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Page:Harvard Law Review Volume 1.djvu/137

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the title to property is to be affected, no other mode is open to them; but, in cases which involve only the exercise of physical power, courts of equity have all the resources which it is possible for any court to have. When, therefore, justice requires that a tort should be specifically repaired, it would seem to be much more feasible for a court of equity itself to undertake the repair of it, at the expense of the tort-feasor, than to attempt to compel the latter to repair it. For example, specific reparation in the case of a nuisance is an abatement of the nuisance; and there seems to be no good reason why a court of equity should not abate a nuisance, if justice require its abatement. The ancient common law regarded abatement as the proper remedy for a nuisance; and though damages alone can be recovered at law at the present day, that may be only because the actions anciently provided have been superseded by the action on the case.

Courts of equity have shown little disposition, however, to try new modes of giving relief; and hence they seldom attempt to give a remedy for a tort by way of specific reparation. There is believed to be but one instance (and that an ancient one) in cases of waste,[1] no instance in cases of trespass, and but few instances in cases of nuisance,[2] in which an English court of equity has attempted to give such a remedy. Moreover, notwithstanding what has been said in favor of the abatement of nuisances, it is undoubtedly true that such a jurisdiction should be exercised in modern times with great caution. In many cases of nuisance there is no reason for imputing any intentional wrong to the defendant; and it must not be forgotten that the rights of the latter are as sacred as those of the plaintiff; and, if courts of equity find insuperable difficulties in the way of arresting an expensive work when near completion, much more will they find insuperable difficulties in the way of pulling it down when completed. The mere cost of abating such a nuisance may

  1. Vane v. Lord Barnard, 2 Vern. 738; S. C. nom. Lord Barnard’s case, Ch. Prec., 454 (the case of Raby Castle). According to the report in Vernon the decree directed the master to see the castle repaired at the defendant’s expense. Whether the decree was ever performed or not does not appear. It is said not to have been performed during the defendant’s life. See Rolt v. Lord Somerville, 2 Eq. Cas. Abr. 759.
  2. The first instance was in the case of Robinson v. Lord Byron, 1 Bro. C.C. (Belt’s ed.) 588, 2 Cox, 4, Dickens, 703. Then followed Lane v. Newdigate, 10 Ves. 192, and Blakemore v. Glamorganshire Canal Co. 1 M. & K. 154. In very recent times instances of such relief have been much more common.