The opinion of the court was delivered, by
Woodward, J.
This was a bill in equity to restrain and remove a private nuisance. The plaintiff claimed a right of way by means of a three feet alley across the rear of the defendant’s lot, and he complained that the defendant had obstructed it by a permanent erection thereon. The District Court, from whence this appeal comes, refused a special injunction, and after the answer and proofs came in, dismissed the plaintiff’s bill without prejudice, but without filing any reasons of record.
The question to which we have first turned our attention is as to the jurisdiction of courts of equity in cases of private nuisance and disturbance of easements — a question which does not seem to have attracted the notice of counsel at all. The remedies at law for nuisances are very ample. Those that are public may be removed by indictment, and such as are private may be redressed by an action on the ease. And the party aggrieved by either a public or private nuisance, may also abate or remove it by his own act, so as he commit no breach of the peace in doing it, nor occasion, in the case of a private nuisance, any unnecessary damage. These legal remedies however, can, at the utmost, only abate or afford compensation for an existing nuisance, but are ineffectual to restrain or prevent such as are threatened or in progress; and for this reason there is a jurisdiction in equity to interpose, if the fact of nuisance be admitted or established at law. whenever the nature of the injury is such that it cannot be adequately compensated by damages, or will occasion a constantly recurring grievance: Adams’ Equity 485; Fonblanque’s Treatise 51; 2 Story’s Eq., § 925, et seq.; 2 Eden on Injunc. 269. This last writer, after discussing several adjudged cases under the head whether the court will enjoin without trial, concludes at p. 273 that whatever may be the actual jurisdiction upon this point, it is, however, certain that courts of equity are at present extremely unwilling to interpose without a trial at law; a question, therefore, has always arisen in these cases whether the court will grant’ or continue an injunction till the trial. The American cases are very numerous to the effect that the right of the complainant ought to be admitted or established at law before granting an injunction: White v. Booth, 7 Vermont 131; Shields v. Arndt, 3 Green Ch. 234; Caldwell v. Knott, 10 Yerger 209; Hart v. Mayor of Albany, 3 Paige 213; Reid v. Gifford, 6 Johns. Ch. R. 19 ; Biddle v. Ash, 2 Ashmead 211. In this last case, Judge King said a court of equity will interfere, and by injunction protect the dear rights of a suitor, derived either from contract or ancient possession, against a nuisance produced by the erection of a building by his neighbour, which darkens his windows or destroys his right of way. In Gardner v. The Village of Newbury, 2 Johnston’s Ch. R. 164, Chan. Kent said the interference of Courts of Chancery in such cases rests on the principle of a dear and certain right to the enjoyment of the subject in question, and an injurious interruption of that right which, upon just and equitable grounds, ought to be prevented. And again, in Van Beyen v. Van Beyen, 3 Johns. Ch. R. 286, it must be a strong and mischievous case of pressing necessity, or the right must have been previously established at law, to entitle a party to call to his aid the jurisdiction of this court.
From these and many more authorities which might be cited to the same effect, it is apparent that where the plaintiff’s right has not been established at law, or is not clear, but is questioned on every ground on which he puts it, not only by the answer of the defendant but by proofs in the cause, he is not entitled to remedy by injunction. It is not enough that he is able to produce some evidence of his right, when there is conflicting evidence that goes to the denial of all right. In a case so situated the plaintiff should first establish his right in an action at law, and then come into chancery, if necessary, for the protection of the legally established right. Where the emergency is pressing, and the injunction affidavits disclose a primá facie right in the plaintiff, the proper practice, I apprehend, is for the court to interfere by special injunction, and stay the defendant’s hand until the light has been tried at law. If the plaintiff will not bring his suit at law within a reasonable time, or fails to maintain it, the special injunction can be dissolved. — But if without unreasonable delay he succeed in establishing his right, the defendant can then be heard on his answer and proofs, and the injunction be dissolved or made perpetual as may appear equitable and just.
In the case before us the plaintiff rested his claim on two grounds; first, the use and occupation of the alley by several occupants of adjacent buildings for more than twenty-one years, and second, the joint dedication of several lotowners of this alley in 1849, to their common use. But both grounds were denied by the defendant in his answer, and there was conflicting evidence in regard to both. It is not worth our while to go through and discuss the testimony, for the questions of fact ought not to have been brought here for us to decide. Neither the equitable jurisdiction of the court below, nor our jurisdiction, can properly attach until the plaintiff has established bis right at law. Has the alley been in common use so long that the successors in the title may set up the presumption of a grant? If not, did the defendant dedicate it to the use of the plaintiff’s lot ? These are questions for a court and jury to decide in an action at law.
If an unconditional dedication should be found, or a dedication on a condition that was void, we do not think it would be defeated by the statute of frauds and perjuries though it was by parol, because, by the act of dedication, the alley became an appurtenant of the lot Rhea afterwards purchased, and he holds all the appurtenances of that lot, as he holds the lot itself, by a lawful deed. We have alluded to this point because it is expressly raised by the defendant’s answer, but farther than this we do not feel authorized to go into the case, for, as it is now presented, we decline to exercise jurisdiction over it.
The decree is affirmed.