Page:Harvard Law Review Volume 12.djvu/121

101 MANDATORY INJUNCTIONS. lOI The cases cited by him are The Attorney-General v. The Metro- poh'tan Board,^ and Hepburn v. Lordan.'^ In the first of these cases the defendants were constructing a system of sewers, to drain the sewage of a town into the river Lee. The effect of the wori< accom- plished was to cause an obstruction to the navigation of the river. They were enjoined from continuing the discharge of sewage in this manner, and required to dredge the river so as to free it from the obstruction already existing. This order was made upon an inter- locutory motion. In the second case a lot of damp jute had been stored and dried by the defendant on premises adjoining the plain- tiffs house, at the imminent risk of combustion. The defendant was ordered to remove it. Another case cited by Judge Sharswood, in Audenried v. Phila. & Reading R. R. Co., is the leading case of Lane v. Newdigate,^ There the plaintiff was assignee of a lease that had been granted by the defendant for the purpose of erecting mills and other build- ings; the lease contained covenants for a supply of water for the mills and works, from canals and reservoirs on the defendant's estates. The lessor suffered the canals and reservoirs to get out of repair, and was diverting the water of the canals, and by removing certain stop-gates drained the mill pool and canals so as to render the lessee's privileges useless. Lord Eldon, on the authority of Robinson v. Lord Byron,* held that there was no objection to requiring repairs to be made, although some doubt was expressed on the matter. As to the restoration of the stop-gate, the Lord Chancellor said : " The question is whether the court can specifi- cally order that to be restored. I think I can direct it in terms that will have that effect. The injunction I shall order will create the necessity of restoring the stop-gate, and attention will be had to the manner in which he is to use these locks ; and he will find it difficult, I apprehend, to avoid completely repairing these works." An order was framed accordingly. In marked contrast to the vigorous sense of justice that is exhibited in the passage above quoted from the opinion of Sir George Jessel, in Smith v. Smith, Judge Sharswood makes the fol- lowing comment upon these observations of Lord Eldon : " That is acknowledging that he could not, according to the principles and practice of the court, order the defendant in direct terms to restore 1 (1863) I Hem. & Miller, 298, 321. a (1865) 2 Hem. & Miller, 345. « (1804) 10 Ves. 192. 4 (1785) I Bro. C. C. 588.