Junction Canal, ante, p. 223; and as to joinder of the Attorney-General, see Marriott v. East Grinstead Gas Co., [1909] 1 Ch. 70.

(b) Lowndes v. Bettle, 33 L. J. Ch. 451.

(c) Pennington v. Brinsop Hall, 5 Ch. Div. 769; Clowes v. Staffordshire Water Co., L. R. 8 Ch. 125, 143; Rochdale Canal v. Radcliffe, 18 Q. B. 287. (d) Swindon Water Co. v. Wilts and Berks Canal, L. R. 7 H. L. 697; Goldsmid v. Tunbridge Wells, L. R. 1 Ch. 349; Crossley v. Lightowler, L. R. 2 Ch. 478; Harrop v. Hirst, L. R. 4 Ex. 43. An injunction will be granted in the absence of proof of substantial damage, on the ground that the defendants by their pleading claimed a right to continue doing that which the Court held they were not entitled to do. In an action by a sanitary authority to restrain the sanitary authority of a neighbouring district from authorising or directing sewage from their district to flow into the sewers of the plaintiffs, the Court granted an injunction as to the future, but refused to grant a mandatory

complained of is too trivial (e), or where there is a doubt as to whether damage will accrue, an injunction will be refused, and the defendant will be left to his remedy at law (f), but where the right and its invasion are clearly established an injunction will be granted without an issue at law being directed (g). In certain cases, notwithstanding the want of direct evidence of injury, the Court, to prevent a possible mischief, will grant an injunction and give the plaintiff leave to bring an action (h). The right to an injunction may be lost by negligence (i). The Court will also interfere by injunction to prevent bodies possessing parliamentary powers from exceeding or abusing those powers, it being a principle of law that persons interfering with the property of others by Act of Parliament are strictly tied down to the limits of the powers granted by the Act (k). Where injunction to compel the stopping up of existing drains (1) because to do so would cause serious inconvenience to the district; and (2) because it is doubtful whether a local board have power to stop up drains which they have once authorised to be connected with their sewers. And, inasmuch as the injunction granted applied only to the future, the Court refused to suspend its operation : Att.-Gen. v. Acton Local Board, 22 Ch. D. 221; 52 L. J. Ch. 108; 47 L. T. 510; see also Metropolitan Board of Works v. London and N. W. Rly., 17 Ch. D. 246, ante, pp. 169 et seq.

(e) Llandudno Urban District Council v. Woods, [1899] 2 Ch. 705.

(f) Edleston v. Crossley, 18 L. T. 15. Cf. Fraser v. Fear, ante, p. 393. (g) Ashworth v. Browne, 10 Ir. Ch. R. 421. In Daly v. Murray, L. R. 17 Ir., 185, 196, lands adjoining the sea shore were granted, by a patent of Charles II., to the predecessor in title of the plaintiff D. The patent did not expressly grant the foreshore, but from the year 1806 downwards the patentee's representatives were proved to have constantly exercised acts of ownership over it, and their title had from time to time been recognised by their adjacent tenants and others in the locality. They had also, at various times between 1849 and 1874, obtained convictions at petty sessions against trespassers for removing the sand and seaweed. In 1882 the present defendants-twenty in number, some of whom had been among the parties so convicted-claiming an immemorial right as licensees of the Crown, organised a series of trespasses on the premises, carrying off the seaweed, &c. D. then brought an action against them and the Attorney-General, seeking an injunction, and to have his possession quieted. An order made on the usual summons to fix the mode of trial directed that the cause should be heard before the judge alone, and the evidence given by affidavit, and this order was unappealed from. The cause having come on for hearing accordingly, Chatterton, V.C., granted the relief sought. The Attorney-General acquiesced in the decision, but the other defendants having appealed, and contending that the plaintiff's title should have been first established by the verdict of a jury-Held, by the Court of Appeal (affirming the decision below), that the previous verdict of a jury in the plaintiff's favour was not necessary in such a case, and that the circumstances fully justified the relief that had been granted. See Tenham v. Herbert, 2 Atk. 483; York Corporation v. Pilkington, 1 Atk. 282.

(h) Clowes v. Beck, 20 L. J. Ch. 505; see Bradbury v. Manchester, S. and L. Rly., 15 Jur. 1167.

(i) Rochdale Canal Co. v. Radcliffe, 18 Q. B. 287; Rochdale Canal v. King, 20 L. J. Ch. 675; 2 Sim. (N.S.) 78; Shand v. Henderson, 2 Dow, H. L. C. 519; 14 R. R. 202; and cases in note (t), p. 316, ante.

(k) Oldaker v. Hunt, 19 Beav. 425, and cases ante, pp. 178 et seq., 283 et seq.; Goodson v. Richardson, L. R. 9 Ch. 221. A local board under the Public Health Act, 1875, causing a nuisance by any act which, independently of the statute, would have given a cause of action to any person, may be liable in damages, or be restrained by injunction, unless they can show a justification under the powers of the statute. But if a local board do not act themselves so as to cause a nuisance, but neglect to perform their duty of providing a satisfactory

Prospective injury.

No part of the duty of the Courts to inquire in

what way nuisances may be removed.

the legislature is of opinion that certain acts will produce injury it is enough, and active injury need not be proved (1).

If the effect of granting an injunction would have the effect of inflicting serious damage upon the defendant, without restoring or tending to restore the plaintiff to the position in which he originally stood, or doing him any real practical good, or if the mischief complained of can be fully and adequately compensated by a pecuniary sum, an injunction will not issue (m). If, on the other hand, the mischief complained of is of so material a nature. that it cannot be properly, fully and adequately compensated by a pecuniary sum, and the granting an injunction will restore or tend to restore the parties to the position in which they formerly stood, it is the duty of the Court to interfere by perpetual injunction, notwithstanding the serious damage caused thereby to the defendant (n).

The Court will not hold its hand upon the ground of a decision being appealed from, unless it has some doubt of the justice of that decision (o).

Though the Court is not bound to interfere by injunction in a case of merely prospective injury it cannot award damages in lieu thereof; but although the fact of prospective nuisance is not always of itself a ground for the interference of the Court (p), yet if some degree of present nuisance exists, the Court will take into account its probable continuance and increase (q).

Where the plaintiff has proved a right to an injunction, it is no part of the duty of the Court to inquire in what way the defendant can best remove the nuisance. The plaintiff is entitled to an injunction at once, unless the removal of the injury is physically impossible; and it is the duty of the defendant to find his way out of the difficulty, whatever the inconvenience and

and healthy system of drainage, it is no ground of action by an individual for damages or an injunction, but the remedy is only by application under section 299 of the Public Health Act, 1875 (38 & 39 Vict. c. 55), to the Minister of Health see cases, ante, p. 187, n. (n).

(1) Att.-Gen. v. Cockermouth, L. R. 18 Eq. 172.

(m) Wood v. Sutcliffe, 2 Sim. (N.s.) 163; Bankart v. Houghton, 27 Beav. 431.

(n) Pennington v. Brinsop Hall, 5 Ch. D. 769; Att.-Gen v. Birmingham, 4 K. & J. 328; Spokes v. Banbury, L. R. 1 Eq. 42; Wood v. Sutcliffe, 2 Sim. (N.s.) 166; Bankart v. Houghton, 27 Beav. 431; Att.-Gen. v. Bradford, L. R. 2 Eq. 71. See also Hobart v. Southend-on-Sea Corporation, 75 L. J. K. B. 305; 94 L. T. 337. See also Annual Practice, 1924, p. 860, Damages in lieu of injunction, and cases cited thereunder.

(0) Att.-Gen. v. Bradford, L. R. 2 Eq. 71.

(p) Slack v. Leeds Industrial Co-operative Society, Lim., [1923] 1 Ch. 431; Att.-Gen. v. Kingston, 13 W. R. 888.

(q) Goldsmid v. Tunbridge, L. R. 1 Eq. 349; Att.-Gen. v. Sheffield, 3 D. M. & G. 304; Att.-Gen. v. Leeds, L. R. 5 Ch. 583; Att.-Gen. v. Halifax, 39 L. J. Ch. 129; Elliott v. North Eastern Rly., 10 H. L. 333; Att.-Gen. v. Hackney, L. R. 20 Eq. 631; Earl Ripon v. Hobart, 3 M. & K. 169; 41 R. R. 40; Cator v. Lewisham, 11 Jur. 340; Elwell v. Crowther, 31 Beav. 163.

expense he may be put to. Where the difficulty of removing the injury is great, the Court will suspend the injunction for a time. to render its removal possible (r). Where an injunction was granted to restrain defendants from pouring sewage into a river, and execution of the order was stayed till July 1, and the defendants did not subsequently to July 1 stop the nuisance, alleging that they had not yet found a way of deodorizing it, and that compliance with the order was physically impossible; it was held that this was a gross and wilful contempt of Court, and sequestration was ordered to issue (s). In cases, however, where important public interests are involved the Court will protect the private rights of individuals, but will at the same time have regard to the nature and extent of the injury and nuisance, and to the balance of inconvenience (t). The Court has jurisdiction. to discharge an injunction either unconditionally or upon terms or to suspend it (u).

restrain

The Courts will grant injunctions to restrain the diversion and Injunction to obstruction of water in a natural stream; and though merely diversion and nominal damages may have been recovered for the diversion, the obstruction of Court will interfere and vindicate the right by perpetual injunc- water. tion, if the act complained of will cause irreparable mischief or permanent injury, or would have the effect of destroying a right (x), or is calculated to found a claim which may ripen into a right (y). Further, even though immediate damage cannot be described nor actual loss predicated, yet an injunction will be granted if it can be shown that a present obstruction may reasonably be expected to cause serious damage in the future (2). If necessary, the injunction will be in a mandatory form (a).

So the Courts will restrain the fouling and pollution (b) of Pollution.

(r) Att.-Gen. v. Colney Hatch, L. R. 4 Ch. 146; Att.-Gen. v. Halifax, 39 L. J. Ch. 129; Pennington v. Brinsop Hall, 5 Ch. D. 769; Att.-Gen. v. Birmingham, 4 K. & J. 328.

(s) Spokes v. Banbury Board of Health, L. R. 1 Eq. 42.

(t) Lillywhite v. Trimmer, 36 L. J. Ch. 525; 16 L. T. 318 and cases ante, pp. 166 et seq.

(u) Att.-Gen. v. Birmingham, Tame and Rea District Drainage Board, [1912] A. C. 788; 82 L. J. Ch. 45; Shalfer v. City of London Electric Lighting Co., [1895] 2 Ch. 388.

(x) Swindon Water Co. v. Wilts and Berks Canal, L. R. 7 H. L. 697; Grand Junction Canal v. Shugar, L. R. 6 Ch. 483; Att.-Gen. v. Great Eastern Rly., L. R. 6 Ch. 577; Elwell v. Crowther, 31 Beav. 163; Rochdale Canal v. King, 2 Sim. (N.s.) 79; Tipping v. Eckersley, 2 K. & J. 264; Robinson v. Lord Byron, 1 Bro. C. C. 588; Weller v. Smeaton, 1 Bro. C. C. 572.

(y) Young v. Bankier Distillery Co., [1893] App. Cas. 691; 69 L. T. 853, H. L. (Sc.).

(z) Bickett v. Morris, L. R. 1 H. L. (Sc.) 47; Orr Ewing v. Colquhoun, 2 App. Cas. 339; Ambler v. Bradford Corporation (1902), 37 L. T. 217, C. A., ante, pp. 96 et seq.

(a) Harrop v. Hirst, L. R. 4 Ex. 43. As to form of injunction to restrain diversion, see Roberts v. Fellowes (1906), 94 L. T. 279, ante, p. 110 n. (d). (b) For procedure under the Rivers Pollution Acts (see ante, pp. 192 et seq. and notes.