I concur in the opinion of Justice SOMERVILLE, and am also of the opinion that the trial court properly declined to abate the premises of respondent, though it be a partial obstruction of a public street, and therefore a nuisance, and though it be conceded complainant suffered some damages. The obstruction of the street was only partial, and not total at worst. Complainant's damages and injury were slight compared with the loss and injury that respondents and the public would suffer if the obstruction was abated as prayed in the bill. In such cases injunction by means of abating the partial obstruction of the street is not a matter of absolute right, but is a right resting in the sound judicial discretion of the trial court, subject, however, to review and revision by the appellate court. The right to injunctive relief is analogous to the right to relief by way of specific performance, which is not absolute and unvarying, but rests in the sound discretion of the courts and depends upon the circumstances and facts of each particular case.
As early as 1746, Lord Hardwicke said:
"The constant doctrine of this court is that it is in their discretion whether they will decree a specific performance, or leave the plaintiff to his remedy at law." 3 Atk. 388.
This doctrine has been steadily maintained, down to the present time. Seymour v. Delancey, 6 Johns. Ch. (N.Y.) 222; Ellis v. Burden, 1 Ala. 458; 2 Story's Equity, 736, 742. "The question is, not what the court must do, but what the court may do under the circumstances." This discretion is not an arbitrary assumption of authority, but a sound discretion, regulated, as near as may be, by general rules. Pulliam v. Owen, 25 Ala. 492; Sims v. McEwen's Adm'r, 27 Ala. 184; Casey v. Holmes, 10 Ala. 777.
In reference to injunctions this and other courts have recognized and followed the same axioms and rules as to this remedy. It has been said:
"In theory its purpose is to prevent irreparable mischief; it stays an evil the consequences of which could not adequately be compensated if it were suffered to go on." Gilbert v. Showerman, 23 Mich. 448; Bemis v. Upham, 13 Pick. 169.
The writ "is not ex debito justitiæ for an injury threatened or done to the estate or rights of a person; but the granting it must always rest in sound discretion, governed by the nature of the case." Enfield Toll Bridge Co. v. Conn. River Co., 7 Conn. 50. As is said in another case, "Injunction is not of right but of grace." Sparhawk v. Union Passenger R. Co.,54 Pa. 454. "There is no power the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or [is] more dangerous in a doubtful case, than the issuing an injunction; it is the strong arm of equity, that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages." Bonaparte v. Camden A. R. Co., Baldw. 218, Fed. Cas. No. 1617. The court looks beyond the actual injury to contemplate the consequences, and however palpable may be the wrong, it will still balance the inconveniences of awarding or denying the writ, and adjudge as these may incline the judicial mind. Grey v. Ohio P. R. Co., 1 Grant, Cas. (Pa.) 412; Varney v. Pope, 60 Me. 192; Bosley v. McKim, 7 Har. J. (Md.) 468. Even in the case of a palpable violation of a public right to annoyance of an individual, he must show the equity which requires this summary interference as the only adequate means of obtaining justice. Sparhawk v. Union Passenger Ry. Co., 54 Pa. 401; Edwards v. Allouez Mining Co., 38 Mich. 49, 50, 31 Am. Rep. 301.
The English and American cases are reviewed in the reports of the following cases, and notes thereto appended. See series of cases reported in 13 Eng. Rul. Cases, pp. 56-118, *Page 368 and notes; and Deane's Case, 132 N.Y. 355, 30 N.E. 741,28 Am. St. Rep. 584-589; Ladd v. Boston, 151 Mass. 585, 24 N.E. 858,21 Am. St. Rep. 498, and notes.
In our own case (McBryde v. Sayre, 86 Ala. 458, 5 So. 792,3 L.R.A. 861), Stone, C. J., said:
"The relief sought in this case is by injunction, and it partakes largely of the nature of a bill for specific performance. Neither of these modes of relief is of absolute, unbending right. In granting or withholding the former, the court weighs the conveniences and inconveniences in the first instance, and when very great injury will result to an unoffending party, by the stern fiat thou shalt, or thou shalt not, often leaves parties to their remedies at law. Chambers v. Ala. Iron Co., 67 Ala. 353; Davis v. Sowell, 77 Ala. 262; S. C. Ry. Co. v. S. B. Ry. Co., 1 Sim. N. S. 410; Hack Imp. Co. v. N.J. M. Ry., 7 N.J. Eq. 94; 3 Pom. Eq. § 1338; Wash. Easements, 577, top. p. (4th Ed.) 749; Wood v. Sutcliffe, 2 Sim. N. S. 163."
In a later case (Clifton Iron Co. v. Dye, 87 Ala. 468,6 So. 192), the same learned justice cited the above case, and said:
"But it is not every case of nuisance, or continuing trespass, which a court of equity will restrain by injunction. In determining this question, the court should weigh the injury that may accrue to the one or the other party, and also to the public, by granting or refusing the injunction."
These cases have never been overruled. The decision in the case of First Nat. Bk. v. Tyson, 133 Ala. 459, 32 So. 144,59 L.R.A. 399, 91 Am. St. Rep. 46, is not contrary to the holding in the above cases, but is an application of the rules declared therein. There the injunction was to restrain and prevent a nuisance, not to abate it. In that case, if Tyson had waited until the bank had erected their building, as proposed, before filing his bill, then the court applying the rule of discretion might have denied the relief in equity, and remitted him to an action at law.
In the case of Lewis v. Pingree Nat. Bk., reported in47 Utah, 35, 151 P. 558, L.R.A. 1916C, 1260-1270, the Supreme Court of Utah well points out the difference in the two classes of injunctions; one to prevent a nuisance, the other to abate it. It was there aptly and correctly said:
"In First Nat. Bk. v. Tyson, Tyson brought an action to prohibit the defendant bank from projecting the front of a bank building into the street by erecting or placing pillars in a manner similar to what the defendant has done in the case at bar. The action was, however, commenced before the pillars were erected, and at a time when the defendant could change its plans and construct the front of the building, so as to make it conform to the lot line, without incurring great expense. The court, therefore, issued an injunction requiring the defendant to remove the material which had already been placed in the street, and restrained the defendant from erecting the pillars as proposed. What the court would have done under facts and circumstances like those in the case at bar is left to conjecture merely. We concede, however, that the court would have had the power to order the entire front removed from the street, even though it had been completed; but whether that would have been the order we are not prepared to say."
The same rule is applied to public or private nuisances. This is well shown by a reference to the cases cited, but the English courts have best pointed out the reason for applying the rule of discretion as to abating public nuisances. The House of Lords, in the case of Atty. Gen. v. Sheffield Gas, etc., Co., reported in 19 Eng. Rul. Cases, p. 273, said:
"Now it is said that, however that may be in a case of private nuisance, which was the case to which Lord Eldon was addressing himself, in the case of Attorney General v. Nichol, it must be different in the case of a public nuisance, and that it is the duty of this court to interfere in all cases of public nuisance. And that argument is enforced by this, that it is said, if the injury be trifling, if the inconvenience be trifling, it will not be a nuisance at law; and, therefore, the interference of this court must take place whenever it is a nuisance at law, because the very fact of its being a nuisance at law imports that the injury is great and the inconvenience consequent. But looking at the principles on which this court interferes, it does not appear to me that there can be any sound distinction between the case of a private nuisance and a public nuisance."
To my mind, to grant the injunction in this case would be doing more injustice than denying it would.
The value of complainant's lot is comparatively small. The weight of the evidence tends to show this valuation not to exceed $350 to $400, occupied by a tenant paying rent in proportion to this valuation.
It very clearly appears that the city authorities encroached upon this street in the erection of public improvements, such as the waterworks plant and the electric lighting system, and also permitted some encroachment by another, under a mistaken view of the lawful right of the city in the premises; and that large sums of money have been expended in these public improvements which are of vital concern to the community dependent thereupon for its supply of water and light. The loss and inconvenience to the public therefore by the abatement of this nuisance would be very great, while the damage to the respondent would be comparatively small.
Complainant at the time of the commencement of these improvements seems to have done no more than to make a mere protest. Had a bill then been filed, before the erection of these valuable improvements, a court of *Page 369 equity would unquestionably, in the exercise of sound judicial discretion, have granted relief as was done in the Tyson Case, supra. But this was not done. Complainant stood by without taking further action, and, in the exercise of this sound discretion, I am of the opinion that a court of equity should not now render its aid to compel abatement of this expensive work, so vital to the public interest, which the complainant might, by filing a bill within reasonable season, have prevented. McKee v. Grand Rapids, 137 Mich. 212, 100 N.W. 580.
What has here been said discloses, however, that the bill had equity in so far as it showed a nuisance, and, upon its face, a bare legal right in the complainant for its abatement.
The relief is denied for the reasons above stated. In the exercise of sound judicial discretion, I do not think, however, that the bill should have been dismissed, and the complainant put to his remedy in an action at law. The court had acquired jurisdiction, and should have proceeded to a determination of the question of damages, ascertained the same, and ordered the payment thereof, or, in the alternative, the abatement of the nuisance. This was the course pursued by the New Jersey court in the case of Grey v. Mayor, etc., of Paterson, 60 N.J. Eq. 385,45 A. 995, 48 L.R.A. 717, 83 Am. St. Rep. 642, wherein it is said:
"In the case before us the injury to the defendants would be so great that an injunction should not be granted to these complainants whose injury is incidental and comparatively small. If these complainants amend their bill, or file a new bill asking for an injunction, unless the city will consent to make such compensation for the diminution in the value of their lands as shall be ascertained to be just, such equitable relief can be given to them. A court of equity will, to effectuate justice, settle unliquidated damages."
I am of the opinion that no amended bill or new bill is required, for the reason this procedure could be followed under the general prayer for relief. That complainant has suffered some substantial damage to the valuation of his property I am of the opinion quite clearly appears, but the amount thereof can better be ascertained by reference before the register. A somewhat similar course was pursued in Lewis v. Pingree Nat. Bk., supra. See, also, 14 R.C.L. 357-359. I am therefore of the opinion that the bill should not have been dismissed, and that the decree of dismissal should be reversed, and the cause remanded to the court below for further proceedings in accordance with these views.
The respondent gin company has erected a shed in the street upon which the complainant's lot abuts. What is said above is without application to this particular nuisance, and the reasons for the exercise of judicial discretion to exempt such nuisance from the general rule as to abatement of the same do not apply as to this particular respondent. As to this shed, therefore, I think relief should be awarded complainant, and the particular nuisance abated.
SOMERVILLE and GARDNER, JJ., concur in the foregoing views.