Opinion
10-15-1889
HYDE v. FRENCH.
Craig A. Marsh, for complainant. Clark & Reed, for defendant.
On bill for an injunction.
Craig A. Marsh, for complainant. Clark & Reed, for defendant.
BIRD, V. C. The bill is filed in this case with a prayer for an injunction commanding the defendant to remove eight inches and a half of his milldam, because it was unlawfully carried that many inches too high, thereby interfering with the rights of the complainant. After the bill was filed a portion of the dam was carried away by a heavy freshet. The complainant then filed his petition asking the court for an injunction restraining the defendant from erecting the said dam as high as it was before by eight inches and a half, the defendant having commenced repairing the breach in said dam. No objections were made to the proceeding by petition. While the petition in some respects presents a strong case in behalf of the complainant, I think it is fully met by the answer and affidavits of the defendant; at least so fully as to overcome the equity which appeared in the complainant's favor by his petition and proofs. Counsel for complainant insisted that a very careful examination of the testimony would show that the defendant had not fully met the case made by the petition. In my judgment it is not the duty of the court to ascertain with nicety upon which side the preponderance of testimony is, when a preliminary injunction is asked for, especially when his legal right has not first been established at law, or appears indisputably clear, or that he will suffer irreparable damage, and the defendant will not greatly be injured.
I will advise that the order restraining the defendant be dissolved, and that the order to show cause be discharged, with costs.