seems to us that such illegality is an unanswerable reason why he should be held liable." At best, the defect under our statutes, being curable by amendment, it amounts to no more than a mere irregularity, of which the defendants of course cannot take advantage: Brown v. Tidrick, 14 S. Dak. 249, 86 Am. St. Rep. 754, 85 N. W. 185.

On the averments of the complaint it is entirely clear that the plaintiff is entitled to recover at least nominal damages and reasonable counsel fees alleged to have been incurred by her in defending the attachment suit, which we hold is sufficiently averred.

649 We have examined the other grounds of the demurrer, and find no merit in any of them.

Reversed and remanded.

Bonds or Undertakings intended to be given in compliance with statutes, although having failed in substantial compliance therewith, will, if entered into voluntarily by competent parties, upon a sufficient consideration, constitute valid common-law obligations: Portland v. Bituminous Pav. Co., 33 Or. 307, 72 Am. St. Rep. 713, 52 Pac. 28; note to Estate of Ramsay v. People, 90 Am. St. Rep. 200. And an attachment bond is within this rule: Barnes v. Webster, 16 Mo. 258, 57 Am. Dec. 232.

In an Action on an Attachment Bond, the parties are estopped to question the regularity or lawfulness of the attachment: Brown v. Tidrick, 14 S. Dak. 249, 86 Am. St. Rep. 754, 85 N. W. 185; Haggart v. Morgan, 5 N. Y. 422, 55 Am. Dec. 350.

DENNIS v. MOBILE AND MONTGOMERY RY. CO. [137 Ala. 649, 35 South. 30.]

NUISANCE, Public-Abatement by Private Individual.—The jurisdiction of equity to restrain a public nuisance at the suit of a private individual is exercised only when he has a legal right and is without other adequate remedy at law for its enforcement. Hence a bill filed by a private individual for such purpose must not only show that the complainant will sustain injury distinct from that which he will suffer in common with others, such as would furnish the basis for an action at law, but it must go further, and show that the injury from the nuisance will be irreparable, or will be such that complete compensation therefor cannot be obtained in a single action at law. (p. 72.)

NUISANCE, Public-Abatement by Private Individual.-In an action by a private individual to abate a public nuisance, the injury will be considered irreparable so as to entitle him to relief when the resulting damage will be incapable of being measured by a pecuniary standard, and when, without assistance in equity, the injured party must suffer invasion of his substantial rights without

compensation, or when if reparation were sought in the law court, the remedy would involve a multiplicity of suits by the same plaintiff. (p. 72.)

NUISANCE, Public-Abatement by Private Citizen-Pleading. An averment by a private individual seeking to abate a public nuisance, of a mere conclusion as to inadequacy of legal remedy, or as to the irreparable character of the injury, without an averment of facts to support the conclusion is insufficient. (p. 73.)

NUISANCE, Public-Abatement by Private IndividualRemedy at Law.-Although an obstruction constitutes a public nuisance causing actionable injury to a private citizen, yet if such obstruction is permanent, and the defendant is not insolvent, and a single action at law for damages will furnish a full remedy for such injury, a resort to equity by the injured party for the mere purpose of abating such nuisance is unwarranted. (p. 74.)

O. C. Maner and A. L. Tyson, for the appellant.

J. M. Falkner and C. P. Jones, for the appellee.

654 SHARPE, J. In April, 1896, the city council of Montgomery adopted an ordinance embodying an agreement with the defendants, wherein it was stipulated, among other things, that the defendant, the Mobile and Montgomery Railroad Company, should erect a freight station building not less than five hundred and thirty-five feet long and two stories high, on a strip of land which extended across what had to that time been a part of Lee street at or near the north end of that street, and also to erect on the north side of the freight building and parallel therewith a passenger depot building three hundred and nine feet in length, and to maintain a private street not less than thirty-five feet wide along the south side of the freight building, so as to intersect an alley at that building's east end, and a street at its west end, and also to maintain a private street extending past and between the two buildings; and it was further stipulated that in consideration of those and other specified undertakings, Lee street should terminate where it intersects the property of the Mobile and Montgomery Railroad Company, and that the portion of it extending northward beyond that point of intersection, including the site of the proposed freight building, should be discontinued and abolished as a street.

The foregoing and some other statements to be herein made are condensed from the amended bill, including exhibits thereto, which comprise the ordinance referred to and maps of the locality. Words we use to indicate directions are to be understood as only approximately correct.

655 The bill alleges in substance that one or the other of defendants has caused to be erected a magnificent and im

posing structure along Water street immediately at the head of Lee street along the Alabama river, known as the "Union Depot," and that one or the other of the defendants has caused to be built a two-story freight warehouse across Lee street, and that these buildings are controlled and operated by the defendant, the Louisville and Nashville Railroad Company. The map shows this union depot building occupied the site designated for the passenger depot in the ordinances mentioned, and that the freight warehouse is where, according to the ordinances, the freight building was to be. The bill further alleges in substance that the city council had no power to abolish Lee street or to authorize the maintenance of the freight building or the standing of cars in that part of the street, and that the freight building prevents Lee street from being used as a means of connection and travel from any part of the city to the union depot, and that complainant owns a lot which fronts on the west side of Lee street. We quote from the bill that this lot is "situated about six hundred feet from said union depot and is located in such manner as to make it very valuable for the purpose of a modern hotel and retail stores, and that the house now on said lot is used as a boarding-house, for the accommodation of the traveling public as well as tho people residing in the city, and that by reason of said freight depot destroying the access on Lee street between the union. depot and the property of complainant, travel is diverted from Lee street to the other streets, and as a result thereof complainant's property is irreparably damaged and will never be valuable for the purposes above stated as long as said depot remains across said street, and his boarding-house is now damaged in that a great portion of the traveling patronage of boarding-houses is diverted to other streets and to other boarding-houses"; and "that the loss and injury to the orator in diminishing the value of his property facing and abutting on and along said street cannot be estimated in money, nor adequately compensated for by pecuniary damages, 656 and that such occupation and appropriation by said railroad companies of said street is a daily and continuing nuisance of special and particular injury to your orator beyond the injury which the public generally has sustained thereby and now greatly injures orator, and will continue to be more injurious and damaging to him in the near future. That said structure, as well as closing up said Lee street greatly impairs not only your orator's personal right to use and enjoy the street, but the right of the general public

as well to use and enjoy the same." The bill also alleges that the freight warehouse was built "without orator's consent and without condemning or otherwise assessing the damages he has sustained," and that it is a "private nuisance, as well as an invasion of the vested rights of orator and the public generally."

The prayer for relief is in substance that defendants be enjoined from keeping in possession the part of Lee street now closed up by the warehouse and from standing cars or locomotives on or near that street, and from making other use of that street than what is reasonable in moving cars and engines, and that they be required to remove the freight depot from across the street and to abate the nuisance óccasioned thereby, and for general relief.

The jurisdiction which exists in equity for the restraint of public nuisances at the suit of a private individual is not original but is supplementary, to remedies at law. It is exercised only where the individual has a legal right and is without the adequate remedy for its enforcement. Hence a bill, filed by a private individual for such purpose, must not only show the complainant will sustain injury distinct from that he will suffer in common with other members of the public, such as would furnish the basis for an action at law, but it must go further, and show that the injury from the nuisance will be irreparable or will be such that complete compensation therefor cannot be obtained in a single action at law: Wood on Nuisances, sec. 820; Pomeroy's Equity Jurisprudence, secs. 1347, 1349; Elliott on Roads and Streets, sec. 665; 14 Ency. of Pl. & Pr. 1122 et seq.; 1 High on Injunctions, sec. 739. 657 This principle also inheres in the law relating to private nuisances: Rouse v. Martin, 75 Ala. 510, 51 Am. Rep. 463; Nininger v. Norwood, 72 Ala. 277, 47 Am. Rep. 412; Pomeroy's Equity Jurisprudence, sec. 1350.

The injury will be considered irreparable where the resulting damage will be incapable of being measured by a pecuniary standard, and generally where without assistance in equity, the injured party must suffer invasion of his substantial rights without compensation: Elliott on Roads and Streets, sec. 665. And there is inadequacy of legal remedy when reparation, if sought in the law forum, would involve a multiplicity of suits by the same plaintiff: Nininger v. Norwood, 72 Ala. 277, 47 Am. Rep. 412; Pomeroy's Equity Jurisprudence, sec. 243. And

also where a judgment, if obtained, would be uncollectible: High on Injunctions, sec. 717.

The averment of a mere conclusion as to such inadequacy, or as to the irreparable character of the injury, without the averment of acts to support the conclusion, is insufficient: Kellar v. Bullington, 101 Ala. 267, 14 South. 466; Bolling v. Crook, 104 Ala. 130, 16 South. 131. For an injury to real property of a permanent character, without other special damage, the depreciation of the market value of the land furnishes the measure of damages and such damages are in a case, proper in other respects, recoverable in a single action at law: Highland Ave. etc. R. R. Co. v. Matthews, 99 Ala. 24, 10 South. 267; Wood on Nuisances, 869; 3 Sedgwick on Damages, 8th ed., 465, 476; Nashville v. Comer, 88 Tenn. 415, 12 S. W. 1027; Ottenot v. New York etc. Ry. Co., 119 N. Y. 603, 23 N. E. 169.

The averments of the bill concerning the adaptation of complainant's property for hotel and boarding-house purposes, and the alleged diversion of patronage from the house, go no further than to show an impairment of the property's value as resulting from the hindrance of a particular use. They raise no question as a loss of profits of business, and do not show even that the complainant is conducting the boarding-house. Besides an interference with the rights of travel common to him and the general public, alleged diminution in the property value by reason of the situation of the freight warehouse constitutes the sole basis of complainant's claim of injury.

658 If it be assumed that the city council was without power to authorize the erection of the warehouse on the site it occupies and that the same forms an obstruction in Lee street and a nuisance, public or private, causing actionable injury to complainant's property, yet the obstruction being permanent and no insolvency of defendants being shown, a single action at law for damages would furnish a full remedy for such injury, and, hence, a resort to equity for the mere purpose of abating a nuisance is unwarranted.

This case is unlike that of First Nat. Bank v. Tyson, 133 Ala. 459, 91 Am. St. Rep. 46, 32 South. 144, wherein the defendant in the bill was enjoined from projecting columns of its building into the sidewalk so as to obstruct the light, air and view about the entrance of an adjoining building owned by the complainant in that suit. It is also unlike Douglass v. City Council of Montgomery, 118 Ala. 599, 24 South. 745,