Sec. 730. Former adjudication-Stare decisisOverruling decisions. The rule of stare decisis will not be invoked on the ground of sustaining a rule of property to prevent a court from overruling its decision on a former appeal in a case involving vast property rights, where it is improbable that many titles were acquired on the strength of the former opinion. Wilson v. Beckwith, 140 Mo. 359 (41 S. W. Rep. 985). A decision of a court, although construing a statute, is not a law, but merely evidence of what the law is, and the overruling of a decision by the same court is not a change of the law within the meaning of the constitutional provision prohibiting a state from passing a law impairing the obligation of contracts. Storrie v. Cortes, 90 Tex. 283 (38 S. W. Rep. 154; 35 L. R. A. 666). Citing, Land Co. v. Laidley, 159 U. S. 109 (16 Sup. Ct. Rep. 80); Knox v. Bank, 12 Wall, 379; Water Co. v. Easton, 121 U. S. 388; (7 Sup. Ct. Rep. 916); Railroad Co. v. McClure, 10 Wall, 511; Bradshaw v. Mill Co., 52 Minn. 59 (53 N. W. Rep. 1066); Allen v. Allen, 95 Cal. 184 (30 Pac. Rep. 213; 16 L. R. A. 646); Stockton v. Manufacturing Co., 22 N. J. Eq. 56.

v.

Sec. 731. What is a sufficient tender. A vendee whose tender is insufficient in amount, is not entitled to demand a deed, though no objection is made to it by his vendor, under Ia. Code 1873, § 2107, providing that a person to whom a tender is made, must at the time make any objections which he may have to the money, instrument, or property tendered, or he will be deemed to have waived them, as the clause, "objection to the money," refers to the character or kind of money used and not to the amount. Mc Whirter Crawford, 104 Ia. 550 (72 N. W. Rep. 505). Where in an action to quiet title, a defendant seeks to cancel the tax title under which the plaintiff claims and the privilege of redeeming therefrom, his right to redeem will not be denied because he fails to actually tender the amount found due, where, in his answer he offers to pay the amount which may be found due. Crawford v. Liddle, 101 Ia. 148 (70 N. W. Rep. 97). As to what is a sufficient allegation of tender, see Neldon v. Roof, 55 N. J. Eq. 608 (38 Atl. Rep. 429).

Sec. 732. Injunctions-General principles-Practice. In order for the existence of a remedy at law to bar the right to an injunction, the legal remedy must be plain, adequate, complete, and as sufficient to the ends of justice as the remedy in equity. Barbee v. Shannon, Ind. Ter. (40 S. W. Rep. 584). An abutting owner cannot enjoin the illegal construction of a railroad in a street for the reason that the proper municipal consent has not been obtained where he has a complete and adequate remedy at law for all damages he may suffer. Doane v. Lake St. El. R. Co., 165 Ill. 510 (46 N. E. Rep. 520; 56 Am. St. Rep. 265; 36 L. R. A. 97). Where a court of equity takes jurisdiction of a bill for injunction by reason of an allegation of the insolvency of the defendant, its jurisdiction cannot be ousted by a general denial of this fact, but only upon an affirmative plea showing that an adequate remedy exists at law. Kaufman v. Weiner, 169 Ill. 596 (48 N. E. Rep. 479). A preliminary injunction must not do what can only be done after full hearing by final decree, as by changing the possession of realty, or by depriving one in possession of its benefits, in any other respect than as to the wrongful act proper to be enjoined; the proper purpose of such injunction being to preserve the present status until a full hearing on the merits shall be had. An injunction as to so much of it as is excessive is void, and ought to be modified on motion. Bettman v. Harness, 42 W. Va. 433 (26 S. E. Rep. 271; 36 L. R. A. 566). A complaint for injunction by several lot owners, against the maintenance of separate injunction suits against them by one claiming a dower interest in the lots, is multifarious. Douglass v. Boardman, 113 Mich. 618 (71 N. W. Rep. 1100). Under Ia. Code 1873, § 3389, an injunction in an action after appeal must be issued by the appellate court. Hyatt v. Clever, 104 Ia. 338 (73 N. W. Rep. 831). Ind. Rev. Stat. 1894, §§ 3636, 3644, construed and applied-injunction against appropriation of land by a city for public improveCity of Ft. Wayne v. Ft. Wayne & J. R. Co., 149 Ind. 25 (48 N. E. Rep. 342).

ments.

Sec, 733. Injunction to prevent irreparable injury -Irreparable injury defined. Where there is irreparable injury, injunction lies though there be conflicting title. Bett

man v. Harness, 42 W. Va. 433 (26 S. E. Rep. 271; 36 L. R. A. 566). Citing, Erhardt v. Boaro, 113 U. S. 537 (5 Sup. Ct. Rep. 565); Iron Co. v. Reymert, 45 N. Y. 703; note to Jerome v. Ross, 7 Johns. Ch. 315 (11 Am. Dec. 506); 1 High, Inj., § 69; 2 Beach, Inj., § 1140. By the term "irreparable injury," it is not meant that there must be no physical possibility of repairing the injury. All that is meant is that the injury would be a grievous one, or at least a material one, and not adequately reparable in damages. Woods v. Early, 95 Va. 307 (28 S. E. Rep. 374); Masonic Temple Ass'n v. Banks, 94 Va. 695 (27 S. E. Rep. 490). Citing, Sanderlin v. Baxter, 76 Va. 299, 306 (44 Am. Rep. 165). Unlawful extraction of oil or gas from lands constitutes an irreparable injury which may be enjoined. Williamson v. Jones, 43 W. Va. 562 (27 S. E. Rep. 411; 38 L. R. A. 694; 64 Am. St. Rep. 891); Bettman v. Harness, 42 W. Va. 433 (26 S. E. Rep. 271; 36 L. R. A. 566). In the last case the court say : "What is irreparable injury? It is impossible to define it inflexibly. Rights of property and its uses change so; so many new rights of property with new uses arise as time goes on. Here is the right to oil and gas a few years ago unknown; the right sometimes in the owner of the soil, sometimes in separate ownership. The word irreparable' means that which cannot be repaired, restored, or adequately compensated for in money, or where the compensation cannot be safely measured. The courts have generally regarded as irreparable injuries the digging into mines of coal, iron, lead, and precious metals, and as such injuries subtract from the very substance of the estate, and tend to its ultimate destruction, equity is said to be prompt to restrain them. Rock, if of special value, comes under this rule. See U. S. v. Gear, 3 How. 120, and other cases cited in note to Jerome v. Ross, 7 Johns. Ch. 315 (11 Am. Dec. 501); note to Smith v. Gardner, 21 Or. 221 (6 Pac. Rep. 771; 53 Am. Rep. 347); 1 Beach, Inj., § 35; 1 High, Inj., § 730. We know but little of petroleum oil and gas hidden far in the bowels of the earth, but from that little we can say they are of great value, and are exhaustible, and, when exhausted in a locality, cannot be restored by the art of man, and perhaps never even by the mysterious alchemy of nature. Surely, they fall under the rule which considers the subtraction

of precious things from under the soil as working irreparable injury, as much as iron ore in Anderson v. Harvey's Heirs, 10 Grat. 386, to which I refer as decisive and binding under this branch of this case."

Sec. 734. Causes sufficient for granting injunctions. Equity will, by injunction, restrain the infraction of an agreement contained in a lease, in regard to the use of the premises, although such lease may not contain an express or formal covenant or a forfeiture clause with the right of reentry. Spalding Hotel Co. v. Emerson, 69 Minn. 292 (72 N. W. Rep. 119). Citing, De Forest v. Byrne, 1 Hilt. 43; Dodge v. Lambert, 2 Bosw. 570, and citations; Maddox v. White, 4 Md. 72 (59 Am. Dec. 67); Frank v. Bunnemann, 8 W. Va. 462; Kirkpatrick v. Peshine, 24 N. J. Eq. 206; Ganett v. Albree, 103 Mass. 373. One obtaining a lease by fraud, who has been notified by his lessor that the lease was terminated on account thereof, may be enjoined from taking possession. Newcome v. Ewing, Ky. (42 S.W. Rep.105. The attempted foreclosure of a mortgage by advertisement and sale for more than double the sum due the mortgagee, may be enjoined. Carey v. Fulmer, 74 Miss. 729 (21 So. Rep. 752). An injunction will lie to prevent the overflowing of land by a water-power company where it fails to pay the damages duly assessed against it by a proceedings duly authorized by its charter. Wilmington Water-Power Co. v. Evans, 166 Ill. 548 (46 N. E. Rep. 1083). A tenant in common lawfully occupying a portion of the building on the common estate may enjoin his cotenant from making changes in the interior of such building which will result in a material and continuing injury to his occupancy. Woods v. Early, 95 Va. 307 (28 S. E. Rep. 374). Particular evidence held insufficient to authorize the dissolution of a temporary injunction. Bullard v. Kempff, 119 Cal. 9 (50 Pac. Rep. 780). Mo. Rev. Stat. 1889, § 5510-when remedy by injunction exists-amended, Laws 1899, p. 226.

Sec. 735. Causes insufficient for granting injunctions. A court of equity will not enjoin the issuance of a tax deed void on its face. Z. Russ & Sons Co. v. Crich

ton, 117 Cal 695 (49 Pac. Rep. 1043). A complaint alleging possession and ownership under a title superior to a judgment under which an execution sale of the property is threatened, does not show a cause for enjoining such sale by simply alleging that on account of it insurance companies have cancelled their insurance. Pelican River Milling Co. v. Maurin, 67 Minn. 418 (69 N. W. Rep. 1149). A tenant who has agreed with his landlord desiring to rebuild the premises, that he will terminate his lease, the expense of his removal being equitably adjusted, cannot enjoin the landlord from taking possession and prosecuting the construction of his building, where his rights under the contract can be made secure by bond. Pike v. New Hampshire Trust Co., 67 N. H. 227 (38 Atl. Rep. 721). A plaintiff is not entitled to an injunction to prevent a defendant from transferring property, where he is protected in this particular by a lis pendens, and where his lis pendens is not sufficient protection in in such a case he is not entitled to such an injunction where he does not allege or prove that the defendant is threatening to transfer and convey the title to the property in controversy. City of Spokane v. Amsterdamsch Trustees Kantoor, 18 Wash. 81 (50 Pac. Rep. 1088).

Sec. 736.

Injunction against trespass. A plaintiff who has an adequate remedy at law, is not entitled to a man.. datory injunction to remove from his real estate one who, without color of title, unlawfully and forcibly entered and wrongfully remains thereon, though such trespasser be insolvent. Warlier v. Williams, 53 Neb. 143 (73 N. W. Rep. 539). Under S. C. Laws 1885, ch. 401, "in an application for an injunction to enjoin a trespass on land, it shall not be necessary to allege the insolvency of the defendant when the trespass complained of is continuous in its nature or is the cutting or destroying of timber trees." McKay v. Chapin, 120 N. C. 159 (26 S. E. Rep. 701). As a general rule equity will not interpose in case of a mere naked trespass, but where the act done or threatened to be done would be destructive of the substance of the estate, or if repeated acts or wrongs are done or threatened to be done, or the injury is or would be irreparable, the trespass may be enjoined. Miller v. Wills, 95 Va. 337