Page:Harvard Law Review Volume 12.djvu/130

110 no HARVARD LAW REVIEW. up the openings in the wall, and to restore the same to its original condition, and keep it so during the pendency of the suit. A case arose before Sawyer, Circuit Judge, in the District of Nevada, between two mining companies.^ The plaintiff, in exca- vating a tunnel in the mountain to its mining claim, struck a sub- terranean flow of water, which it appropriated and enjoyed for several years. The defendants ran a tunnel from a distant point into the mountain, to a point about thirty feet directly under the point where the plaintiff obtained this water ; thereupon the water, which before flowed through the plaintiff's tunnel, was intercepted and discharged through defendants' tunnel, and by them appropri- ated to their own use. Upon a motion for an interlocutory manda- tory injunction, it was urged, in opposition, that the injury had been committed, and that, this being so, the court would not, on motion for a preliminary injunction, issue a mandatory writ, affirmatively commanding the performance of an act, such as to fill up a tunnel, rebuild a wall that has been demolished, and the like. The learned judge in disposing of the motion was inchned to the opinion that the authorities were to this effect. But after citing Robinson v. Lord Byron, Lane v. Newdigate, and other cases to which I have called your attention, he said : " Under these authorities, by what- ever name judges may see fit to call the injunction, the defendants may be restrained from continuing to cut off and divert the water in question, even though it should be necessary for them to fill up or build a water-tight barrier across the tunnel to accomplish the end sought." An order was framed accordingly, and this ruling was approved on a motion to dissolve the injunction, by Mr. Jus- tice Field. The case may be regarded as a leading case on the subject. A bill was filed, wherein the plaintiff sought an injunction against obstructing a passageway over and upon which he had a right to pass and repass. Plaintiff owned the land on one side and de- fendant on the other, and the passage was about five feet wide, running from one of the streets in Boston, between the two parcels of land. Defendant had begun the erection of a wall of a building within this passage. A preliminary injunction was denied, and the defendant completed the wall. Upon final hearing the merits were found to lie with plaintiff, and a mandatory injunction was granted, commanding defendant to take down the wall and so alter 1 The Cole Silver Mining Co. v. Virginia & Gold Hill Water Co. (1871), i Sawyer, 470, 685.