Page:Harvard Law Review Volume 12.djvu/120

100 lOO HARVARD LAW REVIEW. been located and arranged with reference thereto. The little water- course meandered through the plaintiff's land and the land of adja- cent owners for a distance of about one thousand yards, and then suddenly disappeared from view. But the water flowed constantly, and it was plainly to be seen that the stream continued on in a subterraneous channel. Some distance away from the place where the watercourse disappeared, the defendant owned and operated a quarry. When he had reached a level of forty or fifty feet below the natural surface, he found a constant stream of water discharging itself from an aperture in the face of his quarry, and this interfered very seriously with his quarrying operations. It had been observed by persons interested in the matter that small sticks of wood which were put into the little stream where it left the plaintiff's lake, found their way and were discharged into the defendant's quarry through the aperture in its face just mentioned. The defendant then con- ceived and immediately executed a plan to relieve himself of the annoying water by firmly and effectually " plugging up " the aper- ture in the face of his quarry, and thus stopping the flow of the subterranean stream. The consequence of this action on the part of the defendant was that the water in the plaintiff's lake soon began to rise, and it kept on rising until it threatened to overflow its banks, and to inundate his gardens, driveways, walks, and houses, so as to render the place uninhabitable. At this stage of affairs he applied to the court for a mandatory temporary injunction against the defendant, requiring him to undo what he had done ; to remove the obstruction he had put in the way of the subterranean stream that flowed into his quarry, and restraining him from interfering with the outflow of water through the opening in the face of his quarry. The order was granted as prayed, and the threatened wrong and mischief, and the irreparable injury which would have otherwise resulted to the plaintiff, was averted. Suppose that the Chancellor had said in this case, " I will not 'compel the defendant to do so serious a thing as to undo what he has done, until the final hearing." Before the final hearing, the ruin of the plaintiffs estate would have been accomplished, and the defendant would have been permitted to enjoy the fruits of his own wrong, as the result of a lamentable defect in remedial procedure. In the Pennsylvania case above mentioned. Judge Sharswood was forced to admit that there were some few instances in England in which a mandatory order was made on an interlocutory applica- tion, but he said these cases should not be followed as precedents.