Levi v. Worcester Consolidated Street Railway Co. , 193 Mass. 116 ( 1906 )

Hammond, J.

“ It is not every case of a permanent obstruction in the use of an easement that entitles the aggrieved party to a restoration of the former situation. Each case depends on its own circumstances. It is for the court, in the exercise of a sound discretion, to determine in such instances whether a mandatory injunction shall issue. It will not be issued when it appears that it will operate inequitably and oppressively, nor when it appears that there has been unreasonable delay by the party seeking it in the enforcement of his rights, nor when the injury complained of is not serious or substantial, and may be readily compensated in damages, while to restore things as they were before the acts complained of would subject the other party to great inconvenience and loss.” Morton, J. in Starkie v. Richmond, 155 Mass. 188, 195, 196, citing Story Eq. Jur. § 959 a; Kerr, Injunctions, (1st Am. ed.) 231; Royal Bank of Liverpool v. Grand Junction Railroad, 125 Mass. 490; Lewis v. Chapman, 3 Beav. 133; Gaskin v. Balls, 13 Ch. D. 324; Aynsley v. Glover, L. R. 18 Eq. 544.

No discussion is required to show that upon the facts- found by the master this case is one which calls for the application of this principle. It is manifest that to restore things to the former situation would subject the defendant to great inconvenience and loss and is inequitable, and that the decree ordered by the trial court sufficiently provides for the wants of the plaintiff as to the right of way. She should however have recompense for the damages in the past, and the bill may be retained to assess such damages. Jackson v. Stevenson, 156 Mass. 496. Cobb v. Massachusetts Chemical Co. 179 Mass. 423. As thus amended the order for the decree is to stand, unless the plaintiff within thirty days from the filing of the rescript in this case shall file a rejection of the new right of way proposed as a substitute, and shall ask full damages for the permanent loss of the right of way without such substitution, in which case the bill may be retained to assess such damages or may be dismissed without prejudice to her right to an action at law for damages, as she may elect.

So ordered.