Richards v. Dower

Sharpstein, J. The court found, that at the time of the commencement of this action, the defendant .had excavated and projected a tunnel under the lot of the plaintiff, a distance of fifteen feet, and was engaged in the further extension thereof, and threatened to continue the same, but that said tunnel has not affected, and will not, if completed, affect injuriously or otherwise the surface ground of plaintiff’s said lot. There is a further finding, “ that the driving of the tunnel was not and [63]will not, if completed, cause the plaintiff irreparable injury or injure said lot in any way.” And another, “that the defendant is not insolvent.” And as a conclusion of law from the foregoing facts the court found that the defendant was entitled to a dissolution of an injunction previously granted, and ordered judgment to be entered to that effect. From that judgment the plaintiff appealed, and the questions which the record presents are: 1. Did the court err in its said conclusion of law? 2. Was the continuation or dissolution of the injunction, by the court which granted it, so much a matter of discretion as to preclude any interference here with the action of that court in the premises? As late as Mogg v. Mogg, Dick. 670, Lord Thurlow was unable to find a precedent for granting an injunction to restrain a mere trespasser from cutting timber on another person’s land. But in Flamang’s case, where a landlord of two closes, had let one to a tenant, who took coal out of that close, and also out of the other, which was not demised, the difficulty was whether the injunction should go as to both, and Lord Thurlow ordered it as to both; and on the authority of that case Lord Eldon, in Mitchell v. Dors, 6 Ves. 147, granted “an injunction against the defendant, who having begun to get coal in his own ground, had worked into that of the plaintiff.”

In Thomas v. Oakley, 18 Ves. 184, Lord Eldon expressed the opinion that it had then been settled in England that an injunction would be granted to restrain a mere trespasser from cutting timber, or taking coal or lead ore from another person’s land, and in that case he granted an injunction to restrain the defendant from removing stone from the plaintiff’s quarry, on the ground that the defendant was talcing the substance of the inheritance—removing that which was the plaintiff’s estate. He said the difference in value between stone and coal, or stone and lead ore could not be considered in that case. From which we infer that in his opinion the right to an injunction in such a case did not depend on the value of the substance which was threatened with removal, but upon the fact of its constituting the inheritance or estate of its owner. And in that light the kind or quality of the substance would be quite as immaterial as the value of it. And such we understand to be the rule in this State. In More v. Massini, 32 Cal. 594, the court says : “ The