nuisance for twenty years will not defeat either a prosecution for obstructing navigation, or the remedy by abatement; 2 nor is it a bar to an action by an individual for special damage thereby caused. This rule applies to streams which are merely floatable, as well as to those which are navigable in the larger sense. If specific penalties are imposed by statute, they are merely cumulative and not exclusive of the ordinary remedies, unless the intent to exclude them clearly appears in the act. But when an appropriate method of redress is provided by statute for a failure to observe its requirements, it

Ct. 231; Mills . Hall, 9 Wend. 315; Renwick . Morris, 7 Hill (N. Y.) 575; 3 Ibid. 621; Kellogg v. Thompson, 66 N. Y. 88; St. Vincent Orphan Asylum . Troy, 76 N. Y. 108, 114; Simmons v. Cornell, 1 R. I. 519; Knox v. Chaloner, 42 Maine, 150; Davis v. Winslow, 51 Maine, 293; Gerrish v. Brown, Ibid. 256; Dyer v. Curtis, 72 Maine, 181; Commonwealth v. Howes, 15 Pick. 231, 233; Veazie v. Dwinel, 50 Maine, 479; Stoughton v. Baker, 4 Mass. 522; Arundel r. McCullough, 10 Mass. 70; Commonwealth v. Upton, 6 Gray, 473; Lewis v. Stein, 16 Ala. 214; Philadelphia's Appeal, 78 Penn. St. 33; Pettis v. Johnson, 56 Ind. 139; De Laney . Blizzard, 7 Hun, 7; House v. Metcalf, 27 Conn. 639; Philadelphia Railroad Co. v. State, 20 Md. 157; North Central Railway Co. v. Baltimore, 21 Md. 93; Pierson v. Elgar, 4 Cranch, C. C. 454; Cottrill v. Myrick, 12 Maine, 222; State v. Franklin Falls Co., 49 N. H. 240; Bird v. Smith, 8 Watts, 434; Commonwealth v. McDonald, 16 S. & R. 390; Commonwealth v. Alburger, 1 Wharton, 469; Penny Pot Landing, 16 Penn. St. 79, 94; Thiladelphia v. Philadelphia Railroad Co., 53 Penn. St. 253; Johnson r. Irwin, 3 S. & R. 292; Douglass v. State, 4 Wis. 387; Hoboken Land Co. r. Hoboken, 36 N. J. L. 540; Ingram r. Police Jury, 20 La. Ann. 226; People v. Pope, 53 Cal. 437; Nimmo

Ibid.

2 Ibid.; Knox v. Chaloner, 42 Maine, 150; Renwick r. Morris, 3 Hill (N. Y.) 621; 7 Ibid. 575; Miles v. Hall, 9 Wend. 315; Stafford v. Ingersoll, 3 Hill, 38, 41.

3 Mills v. Hall, 9 Wend. 315; Morton v. Moore, 15 Gray, 573, 576.

Knox v. Chaloner, 42 Maine, 150; Amoskeag Manuf. Co. v. Goodale, 46 N. II. 53. Whether the obstruction is accidental or intentional, it will not deprive the stream of its natural character as a highway. Treat v. Lord, 42 Maine, 552.

6 Bacon's Abr. tit. Statute G.; 2 Inst. 200; 2 Hawk. P. C. 301, 302; Rex v. Robinson, 2 Burr. 799, 803; Dwarris on Statutes, 678; Commonwealth v. Ruggles, 10 Mass. 391; Waterford Turnpike Co. v. People, 9 Barb. 161; Renwick v. Morris, 3 Hill (N. Y.) 621; 7 Ibid. 575; Wetmore v. Tracy, 14 Wend. 250, 255; Jackson v. Bradt, 2 Caines, 169; Pennington v. Townsend, 7 Wend. 276, 280; Crittenden v. Wilson, 5 Cowen, 165; Stafford v. Ingersoll, 3 Hill, 38. A statute, declaring the obstruction of a private watercourse to be a public nuisance and indictable as such, is merely cumulative and does not deprive the riparian proprietors of the common-law remedy of an action on the case or the right to abate the nuisance. Welton v. Martin, 7 Mo. 307;

. Commonwealth, 4 II. & M. (Va.) State v. Moffett, 1 G. Greene, 247. 57; Woolrych on Waters, 270.

is exclusive of the common-law remedies, as by abatement.1 If a bridge or road, constructed in a town across navigable waters, is built or laid out under an authority which is adjudged void, the town is under no obligation to keep it in repair, unless it has so far treated the place as a public street, that it is estopped from denying that it is a public highway. A tenant cannot controvert his landlord's title, and, if no action is taken on behalf of the public for the removal of a mill erected upon the bed of a navigable stream, the lessee thereof cannot set up in defence to an action by the landlord for the possession, that the possession, if restored, would be an unlawful obstruction of the navigation. So, in an action on the case for diverting water from the plaintiff's mill, it is no defence that the mill is built in the public domain of tide waters; and the fact that a dam prevents the public passage of lumber does not justify a lower proprietor in causing the water to flow back upon the dam.

§ 122. The general rule is that individuals are not entitled to redress against a public nuisance. The private injury is merged in the common nuisance and injury to all citizens, and the right is to be vindicated and the wrong punished by a public prosecution, and not by a multiplicity of separate actions in favor of private persons. If, however, a

1 Criswell v. Clugh, 3 Watts, 330; Spigelmoyer v. Walter, 3 Watts & S. 540; Brown v. Commonwealth, 3 Serg. & R. 273; post, § 250.

2 Commonwealth v. Charlestown, 1 Pick. 180; Jones v. Andover, 9 Pick. 146.

3 Mayor . Sheffield, 4 Wall. 189; Houfer. Fulton, 34 Wis. 608; Codner v. Bradford, 3 Chand. (Wis.) 291; Williams r. Cummington, 18 Pick. 312; Leavenworth . Laing, 6 Kansas, 274; McDonough v. Virginia City, 6 Nev. 90; Bissell r. Railroad Co., 22 N. Y. 258; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44.

St. Anthony Falls Co. v. Morrison, 12 Minn. 249. It is no defence

public nuisance, such as an unlawful obstruction to a common passage, causes peculiar damage to an individual, he may maintain an action therefor. In such case, the declaration or complaint need not negative the lawfulness of the obstruction, or its continuance for a reasonable length of time, or that it was unavoidable because of inevitable accident, these being matters of defence to be set up by answer.1 But the particular damage is the gist of the action, and must be specifically set forth in the declaration. It is not enough that injury is shown, but it must be different in kind from

that sustained by the community at large. If a bridge is unlawfully constructed across a navigable stream and arm of the sea, the direct injury is to the navigation of the stream, which is a public interest, and the fact that the plaintiff alone navigates the river, and is the owner of the only wharf thereon above the bridge, being merely proof that the consequential damage to him is greater in degree than to others, does not establish his right to maintain an action, as other riparian owners and the rest of the public may suffer in the same way whenever they use the stream.2 The case," says

66

Gray, C. J.,3" has no analogy to those in which an obstruction in a navigable stream sets back the water upon the plaintiff's land, or, being against the front of his land, entirely cuts off his access to the stream, and thereby causes a direct and peculiar injury to his estate, or in which the carrying on of an offensive trade creates a nuisance to the plaintiff." Where the plaintiff's predecessor in title dredged out a channel exceeding one thousand feet in length, about one-fourth of which was within his own dock, and the rest extended seaward through flats owned by other persons, it was held that the action of a city, in filling up by its sewers

fectively sets out the special damage sustained by the plaintiff in consequence of the obstruction preventing his passage with boats, the defect is cured by a verdict in his favor, if the issue joined compels him to prove the special injury. Hall v. Kitson, 4 Chand. (Wis.) 20; 3 Pin. 296. Damages sustained by an individual after action brought are recoverable in such action. Duncan v. Markley, Harper (S. C.) 276.

Ibid. Houck Wachter, 34 Md. 265; Schall v. Nusbaum, 56 Md. 512; Gilbert v. Morris Canal Co., 8 N. J. Eq. 495.

2 Blackwell v. Old Colony Railroad Co., 122 Mass. 1; Blood v. Nashua Railroad Co., 2 Gray, 137; Lawrence v. Fairhaven, 5 Gray, 110; Brightman v. Fairhaven, 7 Gray, 271; Willard v. Cambridge, 3 Allen, 574; Hartshorn

v. South Reading, 3 Allen, 501; Wes-
son v. Washburn Iron Co., 13 Allen,
95; Brayton v. Fall River, 113 Mass.
218; Borden v. Vincent, 24 Pick. 301;
Smith v. Boston, 7 Cush. 257; Thayer
v. New Bedford Railroad, 125 Mass.
253; Breed v. Lynn, 126 Mass. 367.
3 122 Mass. 3.

4 The defendant would be liable for such injury. Turner v. Blodgett, 5 Met. 240; Cogswell v. Essex Mill Co., 6 Pick. 94; Grigsby v. Clear Lake Water Co., 40 Cal. 396; Sinnickson v. Johnson, 17 N. J. L. 129; Rowan v. Johnson, Ibid. 154; Delaware Canal Co. v. Lee, 22 N. J. L. 243; Glover v. Powell, 10 N. J. Eq. 211; Carson v. Coleman, 11 N. J. Eq. 106; Crittenden v. Wilson, 5 Cowen, 165; Steele v. Western Inland Lock Navigation Co., 2 Johns. 283.

the portion of the channel which was beyond the limits of the plaintiff's ownership, did not create an injury which differed in kind from that suffered by other persons owning lands upon the harbor or navigating over the flats, and was not remediable by private action, although access to the plaintiff's wharf was thereby rendered more difficult and expensive, and the wharf itself less valuable.1 If a portion of a lot of flats is taken by a railroad corporation under the right of eminent domain, and the access from navigable water to the remaining portion is thereby cut off, the value of such access may be considered by the jury in estimating the land-owner's injury; but the possibility that the corporation may construct side-tracks on the flats not taken for the purpose of filling the same more easily, or for business purposes, is not an element to be taken into consideration.2

§ 123. If the wrong is actionable, it is none the less so because it is committed in such a way that the defendant may be liable to a public prosecution. Where sewers constructed by a city caused a creek to be filled up directly in front of and adjoining the plaintiff's wharf, so that his vessels could not lie at the wharf on account of the diminished depth of the water, the injury to the plaintiff was held to be different in kind and not merely in degree from that sustained by the general public, and the plaintiff recovered damages in a private suit for this injury.

'Breed v. Lynn, 126 Mass. 367. The defendant in this case did not except to the damages assessed for the filling of that part of the channel which was within the limit of the plaintiff's ownership. See, also, Barron v. Baltimore, 2 Am. Jur. 203.

Drury v. Midland Railroad, 127 Mass. 571; Commonwealth v. Boston & Maine Railroad, 3 Cush. 25; Boston & Worcester Railroad . Old Colony Railroad, 12 Cush. 605; Willard v. Cambridge, 3 Allen, 574; Harvard College v. Stearns, 15 Gray, 1; Clement e. Burns, 43 N. H. 609.

The court dis

3 Brewer v. Boston Railroad Co., 113 Mass. 52, 58; Commonwealth v. Vermont Railroad Co., 4 Gray, 22; Wesson v. Washburn Iron Co., 13 Allen, 95; Brayton v. Fall River, 113 Mass. 218; Haskell v. New Bedford, 108 Mass. 208.

Brayton v. Fall River, 113 Mass. 218. In Haskell v. New Bedford, 108 Mass. 208, which was a similar case, the court say that neither the special injury to the plaintiff by the filling up of his dock, nor that occasioned by making his premises offensive and unhealthy was merged in the common