of its tolls in consequence of an unauthorized bridge across the river, may maintain a suit to prevent its completion.1 So the obstruction of a canal, though amounting to a public nuisance, is actionable when it involves the breach of a private warranty. The owner of a ferry beyond the limits of a city from which public travel is diverted by the failure of the city to keep a certain street in repair, suffers no injury other than that shared by the general public in being deprived of the right of passage, and is not entitled to maintain an action for such injury.3

4

§ 127. In Enos v. Hamilton, in Wisconsin, the plaintiff had a tannery in the village of New London on the Wolf River, and procured the bark necessary for carrying on his business at a point upon the Wolf River about sixty miles above New London, which was the only place where the bark required could be obtained. The Wolf River between these points is a navigable stream, and the defendants obstructed that part of the river so that the plaintiff could not obtain the bark, and his business was injured. It was held that peculiar damage to the plaintiff was established, and that the action could be maintained. The opinion refers to earlier decisions in Massachusetts, but is not reconcilable with the later decisions in that State. It has, however, more or less support in the decisions of other States."

1 Wisconsin River Improvement Co. v. Lyons, 30 Wis. 61.

2 Bruning v. New Orleans Canal Co., 12 La. Ann. 541. Obstructions to the navigation do not excuse the breach of a contract to deliver merchandise by a certain day. Dodge v. Van Lear, 5 Cranch, C. C. 278.

3 Prosser v. Ottumwa, 42 Iowa, 509. 4 27 Wis. 256; 24 Wis. 658; Barnes . Racine, 4 Wis. 454; Walker v. Shepardson, 2 Wis. 384.

Cush. 254; Brainard v. Boston, Id. 506; Holmes v. Townsend, 13 Met. 297; Carpenter v. Mann, 17 Wis. 155. 6 Ante, § 122.

7 Tinsman v. Belvidere Delaware Railroad Co., 26 N. J. L. 148; 25 N. J. L. 255; Shephard v. Barnett, 52 Texas, 638; Hickok v. Hine, 23 Ohio St. 523. See Maxwell v. Bay City Bridge Co., 46 Mich. 278; New York v. Baumberger, 7 Rob. (N. Y.) 219; Hudson River Railroad Co. v. Loeb, 7 Rob. 418; Manhattan Gaslight Co. v. Barker, 7 Rob. 523; 36 How. Pr. 233.

§ 128. A common nuisance may be abated without compensation and without notice.2 When a public highway is unlawfully obstructed, any individual who has occasion to use it, and is thereby stopped in his journey, may remove the obstruction in order to effect a passage; and he may enter upon the land of the person erecting or continuing the obstruction, if necessary to remove it. It has been held that the remedies by abatement and by indictment a

respects concurrent and co-extensive, and that any pers representing the public may abate a common nuisance.5 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 1 partially obstructed, the master of a vessel would not be justified in running his vessel upon the obstruction unneces

1 Coe v. Schultz, 47 Barb. 64; Manhattan Manufacturing Co. v. Van Keuren, 23 N. J. Eq. 251.

2 Missouri River Packet Co. v. Hannibal Railroad Co., 1 McCrary, 281.

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, Ibid. 428; Manhattan Manuf. Co. v. Van Keuren, 23 N. J. Eq. 251; Hale, De Portibus Maris, c. 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 Arundel v. McCulloch, 10 Mass. 70; Wales v. Stetson, 2 Mass. 143; Garey v. Ellis, 1 Cush. 307; Brown v. Perkins, 12 Gray, 89; Willis v. Sproule, 13 Kansas, 257; Beach v. Schoff, 28 Penn. St. 195; Owens v. State, 52 Ala. 400; Hopkins v. Crombie, 4 N. H. 520; State v. Anthoine, 40 Maine, 435; Lincoln v. Chadbourne, 56 Maine, 197; Earp v. Lee, 71 Ill. 193; Rung v. Shoneberger, 2 Watts, 23; Selman v. Wolfe, 27 Texas, 68; James v. Hayward, Cro. Car. 184; Harrington v. Edwards, 17 Wis. 586; Williams v. Fink, 18 Wis. 265; King v. Sanders, 2 Brev. (S. C.) 111; Dimmett v. Eskridge, 6 Munf. 308. Earp v. Lee, 71 Ill. 193; Day v. Arundel v. McCulloch, 10 Mass. Day, 4 Md. 262; Turner v. Holtzman,

70.

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,

6

54 Md. 148; Mohr v. Gault, 10 Wis. 513; Smart v. Commonwealth, 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.

scrily 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.,4 "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.1 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

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§ 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 r. 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. v. 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 v. Maryland, 12 Wheat. 419; Lord v. Steamship Co., 102 U. S. 541; Railroad Co. v. Richmond, 19 Wall. 584; New York . 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

1 13 How. 518; 18 How. 421. 213 How. p. 578.

313 How. pp. 577, 619, 627.