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§ 442. In proceedings against the nuisance in abatement, and in all proceedings in rem, jurisdiction necessarily depends on the presence of the property or res, and its subjection to the control of the court; and therefore such actions are maintainable only in the State and county where the property is situated.1 This applies to indictments in rem. Although indictments for nuisances affecting two counties may have been entertainable in either county by the common law, the same rule does not apply between States. An indictment for a nuisance can properly be brought only in the State within which the nuisance was committed. This is true of the common-law indictments of offenders, as well as of the statutory indictment in rem.2

§ 443. Indictments lie only for breaches of the law punishable as crimes, and criminal laws have no extra-territorial force.3 Acts done outside the sovereign's territory are not breaches of his law, although they may produce harmful consequences within it. Such consequences are not crimes in themselves. The first case involving the question arose in New Hampshire, and is opposed to this reasoning. There an indictment was found against the defendant for erecting and maintaining a dam, thereby overflowing the highway and making it impassable. The indictment allegedthat the dam was situated partly in New Hampshire and partly in Maine. The evidence showed that it was entirely in Maine. It was held by Parker, C. J., that the gravamen of the indictment was the damage to the highway, and that

which the plaintiff designates for that purpose in the title of the complaint." But in American Union Telegraph Co. v. Middleton, 80 N. Y. 412, decided when the same provisions were in force, it was held that the action of trespass quare clausum was local in its character, and would not lie in New York for injuries to lands in New Jersey.

1 Story, Conflict of Laws, § 551. That this rule extends to counties, see in re Eldred, 46 Wis. 530.

2 Mississippi & Missouri Railroad Co. v. Ward, 2 Black, 484; In re Eldred, 46 Wis. 530.

3 For an exception to this rule, showing that the sovereign may make laws authorizing certain acts to be done out of the State, and prescribing their effect within it, and may make laws controlling his citizens when without the State, for the violation of which they may be punished within it, see State v. Main, 16 Wis. 398.

State v. Lord, 10 N. H. 357.

the variance as to the situation of the dam was immaterial. The correct rule was stated in New Jersey in the case of State v. Babcock. There an obstruction was placed in the Hudson River, on the soil of New Jersey, but within the exclusive jurisdiction of New York, by compact between the two States, and an injury was caused in New Jersey. The Court held that the indictment could not be maintained in New Jersey.

§ 444. In equity the distinction between local and transitory actions is unknown, and as equity acts in personam, there is no obstacle of territorial jurisdiction to prevent the granting of equitable remedies for nuisances affecting land in another county or State. If the defendant is within the jurisdiction of the court, he can be controlled and prevented from injuring the property of another, wherever it is situ ated. This rule was applied by the court of New Hampshire to protect a mill dam. The complainants owned a dam in the river bounding the State, which extended across the river into the State of Maine. The defendant was a citizen of New Hampshire. It was held on a bill filed for that purpose that the court had jurisdiction to issue an injunction restraining the defendant from destroying the dam of the complainants in Maine.2

1 State v. Babcock, 1 Vroom, 29, 32. Elmer, J., in delivering the opinion, said: "The case does not materially differ from a line between two States on the land which happens to be the scene of a busy population, where a manufactory near to that line in one State may be a nuisance to the citi zens of the other, whose redress will have to be obtained from the tribunals of the State in which the nuisance is situate." This case is approved by Ryan, C. J. (In re Eldred, 46 Wis. 530), and the case of State v. Lord, criticised.

2 Great Falls Manuf. Co. v. Worster, 23 N. H. 462. In the similar case, Stillman v. White Rock Manuf. Co., 3 Wood. & M. 538, 545, some re

marks are made contrary to this. The court say: "The owners of the canal, the supposed wrong-doers, reside there, and an injunction issuing in another State or Circuit could not be executed there, it being a proceeding quasi in rem. The injured party then must be deprived entirely of this legal summary and useful species of redress, unless rights and jurisdiction to protect them exist beyond the centre of the stream." The court say, in another place: "The remedy by injunction is a specific one, or quasi in rem, and whether that nuisance be in fact situated in Rhode Island or Connecticut, it must be enjoined against wherever it is, and there alone, and by the laws existing there alone, it

§ 445. In the Federal courts the question has been considered both with reference to their own jurisdiction and that of the State courts. The decisions are not altogether harmonious. The judges speak of the courts in general terms, but such remarks must be taken to refer to the Federal courts,

must be abated, if at all." This is true as to abatement, as we shall see, but the court seem to proceed on an erroneous view of the nature of the equitable remedy. There might be difficulty in obtaining jurisdiction and control of the defendant, but it would not be because equity acts upon the res. The decision seems to confuse the injunction directed against the defendant in personam, forbidding him to maintain the nuisance, with a proceeding against the nuisance, in rem, to abate it. The case of Morris v. Remington, 1 Pars. Sel. Cas. Eq. (Pa.) 387, decided in 1849, two years before the case of Great Falls Manuf. Co. v. Worster, is also opposed to the doctrine in the text. The parties owned adjoining lands separated by a stream, in Montgomery County. The defendant cut a new channel for waters supplying the stream, upon his land, and thereby diverted water from his stream, and from the plaintiff's race. plaintiff filed a bill in Philadelphia County for an injunction to prevent such diversion. The defendant demurred for want of jurisdiction. The demurrer was allowed and the decision sustained above. The court (per King, P. J.) said: "Broad as is the language of the text-writers and even of the courts, in regard to this position that equity, having possession of the person of the wrong-doer, acts without regard to the local origin of the tort, it is nevertheless true that proceedings in chancery are like proceedings in all other judicial tribunals, sometimes local and sometimes transitory. . . . The remedies in equity in cases of private nuisances, to be co-extensive with the wrong, must have

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a triple aspect. They must include the restraint and prevention of a contemplated nuisance; the removal of such a nuisance when perpetrated before the action of the court has been invoked; and compensation in damages for injuries resulting from such nuisances in cases where restraint and removal falls short of doing entire justice to the party aggrieved. And to this extent fully has the action of courts of equity gone, in cases of private nuisances. To stop short of this would be an admission of a want of power in the court to give a perfect remedy to its suitor." He then discusses the difficulty and impossibility of awarding an issue upon damages, taking a view, and sending a writ of assistance into Montgomery County, and holds that on account of the impossibility of granting all forms of relief, equity will not take jurisdiction. In another place, he says: "It may be here aptly remarked that in reference to local actions respecting lands in Montgomery County, this court has no more jurisdiction than if they were in the county of Middlesex, in England." It is to be noticed that an injunction restraining a nuisance does not involve a transfer of possession, and therefore needs no writ of assistance; that the abatement in equity is accomplished by a decree in personam, directing the defendant to abate; that compensation in damages is not necessary to the granting of the other remedies, and, if granted, is also enforced by a decree in personam, and, if necessary, by confinement of the defendant for contempt, until it is performed.

except where a different meaning is plainly indicated. Where parties, residing on opposite sides of a stream, the boundary between Rhode Island and Connecticut, owned a dam and water-power in common, and the respondents, by another dam on the Rhode Island side, diverted water from the common water-power, it was held that the complainants in Connecticut had an easement in the water beyond the centre of the stream, that the injury occurred in Rhode Island, and that the remedy must be sought in the courts of Rhode Island, or if pursued in the tribunal of the general government, it must be in the district of Rhode Island, and not in that of Connecticut.1 Woodbury, J., said: "If this view of the rights of the parties were not thus shown to be entirely sound, it might be reasonable in a case like this to hold a wrong-doer liable, either where the direct act is done, or where the consequential injury was felt." It was held in the Circuit Court that the several districts within its limits are to be treated as counties, and that the rule in Bulwer's case applies to them. An action was brought in the Circuit Court for the New Jersey district for damages to lands in Pennsylvania, caused by the wrongful diversion of a stream in New Jersey, and the court held that it was maintainable.2 From this it follows that the action is maintainable in the Circuit Court in either district. So where A. diverted, in Connecticut, a stream of water which had its rise in Connecticut, and flowed into Massachusetts, so that it ceased to flow to B.'s mill, situated on the same stream in Massachusetts, the Circuit Court for the district of Connecticut held that it had jurisdiction of an action by B. against A. for the damage caused by the diversion. Ingersoll, J., in the opinion, cited the remark of Woodbury, J., given above, and added approvingly: "And

1 Stillman v. White Rock Manuf. by any obstruction or drain in Rhode Co., 3 Wood. & M. 538.

2 Rundle v. Delaware & Raritan Canal, 1 Wall. Jr., 275. In Slack v. Walcott, 3 Mason, 508, the suit was to establish a prior right to the waters of the Pawtucket River, and to prevent its diversion. Story, J., said: "The wrong done by stopping the flow of the water

Island, is an injury done to the mill itself in Massachusetts. In a just sense, the wrong may be said to be done in both States, like the analogous case of an injury to land lying in one county by an act done in another county."

8 Foot . Edwards, 3 Blatch. 310.

the cases which he puts clearly show that he so considered the law to be;" i.e., that the rule in Bulwer's case applies to Federal districts.

$ 446. But the Federal District Courts are subject to the same limitation which prevents the State courts from taking jurisdiction of proceedings in rem over foreign nuisances. Such proceedings are local in any case, and can be brought only in courts which have jurisdiction of the thing; that is, within the territorial limits of whose jurisdiction the nuisance is situated. Their power in rem extends to the boundaries of their districts and no further. So it is held in the Supreme Court of the United States that a suit to abate a nuisance is a local suit, and can be brought only in the district where the nuisance is situated. The nuisance complained of was a bridge across the Mississippi between Illinois and Iowa, the boundary being the middle of the river. The channel used for navigation was on the Illinois side of the stream, and the alleged obstruction consisted of a pier for the drawbridge, which stood in this channel. The complainant filed his bill in the United States District Court for the district of Iowa, praying an abatement of the nuisance. Catron, J., in delivering the opinion in the Supreme Court, said: "The complainant sued in the Federal Court because of his citizenship in a different State from the defendant; and the United States District Court, holden in Iowa, exercised the same jurisdiction that a State Court of Iowa could have exercised, and no more. It had no power beyond the middle of the river. . . . It was at the long pier, and in the Illinois draw east of that pier that the complainant's boats sustained the injuries on which he found his right to sue the Iowa corporation, and to proceed against the bridge in rem as a public nuisance. An indictment could only have been prosecuted against the owner for keeping up the nuisance in Illinois in the Courts of that State, because the nuisance was a trespass and crime against the laws of Illinois, and the injuries to the complainant's boats giving him the privilege to sue and abate the obstruction was as local as the public right

1 Mississippi Railroad Co. e. Ward, 2 Black, 485.

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