92 F. 721 | 6th Cir. | 1899
(after stating the facts as above). Were the city to be flooded by reason of the erection of the embankment by the defendant railway company upon the island, the municipal corporation and the private persons injured would have an action against the defendants, which at common law would have been trespass on the case for a private nuisance. In English courts of equity it was, for a long time, laid down as a rule in such cases that until the right of the complainant was definitely established by an action at law the extraordinary remedy of injunction would not be granted by the chancellor. Carlisle v. Cooper, 21 N. J. Eq. 576. The strictness of this doctrine has, in modern years, considerably abated, especially in this country; and where the right to object is clear, and the injury threatened is obvious and clearly proven, injunction has been deemed a proper remedy, even without a judgment at law, to prevent an injury which in its nature would be irreparable, and not to be adequately compensated in damages. It is clear, and, indeed, is admitted, in this case, that if the erection of the embankment as proposed will substantially add to the flooding of the waters over the streets, alleys, and houses of the city in times of freshets or flood, the injuries threatened are, within the meaning of the law, irreparable, and not to be adequately compensated in damages. But it is well settled that an injunction does not issue in such cases unless the probability of danger is clearly shown, and the existence of the nuisance clearly made out upon determinate and satisfactory evidence, and that in no case will the chancellor interfere by in
The only serious question which arises on the evidence is whether there .is any reasonable probability that, in times when the floods are accompanied by ice, the ice will so gorge under the two bridges of the defendant company as to form a dam, from behind which the water can only escape by flowing over the island. The most disastrous flood in the history of the river, except that of 1883, was in 1866, before the bridges of the defendant company were erected. In that case a gorge of ice was made at a point several hundred feet south of the Lake Shore bridge, and the water, overflowing the banks of the river, was thrown into Front street, and flowed thence down into the lower business part of the city, lying along* the bank of the river on the west side. Another gorge was formed at the first Boyer’s bend, about a half mile below the northernmost point of the island; and the bottoms to the west of the riyer and to the north of the inhabited part of the city were all covered with water. In the flood of 1883, which was the highest flood in the history of the city, the first gorge was formed a few hundred feet north of the State street bridge. As the ice coming down the river struck the anchor ice, which was frozen to the bottom of the stream, in the shallow and slack water at that point, the gorge was of sufficient height and strength to hold back the water for a short time, so that the level of the water below the gorge was higher than that above it. But as the water came down in greater force the gorge broke away, and was earned under the defendant’s bridge down to the First Boyer’s bend, where another gorge was formed, of great height and strength. The water rose 5 feet higher than it ever had risen before, to a point 18 feet above the datum, an arbitrary point fixed by the city authorities, being about 1 foot below the surface of the water at ordinary stage under the bridge of the defendant. There is much evidence adduced by the complainant to sho*nl that there was a heavy gorge under both of the defendant’s bridges,' and that this gorge extended across both bridges and across the trestlework, and banked up the water so that it
“I do not say that the proof shows that floods will occur, hut it certainly does not show that they may not occur; and the danger remains the same, whether the conditions shall ever arise that firing about a flood or not. The possible occurrence of such conditions is sufficient, in my judgment, to maintain the injunction.”
We cannot concur in this view of the law. We think the danger must be shown to be probable, and not merely possible, where the remedy by injunction is sought to be enforced. The decree of the court below granting the injunction is reversed, at the costs of the appellant, with insi ructions to enter a decree dismissing the bill for an injunction, without prejudice to the right of the complainant, should circumstances arise in the future justifying it, to bring aii action at law, either for damages, or to abate a nuisance arising from the erection of such embankment.