Page:Harvard Law Review Volume 12.djvu/132

112 112 HARVARD LAW REVIEW. and from refusing to permit the plaintiff to continue on the same terms as heretofore. The injunction was granted as prayed. The court considered that the urgency of the case demanded it. The duty sought to be enforced was one imposed and defined by law, and a suspension of the accommodations enjoyed by the plaintiff would work irreparable mischief. A telephone company unlawfully and without the consent of the owner, but against his protest and warning, set up poles upon his land. He promptly applied to the court for an injunction; but, before the order to show cause could be served upon the company, it completed the setting of the poles. When the matter came on for hearing on the order, the defendant urged that the temporary injunction, if granted, should not require it to remove the poles, but only restrain it from putting on the cross-bars and wires. To this the Chancellor answered : " The fact that the setting of the poles is finished is due to the activity of the defendants in com- pleting the work. Where a defendant thus invades the proprietary rights of a complainant he has no ground for asking that the court will give him the benefit of his activity and persistence in wrong- doing. . . • Where there is a deliberate, unlawful, and inexcusable invasion, by one man, of another's land, for the purpose of a con- tinuing trespass for the trespasser's gain or profit, and there has been neither acquiescence nor delay in applying to this court for relief, the mere fact that the trespass was complete when the bill was filed will not prevent an injunction mandatory in its nature, against the continuance of the trespass." The writ prohibited the defendants from setting any poles on the lands of the plaintiff, and from allowing those which they had placed thereon to remain.^ Plaintiffs and defendants were occupants of different parts of the same house under the same landlord. The defendant occupied the basement, in the rear of which was situated a furnace, which by means of pipes and registers furnished heat to the plaintiff's apart- ments on the first and second floors. The use of the furnace was granted plaintiff by his lease, and defendant knew this, and for years had acquiesced in plaintiff's right to pass through the defendant's shop to give the necessary attention to the furnace. There was no other means of access to the furnace. One day the defendant notified the plaintiff that he would not, after a specified date, be permitted to pass through the shop to the furnace. This 1 Broome v. N. Y. & N. J. Telephone Co. (1886), 42 N. J. Eq. 141.