CASES

IN THE

SUPREME COURT

OF

MICHIGAN.

EDWARDS V. ALLOUEZ MINING COMPANY.

(38 Mich. 46.)

Injunction against a provoked injury.

A man bought for speculation certain bottom lands upon which large quantities of sand were being deposited by a stream which operated a mill above. Ha put an exorbitant valuation on the land, and tried to sell it to the proprietors of the mill, but they declined to buy it. He then prayed for an injunction to restrain them from sanding the land and polluting the stream. Held, that an injunction would not lie, as he had invited the injury.

NJUNCTION. The opinion states the case. The writ was denied below.

Ball & Owen and G. V. N. Lothrop, for complainant. Injunction to restrain a permanent injury to a man's land is a settled method of equitable relief. High. on Inj. § 485; 2 Story's Eq. Jur. § 928; Wood on Nuisances, 308, 353, 354; Hilliard on Inj. 280, n. a.; Livingston v. Livingston, 6 Johns. Ch. 497; 8 Am. Dec., 562; Mc Cord v. Iker, 12 Ohio, 387. Continuous flowing of water, sand and slime upon land, destroying its timber and unfitting it for cultivation is a substantial appropriation of the land, and no remedy is complete which does not restrain it. Tyler v. Wilkinson, 4 Mason, 397; Riley v. McChesney, 3 Lans. 282; White v. Forbes, Walk. Ch. 112; Dickinson v. Canal Co., 9 Eng. L. and Eq. 513; Gardner v.

Edwards v. Allouez Mining Company.

Newburgh, 2 Johns. Ch. 161; 7 Am. Dec. 526; Wood v. Waud, 3 Exch. 748; Hendrick v. Cook, 4 Ga. 241; Van Bergen v. Van Bergcn, 3 Johns. Ch. 282; 8 Am. Dec. 511; Pennsylvania v. Wheeling Bridge Co., 13 How. 519; Hammond v. Fuller, 1 Paige, 197; Corning v. Troy I. and N. Factory, 40 N. Y. 191; 2 Story's Eq. § 929 b.

W. D. Williams, for defendant in error.

COOLEY, J. This is an injunction bill, and the facts are very simple. Defendant at a cost of some $60,000 erected a stamp mill on the bank of Hill creek in the year 1874, and has since been operating it for copper mining purposes. As a result of its operations large quantities of sand are carried down by the waters of the stream and deposited on the bottom lands below. The evidence leads to the belief that it would be impossible to carry on the mining operations of the defendant with profit unless this is permitted. The year following the erection of defendant's mill, complainant purchased a piece of land through which the creek runs a short distance below the mill, and upon which the mill, as operated, was depositing sand. The land was not purchased for use or occupation, but as a matter of speculation, and apparently under an expectation of being able to force defendant to buy it at a large advance on the purchase-price. It was offered to defendant soon after the purchase, and though no price was named, the valuation which has been put upon it by complainant and his witnesses is from three to five times what it cost him, and this perhaps gives some indication what his expectations were. The real value of the land, except as a convenience in the business of defendant, would seem to have been small. When defendant declined to purchase, this bill was filed. The prayer is that defendant be restrained from running or depositing its stamp sand on complainant's land, and from polluting the waters of the stream by its operations. This is a short statement of so much of the case as is material to what follows. The circuit judge refused the injunction prayed for, but ordered a reference to a jury for an assessment of damages.

There is no doubt that the operations of defendant, whether they inflict any serious injury on complainant or not, amount in effect to an appropriation of that portion of his property upon which sand is being deposited. Ashley v. Port Huron, 35 Mich. 296; Pumpelly v Green Bay Co., 13 Wall. 166; Arimond v. Green Bay Co., 31 Wis

Edwards v. Allouez Mining Company.

316; Rowe v. Portsmouth, 56 N. H. 291; Woodward v. Worcester, 121 Mass. 245. It follows, and is beyond question, that complainant sustains a legal injury for which he is entitled to suitable redress. The only question on this record is, whether he is entitled to the special redress he seeks, namely, an injunction.

An injunction is not a process to be lightly ordered in any case. Where the effect will be to present to the owners of a valuable mill the alternative either to purchase complainant's lands at his own price or to sacrifice their property, any court having the power to order it ought very carefully to scrutinize the case and make sure that equity requires it. In theory its purpose is to prevent irreparable mischief; it stays an evil, the consequences of which could not adequately be compensated if it were suffered to go on. Gilbert v. Showerman, 23 Mich. 448; Bemis v. Upham, 13 Pick. 169; Wason v. Sanborn, 45 N. H. 169; Cockey v. Carroll, 4 Md. Ch. 344; Nicodemus v. Nicodemus, 41 Md. 529; Burgess v. Kattleman, 41 Mo. 480; Owen v. Ford, 49 id. 436; Morris, etc., Co. v. Central R. R. Co., 16 N. J. Eq. 419; Pettibone v. La Crosse, etc., R. R. Co., 14 Wis. 443; Hine v. Stephens, 33 Conn. 497; Rhodes v. Dunbar, 57 Penn. St. 274; Richards Appeal, id. 105; Harkinson's Appeal, 78 id. 196; S. C. 21 Am. Rep. 9; State v. Judge, 16 La. Ann. 233; Goodell v. Lassen, 69 Ill. 145. The writ "is not ex debito justitiæ, for any injury threatened or done to the estate or rights of a person, but the granting of it must always rest in sound discretion, governed by the nature of the case." Enfield Toll Bridge Co. v. Connecticut River Co. 7 Conn. 50. As is said in another case: "Injunction is not of right but of grace; and to move an upright chancellor to interpose this strongest arm of the law, he must have not a sham case, but a well-grounded complaint, the bona fides of which is unquestioned, or capable of vindication if questioned." Kenton v Railway Co. 54 Penn. St. 401. "There is no power," says Mr. Justice BALDWIN, "the exercise of which is more delicate, which requires greater caution, deliberation and sound discretion, or is more dangerous in a doubtful case than the issuing of an injunction. It is the strong arm of equity, that never ought to be extended unless to cases of great injury where courts of law cannot afford an adequate or commensurate remedy in damages." Bonaparte v. Camden, etc., R. R. Co., Bald. 218. All the cases referred to show that the court looks beyond the actual injury to contemplate the consequences, and however palpable may be the wrong, it will still balance the inconveniences of award

Edwards v. Allouez Mining Company.

ing or denying the writ, and adjudge as these may incline the judi cial mind. Grey v. Ohio, etc., R. R. Co., 1 Grant, 412; Varney v. Pope, 60 Me. 192; Bosley v. M'Kim, 7 Har. & J. 468. Even in the case of a palpable violation of a public right to the annoyance of an individual, he must show the equity which requires this summary interference as the only adequate means of obtaining justice. Spar hawk v. Union Passenger Railway Co., 54 Penn. St. 401.

What is the irreparable injury which is done or threatened in this case? We can see very plainly what it is in the case of many nuisances, and the equity of this particular remedy is then very manifest. If one man creates intolerable smells near his neighbor's homestead, or by excavations threatens to undermine his house, or cuts off his access to the street by buildings or ditches, or in any other way destroys the comfortable, peaceful and quiet occupation of his homestead, he injures him irrevocably. No man holds the comfort of his home for sale, and no man is willing to accept in lieu of it an award of damages. If equity could not enjoin such a nuisance the writ ought to be dispensed with altogether, and the doctrine of irreparable mischief might be dismissed as meaningless. A nuisance which affects one in his business is less in degree, but it may still be irreparable, because it may break up the business, destroy its good-will and inflict damages which are incapable of measurement because the elements of reasonable certainty are not to be obtained for their computation. Even in the case of unoccupied land a nuisance may threaten irreparable injury, where it is devoted in its purchase to some special use, or where the person causing the nuisance is irresponsible, and in some other cases which need not here be specially mentioned.

The land injured in this case was bought by the complainant with a preconceived purpose to force a sale of it upon the defendant. He did not want it for a homestead or for business property, but for the money he could compel the defendant to pay for it. It may be said that no one is concerned with the motives of another in making a lawful purchase, or in doing any other lawful act; and this is true as a rule, but it is not true universally. Wherever one keeps within the limits of lawful action, he is certainly entitled to the protection of the law, whether his motives are commendable or not; but if he demands more than the strict rules of law can give him, his motives may become important. In general it must be assumed that the rules of the common law will give adequate redress for any injury; and

he

Edwards v. Allouez Mining Company.

when the litigant avers that under the circumstances of his particular case they do not, and that therefore the gracious car of equity should incline to hear his complaint, it may not be amiss to inquire how he came to be placed in such circumstances. If a man invites an injury, may still have his redress in the courts of law, but his prayer for the special interposition of equity on the ground that what he invited and expected was about irreparably to injure, would not be likely to trouble the judicial conscience very much if it were wholly ignored. The Supreme Court of Connecticut not long since felt compelled, under circumstances very similar to those shown by this record, to look into the motives of a corporation in making a purchase with a view to litigation, and to deny relief upon the ground that an acquisition of land for such a purpose was ultra vires. Occum Co. v. Sprague Manufacturing Co., 34 Conn. 540. We cannot say in this case that complainant had no right to buy, but we can say, as we do, that when he comes demanding strict legal rights, he shall have those, but no more. He is entitled to his rights ander the rules of law, but he is entitled to nothing of grace.

The land having been bought to make money from by sale, a legal award of damages for an injury to it, is in furtherance of the pur pose of the purchase, and therefore a suitable and a just redress. Defendant is not alleged to be irresponsible, and a jury it is supposed will award all that is reasonable. If complainant wants more than is reasonable, he has a right to obtain it under the rules of law, but he cannot demand the aid of equity in a speculation. If in speculative language he has a corner in real estate, there is no greater reason why he should have the assistance of an injunction to aid his schemes than there would be if on the produce exchange he had effected a corner in grain. Without the writ in either case he may be the sufferer, but he suffers nothing for which damages cannot compensate. him. The elements of irreparable injury are entirely wanting to his

case.

Our conclusion is that the Circuit Court gave the complainant all he was entitled to when the case was sent to a jury. The decree must therefore be affirmed with costs.

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