A bill was filed by the Corporation of Georgetown on behalf of
themselves and the citizens of Georgetown against the Alexandria
Canal Company, stating that the company was constructing an
aqueduct across the Potomac River within the corporate limits of
Georgetown, that the Potomac was a public highway, and that the
free use of the river was secured to all persons residing on the
border of the river or interested in its navigation by the compact
of 1785 between Virginia and Maryland. The aqueduct, with the works
of the Alexandria Canal Company, the bill stated, obstructed the
navigation of the river and injured the owners of wharf property on
the same. The bill asked an injunction to stay the further
proceedings of the defendants and for other relief. The Alexandria
Canal Company, incorporated by Congress, denied the right of the
Corporation of Georgetown to interfere in the matter, denied that
their works are within the corporate limits of Georgetown and that
the court has jurisdiction to interfere or can restrain them from
prosecuting their works under their charter, averring they have not
transcended the power granted to them by Congress on 26 May, 1830.
The circuit court dismissed the bill, and, on an appeal to the
Supreme Court, the decree of the circuit court was affirmed.
The compact between Virginia and Maryland, in 1785, was made by
the two states in their character of states. The citizens
individually of both commonwealths were subject to all the
obligations and entitled to all the benefits conferred by that
compact. But the citizens of each individually were in no just
sense the parties to it. These parties were the two states of which
they were citizens. The same power which established it was
competent to annul or to modify it. Virginia and Maryland, if they
had retained the portions of territory which respectively belonged
to them on the right and left banks of the Potomac, could have so
far modified this compact as to have agreed to change any or all of
its stipulations. They could, by their joint will, have made any
improvements which they chose, either by canals along the margin of
the river or by bridges or aqueducts across it or in any other
manner whatsoever. When they ceded to Congress the portions of the
territory embracing the Potomac River within their limits, whatever
the Legislatures of Virginia and Maryland could have done by their
joint will after that cession could be done by Congress, subject
only to the limitations imposed by the acts of cession.
The act of Congress which granted the charter to the Alexandria
Canal Company is in no degree a violation of the compact between
the States of Virginia and Maryland or of any of the rights that
the citizens of either or both states claimed as being derived from
it.
The Potomac River is a navigable stream, or part of the
jus
publicum, and any obstruction to its navigation would, upon
the most established principles, be a public nuisance. A public
nuisance being the subject of criminal jurisdiction, the ordinary
and regular proceeding at law is by indictment or information, by
which the
Page 37 U. S. 92
nuisance may be abated, and the person who caused it may be
punished. A court of equity may take jurisdiction in cases of
public nuisance by an information filed by the attorney general. If
any particular individual shall have sustained special damage from
the erection of it, he may maintain a private action for such
special damage because to that extent he has suffered beyond his
portion of injury in common with the community at large.
While it is admitted by all that the jurisdiction of a court of
equity in cases of nuisance is confessedly one of delicacy, and
accordingly the instances of its exercise are rare, yet it may be
exercised in those cases in which there is imminent danger of
irreparable mischief before the tardiness of the law could reach
it.
There are cases in which it is competent for some persons to
come into a court of equity as plaintiffs, for themselves and
others having similar interests. Such is the familiar example of
what is called a creditor's bill. But in all these cases the
parties have an interest in the subject matter which enables them
to sue, and the others are treated as a kind of plaintiffs with
those named, although they themselves are not named.
The appellants filed their bill in the court below in July,
1836, stating in substance that they were deeply interested in the
trade and navigation of the Potomac River, a common highway, the
unobstructed use of which is secured by a compact in 1786 between
the States of Virginia and Maryland. That the appellees, under the
alleged authority of an Act of Congress of 26 May, 1830, are
engaged at Georgetown and within its corporate limits in
constructing an aqueduct over the said river. That the said
aqueduct is designed to rest on massive stone piers having their
foundation on the solid rock at the bottom of said river. That to
build said piers coffer dams are used around the site of them, with
a double row of piling, the inner and outer rows of piling twelve
or thirteen feet apart. That the appellees have finished one pier.
That in building it, they filled up the space between the inner and
outer rows of piling with clay and earth. The appellants expressed
fears, that the clay so used would injure the harbor of the town
and channel of the river, but they were assured by the appellees
that the clay so used, on completing the pier, should be taken
away, and not permitted to be swept into the harbor and river. The
bill further states that in the construction of the second pier,
then in progress, the appellees not only used clay between said
rows of piling, but threw large masses of clay and earth into the
open river outside the outer row of piles; that the current of said
river and freshets to which it was subject had swept and
Page 37 U. S. 93
would sweep said clay and earth into the channel and harbor, and
had materially injured and would injure said channel and harbor.
That the appellants had expended large sums of money (in part
granted to them by Congress) in deepening the channel of the river
below the town, and that the depth of water had been materially
lessened, caused in part and materially by the said works of the
appellees.
The bill further states that the appellants, before filing their
bill, remonstrated against the use of said clay and earth in the
open river outside the dams to the officer in charge of the work,
but he asserted his right so to use it, and would use it when the
safety of his works in his judgment required, and was so instructed
by his principals.
The bill further stated that the appellants had reason to
believe and did believe that the said operation would be renewed in
the construction of the six or more remaining piers of the aqueduct
if not arrested by the order of the court, to the manifest injury
if not ruin of their harbor and channel. The bill further averred
that the appellees were without sufficient means to complete the
work, and called for a statement of their funds. The bill also
averred the charter of the appellees of May, 1830, to be
unconstitutional because it obstructed navigation. It prayed a
perpetual injunction against the appellees in the use of clay and
earth inside or outside the dams and against the progress of the
work so conducted in which they were engaged, and for further
relief, &c.
The answer denied the right of the appellants to sue and the
jurisdiction of the court to enjoin for a public nuisance, and to
give the relief prayed, denied that there was any injury, or
damage, and if any, that it was within the corporate limits of
Georgetown, and averred the validity of the Act of Congress of 26
May, 1830, and their right to proceed under it. The answer avers
that the said charter was granted with the knowledge and
acquiescence of Georgetown, that a large amount of money had been
obtained and expended on the work, and that appellees confidently
believed an ample amount had been and would be furnished to
complete it. They further averred that they had employed skillful
and scientific engineers, that they had adopted the most approved
plan (as set forth in the bill), and that if any injury had
occurred or should occur to the river or harbor of Georgetown,
which they denied, it was the necessary and inevitable result of
the work itself. The answer admits that in building the second
pier, in consequence of a freshet in June, 1836, alleged to have
swept off the original deposit at the bottom
Page 37 U. S. 94
of the river round the pier, and thereby loosening the outer
piles of the dam, they did throw in clay outside the outer rows of
piles to replace said deposit; that it was necessary to do so, and
the only practicable means to save their work; that it was an
emergency not likely again to arise, and that it did not and could
not produce the mischiefs alleged and apprehended by the
complainants. To so much of the bill as averred the financial
inability of appellees to complete the work and called for a
development of their resources they demurred. Proof was taken on
both sides and filed with the bill and answer, the general
replication filed, and the cause by consent set for final hearing.
The court below refused to grant the injunction and the relief
prayed and dismissed the bill, and the appellants thereupon
appealed to this Court.
MR. JUSTICE BARBOUR delivered the opinion of the Court.
The appellants filed their bill in the court below in behalf of
themselves and the citizens of Georgetown against the appellees,
containing various allegations, the material parts of which are
substantially these:
That the appellees, who were defendants in the court below, had
been and then were engaged in constructing an
Page 37 U. S. 95
aqueduct over the Potomac River at Georgetown, within its
corporate limits, immediately above and west of the principal
public and private wharves of the town; that the Potomac River,
above and below the aqueduct continuously outward to the sea, was a
public navigable highway; that the free use of that river was
secured to all the people residing on its borders or interested in
its navigation by a compact between the States of Virginia and
Maryland in the year 1785; that Georgetown derived its chief
support and prosperity from the trade of the Potomac; that large
sums of money had been expended by the complainants at the wharves
of the town in deepening the water on the bar across the main
channel immediately below the town and north and west of the long
bridge across the Potomac; that the defendants had constructed one
massive stone pier and were about to construct others; that by the
use of clay and earth thrown in to make close certain coffer dams
used by the defendants in the construction of the piers, the harbor
has been injured and the depth of water in the cut or channel
through the bar below the town has been diminished already, and
that they apprehend serious injury in future from the same causes;
that by the construction of their piers of stone and in such a way
as greatly to increase the force of the current, other earth and
mud have been and will be washed down by the velocity of the
current so as to injure the wharves and harbor of the town and
impair the navigation of the river. The bill charges that the
aqueduct can be constructed without the use of clay and earth from
which so much injury is apprehended. It proceeds to state in minute
detail the nature and character of the injury apprehended to the
harbor, wharves, and navigation, and concludes with a prayer for an
injunction prohibiting the defendants from further depositing earth
and clay in the Potomac River outside or inside their coffer dams
or otherwise, to the injury of the navigation of the river and the
harbor of Georgetown, and with a prayer also for general
relief.
The defendants answered denying that the complainants, the
Corporation of Georgetown, had any right, title, or interest in the
waters of the Potomac River, which they aver to be a public
navigable river and a common highway; they deny that the works in
the construction of which they are engaged are within the corporate
limits of Georgetown; they deny the right of the Corporation of
Georgetown to file the bill in behalf of the citizens of the town;
they deny the jurisdiction of a court of equity over nuisances in
public rivers
Page 37 U. S. 96
and highways, and also its power to enjoin them from the
prosecution of the works in which they are engaged under their
charter; they insist that Congress had full power to grant to them
the charter of incorporation and to authorize the construction of
the works in which they are engaged. They aver that they have not
transcended the power conferred by their charter, which was granted
to them by an Act of Congress passed on 26 May, 1830, which they
exhibit as part of their answer. They then proceed to answer the
bill at large upon its merits.
It is unnecessary to state the evidence in the case because our
opinion is founded upon considerations independent of the facts
which that evidence was intended to prove.
We shall forbear also from any expression of opinion upon some
of the topics discussed at the bar because, whilst they are
important in their character, they have no bearing upon the
principles on which our judgment proceeds.
We will now very briefly state them and the conclusions which
necessarily flow from them. The compact made in the year 1785
between Virginia and Maryland was made by the two states in their
character as states. The citizens individually of both
commonwealths were subject to all the obligations imposed and
entitled to all the benefits conferred by that compact. But the
citizens as such individually were in no just sense the parties to
it. Those parties were the two states, of which they were citizens.
The same power which established it was competent either to annul
or to modify it. Virginia and Maryland, then, if they had retained
the portions of territory respectively belonging to them on the
right and left banks of the Potomac, could have so far modified
this compact as to have agreed to change any or all of its
stipulations. They could by their joint will have made any
improvement which they chose, either by canals along the margin of
the river or by bridges or aqueducts across it, or in any other
manner whatsoever.
When they ceded to Congress the portions of their territory
embracing the Potomac River within their limits, whatsoever the
Legislatures of Virginia and Maryland could have done by their
joint will after that cession could be done by Congress, subject
only to the limitations imposed by the acts of cession.
We are satisfied, then, that the act of Congress which granted
the charter to the Alexandria Canal Company is in no degree a
violation of the compact between the States of Virginia and
Maryland or of
Page 37 U. S. 97
any rights that the citizens of either or both states claimed as
being derived from it.
Congress then, having the power, authorized the Alexandria Canal
Company
"to cut canals, erect dams, open feeders, construct locks, and
perform such other works as they shall judge necessary and
expedient for completing a canal from the termination or other
point on the Chesapeake & Ohio Canal to such place in the Town
of Alexandria as the board of directors shall appoint."
Now as one of its termini was authorized to be either the
termination or some other point on the Chesapeake & Ohio Canal,
and the other someplace in the Town of Alexandria, and as the
Potomac lies between these termini, the authority to construct an
aqueduct was granted
ex necessitate. But if certainty
required to be made more certain, this is done by the language of
the ninth and fourteenth sections of the Act of May 26, 1830,
granting the charter, in both of which the term "aqueducts" is used
in such a manner as incontestably to prove that Congress considered
the power to construct them as given by the charter.
If, then, as we have said, Congress had power to authorize the
construction of an aqueduct across the Potomac, if so having the
power, they have given to the Alexandria Canal Company the
authority to construct it, and if, in the construction, that
company has not exceeded the authority given them, either in the
thing done, or in the manner of doing it, so as to produce the
least injury or inconvenience practicable consistently with the
execution of the work, it would be difficult as a legal proposition
to predicate of such a work that it was unlawful or that it was a
nuisance so as to justify a court in interfering to prevent its
progress towards completion.
It is unnecessary, however, to prosecute this inquiry, because
there is a view of this subject which we think decisive of the
case.
Were it even admitted that the Canal Company had exceeded the
authority under which it was acting, nevertheless, as the Potomac
River is a navigable stream, a part of the
jus publicum,
any obstruction to its navigation would, upon the most established
principles, be what is declared by law to be a public nuisance. A
public nuisance being the subject to criminal jurisdiction, the
ordinary and regular proceeding at law is by indictment or
information by which the nuisance may be abated and the person who
caused it may be punished. If any particular individual shall have
sustained special
Page 37 U. S. 98
damage from the erection of it, he may maintain a private action
for such special damage, because to that extent he has suffered
beyond his portion of injury in common with the community at large.
5th Bac.Abridg. Nuisance, B. 51. 2d Lord Raym. 1163.
Besides this remedy at law, it is now settled that a court of
equity may take jurisdiction in cases of public nuisance by an
information filed by the attorney general. This jurisdiction seems
to have been acted on with great caution and hesitancy. Thus, it is
said by the Chancellor in 18 Vesey 217 that the instances of the
interposition of the court were confined and rare. He referred, as
to the principal authority on the subject, to what had been done in
the Court of Exchequer upon the discussion of the right of the
attorney general by some species of information to seek on the
equitable side of the court relief as to nuisance, and preventive
relief.
Chancellor Kent, in 2d John.Chan. 382, remarks that the equity
jurisdiction in cases of public nuisance, in the only cases in
which it had been exercised -- that is, in cases of encroachment on
the King's soil -- had lain dormant for a century and a half --
that is, from Charles I down to the year 1795.
Yet the jurisdiction has been finally sustained upon the
principle that equity can give more adequate and complete relief
than can be obtained at law. Whilst, therefore, it is admitted by
all that it is confessedly one of delicacy, and accordingly the
instances of its exercise are rare, yet it may be exercised in
those cases in which there is imminent danger of irreparable
mischief before the tardiness of the law could reach it.
The court of equity also, pursuing the analogy of the law that a
party may maintain a private action for special damage even in case
of a public nuisance, will now take jurisdiction in case of a
public nuisance at the instance of a private person where he is in
imminent danger of suffering a special injury for which, under the
circumstances of the case, the law would not afford an adequate
remedy. Amongst other cases, this doctrine is laid down in the case
of
Crowder v. Tinkler, 19 Vesey 616. In that case, p. 622,
the chancellor says
"Upon the question of jurisdiction, if the subject was
represented as a mere public nuisance, I could not interfere in
this case, as the attorney general is not a party; and if he was a
party upon the
dicta, unless it was clearly a public
nuisance generally, the court would not interpose by injunction
until it had been tried at law. The complaint is therefore to be
considered as of not
Page 37 U. S. 99
a public nuisance simply, but what, being so in its nature, is
attended with extreme probability of irreparable injury to the
property of the plaintiffs, including also danger their existence,
and on such a case, clearly established, I do not hesitate to say
an injunction would be granted."
The principle is also distinctly asserted and acted on by
Chancellor Kent in the case of
Corning v. Lowerre, 6
John.Chan. 439. In that case, a bill was filed for an injunction to
restrain the defendant from obstructing Vestry Street in the City
of New York, and averring that he was building a house upon that
street to the great injury of the plaintiffs, as owners of lots on
and adjoining that street, and that Vestry Street had been laid
out, regulated, and paved for about twenty years.
The injunction was granted. The Chancellor said that here was a
special grievance to the plaintiffs affecting the enjoyment of
their property and the value of it. The obstruction was not only a
common or public nuisance, but worked a special injury to the
plaintiffs.
The principle, then, is that in case of public nuisance, where a
bill is filed by a private person asking for relief by way of
prevention, the plaintiff cannot maintain a stand in a court of
equity unless he avers and proves some special injury.
With this principle as our guide, let us now examine the
pretensions of the appellants in this case. Who are they? Not,
indeed, a private person, but a corporation. They profess to come
into court for themselves and for the citizens of Georgetown. Now
it is not even pretended that in their character of a corporation
only they have any power or authority given to them by their
charter to take care of, protect, and vindicate in a court of
justice the rights of the citizens of the town in the enjoyment of
their property or in removing or preventing any annoyance to it.
Nor does such a power attach to them in their corporate character
upon any principle of the law in relation to corporations. The
complainants, then, must, as in the case of private persons, to
maintain their position in a court of equity for relief against a
public nuisance, have averred and proved that they were the owners
of property liable to be affected by the nuisance and that, in
point of fact, were so affected, so as that they thereby had
suffered a special damage. Now there is no such averment in this
bill. The appellants seem to have proceeded on the idea that it
appertained to them, as the corporate authority in
Page 37 U. S. 100
Georgetown, to take care of and protect the interests of the
citizens. In this idea we think they were in error, and that they
cannot upon any principle of law be recognized as parties competent
in court to represent the interests of the citizens of Georgetown.
Nor is the difficulty obviated by associating with them the
citizens of Georgetown as persons in whose behalf they sue. There
are indeed cases in which it is competent for some persons to come
into a court of equity as plaintiffs for themselves and others
having similar interests; such is the familiar example of what is
called a creditors' bill. But in that and all other cases of a like
kind, the persons who by name bring the suit and constitute the
parties on the record have themselves an interest in the subject
matter which enables them to sue, and the others are treated as a
kind of co-plaintiffs with those named, although they themselves
are not named. But in this case it has been already said that the
appellants have no such interest as enables them to sue in their
own name, and consequently the whole analogy fails. Moreover, if
the citizens of Georgetown were even parties on the record, the
objection would equally lie against them unless they could show a
special damage as a ground to stand upon.
With these views, we are of opinion that the decree of the court
below dismissing the appellants' bill is correct; it is
therefore
Affirmed with costs.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington and was argued
by counsel, on consideration whereof it is decreed and ordered by
this Court that the decree of the said circuit court in this cause
be and the same is hereby affirmed with costs.
