Page:Harvard Law Review Volume 12.djvu/125

MANDATORY INJUNCTIONS. 1 05 datory, and therefore proper to be refused. That injunctions in substance mandatory, though in form merely prohibitory, have been and may be granted by the court is clear. This branch of its jurisdiction may be one not fit to be exercised without partic- ular caution, but certainly it is one fit and necessary, under certain circumstances, to be exercised. Under what circumstances it should be exercised must be matter for judicial discretion, in each several case." In Goodale v. Goodale,^ an injunction was granted, before answer, to restrain defendants from parting with documents in their possession, belonging to the plaintiff, and from preventing her solicitor from having access to the documents at all reasonable times, and after reasonable notice. Where the defendant had obstructed the passage of smoke from flues used by the plaintiffs for several years, but their right to which was doubtful, by placing tiles upon the top of the chimney- pots, a mandatory injunction was granted upon interlocutory mo- tion, by Vice-Chancellor Wood, to compel defendant to remove the tiles.^ In Durell v. Pritchard,^ the mandatory injunction prayed for was refused, but the jurisdiction of the court to grant the same in proper cases was asserted. It was contended in this case that a mandatory injunction should not be granted where the damage was complete before the filing of the bill ; but the court held that relief by way of injunction ought not to have been refused upon the mere ground that the damage had been completed before the bill was filed. " The authorities upon this subject," said the court, " lead, I think, to these conclusions : that every case of this nature must depend upon its own circumstances, and that this court will not interfere by way of mandatory injunction, except in cases in which extreme, or at all events very serious, damage will ensue from its interference being withheld." The matters complained of by the plaintiff were interferences with an easement of way and an easement of ancient light, but the interferences were found not to be extreme or serious, and plaintiff was permitted to sue at law for his damages. In the more recent English cases we find the judgments of the 1 (1848) 16 Sim. 316. « Hervey v. Smith (1855), i Kay & John. 389. « (1865) L. R. I Ch. App. 244.