Page:Harvard Law Review Volume 12.djvu/135

115 MANDATORY INJUNCTIONS. I15 ing the status quo. The judgment of the lower court was reversed with directions to grant the mandatory injunction indicated. Where two persons were jointly entitled to the use of a pipe, which supplied their respective apartments in a double house with water, and defendant was about to shut off the water, and had actually stopped the water-pipes and prevented the flow of water to the plaintiff's apartments, the court made a mandatory order requiring defendant to open up the pipes and permit the flow of water to the plaintiffs premises. This was held correct.^ An important case upon this subject was decided by the Supreme Court of Appeals of West Virginia.^ There the municipal govern- ment had granted a license to a railroad company to build its road across, along, and upon a street, upon certain conditions fixed by the ordinance requiring the company to restore the street, and do certain work in connection therewith, necessary for the preserva- tion of the street and its usefulness as a public highway. The company constructed its road, but failed to do the work necessary to restore it, and left it so impaired as to render it dangerous to use. The city filed its bill in equity asking a mandatory injunction to the company to put the street in certain order, and to do certain work according to the requirements of the ordinance granting the license. Relief was granted as prayed. Answering the contention that the city had an adequate remedy either by mandamus, or by an action for damages, the court said : " What the city needs is specific performance by the railroad company, of the duty resting upon it, and no other relief is effectual. It is now settled that injunctions are not only, as is usually the case, preventive or prohibitory, but also mandatory, commanding positive or affirmative action to be taken or done by the defendant, as mandamus does at law. At one time the mandatory injunction, because injunctions had always been couched in prohibitory language, was framed in that form only by prohibiting the doing or continuing to do a given thing, thereby compelling the party to do the thing which it was desired he should do, because by continuing to do as he had done he became liable to punishment ; but in later times this species of injunction has lost this delicacy, and now, when used, assumes the form of command to do a specific act." The jurisdiction was sustained, and the decree affirmed. The case is an important one, and marks the 1 Brauns v. Glesige (1891), 130 Ind. 167. 2 City of Moundsville v. Ohio River R. R. Co. (1892), 37 W. Va. 92 ; 20 L. R. A. 161, with note.