Page:The Green Bag (1889–1914), Volume 09.pdf/586

 Government by Injunction. In the same line are the remarks of Mr. Justice Baldwin in the case of Bonaparte т. Caindcn and Amboy Railroad Company (I Baldwin's Cir. R. 218) where he says: "There is no power, the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or is more dangerous in a doubtful case, than the issuing an injunction. It is the strong arm of equity, that never ought to be extended, unless to cases of great injury, where courts of law cannot afford an ade quate or commensurate remedy in damages. The right must be clear, the injury impend ing or threatening, so as to be averted only by the protecting preventive process of in junction." The right of the people " peaceably to assemble" (aright inherent in all govern ments in which the sovereignty rests in the people) being conceded, there are but two possible conditions which could justify the courts in resorting to the process of injunc tion — the one to prevent their becoming a public nuisance by obstructing the highways to the exclusion of other persons, and the other to prevent such a permanent trespass as to constitute a private nuisance within the meaning of the law. So long as they were peaceably assembled they were within the special protection of the Constitution, and they had a perfect and inalienable right to the use of the highways in thus peaceably assembling, or in passing to or from such place of assembly, either singly or in a body as they might elect. The moment they ceased to be peaceable, that moment they passed beyond the jurisdiction of a court of equity, and came within the jurisdiction of the law, where each became answerable for his conduct to a jury of his peers, and not to the arbitrary will of a single judge. It is necessary to a proper understanding of this question that we briefly consider what constitutes such a trespass, or such a nuisance, as to justify courts of equity in issuing injunctions. It is not enough that a

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thing shall be a nuisance to some individual, or even to a collection of individuals; it must be such a nuisance as to permanently impair the value of property, and by such impairment to inflict an injury upon the owner of such property for which he can have no adequate remedy at law. " When the injury complained of is not, per se, a nuisance, but may or may not become so," j says Mr. High, " and when it is uncertain, indefinite or contingent, or productive of only possible injury, equity will not interfere." , "The principles upon which this court should proceed in granting or refusing relief by injunction in cases of this kind," says Chancellor Walworth in a quoted case, " are correctly laid down by Lord Brougham in the recent case of the Earl of Ripon r. Mobart (Cooper's Rep. Temp. Brougham, 333). If the thing sought to be prohibited is in itself a nuisance, the court will interfere to stay irreparable mischief, where the com plainant's right is not doubtful, without wait ing for the result of a trial. But where the thing sought to be restrained is not in itself noxious, but only something which may according to circumstances prove to be so, the court will refuse to interfere until the matter has been tried at law by an action." Again the same authority is quoted that " It is always tobe borne in mind that the juris diction of this court over nuisances by in junction at all, is of recent growth, has -not till very lately been much exercised, and has at various times found great reluctance on the part of learned judges to use it, even in cases where the thing or the act complained of was admitted to be directly and im i mediately hurtful to the plaintiff. . . It is also very material to observe, what is indeed strong authority of a negative kind, that no instance can be produced of the interposition by injunction in the case of what we have been regarding as eventual or contingent nuisance." It is evident from these careful statements of learned judges in the decision of impor