Page:Harvard Law Review Volume 12.djvu/138

118 Il8 HARVARD LAW REVIEW. be compensated by any measure of damages, however great the sum which a jury might award, for it would, in effect, amount to a condemnation of the plaintiff's property, and an appropriation of it to the defendant's private use ; and to concede that even so small a strip of plaintiff's premises could be thus taken would be to admit a rule of law which must necessarily be almost limitless in its ap- pHcation. In an action at law it would be difficult for the plaintiff to regain possession of that portion of her land occupied by the wall ; for the sheriff, when called upon, might well hesitate to exe- cute a writ commanding a restoration of the premises, since he must cut the wall to the division line, and in doing so he might take more than the ' merchant's pound of flesh,' and thus render himself liable in damages to the defendant. Baron v. Korn, 127 N. Y, 224 (27 N. E. Rep. 804). The removal of the wall being difficult, the plaintiff has no plain remedy at law. In all such cases equity will, upon the theory that wherever there is a right there is also a remedy, interpose and grant complete relief, and for that purpose will, where there has been no unreasonable delay in seek- ing the relief, award a mandatory injunction, and place the obliga- tion of removing the structure upon the party who causes it to be erected." Many other instances of mandatory injunctions, both interlocu- tory and final, might be given, but that would not only extend this paper beyond the reasonable limits to which it is entitled in your proceedings, but try your patience beyond a reasonable degree. The cases all proceed upon the principles I have endeavored to state and explain. No one can arise from an examination of these authorities without being impressed with the dignity, the grandeur, and splendid efficiency of that system of remedial jurisprudence, which has grown up in the course of years, as the result of the genius and labor of the most remarkable galaxy of great men known to the juridical history of the world, that splendor of our English and American law, which we call equity. Jacob Klein.