Page:Harvard Law Review Volume 12.djvu/133

MA NDA TOR Y INJUNCTIONS. 1 1 3 brought the plaintiff into court for an injunction. A mandatory temporary injunction was granted commanding the defendant to permit the plaintiff to pass through the shop of defendant in such manner and at such times as might be necessary to give such care and attention to the furnace as might be required for the use thereof in heating the plaintifTs rooms. ^ It is curious in what manner these cases present themselves, and how the admirable flexibility of the equitable remedy is frequently taxed by ingenious arguments in favor of the wrongdoer. But equity considers the substance of things and adapts its remedies to the exigency of each case. An important illustration of this prin- ciple, as well as of the special jurisdiction we are now considering, is to be found in Wheelock v. Noonan.^ There the plaintiff gave to the defendant a parol and gratuitous license to place upon certain unoccupied lots of his in the northern part of New York City a few rocks, under the defendant's promise that he would remove them in the spring following. During the winter and without the plaintiff's knowledge the defendant covered six of the lots with heavy bould- ers to the height of from fourteen to sixteen feet. In the spring, plaintiff discovering what had been done, directed the defendant to remove the rocks. Defendant having failed to do this, the plain- tiff filed his bill to compel him to do so. The court awarded judg- ment requiring the defendant to remove the rocks by a specified day, unless for good cause shown the time should be extended by the court. It was contended that the plaintiff could have removed the stone himself and then recovered of the defendant the expense incurred. " But," said the court, " to what locality could the owner remove them? He could not put them in the street; . . . and it would follow that the owner would be obliged to hire some vacant lot or place of deposit; become responsible for the rent; and ad- vance the cost of men and machinery to effect the removal. If any adjudication can be found throwing such a burden upon the owner, compelling him to do in advance for the trespasser what the latter, is bound to do, I should very much doubt its authority." The judg- ment of the lower court was afifirmed. The jurisdiction of a court of equity to grant injunctions manda- tory in effect has been recognized by the Kansas City Court of Appeals, in Sedalia Brewing Co. v. Sedalia Water Works Co.,^ 1 Hodge V. Giese (1887), 43 N. J. Eq. 342. 2 (1888) 108 N. Y. 179. 8 (1889) 34 Mo. App. 49.