and he may enter upon the land of the person erecting or continuing the obstruction, if necessary to remove it.1 It has been held that the remedies by abatement and by indictment are in all respects concurrent and co-extensive, and that any person representing the public may abate a common nuisance.2 An individual cannot, however, abate a common nuisance, if it would cause a breach of the peace; and, although the public remedy may be pursued whenever the passage is partially obstructed, the master of a vessel would not be justified in running his vessel upon the obstruction unnecessarily 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. So a private individual cannot abate the nuisance to a greater extent than is necessary to effect a passage," is liable for doing an unnecessary 1 Arundel v. McCulloch, 10 Mass. 70. 2 Renwick v. Morris, 3 Hill, 621; 7 Hill, 575; Coates v. New York, 7 Cowen, 558, 600; Mills v. Hall, 9 Wend. 315; Burnham v. Hotchkiss, 14 Conn. 310, 317; Gunter v. Geary, 1 Cal. 462; Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 566; Knox v. Chaloner, 42 Maine, 150; McLean v. Mathews, 7 Brad. (Ill.) 599; State v. Parrott, 71 N. C. 311; Gates v. Blincoe, 2 Dana, 158; Gray v. Ayres, 7 Dana, 375; Brubaker v. Paul, id. 428; Manhattan Manuf. Co. v. Van Keuren, 23 N. J. Eq. 251; Hale, De Portibus Maris, ch. 7; Hargrave's Law Tracts, 87, 88; Harvey v. Dewoody, 18 Ark. 252; 4 Black. Com. 167; Bac. Abr. tit. Nuisance, 6; Com. Dig. tit. Action on the Case for Nuisance, D. 4. See Williams v. Blackwell, 32 L. J. Ex. 174; Tarrar v. Nunamaker, 5 Rich. (S. C.) 484. In Virginia, a court of equity may restrain the threatened abatement of a mill dam, on the ground of obstructing the navigation, until the right to maintain the dam is decided. Crenshaw v. Slate River Co., 6 Rand. 245. 3 Earp v. Lee, 71 Ill. 193; Day v. Day, 4 Md. 262; Turner v. Holtzman, 54 Md. 148; Mohr v. Gault, 10 Wis. 513; Smart v. Com., 27 Gratt. 950, 953. Contra, that all necessary force may be used to effect a passage when resistance is made, see Brubaker v. Paul, 7 Dana, 428. 4 Ante, § 92; Colchester v. Brooke, 7 Q. B. 339; Dimes v. Petley, 15 id. 276; Bateman v. Bluck, 18 id. 870; Davies v. Mann, 10 M. & W. 545; Bridge v. Grand Junction Ry. Co., 3 M. & W. 244; Eastern Ry. Co. v. Dorling, 5 C. B. N. s. 821; Rady v. London Ry. Co., 1 A. C. 754; L. R. 10 Ex. 100; 9 id. 71; Roberts v. 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 v. Litchfield, 35 N. H. 271; Kerwacker v. Cleveland R. Co., 3 Ohio St. 172; Lovett v. Salem R. Co., 9 Allen, 557; Pilcher v. Hart, 1 Humph. 524; Smart v. Com., 27 Gratt. 950, 953. 5 Ibid.; Bird v. Holbrook, 4 Bing. 628; Hicks v. Dorn, 42 N. Y. 47, 52; Ely v. Supervisors, 36 N. Y. 297; Blodgett v. Syracuse, 36 Barb. 529; Harrower v. Ritson, 37 id. 301; Griffith v. McCullum, 46 id. 561; Dyer v. Dupri, 5 Whart. 587; Goldsmith v. Jones, 43 How. Pr. 415; Northrop v. injury, and cannot convert to his own use the materials of which the structure is composed. "This right and power,' says Shaw, C. J.,2 "is never 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 3 Burrows, 10 Abb. Pr. 365; Owens v. State, 52 Ala. 400; State v. Moffet, 1 G. Greene, 247; Moffett v. Brewer, id. 348; Morrison v. Marquardt, 24 Iowa, 35; Brown v. Chadbourne, 31 Maine, 9; Dwinel v. Veazie, 44 id. 167; Veazie v. Dwinel, 50 id. 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 id. 520; Philiber v. Matson, 14 Penn. St. 306; Beach v. Schoff, 28 id. 195. See Criswell v. Clugh, 3 Watts, 330; Dimmett v. Eskridge, 6 Munf. (Va.) 308. 1 Larson v. Furlong, 50 Wis. 681; Godsell v. Fleming, 59 Wis. 52; State v. Taylor, 27 N. J. L. 117. Such conversion may make the defendants trespassers ab initio. Little v. Ince, 3 C. P. (Can.) 528. 2 Brown v. Perkins, 12 Gray, 89, 101. A city, charged with the duty of preventing obstructions to navigation, may abate them as nuisances. Hart v. Albany, 9 Wend. 571. But the city must be prepared to show that a nuisance actually exists. Yates v. 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 v. 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 v. Caulk, 16 Md. 556. But the defendant is only liable for damages prior to the suit. Hopkins v. Western Pacific R. Co., 50 Cal. 191. In Crenshaw v. 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 that a court of equity had jurisdiction to prevent the intended abatement until the right to maintain the dam was decided. Judicial determination is necessary before an object can be abated as a nuisance, except as to nuisances per se, which may be abated summarily, e. g., such as affect health, or the safety of person or property, or are tangible obstructions to highways. Denver v. Mullen, 7 Col. 345. 3 Authorities cited, Barnes v. Racine, 4 Wis. 454; Greene v. Nunnemacher, 36 Wis. 50; Spokane Mill Co. v. Post, 50 Fed. Rep. 429; 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. v. Goodale, 46 N. H. 53; Clark v. St. Clair Ice it is immaterial, and notice need not be given.' 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. 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 salable 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. And the legislature cannot declare the building of a private residence to be a nuisance because it cuts off the sea breeze and obstructs the view of the sea from other estates. A right of prospect cannot be gained even where the obstruction of light is illegal; but such right may be secured by express agreement and injunction." Where a camp-meeting association mapped out its land into lots, reserving a camp-ground between the ocean and the lot sold by it to the plaintiff, on which he built a cottage, his outlook was protected by injunction.7 3 $129. Obstructions Congress -State legislation.— In Gibbons v. Ogden, the Supreme Court of the United States decided in 1824 that the word "commerce," as employed in the Constitution, is not limited to trade or traffic, but includes Co., 24 Mich. 508; Finley v. Hershey, 1 Arpin v. Bowman, 83 Wis. 54. 3 Bowden v. Lewis, 13 R. I. 189. 483. 5 See Innes on Easements (2d ed.), 5. 6 Buck v. Adams, 45 N. J. Eq. 552. 7 Lennig v. Ocean City Ass'n, 41 N. J. Eq. 24, 606. 89 Wheat. 1; Veazie v. Moore, 14 How. 568, 573; Brown v. Maryland, 12 Wheat. 419; Lord v. Steamship Co., 102 U. S. 541; Railroad Co. v. 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; New York, etc. R. Co. v. New York, 165 U. S. 628, 631; 1 Kent Com. 439. 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 y. Wheeling Bridge Co.,' 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 stages 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. 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 lawful structure, 113 How. 518; 18 How. 421. 213 How. p. 578. 313 How. pp. 577, 619, 627; Ibid. In equity an obstruction erected in navigable waters, especially if it is uncompleted, will not necessarily be enjoined as a nuisance, but it may be left to injured persons to institute proper proceedings in the event that the structure, when completed, proves to be a nuisance. St. Louis v. Knapp Co., 2 McCrary, 516; 104 U. S. 658. was held to be valid. 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 118 How. 421; The Clinton Bridge, 10 Wall. 454; 1 Woolw. 150; South Carolina v. Georgia, 93 U. S. 4; Baird v. Shore Line R. Co., 6 Blatch. 276, 461; Northern Pacific R. Co. v. Barnesville R. Co., 2 McCrary, 224; St. Louis 2. Knapp Co., id. 516; s. c. 104 U. S. 658. In Newport & Cincinnati Bridge Co. v. United States, 105 U. S. 470; 13 Fed. Rep. 190, the States of Kentucky and Ohio authorized the plaintiff to construct a bridge across the Ohio River. Congress then passed a resolution sanctioning the bridge, but reserving the right to withdraw its assent in case the navigation of the river should at any time be substantially and materially obstructed thereby, or to direct the necessary modifications and alterations of such bridge; but afterwards, and while the bridge was building, declared it unlawful to proceed with its construction unless certain changes were made. The majority of the court held (Miller, Field and Bradley, JJ., dissenting, and Matthews, J., not sitting) that such reservation by Congress of the right to withdraw its assent was valid, and that such a withdrawal of the assent of Congress amounted to an enactment that the further construction of the bridge, as intended, should be unlawful, irrespective of the State legislation. In People v. Kelly, 76 N. Y. 475; 5 Abb. N. C. 383 (see Miller v. New York, 18 Blatch. 212; 10 Fed. Rep. 513; 109 U. S. 385; United States v. Oregon Ry. Co., 16 Fed. Rep. 524; Penn. Ry. Co. v. Baltimore Ry. Co., 37 id. 129; Jenks v. Miller, 43 N. Y. S. 927), 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 of 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. Covington Harbor Co. v. Phoenix Bridge Co., 23 Wkly L. Bul. 34; Commissioners v. Detroit, 80 Mich. 663; 18 A. G. Op. 512: 19 id. 295, 375. The authority conferred by the act of Congress of 1888 (25 Stat. 424) upon the Secretary of War to make the necessary rules and regulations to protect improvements on the Mississippi, which makes their violation a misdemeanor, is not invalid as conferring legislative authority upon that officer. United States v. Breen, 40 Fed. Rep. 402; 19 A. G. Op. 317; see 21 id. 41, 221, 293, 305, 308, 518, 594; United States v. Keokuk Bridge Co., 45 Fed. Rep. 178; Same v. Rider, 50 id. 406. But this officer can only thus act under some express or implied authority of statute. United States v. Pittsburgh R. Co., 26 Fed. Rep. 113; Same v. Ormsbee, 74 id. 207. His approval for bridges, required by the U. S. Stats. of Sept. 19, 1890, does not limit the power of State authorities as to public nuisances in State waters. Lake Shore R. Co. v. Ohio, 165 U.S. 365; see People v. Supervisors, 142 N. Y. 271; Chicago v. Law, 144 Ill. 569. Such required approval is a constitutional provision. United States v. Moline, 82 Fed. Rep. 592. That statute relates solely to navigable waters. Egan v. Hart, 165 U. S. 188, 192. In |