
    LAWRENCE J. CALLANAN, et al., Respondents, v. GEORGE F. GILMAN, Appellant.
    
      Side-wallc—obstruction of, substantially continuous—public nuisance.—Special damage—slight evidence of, will sustain injunction against, at suit of private citizen. — Order not appealable under § 1316 Oode, by including in notice of appeal from judgment.
    
    A plankway forming a continuous bridge across a sidewalk and totally obstructing it during a greater part of every business day, is a public nuisance.
    A private citizen may have an injunction against such a nuisance on showing special damage.
    But slight evidence of special damage will uphold a judgment for an injunction against such a nuisance.
    In such a case," an injunction against obstructing, by any plankway or bridge, or the like, extending across the sidewalk and elevated above, and against hindering the plaintiffs, their employees and customers from having free use and passage along the sidewalk in front of defendant’s premises, is not too broad.
    An order made in an action tried before a judge without a jury, after the filing of his decision, denying a motion, made after such filing, to amend the answer, does not affect the final judgment, and is, therefore, not appealable under § 1316.
    Semble, the proposed amendment being to remedy a supposed defect in the denials, and both parties on the trial having, on the trial, treated the denials as sufficient, an amendment was unnecessary.
    Before Sedgwick, Oh. J., O’Gorman and Ingraham, JJ.
    
      Decided May 18, 1885.
    Appeal from judgment awarding the plaintiffs an injunction.
    Plaintiffs’ evidence as to the special damages suffered by them from the nuisance, enjoined, in addition to that referred to in the opinion of Judge O’Gorman, was as follows : One of the plaintiffs testified, “We think a great portion of our customers come to our store from Broadway along the southerly side of Vesey street. I have seen the effect of this bridge on pedestrians. The effect has been to stop them, and it is my strong impression that it drives a good many of them to the other side of the street. It has prevented our customers coming to the store. Mr. Hanshaw ” (whose evidence is referred to by Judge O’Gorman) “ and his partner. If I thought it necessary I could name several. I have not been able to transact my business with the same convenience to myself and my employees since this obstruction as I did before. I complained to Captain Berghold of this obstruction, because it was a decided detriment to my business, and is in my opinion, a decided loss to all owners of property on the street, and a detriment to the business interests of the street. The injury to me was great. I cannot tell whether my business increased or decreased between July 9, 1883, and August 13, 1883. There is no question at all but that travel has been diverted by the use- of this bridge.” Another of the plaintiffs testified, “ The effect of this obstruction on pedestrians is very bad. We have had numerous complaints from our customers as to its being a positive obstruction. It is an obstruction across the sidewalk, and quite a number of our customers come down the other side of the street rather than go over the obstruction. I cannot, at this moment, name any customers who complained of this plank.” There was considerable evidence to the effect that travel was diverted by reason of the bridge.
    The original answer denied each allegation of the complaint “except those thereinafter admitted, qualified or explained.” After the filing of the decision of the' judge, defendant moved to amend the answer so as to deny, in the mode required by the Code, certain of the allegations of the complaint, the evidence as to which, on both sides, had been fully heard on the trial. The motion was denied.
    Other facts appear in the opinion.
    
      Abbett & Fuller, attorneys, and of counsel for appellant, on the questions considered in the opinions, argued :
    I. The plaintiffs failed to establish that defendant was maintaining a public nuisance, (a) The bridge was a temporary and partial obstruction necessitated by business, and was not unlawful in itself; and, therefore, not a public nuisance (Wood on Nuisances, § 259, and cases cited, § 801; People v. Cunningham, 1 Den. 524). There is a very substantial distinction between encroachments amounting to a purpresture, and a temporary and partial obstruction necessitated by the business of the community. And this distinction is well shown by such cases as Knox v. Mayor (55 Barb. 404); Trenor v. Jackson (46 How. 389); Ely, Mayor, v. Campbell (59 How. Pr. 333); Lawrence v. Mayor (2 Barb. 577); Howard v. Robbins (1 Lans. 63); Alb. L. J. vol. 20, p. 183. This bridge is used by authority of the board of aldermen (Corporation Ord., rev. 1880, p. 138, § 21 ; p. 223, § 285). The legislature has conferred upon the city government the power to decide •what is a reasonable and proper use of the streets. Acts may be authorized by such government which, without its authority, might be prohibited. This is required by public necessity. Thus, it is well settled that “ the legislative authority is competent to declare the uses to which highways may be appropriated, and to impart to municipal corporations both permissive and restraining powers over the subject matter. If neither the constitution nor the laws have been transcended in a given case, no individual can sustain a suit against a party exercising a right by competent authority. The aid of an injunction cannot be invoked to prevent, nor will an action lie to redress, consequential injuries necessarily resulting from the lawful exercise of a right granted by the sovereign power of a state, or conferred by competent municipal authority ” (Williams v. N. Y. Central R. R. Co., 18 Barb. 232). The reversal of this case upon appeal (16 N. Y. 111), was upon the ground that no lawful right had been given, and that equity might be invoked to prevent a multiplicity of suits. Broad as are the powers of courts of equity, they cannot interfere with the fair exercise of discretion lawfully given to the city government (Leigh v. Westervelt, 2 Duer, 618 ; High Injunctions, § 767 [2ed.], and cases cited; People ex rel. Murphy v. Kelley, 76 N. Y. 475). A public nuisance must be occasioned by acts done in violation of law. A work which is authorized by law cannot be a nuisance (Hinchman v. Paterson Horse R. R. Co., 17 N. J. Eq. 77 ; Bordentown & S. Amboy Turnpike Co. v. Camden & Amboy R. R. Co., 2 Harr. 314 ; Davis v. Mayor, 14 N. Y. 506 ; Wood on Nuisances, §§ 746, 750, and cases cited ; also § 753 ; Hatch v. Vermont Central R. R. Co., 25 Vt. 67). The Penal Code (§ 385, subd. 3), preserves this distinction. The argument of the plaintiffs and opinion of the judge at special term are based upon a conception of the purposes and uses of streets in this city, which, we respectfully submit, is erroneous. It is a well known fact, and one shown by the evidence in this case, that this city is built in a rather unscientific way, and the streets are not mere passage ways, but may more fitly be called the arteries, through which the trade and travel, which are the blood of commercial cities, are designed to flow. Propositions, which were true generations ago, when applied to a provincial city of England, are not true now of New York city with its large population, cramped by the form of the wedge on which it is built. The streets have been • laid out and may be used for all the purposes of communication, loading and receiving goods, and the necessary transaction of the immense business of a great mercantile centre. They are not solely to walk over, and the rights of pedestrians to the sidewalk are not so absolute but that they must give way to public necessity or convenience, especially when there is provided a convenient and proper passageway over the adjoining vault lights, which are very slightly elevated and five feet wide. How much less incovenience than if the defendant backed his cart across the walk, as he might properly do. In Matthews v. Kelsey (58 Me. 56), this question is discussed, and it is there held, that for tho purpose of unloading a car of flour, a merchant whose store is on the street may use skids tern-porarily elevated above the ground, and extending from the car door fifty feet from the store, provided there is ample room between the car and the opposite side of the street to accommodate the travel of the street.
    II. But even if the plank did constitute a public nuisance, the plaintiffs did not suffer special damage from its maintenance. “No person can maintain an action for damages from a common nuisance where the injury and damages are common to all” (Wood on Nuisances, § 618 ; 1 Coke’s Inst. 56, note- a). Mere obstruction is not sufficient (Wood on Nuisances, § 632 ; Baxter v. Winooski Turnpike Co., 22 Vt. 114; Hutchinson v. Railroad Co., 28 Ib. 142 ; Iveson v. Moore, Id. Raym. 486 ; Rose v. Miles, 4 M. & S. 101; Greasley v. Codling, 2 Bing. 263). The damage “ must be of a different character, special and apart from that which the public in general sustain, and not such as is common to every person who exercises the right that is injured.” “ It is not enough that he has sustained more damage ” (Wood on Nuisances, § 619, and cases cited; Pierce v. Dart, 7 Cow. 609 ; Doolittle v. Supervisors of Broome Co., 18 N. Y. 155 ; McGowan v. White-sides, 31 Ind.; 2 Alb. L. J. 32). It will not suffice that ■the person complaining merely showed a violation of his rights. He must show such a violation as is or will be attended by serious damage (Bigelow v. Hartford Bridge Co., 11 Conn. 565 ; Pen. Code, §§ 385, 386). The proper measure of damages (for maintaining a nuisance) is the difference between the rental value, free from the effects of the nuisance for which damages were claimed and subject to it (Jutte v. Hughes, 67 N. Y. 271; Francis v. Schoellkopf, 53 Ib. 152 ; Knox v. Mayor, &c., 55 Barb. 404). The plaintiffs themselves testify that there has been no decrease of rental, or in the value of property in the neighborhood. Hot one witness gives the faintest intimation of a contrary opinion. Evidence of special damages, other than these, was inadmissible, and proper exception was duly taken by defendant at the trial. This evidence should have been excluded, and plaintiffs’ case is then bare of any evidence of special damage (Bliss’ Code, 293, notes l, m, n, p, r and t; Green v. N. Y. C. & H. R. R., 12 Abb. N. S. 124; Hallock v. Miller, 2 Barb. 630 ; Tobias v. Harland, 4 Wend. 537 ; Havemeyer v. Fuller, 60 How. Pr. 322 ; Bergman v. Jones, 94 N. Y. 51). Even with this evidence, however, the only proof of loss is the temporary loss of one customer, who has returned and still trades with plaintiffs. That customer bought goods also of other grocers while the injunction was in force, and plaintiffs fail to show any difference in amount of business by reason of the alleged obstruction.
    III. The court could not, in this action, grant the relief prayed for and set forth in the judgment, (a.) If a private action could be maintained, it should have been an action of nuisance, not a suit for injunction. The legislature has provided a complete remedy by the action of a nuisance (§§ 1660-1663, Code of Civ. Proc.), and therefore a court of equity should refuse to entertain an action to enjoin and abate such a nuisance (Remington v. Foster, 42 Wis. 608). (6.) Again, “If the injury is trifling, send the nuisance temporary, and the party has an adequate remedy at law, the courts will sometimes refuse to interfere, when the inconvenience and damage resulting to the defendant will be greater by its interference than the injury to the plaintiff will be if the remedy is denied (Wood on Nuisances, § 199, and cases cited). Under the principles of the following authorities, the action is not sustainable (Parker v. Winnepiseoggee L. C. & W. Co., 2 Black, 545 ; Hamilton v. N. Y. & Harlem R. R. Co., 9 Paige Ch. 173 ; Bliss’ Code [2 ed.] 543, § 629, notes n, o, p, q, r, s; Wood on Nuisances, 817, note §§ 778, 780, 785 ; Child v. Douglas, 5 D. M. & G. 741 ; Story’s Equity [12 ed.] § 924, and cases cited ; High on-Injunctions [2d ed.], § 844, and §§ 761-768 and cases cited; Higbee v. Camden & Amboy R. R. Co., 20 N. J. 435). Unless the equities are clearly established, a court of equity should not interfere until after a trial and verdict by the jury. Whether a particular use is an unreasonable use and a nuisance, is a question of fact to be judged of from the circumstances of each case by the jury (Wood on Nuisances, § 251 ; Wetmore v. Tracy, 14 Wend. 250 ; Com. v. King, 13 Metc. (Mass.] 115 ; Harlow v. State, 1 Iowa, 439 ; Angel on Highways, 206 ; Ladie v. Arnold, 1 Salk. 168 ; Harrower v. Ritson, 31 Barb. 301 ; 1 Hawk. P. C. 76, §§ 48-60; James v. Hayward, Cro. Car. 184; Rogers v. Rogers, 14 Wend. 131). Thus, the Code provides that actions for a nuisance shall be tried by a jury (Code Civ. Proc. § 968 ; Hudson v. Caryl, 44 N. Y. 553). Equity will refuse to interfere where a summary remedy is provided for abatement by municipal authorities of all nuisances (Powell v. Foster, 59 Ga. 190).
    IV. The motion to amend the answer nunc pro tunc should have been granted (§ 123 Code Civ. Proc ; Lounsbury v. Purdy, 18 N. Y. 515 ; Burley, Recr. v. German American Bank, 111 U. S. R. 216 ; Hatch v. Central National Bank, 78 N. Y. 487). The object of the provision is that the pleadings may, by such amendment, show the questions that were actually litigated. And the amendment accomplishes in form what the appellate court will do even without such formal correction (McKenzie v. Ward, 58 N. Y. 541 ; Tisdale v. Morgan, 7 Hun, 585).
    Y. The order may be reviewed on this appeal (§§ 1301-1316, Code Civ. Proc.)
    
    
      Edwin M. Wight, attorney, and of counsel for respondents, argued:
    I. The law of this case was well stated by the trial judge in his opinion, in which he cited : Luce v. Alexander, 49 Sup. Ct. 202 ; Clark v. Dillon, 4 N. Y. Civ. Pro. 245; Davis v. The Mayor, &c., 14 N. Y. 506 ; Tremor v. Jackson, 15 Abb. N. S. 115 ; Ely v. Campbell, 59 How. 333 ; People v. Mayor, 59 Ib. 277; People v. Mayor, Daily Reg. April 23, 1884 ; Metropolitan Tel. Co. v. Colwell Lead Co., Daily Reg. Aug. 13, 1884. In addition to those cases, see also Hart v. Mayor, 9 Wend. 571; People v. Cunningham, 1 Den. 524; Knox v. Mayor, 55 Barb. 405 ; People v. Kerr, 27 N. Y. 188 ; Moore v. Jackson, 2 Abb. N. C. 211; Greene v. N. Y. C. & H. H. R., 12 Ib. 124; Com. v. Passmore, 1 Serg. & R. 219; Rex v. Jones, 3 Camp. 230 ; Wood on Nuisances, ch. 25 ; Tuttle v. Brush, &c. Co., 50 Super. Ct. 464; Hallock v. Baranski, Daily Reg. Aug. 9, 1884 ; Tiffany v. U. S. Illuminating Co., Daily Reg. April 9, 1884.
    II. Any person injuriously affected by a public nuisance may maintain an action to restrain it (Knox v. Mayor, 55 Barb. 405).
    III. The bridge in question constitutes a nuisance, public and private {Wood on Nuisances, % 259). It is doubtful if equity will sanction in a great public thoroughfare, the carrying on of a business differing wholly in character from its immediate surroundings, so as to greatly inconvenience such surroundings, even when the business is conducted with the most scrupulous regard for the rights of others consistent with such business (Heeg v. Licht, 80 N. Y. 579, and cases cited); but, when, as in this case, defendant brings into a retail business street a depot of distribution for about 130 stores in various parts of the country, requiring, by its very nature, much moving of goods to and from wagons in the street, and, instead of doing that business in a way to obstruct the sidewalk as little as possible, bridges the same, necessarily obstructing it entirely, and maintains such bridge, as in this case, he is without any shadow of excuse, and the court will restrain the maintenance of such a structure.
    IV. The motion to dismiss the appeal from the order-denying the motion to amend the answer should be granted under the provisions of section 1316, limiting the class of orders which are brought up for review by an appeal from a final judgment. They must “ necessarily affect the final judgment ” (Hunt v. Chapman, 62 N. Y. 333 ; Thurber v. H. B. M. & F. R. R. Co., 60 Ib. 326).
   By the Court. —Ingraham, J.

The court below found, as matter of fact, that plaintiff' Callanan is the owner; and that the plaintiffs as copartners are the lessees of the premises No. 41 Vesey street, and that plaintiffs and their predecessors in business have carried on business as wholesale and retail grocers, at such place, for upwards of forty yearsthat defendant has constructed and maintained, during a considerable portion of the business hours of each day, in front of the building occupied by him, Nos. 35 and 37 Vesey street, a plankway or bridge, one end resting on the stoop of the building occupied by defendant, and the other .end resting on a wooden horse or rest in the roadway of Vesey street, thus forming a continuous bridge from said stoop to the roadway of the street, over and across the sidewalk; that said bridge forms an obstruction to the sidewalk of said Vesey street, during a greater part of every business day; that said obstruction is a special injury and damage to the plaintiffs, and that they have lost custom by reason of its maintenance ; that the injury to the plaintiffs caused thereby is great and cannot be adequately compensated for in money, and is incapable of exact measurement in damages, and that plaintiffs have no adequate remedy at law therefor ; and as conclusion of law, that plaintiffs are entitled to an injunction enjoining the defendant from ■obstructing the sidewalk by such plankway or bridge.

The evidence of the special damage is slight, but after a careful examination of the case, we think there is sufficient to sustain the findings.

In Milhau v. Sharp (27 N. Y. 625), the court of appeals said : “ It is insisted by defendants5 counsel that the findings of the judge at special term show that the injury complained of was a public and not a private nuisance, and that consequently a private action to prevent or restrain it could not be maintained. It is not an available objection, to actions of this nature, that the wrong complained of constitutes a public nuisance, provided the plaintiffs are subjected by it to any special injury not common to the public or to large classes of people,55 and cites with approval from 2 Story’s Equity, § 925: There must be such an injury as from its nature is not susceptible of being adequately compensated by damages at law, or such as from its continuance or permanent mischief, must occasion a constantly recurring grievance which cannot be otherwise prevented but by injunction.55

Under this rule, the judgment was the necessary result of the findings of fact, and as the findings of fact cannot be disturbed, the plaintiff was entitled to the judgment, and the judgment appealed from must be affirmed, with costs.

The defendant also seeks to review an order of the special term made on the 15th day of October, 1881, denying the motion of the defendant to amend the answer. The motion was made and the order sought to be reviewed was entered after the decision of the judge, before whom the action was tried, was filed. Uo separate appeal to the general term from this order is taken, and the order was not one which can be reviewed under section 1316 of the Code, on the appeal taken from a final judgment. The motion was one addressed to the discretion of the court, and did not affect the final judgment.

We think, however, that the motion was unnecessary. On the trial of the action, it was not claimed by plaintiffs that the denial in the answer was insufficient. The plaintiffs undertook the burden of proving the obstruction in the street and the special damage. The court received the evidence offered by the defendant to overcome plaintiffs’ evidence to sustain such allegations.

Under such circumstances, we think that neither of the parties could claim that the answer was insufficient, but as before stated, the order is not before us for review.

The judgment should be affirmed, with costs.

Sedgwick, Oh. J., concurred.

O’Gorman, J.—[Dissenting.]

This is an appeal from a judgment restraining the defendant from obstructing the southerly side of Vesey street in front of his premises (Nos. 35 and 31), by any plankway or bridge, or other like obstruction, elevated above the sidewalk and reaching from said premises or from the stoop in front thereof to the roadway, or from hindering the plaintiffs or their employees and customers from having free use and passage along the sidewalk in front of defendant’s said premises.

The action was tried at special term, without a jury. The plaintiffs, in their complaint, did not ask any judgment or relief, by way of damages, but only for an injunction.

They alleged that the obstruction complained of was a public nuisance, but of special injury to the plaintiffs and their business ; that the injury was great and irreparable, incapable of exact measurement in damages, and could not be adequately compensated in money, and that actions for each renewal of the nuisance would cause a multiplicity of litigation. No evidence was given on the part of the plaintiffs, from which any adequate or reasonable measure of damages could be ascertained, or which would have warranted a verdict for more than nominal damages, if the action had been brought to recover damages.

The material facts, as they appeared in evidence, are these : The plaintiffs, before December, 1882, and at the time of bringing this action, occupied premises on the south side of Vesey street, and used them in their business of wholesale and retail grocers. Their premises were one hundred and twenty-five feet west of the corner of Church street and Vesey street. The defendant also occupied premises on the south side of Vesey street, and used them in the same business of wholesale and retail grocer. His premises were on the corner of Church street, and had a frontage on Church street, as well as a frontage on Vesey street, and were to the east of the premises of the plaintiffs. About December 1882, the defendant commenced to use, in loading and unloading his goods, a plank skid or bridge, about three feet wide, starting from about eighteen inches inside his stoop fine, and extending thence over the sidewalk to a wooden horse or rest (such as masons use), at the curb, where it rested near the end of his trucks. This skid was about twelve inches above the sidewalk at the stoop line, and about two feet six inches at the curb. On the stoop in front of defendant’s premises, between the point where the skid rested and the house front, there was left a space, which might be used by pedestrians, of about five feet. This bridge was used by the defendant continuously during the greater part of every business day, and there is evidence to sustain the finding of the trial judge, that there "was no necessity for such use of the bridge by the defendant. On this subject there was considerable conflict of testimony. There was enough of evidence, however, to sustain the conclusion that this continuous use of this bridge by the defendant seriously impeded pedestrians in passing to and fro along this street, and, for a considerable period in each business day, obstructed the sidewalk and created a public nuisance, for abatement of which, action would he on behalf of the people of this state.

In Green v. R. R. (12 Abb. N. C. 143), the learned trial judge says : “ It is well settled law that the conduct of any business, intrinsically lawful, may give rise to a cause of action, if, under ah the circumstances, it occasions an unreasonable encroachment on the public highway. Thus, in Rex v. Jones (3 Camp. 230), Lord Ellenborough said, c A' cart or wagon may be unloaded at a gateway, but this must be done with promptness. The defendant is not to eke out the inconvenience of his own premises by taking the public highway into his timber yard; and if the street be too narrow he must move to a more commodious situation for carrying on his business.’ In the King v. Russel (6 East, 426), it was held that if the nature of the defendant’s business were such as to require the loading and unloading of so many more wagons than could be done conveniently within his own private premises, he must either enlarge his premises or move his business to a more convenient spot ; that the primary object of the street was for free passage of the public, and anything .■ which impeded that free passage was a nuisance. And in Moore v. Jackson (2 Abb. N. C. 211), it was held that a systematic and continued encroachment on a highway, though for the purpose of carrying on a lawful business, is unjustifiable.” The public are entitled to an unobstructed passage upon the streets, including the sidewalks of the city (Clifford v. Dam, 81 N. Y. 52). The law of the public street is motion. A mere temporary occupation of a part of a highway, however, by persons engaged in receiving or defivering goods from stores or the like, is allowed from the necessity of the case, but a systematic and continued encroachment on a highway, though for the purpose of carrying on a lawful business, is unjustifiable (Moore v. Jackson, 2 Abb. N. C. 211, 214). A temporary and necessary use, such as the delivery of barrels from wagons on skids across a sidewalk, is permissible, if sufficient space is left on the other side of the roadway (Matthews v. Kelsey, 58 Maine, 56). The public nuisance, therefore, in the case at bar, does not arise from an obstruction to the sidewalk by reason of its use for an unlawful purpose, but by reason of its excessive, continuous and unnecessary use for a lawful purpose.

So much as to the relations and rights of the public at large, as against obstructions, and in the abatement thereof.

This action, however, is not brought on behalf of the public for the abatement of a public nuisance, or even on behalf of numerous property owners, or business interests in Vesey street, but only by the plaintiffs as private individuals, on their own behalf, and because of a special injury and damage to them, different from the damage inflicted on the public, and as to which special damage the public have no interest or concern.

The trial judge has found that the plaintiffs have lost custom by reason of the maintenance of this bridge by the defendant. The evidence—and the only specific evidence on that subject—is that given by a witness, who stated that he was the publisher of a newspaper—had an office at 30 Vesey street, at corner of Church street, for nearly three years—he generally bought his groceries down town, mostly at plaintiffs’ and Bennet’s, also at Stiner’s, and perhaps at other places,—quite a number of times,, he found the street blocked up with this bridge, and it caused him to go to the other side of the street—he did not care to go into the street when it was muddy—bought probably four-fifths of his groceries from plaintiffs—does not think he bought quite that proportion now. There is no evidence, on the part of the plaintiffs, of the quantity or value of the groceries which the witness had been in the habit of buying from them, before the use of this skid by the defendant, or the extent of the decrease in amount or value of his purchases afterwards, or any evidence whatever of any specific loss, on which any but nominal damages could be awarded. There was no attempt to prove

diminution of the rental value of plaintiffs’ premises, which was a measure of damages adopted in Francis v. Schoellkopf (58 N. Y. 154); Green v. R. R. (supra, 146). Thus, the question of damages which plaintiffs have heretofore incurred, has been left wholly speculative, and there is no evidence that any injury could be reasonably anticipated or feared by the plaintiffs, by reason of the continuance of the use of this skid by the defendant, other or greater than that to which plaintiffs had been theretofore subjected.

As has been before stated, the alleged nuisance here complained of, does not arise from any trespass on, or abuse of the sidewalk for any purpose, in itself noxious or unlawful, but from an unnecessary,- continuous, and excessively prolonged use of the sidewalk for a purpose, in itself legitimate and proper. In such cases, courts of equity have been slow to interfere and reluctant to apply the remedy of injunction. It was said by an eminent judge, “that no instance could be found of the interposition by injunction where the nuisance could be regarded as only eventual and contingent ” (2 Story Eq. J. § 924 and note). “A court,” says Agnew, J., in Huckinstine’s Appeal (Á) Penn. 81, 102), “whose arm may fall with crushing force on the every-day business of men, destroying lawful means of support, cannot approach such cases with too much caution.” Indeed, there cannot be a jurisdiction exercised by a court of equity, demanding more delicacy in its use.

It is clear, that unless plaintiffs have proved some special, substantial, and appreciable damage, other than that sustained by the people at large, they are not entitled to an injunction. And I am unable to see why there should have been any difficulty in proving the damages, if any there were, which have been inflicted on the plaintiffs. There is no foundation for an injunction on the ground that any injury other or greater than what has occurred in the past, would occur in the future, or any injury that could be in its nature irreparable, that is to say, irreparable, not because it would be so small that it could not be estimated, but because it was likely to be so great, that it would be incapable of compensation in damages.

Entertaining these views, I am not satisfied that the plaintiffs have proved facts, entitling them to the exercise of the extraordinary powers of a court of equity in their behalf. If the special injury which they complain of, be not susceptible of exact measurement in damages, it is not easy to avoid the suspicion that it was an injury too inconsiderable, and insignificant to warrant any serious apprehension of its recurrence in the future, or any claim on this court for protection against it. In cases of this kind, the doubt will naturally suggest itself, whether the court in consenting to protect the plaintiffs from an uncertain and exaggerated danger, may not be the means of inflicting on the defendant a real and substantial injury.

There is still another objection to the scope and form of the judgment, which is, I think important. The injury done to the plaintiffs, if any, arises not from the use of the bridge by the defendant, because the use, within proper limits as to time, and for a proper purpose, would have been unobjectionable. The bridge became objectionable, from its abuse, by keeping it up continuously and for periods of time too protracted, and when its use was not necessary to the defendant’s business. The judgment rendered made no distinction in this regard, but restrained the defendant absolutely, and without any limit as to the time or occasion.

This was, I think, a judgment larger in its scope;and operation, than the plaintiffs were entitled to, in any aspect of this case, and would have the effect of restraining the defendant, not only from the unnecessary, continuous, and unlawful use of this bridge, but from the occasional and proper use of it, as a necessary means of carrying on his business, not ■ in itself unlawful, and against which, neither the public, nor the plaintiffs could have any legitimate cause of complaint.

For these reasons, I am of the opinion that the judgment should be reversed, with costs, and that a new trial be ordered.  