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sarily or wantonly, thereby injuring property which is so placed as to constitute a common nuisance, but which does not interfere with the reasonable prosecution of his voyage.1 So a private individual cannot abate the nuisance to a greater extent than is necessary to effect a passage,2 and is liable for doing an unnecessary injury, and he cannot convert to his own use the materials of which the structure is composed. "This right and power," says Shaw, C. J., "is never

1 Colchester v. Brooke, 7 Q. B. 339; Dimes v. Petley, 15 Q. B. 276; Bateman v. Bluck, 18 Q. B. 870; Davies r. Mann, 10 M. & W. 545; Bridge v. Grand Junction Railway Co., 3 M. & W. 244; Eastern Railway Co. v. Dorling, 5 C. B. N. s. 821; Rady v. London Railway Co., 1 App. Cas. 754; L. R. 10 Ex. 100; 9 Ibid. 71; Roberts r. Rose, L. R. 1 Ex. 82; 3 H. & C. 162; Cobb v. Bennett, 75 Penn. St. 326; The C. D. Jr., 1 Newb. Adm. 501; Norris . Litchfield, 35 N. H. 271; Kerwacker v. Cleveland Railroad Co., 3 Ohio St. 172; Lovett v. Salem Railroad Co., 9 Allen, 557; Pilcher v. Hart, 1 Humph. 524; Smart v. Commonwealth, 27 Gratt. 950, 953.

Ibid.; Bird v. Holbrook, 4 Bing. 628; Hicks v. Dorn, 42 N. Y. 47, 52; Ely. Supervisors, 36 N. Y. 297; Blodgett r. Syracuse, 36 Barb. 529; Harrower v. Ritson, 37 Barb. 301; Griffith v. McCullum, 46 Barb. 561; Dyer v. Dupri, 5 Whart. 587; Goldsmith v. Jones, 43 How. Pr. 415; Northrop v. Burrows, 10 Abb. Pr. 365; Owens v. State, 52 Ala. 400; State v. Moffet, 1 G. Greene, 247; Moffett v. Brewer, 1 G. Greene, 348; Morrison v. Marquardt, 24 Iowa, 35; Brown v. Chadbourne, 31 Maine, 9; Dwinel v. Veazie, 44 Maine, 167; Veazie v. Dwinel, 50 Maine, 479, 496; Prescott v. Williams, 21 Pick. 241; Gates v. Blincoe, 2 Dana, 158; Graves v. Shattuck, 35 N. H. 257; Hopkins v. Crombie, 4 N. H. 520; Philiber . Matson, 14 Penn. St. 306; Beach . Schoff, 28 Penn. St. 195.

See Criswell v. Clugh, 3 Watts, 330; Dimmett v. Eskridge, 6 Munf. (Va.) 308.

3 Larson v. Furlong, 50 Wis. 681; State v. Taylor, 27 N. J. L. 117.

4 Brown v. Perkins, 12 Gray, 89, 101. A city, charged with the duty of preventing obstructions to navigation, may abate them as nuisances. Hart. Albany, 9 Wend. 571. But the city must be prepared to show that a nuisance actually exists. Yates . Milwaukee, 10 Wall. 497; Evansville v. Martin, 41 Ind. 145. A person is not precluded, by abating a nuisance, from bringing an action for the damages which he has previously sustained thereby. Gleason v. Gary, 4 Conn. 420; Pierce v. Dart, 7 Cowen, 609; Lansing v. Smith, 4 Wend. 9; Hudson River R. Co. v. Loeb, 7 Rob. 418; Call. Buttrick, 4 Cush. 345. Nor, after an action has once accrued for obstructing a right of way, does an offer by the defendant to remove the obstruction deprive the plaintiff of his right to damages occurring prior to the offer. Green . Caulk, 16 Md. 556. But the defendant is only liable for damages prior to the suit. Hopkins v. Western Pacific Railroad Co., 50 Cal. 191. In Crenshaw 2'. Slate River Co., 6 Rand. (Va.) 245, a corporation claimed the right to abate a mill-dam as a nuisance to the navigation of a stream; and, it appearing that such abatement would cause great loss to the mill-owner and inconvenience to the public, it was held

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entrusted to individuals in general, without process of law, by way of vindicating the public right, but solely for the relief of a party whose right is obstructed by such nuisance." The rule supported by the weight of authority appears to be that an individual cannot abate a public nuisance unless he suffers some special damage, not common to the rest of the public, entitling him to maintain an action. If the abatement is lawful, the intent in making it is immaterial. Thus a person who has a right to pass from a highway to navigable waters may remove, with as little injury as possible, a fence which obstructs his right of passage, although his purpose may be to commit a nuisance by filling up the creek.2 Where a building was unlawfully erected in tide water in front of certain villa lots, it was held that the owner of the lots had no right to abate it, either upon the ground that the building was unsightly and diminished the saleable value of the lots by interfering with the prospect therefrom, or because the access to the lots by water was thereby made less convenient, it not appearing that their owner or any other person had approached or had occasion to approach them from the water, or that the building wholly prevented such access.3

4

§ 129. In Gibbons v. Ogden, the Supreme Court of the United States decided in 1824 that the word "commerce,"

that a court of equity had jurisdiction to prevent the intended abatement until the right to maintain the dam was decided.

1 Authorities cited above, notes 1-4. Larson v. Furlong, 50 Wis. 687; Barnes v. Racine, 4 Wis. 454; Greene v. Nunnemacher, 36 Wis. 50; Brown v. Perkins, 12 Gray, 89; State v. Paul, 5 R. I. 185; State v Keeran, 5 R. I. 497; Great Falls Co. v. Worster, 15 N. H. 438; Amoskeag Manuf. Co. r. Goodale, 46 N. H. 53; Clark v. St. Clair Ice Co., 24 Mich. 508; Finley v. Hershey, 41 Iowa, 389; McGregor v. Boyle, 34 Iowa, 268; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; Rogers v. Rogers, 14 Wend. 131;

Wetmore v. Tracey, 14 Wend. 250;
Griffith v. McCullum, 46 Barb. 561;
Harrower v. Ritson, 37 Barb. 301;
Goldsmith v. Jones, 43 How. Pr.
415.

2 Harvard College v. Stearns, 15

Gray, 1.

3 Bowden v. Lewis, 13 R. I. 189; 23 Alb. L. J. 492.

9 Wheat. 1; Veazie v. Moore, 14 How. 568, 573; Brown r. Maryland, 12 Wheat. 419; Lord v. Steamship Co., 102 U. S. 541; Railroad Co. r. Richmond, 19 Wall. 584; New York v. Miln, 11 Peters, 102; The License Cases, 5 How. 504; Cooley v. Board of Wardens, 12 How. 299; 1 Kent Com. 439.

as employed in the Constitution, is not limited to trade or traffic, but includes the navigation of rivers, bays, and harbors of the several States, and the intercourse between nations or citizens connected with such navigation; that this constitutional power is not limited by the external bounds of a State, but extends to the interior thereof in favor of citizens of other States, but not in cases between citizens of the particular State, or between different parts of the same State which are not accessible from other States; and that the exclusive power to regulate commerce between the States is vested in Congress. In the important case of Pennsylvania v. Wheeling Bridge Co.,1 decided in 1851 by the same court, it appeared that under a statute of the State of Virginia a bridge had been erected across the Ohio River, having but a single span, about 980 feet in length, without draws or openings, and that steamboats or sail vessels could not pass under it at all states of the water. Congress had previously regulated navigation upon this river by licensing vessels, establishing ports of entry, and imposing duties on masters of vessels, and had approved the compact between the States. of Virginia and Kentucky, which provided that the navigation of the river should be free and common to all citizens of the United States. It was held that the Ohio was a navigable stream, subject to the commercial power of Congress, and that the action of Congress respecting the river excluded State legislation; and the bridge was ordered to be removed unless the defendants should open an unobstructed passage for vessels by a day named. It was held that this might be done by erecting a bridge which, for the space of 300 feet over the channel of the river, should have an elevation of 111 feet above low-water mark.2 It being subsequently agreed by the parties that a draw which was deemed of sufficient width by the court might be constructed over the western channel of the river, the bridge, as constructed over the main or eastern channel, was permitted to stand,3 and a subsequent act of Congress, declaring the bridge a law

113 How. 518; 18 How. 421. 2 13 How. p. 578.

13 How. pp. 577, 619, 627.

ful structure, was held to be valid.' In People v. Kelly, the Court of Appeals of New York held that Congress could authorize the construction of the suspension bridge across the East River, between the cities of New York and Brooklyn, although it would, to some extent, interfere with the navigation; that the determination of Congress, as to the extent of the interference which would be permitted, was conclusive; that Congress might devolve upon the Secretary of War the power to approve or prescribe the plan for the bridge; that the Secretary of War could convey the notification in any way that would be effectual, and that notice of approval, given through one of his subordinates, was sufficient. In United States v. Duluth, it was held that the action of Congress, in making appropriations for the improvement of the navigation between Lake Superior and Superior Bay, was sufficient to preclude State legislation authorizing a canal for the improvement of Duluth harbor, which would seriously interfere with the work of the general government, the engineers of the war department, who had the control of the appropriations, being of the opinion that the work authorized by them at the mouth of the St. Louis River was the true mode of improving the entrance to Superior Bay, in which was the harbor of Duluth. The United States may restrain by injunction those who act under State authority from so floating logs, or doing other acts as to seriously injure its improvements of navigation. But the courts will not interfere in cases where it does not appear that acts done under such authority will prevent the carrying into effect of legislation by Congress for the survey and improvement of a navigable river.5

1 18 How. 421; The Clinton Bridge, 10 Wall. 454; 1 Woolw. 150; South Carolina v. Georgia, 93 U. S. 4; Baird 2. Shore Line Railroad Co., 6 Blatch. 276, 461; Northern Pacific Railroad Co. v. Barnesville Railroad Co., 2 McCrary, 224; St. Louis v. Knapp Co., Id. 516.

276 N. Y. 475; Miller v. New York, 18 Blatch. 212.

31 Dillon, 469; Wisconsin v. Duluth, 96 U. S. 379; 2 Dillon, 406.

4 U. S. v. Rum River Boom Co., 1 McCrary, 397; U. S. v. Mississippi River Boom Co., Id. 601.

U. S. v. Beef Slough Manuf. Co., 8 Biss. 421.

§ 130. State legislation is also upheld which authorizes bridges and similar obstructions upon navigable streams; and the commercial power vested in Congress extends over the commercial waters of a State only as regards intercourse with foreign nations, or with other States of the Union.1 In Willson v. Blackbird Creek Marsh Co.,2 decided in 1829, it appeared that the State of Delaware had authorized the building of a dam across the Blackbird Creek, a small stream, in which the tide ebbed and flowed, and that the defendants, being the owners of a sloop regularly enrolled and licensed according to the navigation laws of the United States, tore down the dam for the purpose of effecting a passage. It was held that the State had power to authorize the dam in the absence of any action by Congress in execution of the power to regulate commerce, and that the defendants were trespassers. The opinion was delivered by Marshall, C. J., who said: "The act of assembly by which the plaintiffs were authorized to construct their dam, shows plainly that this is one of those many creeks, passing through a deep level marsh adjoining the Delaware, up which the tide flows for some distance. The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are preserved to the States. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the Constitution, or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance. The counsel for the plaintiffs in error insist that it comes in conflict with the power of the United States to 'regulate commerce with foreign nations, and

'The Passenger Cases, 7 How. 283; Case of the State Freight Tax, 15 Wall. 232; The Bright Star, Woolw.

266, 275; Sears . Warren Co., 36 Ind. 367.

22 Peters, 245.

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