Page:Harvard Law Review Volume 12.djvu/137

MANDATORY INJUNCTIONS. 11/ against the railroad company, and caused a levy to be made on an execution which had been issued upon his judgment, upon two locomotives and two passenger coaches, and these were advertised for sale under the levy. The levy itself was wrongful, because it was the law of Minnesota that the roadbed, franchises, rolling-stock, etc., of the railroad company were an entirety, and could not be separately levied on. The complainant's lien and right was to the entire property, and the sale of these locomotives, as well as their being held in the custody of the sheriff, tended to inflict an irrepa- rable injury upon the company as well as upon the complainant. A preliminary mandatory injunction, requiring the defendants (the execution creditor and the sheriff) to restore the engine and cars to the railway company, and restraining them from making the sale, was granted, and the order was affirmed. The tendency to extend the remedy by mandatory injunction in proper cases is illustrated also by a recent case in Oregon.^ There a dispute had arisen as to the true boundary line between plaintiff's and defendant's lots in the city of Portland. Plaintiff had erected an expensive frame building, and defendant claiming that it en- croached an inch or two on his property, notified the plaintiff to remove the encroaching part. Plaintiff having failed to observe the notice, defendant cut down the parts that projected over the line, taking off the water table, window sills, sheathing, etc., of the projecting wall, and inflicting a damage of $1,750 to the plaintiff's house. Defendant then began the construction of his improve- ments, and started the foundation under the surface up to the line which he claimed to be the true dividing line, but as the wall was raised, it projected an inch beyond this line. Plaintiff promptly applied for a mandatory injunction to compel defendant to remove that portion of the wall that projected bej'^ond the line claimed by plaintiff to be the true dividing line, and for damages to her build- ing. The line claimed by plaintiff was found to be the true divid- ing line. No temporary injunction was granted, but on a trial of the merits a perpetual mandatory injunction was awarded", with a judgment for damages for $1,750. The subject is considered with care and learning by Moore, J., who in discussing the matter said : " The question is whether the plaintiff will suffer irreparable injury, and, if so, has she a plain and adequate remedy at law. If in an action of ejectment the wall cannot be removed, the injury resulting from its erection could not 1 Norton v. Elwert {1895), 29 Oregon, 583 ; 41 Pac. Rep. 926.