Page:Harvard Law Review Volume 12.djvu/119

99 MANDATORY INJUNCTIONS. 99 defendant to take down and remove a building which interfered with the access of light and air to the plaintiff's home, as he was entitled to enjoy the same.* It is quite common to say that a mandatory injunction is very seldom granted upon an interlocutory application or before final decree. Indeed, so careful and learned a jurist as Judge Sharswood stated in one case ^ that " the authorities, both in England and in this country, are very clear that an interlocutory or preUminary injunction cannot be mandatory." In support of this broad state- ment he cites the case of Gale v. Abbott,^ where Vice-Chancellor Kindersley said : " It was useless to come for what was called a mandatory injunction on an interlocutory application. Such an application was one of the rarest cases that occurred, for the court would not compel a man to do so serious a thing as to undo what he had done, except at the hearing." Let us suppose for a moment that this is the real condition of our remedial justice, what grave mischiefs would a plaintiff have to suffer at the hands of an unscrupulous defendant who had the temerity to accomplish a destruction of the plaintiff's right before he had an opportunity of applying to the court for its protection? A case well illustrating the serious consequences that would follow from such a view recently occurred in the Circuit Court of the city of St. Louis, where a mandatory temporary injunction was applied for under these circumstances.* The plaintiff was, and for many years had been, the owner of a considerable tract of land in the northwestern part of the city. Upon this he had his residence, a costly structure, and the usual outhouses. Near the dwelling he had his gardens, and in the midst of these there was a natural sheet of water covering, perhaps, two or three acres of his land. This sheet of water had existed time out of mind, and was an attractive feature of the plaintiff's homestead. It was fed by springs of pure water, as well as by the surface water of the plaintiff's land ; but it had never been known to overflow its banks. Leading from this sheet of water there had always been a well-defined natural water- course, which carried off the surplus water from the little lake, and kept it at a uniform level. This condition of things had always existed, and the plaintiff's residence, outhouses, and gardens had 1 Smith V. Smith (1875), L. R. 20 Eq. 500. 2 Audenried v. Phila. & Reading R. R. Co. (187 1), 68 Pa. St. 370, 375, 376. « (1862) 8 Jurist, N. s. 987.
 * Filley v. Bambrick (1895), No. 92,462, Circuit Court, city of St. Louis.