84 Iowa 649 | Iowa | 1892
I. The decree of the district court restrained the defendants from maintaining the dam,
”We are cited to Cole v. Duke, 79 Ind. 107. The case is a good illustration of the general rule contended for, but is not applicable to the facts of this ease. In that case the action was to enjoin a city clerk from issuing an order for the payment of an allowance made by the city council, and before process issued the order had issued and been paid, and the court held that the wrong “could not be corrected by an injunction, as its purpose is to prevent, and not to correct,'wrongs.” A mandatory writ was not sought nor in any way involved in the case. Nor is Wangelin v. Goe, 50 Ill. 459, an authority for the appellants’ position in this case. Both of the cases recognize the rule that injunction is a preventive remedy, and that is the remedy sought' in this case. It is not to correct a wrong of the past, in the sense of redress for the injury already sustained, but to prevent further injury. The injury consists in the overflow of the lands of the plaintiff. It was not alone the building of the dam that caused the injury, but its maintenance or continuance, which is a part of the act complained of; and its maintenance can only be estopped so as to prevent the injury by its removal. The removal of the dam, wrongfully constructed, is necessary for and incidentally involved in the prevent-iveredress which the law authorizes, and no technical application of a rule as to a mere method of procedure should be allowed to defeat so plain a rule of justice.
It is paid that the cases in which mandatory injunc-
II. I't is earnestly contended by the appellants that this action ca4not be maintained because the trespass
III. Q-under G-ulson is the owner of the land on which the dam is built, and it is claimed that the
IY. Upon the question of fact whether or not the dam raised the water in the lake above the natural stage there is a large mass of testimony for and against the proposition. No reasonably limited quotation could serve to show- the evidence from which the fact is to be found. The lake is meandered, and the title thereof in
V. It is said that the testimony shows that the defendant Lars Larson did not help to erect the dam