By the Court.
Lumpkin, J.delivering the opinion.
[1.] The water-lot company of the city of Columbus, on the 16th February, 1847, conveyed by deed to defendant, Wm. Brooks, a piece of ground at the South-West corner of the canal of said company, constructed in the bed of tlie Chattahoochee river, for supplying water to the water-lots of Columbus.' The grant of said piece of ground was subject to the condition, that the purchaser should be “ confined and restricted to the privilege of erecting and running a saw-mill, or saw-mills, on said lot.” The company presented their bill of complaint to the Hon. Robert B. Alexander, Judge of the Superior Court of the Chattahoochee Circuit, and prayed for an injunction against the said William Brooks and John G-. Winter, who had become interested in said property, alleging, among other things, that they were the owners of other lots, so contiguous to the defendant’s ground, that a large wooden building on the latter, if on fire, would endanger buildings, to be erected on their said lots. That a fireproof building was not required by them, on said piece of ground, nor were the defendants restricted to any particular number of stories, in the building to be constructed thereon, for reasons set forth in the bill. That shortly after said conveyance, the defendants proceeded to erect a large wooden building, three stories *318high, upon a higli frame work, in which they have since formed another and a lower story. They state that the two upper stories, and the one in the frame work, are unnecessary and unusual for a saw-mill, or saw-mills, and that half of said building is located on the land of the complainants, and thus brought nearer to the contiguous lots owned by them; and the danger of fire therefrom greatly increased. That the defendants have not confined themselves to the restrictions contained in said deed of conveyance, but have placed, and are nowrunning, not only a saw-mill, in said build ing, but a large amount of machinery for a variety of other purposes, and of a nature to increase the danger from fire. Thatthe value of their contiguous lots is impaired, by the danger from fire, which might be communicated from the said three story wooden building, and the great quantity of combustible material therein. They complain that they are otherwise injured by the misappropriation of said piece of ground in this : That if the defendants confined themselves within the limitations of their deed, they would be compelled to place the great variety of machinery, now in operation on the saw-mill lot, on lot No. 15, which is a parcel of the same water-lot property, and now owned by the defendants; or to purchase of complainants another lot upon which to place it; and if placed upon lot No. 15, complainants would be able to sell another lot, to be used for the purposes to which lot No. 15 can now be appropriated. That defendants are owners, by purchase, of lot No. 15, of complainants, in the use and enjoyment of which they are no otherwise restricted, than that any building to be erected thereon, shall be fire-proof; and that complainants are under like obligation to the defendants, to erect on the contiguous lots owned by them, none other than fireproof buildings. They further state, that becoming more and more sensible of the injury inflicted on their property, by the violation, on the part of the defendants, of their contract of purchase, and after unavailing requests, upon defendants to confine themselves within the restrictions, by their deed of conveyance, they appeal to the extraordinary powers of a Court of Equity, and pray that the defendants he enjoined perpetually, from running any of the variety of machinery, in their building, on said piece of ground, not necessary to a saw-mill, or saw-mills, and from running said sawmill on the land of complainants ; and from permitting so much of said building to remain standing, asís notnecessary to a saw-mill, *319or saw mills ; and that defendants be compelled, specifically, to perform their contract in said deed of conveyance contained.
The following is a plot, or diagram, of the premises :
A previous bill between the same parties, was presented to Judge Alexander, praying an injunction, which he refused to grant. The learned and able opinion delivered by the J udge on that occasion, I have before me; and injustice to my own feelings, as well as to him, I must claim the privilege of here inserting it—
“ The case made by the bill, rests upon two grounds, distinct in point of fact, and different in respect to the principles which regulate the jurisdiction of equity over them.
1st. A breach of covenant is complained of, and injunction prayed in the nature of specific performance.
2d. Relief is sought against a,n act of trespass upon land, and relief, as to both, prayed in the nature of an indirect order of the Chancellor, to abate the structure, which, in part, constitutes both the breach of covenant, and the trespass.
*320To dispose, first, of the second ground of complaint, in the bill. The jurisdiction of equity, in cases of trespass, is limited to such as are likely to be attended with irreparable injury. Equity expects a strong case of destruction, or irreparable mischief to be made out — of irreparable mischief which may be completely effected before any trial can be had at Law, as to the controverted right. Eden on Injunc. 139, and eases there cited.
The principle, as to trespass, says Mr. Drewry, in his learned and satisfactory treatise on injunctions, page 133, is that injunctions will be granted, when the tresspass is of such a nature as to be actually taking away, or destroying the substance of the estate, as in the case of timber, coals, mines and quarries. 6 Ves. 147. 7 Ves. 308. 15 Ves. 138. 10 Ves. 290. 17 Ves. 128. 18 Ves. 184. The rule is, that the jurisdiction of equity does not properly extend to cases of trespass, strictly so called, and cases in which she will interpose, are considered exceptions which the English Courts are unwilling to carry further. Drewy, 133, 134. The complainants do not show themselves within any of the exceptions recognised by the English Courts, nor by the Supreme Court of the State of Georgia. 1 Kelly, 10. It is not pretended that because of the “ tardiness of the remedy, the peculiar nature of the property injured, the insolvency of the wrongdoers, or the inability of the complaimants to prove their damage,” equity ought to interfere with her harsh but indispensable process of in-injunction, “to protect them in the use, integrity, and value of their property.”
The case of Deere vs. Gust, 1 My. & Cr. 516, is a strong authority against the complainant’s application on the point now under consideration. The complainant, in that case, was mortgagee in receipts of the rents of an estate in Wales, and the defendants being owners of the adjacent Iron Works, desiring to construct an iron tram-road, from their works to another place, and finding it convenient to cross the mortgaged estate, obtained permission of complainant’s tenant, by a false representation, that they had the consent of complainant, and accordingly laid down a tram-road through the estate, in making and keeping up which, much damage was done to the estate. The complainant had no notice of the fact for three years, but as soon as he had notice of the existence of the tram-road, he proceeded to have it taken up, in which, he was forcibly interrupted by defendant’s workmen, *321and thereupon he filed his bill for an injunction to restrain the defendants from using the road, and from interrupting the complainant and his workmen. The defendant demurred, and the demurrer was allowed. The Lord Chancellor Cottenham said, in giving judgment, “ the thing here complained of has been done. The tram-road has been completed, with the leave of the tenant in possession, and the Court is asked to restrain the defendants, who, having finished the work, are now in the daily use and occupancy of it. In other words, the Court is virtually asked to eject the defendants, and authorise the complainant to takepossession. The case originally, may have been a case of waste — waste occasioned by the cutting of the tram-road, and the laying of the iron rails over the complainant’s land; but what is now claimed by the defendants, is simply right of way, and if they are not entitled to that right, they are mere trespassers, and the complainant has his proper legal remedy against them, as such.” In the case before us, has not the thing complained of been done 1 That is to say, have not the defendants already erected their building, or a part of it, on the land of the complainants ? and is not the Court virtually asked to eject them, and put the complainants in possession 1 It seems, then, more consistent with the precedents, to leave the complainants to their appropriate remedy at law, in respect to this ground of complaint.
Upon the other and first ground — as to the power of this Court to interfere by injunction, to restrain breach of covenant, in the nature of a specific performance. Injunctions of this sort, are usually of two kinds, (Eden on In. 22,) both of which concern and seem to depend upon the relation of landlord and tenant, and therefore, not necessary to be further considered in the discussion of the question before us. There are a few cases which do not fall within the principles of either of the kinds referred to. The case of Martin vs. Nutkin, 22 P. W. 266, is the earliest it is said, in which Equity interfered to restrain breach of covenant by injunction. In that case, the defendants, the parson, church warden and overseers of the Parish entered into a written agreement with the complainants, that upon a certain consideration which had been performed by the complainants, the ringing of the bell at 5 o’clock, A. M. to the disturbance of the complainants, should be discontinued for the lives of the complainants, or the survivors of them. Lord Mecclesfield granted an injunction to stay the *322ringing of the bell until the hearing, and at the hearing, the injunction was continued during the lives of the complainants, and the survivors of them.” It hence appears that Equity will interfere to execute a negative agreement, when according to the judgment of the Vice Chancellor in the case of Kimberly vs. Jennings, 6 Sim. 340, “ it is simply snch standing by itself.” The case put by his Honor, the V. Chancellor, was that a nephew, wishing to go on the stage, his uncle gave him a large sum of money in consideration of his covenanting not to ¡perform within a particular district; that the Court would execute such a covenant, on the ground, that a valuable consideration had been paid for it. The decision in the case of Barrow vs. Richard, reported in Paige’s C. R. vol. 8, p. 351, insisted upon by complainant’s counsel, as an authority applicable to the case before us, would seom to go also, upon the same principle, the right of Equity to restrain breach of agreement. The doctrine of specific performance in reference to breach of agreement by injunction, is subject to the qualification, that unless it appears that specific performance of the whole agreement can be decreed, the relief will be denied; and if the agreement is negative, it will be decreed to he performed only when it stands by itself not connected by a positive agreement which the Court cannot enforce. 6 Sim. 340, 333. And it is to be observed that in all the cases of this class in which relief was granted, the agreement was a simple obligation, not to do a particular thing, as in Martin vs. Nutkin, and where the injunction may be said to have compelled its performance in a. negative sense, by restraining its violation. The decision in the case of Morris vs. Coleman, 18 Ves. 407, which at first view seems an exception, is treated by Sir L. Shadwell in his judgment in Kemble vs. Keen, 6 Sim. 333, as grounded on the consideration of there being a partnership between the contracting parties. In the case before us, it is not the agreement that defendants shall not do a particular thing, but to do only a particular thing. The prayer of the bill, is not that the defendants he compelled to do an act, erect and run a saw mill, or saw mills, but that they be restrained from doing other things, the running a variety of other machinery. In the literal sense of the terms, we cannot effect, by injunction, a special performance of this agreement, according to the prayer of the bill. How far the principle of the decision in the case of Martin vs. Nutkin, and in the case of the Uncle vs. *323the Nephew, cited in Kimberly vs. Jennings, is applicable to this, is not necessary to be determined, since a more satisfactory disposition can be made of it on other grounds. Conceding, then, for the present, the point of jurisdiction and the right of the Chancellor to interfere by injunction to restrain the breach of covenant in a case properly submitted, we are to inquire, do the compiainants come with such a case, and in proper time to claim this extraordinary interposition of Equity. The bill alleges that the defendants have violated their agreement, in that they have placed, and are now running, in addition to a saw mill on said lot, a large amount of machinery for a variety of purposes, none of which forms any part of a saw mill or saw mills. No injury is shown to have resulted or likely to result to the complainants from the mere emjrloyment of the additional machinery, and the only benefit to follow to the complainants upon the injunction against its employment upon said lot, consists in the chance of selling in that event to defendants, another lot at a reasonable price. The defendants have already placed, a.nd are now running on the ground the large amount of machinery complained of. The consequence to them, will probably beaseiious pecuniary loss to be estimaed, it is true, only by reference to the great variety and expensiveness of their machinery, as enumerated by complainants in their bill. The complainants stood by while their rights were infringed, and “ after the thing complained of had been done,” in the language of Lord Cottenham already quoted, they come to claim the aid of Equity to restrain the defendants. In the case of Brydges vs. Killburn, cited in Jackson vs. Carter, 5 Ves. 688, 691, in which a lessee having altered a log wood mill into a cotton mill, an application for injunction was refused, on the ground that the complainant had stood by, and seen the cotton mill erected ; and in a late case, Lord Brougham refused an injunction even against, waste, on the same ground. The language of his lordship is emphatic and decisive. “ I am equally clear that the party complaining, has in this instance, by his own conduct, disentitled himself to relief. If there be any thing well established in this Court, it is, that a man who lies by while he sees another expend his capital, and bestow his labor upon any work without giving him notice, or attempting to interrupt him — one who thus acquiesces in proceedings inconsistent with his own claims, when he comes to enforce those claims in this Court, shall in vain ask for *324its interposition by injunction, of which the effects would be to render all the expenses useless, which he voluntarily suffered to be incurred. Here more years have been allowed to elapse than-the, number of weed's which would have closed the doors against the plaintiff’s coming to seek an injunction. See also 18 Ves. 515. How long the complainants did stand by while the defendants were in violation of their agreement, does not distinctly appear in the case before us. It does appear that shortly after the purchase of said ground, (February, 1847,) the defendants proceeded to frame and erect a large building, three stories high, besides another story in the frame work, the frame work and first story of which, in the opinion of complainants, were all that was necessary, or convenient for a saw mill, or saw mills, and that the additional stories could not be used for such purposes without “ absurdity in design.” It is fair to presume that it was as well known to complainants then, as now, that such a structure was unnecessary and unusual for the purpose of a saw mill, or saw mills, and that they might reasonably have believed that the otherwise absurd number of stories were designed for other purposes than the uses of a saw mill or saw mills. Upon the question of laches, it may be worthy of remark, that the unnecessary number of stories in said building is now complained of as a breach of defendants’ agreement, and that they proceeded to frame and erect them shortly after the 16th of February, 1847.. “ Becoming more and. more sensible of the injury inflicted upon them, by defendants’ violation of their agreement,” in every respect now complained of, the complainants come upon deliberation, with their application for injunction. As to what constitutes that degree of laches which will deprive a party of relief by injunction, no positive rule is stated. The authorities on the subject, it is said in Drewry on Injunctions, 197, support the proposition, that if the party is cognizant of his right, and does not take those steps which are open to him, before he has allowed the adversary to incur material expenses, or to enter into engagements difficult to be discharged, he will lose bis right to the interposition of Equity. The conclusion follows, that the alleged breach of covenant being attended with no immediate damage to the complainants, and the injury to defendants, consequent upon the injunction prayed, probably great and immediate, the application must be refused, the more properly, because die complainants have forfeited their *325title to the relief sought by delay, for which no satisfactory explanation is offered or attempted. It remains to bo considered whether the prayer of the complainants ought to bo allowed^ “that the defendants be enjoined from permitting'so much and every part of said building as may not be necessary for a saw mill or saw mills to remain standing.” It is alleged that the defendants’ building, besides being located in part on complainants’ land, is of a height unnecessary and unusual, for a saw mill or saw mills, and therefore, the defendants have violated the true intent of their agreement. It is with greater earnestness, further alleged, that by the unnecessary height of said building, other buildings on the neighboring lots of complainants, when erected, will be endangered by fire, which may be communicated from defendants’ building, and that the value of complainants’ adjoining lots are thereby depreciated. It is not shown that the law any where defines the dimensions of a saw mill or saw mills, and in the absence of any stipulations between the parties as to the height of the buildings to be erected on defendants’ ground, it must be held that nothing in this respect exists, which a Court of Equity can recognise as a breach of covenant. Assuming that defendants had the legal right to erect a building of indefinite height upon their own ground, and that to the extent that they located it on the land of complainants, they are mere trespassers, as already determined. What is the depreciation in value of the adjoining property, but damnum absque injuria, so far as any power exists in a Court of Equity to relieve against it 1 The apprehended danger from fire is hypothetical, and dependent on the remote contingency of the future erection of fire-proof buildings on the adjoining property. The doctrine of nuisance cannot apply : 1st. Because Equity will not interfere to prevent a contingent nuisauce. 3 My. & K. 169. But more especially for the reason that Equity does not interfere to prevent or remove a private nuisance, unless it has been erected to the damage of the right of another long preciously enjoyed. 3 Johns. Ch. R. 282. The maxim qui prior in tempore, potior est in jure, will apply, if hereafter fire-proof buildings shall be erected in the neighborhood of the defendants’ three story wooden house.
The application for injunction in any form is refused.
In the present bill, the complainants seek to relieve themselves from the effect of their delay, and apparent acquiescence, in the *326use and appropriation made by the defendants of the saw-mill lot and (ho building erected thereon. But after carefully examining the reasons which they assign, we are of the opinion that they are insufficient, either to excuse the supineness of the company, or to justify the Court in the exercise of a favor “manifestly indispensable for the purpose of social justice, in a great variety of cases ; but at the same time, attended Ivitli no small danger, both from its summary nature and its liability to abuse.” Judge Story well remarks, that while this jurisdiction should be fostered and upheld by a steady confidence, still it ought to be guarded with extreme caution, and applied only in very clear cases; otherwise, that instead of becoming an instrument to promote the public as well as private welfare, it may become a means of extensive, and perhaps of irreparable injustice. And Mr. Justice Baldwin, in Bonaparte vs. Camden & Amboy Rail Road Company, 1 Baldwin’s C. C. R. 218, maltes the following striking observations on the same subject: “ 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 of 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. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction. But that will not be awarded in doubtful cases, or new ones, not coming within well established principles; for if it issues erroneously, an irreparable injury is inflicted, for which there can be no redress, it being the act of a Court, not of the party who prays for it. It will be refused till the Courts are satisfied that the case before them, is of a right about to be destroyed, irreparably injured, or great and lasting injury about to be done by an illegal act. In such a case, the Court owes it to its suitors and its own principles, to administer the only remedy which the law allows, to prevent the commission of such act.”
In Bacon vs. Jones, 4 Mylne & Craig, 432, Lord Ellenham seems to conclude that the discretion of the Court, in dealing with injunctions, is unlimited. And I apprehend, after all, that this is the truth of the matter. He turns over the subject, and presents it in various ways, and says that the Court must exercise the best judgment it can, as to the most convenient course to be pursued.
*327Accordingly, in Hilton vs. The Earl of Granville, 1 Craig & Phillips, 283, the Lord Chancellor thus balances the argument: “ I find, from the plaintiff's own showing, that the level was made in 1839. It might have been made for other purposes, purposes in which the plainliff might not be interested; but then, he states that the workings have continued advancing toward his homo, at a considerable distance, undoubtedly, at the commencement, G7 yards, but gradually proceeding toward his house; and that within a certain space of time, the works have approached within an ascertained number of yards from his house, the consequence of whiclihasbeeninjury to those houses unde r which theworkings have been carried. It is only of late, that they have approached near to his house, and it is only of late, therefore, that any damage has been sustained by the houses near to his. But from the moment that the workings were commenced from the level, in the direction of the plaintiff’s houses, he must have known that there was every probability, at least, that the working, if continued, would bring them in contact with the assertion of the Lord’s right, and therefore make it necessary for him to apply for protection or compensation for the damage done. No application is made, however, until the time, when the icorkings have approached so near to his house, that it is quite impossible to grant an injunction, which shall continue until the legul right is ascertained, without altogether suspending the Lord’s works.
Under these circumstances, therefore, seeing the state in which the law appears to stand, without, however, expressing any opinion upon it, and considering that by granting the injunction, 1 shall bo stopping the working of a mine, a thing which of all others this Court is most averse to do; (though it may, under certain circumstances, be compelled to do it;) considering, also, the great expense which has been incurred, and the great injury which, if the Court should turn out to be wrong, would be inflicted on the party claiming the right to work the mine; and, on the other hand, the nature of the injury, which the plaintiff may sustain, if he turns out to he right, I have to determine whether — balancing the question between these two parties, and the extent of inconvenience likely to be incurred on the one side and on the other — it is the most proper exercise of the1 jurisdiction of the Court to grant the injunction or to withhold it. Now by withholding it, I certainly may expose the plaintiff, not only *328to damage, but to an injury aud a wrong; by granting it on the other hand, I am exposing the defendant to what, in the event of my turning out to bo mist alcen in the view I take of the right of the partios, will be an irreparable injury. The plaintiff’s injury, if he sustains it and ought not to have sustained it, will bo to a great extent at least, capable of reparation ; it is a mere question of the valuó of the property, which may be compensated; whereas, by no possibility can the injury done to the Lord be compensated, if he is prevented for a considerable length of time from exercising a right which, in a certain event, may turn out be his to the full extent to which he claims it.”
By a process of reasoning like this, in a case almost pefetcly parallel in all its features, the Circuit Judge was induced to refuse this injunction. And after weighing the circumstances well, and reflecting especially that Equity will rarely,' if ever, interpose for the removal of a work already executed at considerable expense, and the demolition or suspension of which would occasion great injury to the defendants, we are unwilling to control the exercise of a discretion, which, in our opinion, was wisely exerted.
If this application had been made at the proper time, my own impression is, that it should have been granted. Whereas the nature of the injury apprehended is such as to render it impossible to measure the amount in damages ; or if the case be one in which any calculation of the amount of the injury must be purely speculative, the inclination of the Court has in general been either in cases of trespass or violation of contract, to protect the party by process of injunction. Collard vs. Allison, 4 Myl. & Cr. 487. Ridgway vs. Roberts, 4 Hare, 116, 117. The Earl of Mexborough vs. Brown, 7 Beavan, 127. The present is just such a case. Who can compute the mischief which may be entailed on complainants, in the sale of their remaining lots on account of the erection of this saw-mill building, and the filling of it from bottom to top, with a variety of machinery, in contravention of the express terms of the contract. But the motion comes too late. Decre vs. Guest, 1 Mylne & Craig, 516, is a much stronger case than this. There the Chancellor denied the injunction to restrain the owners of the rail-road from using it, although the possession of the land for the purpose of constructing the rail-road, was obtained from a tenant of the plaintiff, by means of circumvention and fraud.
The judgment below must be affirmed.