Page:Harvard Law Review Volume 12.djvu/129

MANDATORY INJUNCTIONS. IO9 them and defendant for a violation of the writ, that these tres- passers should, and they were commanded and required, without delay, to take down and remove the fence erected by them. It is the experience of every lawyer that in the examination of the decided cases on any subject he will constantly meet with obiter dicta in the opinions of the judges. These are often produc- tive of mischief; but the main objection to them is that they tend to introduce uncertainty and confusion into the law. And so we often find broad statements, unnecessary to the decision of the case, announcing a general proposition which has no just foundation in the law. Thus, in a recent case, the defendant had erected a line fence between his own and the plaintiff's house; the houses were about two feet apart, and the line was midway between them. Defendant erected a board fence on the line, to the height of six- teen feet, shutting off the light from complainant's windows, and it was alleged that this was maliciously done. On a motion for a pre- liminary injunction the writ was granted, and defendant was com- manded to at once take down or remove the fence, and not to renew, rebuild, or continue the same. Now it is quite plain that the case did not present the exigencies demanding an immediate alteration of affairs ; and so the court might have ruled and no ill consequences would follow from the ruling. But it was decided by the Supreme Court that the court below had no power to determine the rights of the parties on affidavits, or on a motion for a prelim- inary injunction. This could only be done on final hearing. All this is quite true, but the mischief lies in this, that we now find the case cited as an authority for the proposition that a mandatory injunction should not be granted on preliminary hearing.^ Let us briefly consider the circumstances in a few of the Ameri- can cases, which have called forth the aid of a court of chancery through this extraordinary remedy : — In Pierce v. City of New Orleans,^ the plaintiff and defendant were tenants in common of a wall, which had always been a blank wall, and which stood adjacent to and in the rear of plaintiff's dwell- ing-house and yard. Without the plaintiff's consent the defendant made certain openings in this wall, thereby creating a nuisance which affected indefinitely the privacy of plaintiff's family residence so seriously as to inflict irreparable injury. A preliminary injunc- tion was granted upon motion, and defendant was ordered to close ^ Ladd V. Flynn (1892), 90 Mich. 181 ; cited in note, 20 L. R. A. 161. » (1866) 18 La. Ann. 242,