l. A public nuisance may be abated on a bill in equity brought
by a private party who has suffered special damage.
2. It is necessary for the plaintiff in such a bill to show that
he has sustained and is still sustaining individual injury by the
nuisance.
3. But where the bill is brought in a federal court, it is not
necessary to show that the plaintiff's damage amounts to the sum
which is required to give the courts of the United States
jurisdiction.
4. The jurisdiction is tested by the value of the object to be
gained by the bill, and that object is the removal of the
nuisance.
5. The private party, though nominally suing on his own account,
acts rather as a public prosecutor on behalf of all who are or may
be injured.
6. If he has partners in the particular business affected by the
nuisance, he need not join them as plaintiffs, any more than he
need join other persons who have suffered similar injuries.
7. A bill in equity to abate a nuisance is a local suit, and can
be brought only in the district where the nuisance is situated.
8. Where the nuisance has been erected and is maintained by
several persons or corporations, those who are not within the
jurisdiction of the Court need not be joined as defendants in the
bill.
9. In a bill for the abatement of a nuisance brought in the
District Court of the United States for the District of Iowa, that
Court can exercise no jurisdiction (locally) beyond what a state
court of Iowa might have exercised.
10. The nuisance complained of being; a bridge across the
Mississippi where that river divides the States of Illinois and
Iowa and the state line being in the middle of the river, the
District Court for Iowa has no power to abate the nuisance (if it
be a nuisance) on the Illinois side.
11. If the obstruction to navigation complained of was created
by piers erected on the Illinois side, that was an offense against
the laws of Illinois, and neither a state court of Iowa
proceeding
Page 67 U. S. 486
by indictment nor the federal court for that district sitting in
equity can inquire into the facts or furnish a remedy.
12. Inasmuch as the removal of the three piers and three spans
of the bridge erected between the middle of the river and the Iowa
shore would not materially remedy the nuisance complained of,
though it would render the bridge useless, this Court will not
affirm a decree which orders such removal.
13. If the removal of that part of the bridge which is within
the jurisdiction of the Court would not improve the navigation of
the river so far as the plaintiff is concerned, he is not entitled
to a decree in his favor.
14. In a suit for the abatement of a nuisance, a court of equity
confining its inquiries within the limits of its local
jurisdiction, must be governed by the same rules which a court of
law would act upon in trying an indictment for the same
nuisance.
15. The rule of law is that where a bridge over a navigable
stream is erected for public purposes, and produces a public
benefit, and leaves a reasonable space for the passage of vessels,
it is not indictable.
16. Another rule is that the bridge must appear plainly to be a
nuisance before it can he so decreed, since a court of equity,
proceeding by bill, like a criminal court trying an indictment,
must give the benefit of all reasonable doubts to the
defendant.
17. The Mississippi River being a boundary between states
throughout nearly its whole length, there are judicial difficulties
in dealing with nuisances between its shores which can only be
removed by legislation.
On the 7th of May, 1858, James Ward filed his bill in the
district court, praying for an abatement of the Rock Island Bridge
over the Mississippi River, averring it to be a public nuisance,
specially injurious to him as an owner and navigator of steamboats
to and from St. Louis, Missouri, to St. Paul, Minnesota. The bill
alleged that the Mississippi River is a navigable
Page 67 U. S. 487
stream, the boundary line, in whole or in part, of ten states;
that it is used as a channel of commerce and navigated by boats,
vessels, rafts, and flat boats. That steamboats, with other craft
in tow, require a space from 120 to 140 feet in width, and, where
the bridge is require the entire width of the river for transit,
with at least 60 feet of clear space above for masts and chimneys.
Lumber is one of the largest items of transportation, and by reason
of the winds and currents, rafts require the entire unobstructed
bed of the river. The navigation of the river is a necessity of
trade, and almost the only means of transportation between
Wisconsin, Northern Iowa, Minnesota, and the upper Mississippi. The
complainant is part owner of certain steamboats plying between St.
Louis and St. Paul, and his profits depend upon the safety of the
navigation. He avers that he has, by the treaties with France in
1803, the acts of Congress, and the universal principle recognized
by the common law, a right to the free and unobstructed navigation
of the river in all parts of it. He further asserts that the
navigation has been interrupted and rendered dangerous and
difficult by the erection of a bridge from Rock Island, in the
State of Illinois, to Davenport, in the State of Iowa; that the
river at that point is only about 1,300 feet wide; that it is at
the lower end of the Rock Island Rapids, which Rapids are eighteen
miles in extent above the bridge, with a fall of twenty-five or
thirty feet in that distance; that the current is unusually rapid
at that point and difficult of navigation, and that anything in the
bed of the river greatly injures the safety of boats, especially in
high winds. The bill sets out at length the manner in which the
construction of the piers and abutments of the bridge has imperiled
navigation and obstructed the stream. The complainant alleges
special damage to his own boats occasioned by the obstruction, the
amount, in the instance of one boat, reaching a thousand dollars.
Owing to the danger of navigation, he has been compelled to pay
largely increased premiums for insurance occasioned solely by the
bridge. The bridge and obstructions were placed in the river by the
Mississippi & Missouri Railroad Company, who are made
defendants, with the aid and assistance of the Chicago &
Page 67 U. S. 488
Rock Island Railroad Company, and a bridge company created for
the purpose of its erection by the State of Illinois and by the aid
of other persons to the complainant unknown. The Mississippi &
Missouri Railroad Company have been hitherto and still are
maintaining the said bridge as their own possession and for their
own use and benefit. The said company, by themselves or in
combination with the other companies named which are not within the
jurisdiction of the court, are about to increase the obstruction in
the river by greatly enlarging the piers of the bridge. The said
bridge is a common nuisance now, and the increase of the size of
the piers will increase the danger and obstruction and further
hinder and delay complainant's boats in their passage. From the
number of disasters, the difficulty of procuring evidence, the
expense of preparing for trial, and the peculiarity and diversity
of the injuries sustained, suits at law would not compensate for
the damage.
The prayer of complainant was:
"That on the final hearing of this bill, the court will order,
adjudge and decree that said bridge was erected in violation of
law, and is an obstruction to the navigation of said river, and
that the same is a nuisance, and particularly to your orator, and
that the said bridge and the piers thereof and all material used
therein which injures and obstructs the free navigation of said
river be abated and removed, and the said river be restored to its
original capacity for all purposes of navigation."
The defendant in his answer admits that the Mississippi is a
channel of commerce navigated by boats, vessels &c., and that
steamboats sometimes have barges in tow, but denies that they
require the space alleged, and avers that the width of boats with
their barges does not usually exceed seventy feet, so that the
whole width of the river is not necessary to the safe transit of
such boats. Denies that sail vessels ever navigate the river.
Admits that the amount of lumber rafted down the river is great,
but avers that rafts do not usually exceed seventy feet in width,
while the piers of the bridge are two hundred and fifty feet
apart.
Defendant neither admits or denies the ownership of said
Page 67 U. S. 489
bridge, and avers that if it is so, the joint owners with
defendant ought to be made parties defendant herein, and claims the
same benefit as though objection had been taken by demurrer for
want of proper parties herein; that he has no knowledge or
information as to purpose for which said boats were built or the
business of complainant; denies that complainant has the right as
claimed in all parts of said river; and avers that the right to
build a bridge is as sacred as the right of navigation where no
material obstruction is created, and denies that the treaties, acts
of Congress and principles of law prevent the construction of a
bridge; denies that the navigation has been obstructed or rendered
dangerous and difficult by the erection of a bridge, as alleged;
that the waterway is one thousand three hundred and twenty-two
feet; that the current through the draw in high water is about five
miles per hour; that in time of high winds, boats were not
accustomed to go over the rapids.
The answer describes the bridge minutely, and avers that since
its completion in 1856, there have been more than one thousand
seven hundred passages of steamboats through the draw, many of them
with barges in tow, one with six barges. Defendant admits that the
interruption in the flow of water caused by the bridge increases
the current flowing past said bridge, but avers that such increase
does not exceed the rate of one half mile per hour.
Defendant has no knowledge or information as to any injury to
the steamboats of said complainant as alleged, but if either has
been so injured, it was out of the steamboat channel and
negligently and improperly navigated and managed, as the current is
straight and direct through the draw on the Illinois side of the
draw pier, and if the boats had been put in their proper positions,
they would have passed through safely.
Defendant has no knowledge or information as to increased rates
of insurance.
Admits that the defendant and the Railroad Bridge Company, a
body corporate and politic created by and existing under and within
the State of Illinois by an act of the Legislature of the
Page 67 U. S. 490
State of Illinois, jointly erected said bridge at the joint and
equal cost of said companies, and are the owners thereof, and that
the same was permitted and authorized by the laws of the respective
States of Iowa and Illinois, and that said parties are using the
same as their joint possession and property, and not separated, and
for the use and benefit of the passage of the trains of cars of
this defendant and the Chicago & Rock Island Railroad Company,
and this defendant insists that the said Railroad Bridge Company is
a necessary party hereto, and that no decree granting relief as
prayed in said bill can be given without materially affecting and
destroying the property and interest of said Railroad Bridge
Company, and defendant claims the same benefit for want of proper
parties as though it had demurred thereto for that cause.
Defendant further alleges that on the 11th day of June in the
year 1855, the said Railroad Bridge Company, with the assent of
this defendant, conveyed by deed of trust or mortgage to Azariah C.
Flagg the said railroad bridge and its appurtenances to secure the
payment of four hundred bonds of $1,000 each, made and issued by
the said Railroad Bridge Company for the construction of said
bridge, and that such deed of trust or mortgage was duly recorded
in the Recorder's Office of Rock Island County, in the State of
Illinois, and in the office of the Recorder of Deeds, in Scott
County, Iowa; that such deed for trust is outstanding and in full
force; that a decree abating the bridge would entirely destroy the
interest held by said Flagg under such mortgage, and this defendant
says that said Flagg is a necessary and proper party to this suit,
and that a decree as prayed for cannot be made without destroying
the interest and property of said Azariah C. Flagg.
Defendant admits that it and the Railroad Bridge Company
intended to repair pier No. 4 by adding four feet on one side and
five feet on the other; this has been found necessary by reason of
cracks in it and the danger of its yielding to the pressure of the
ice at the breaking up of the river in the spring, the such
structure has cost nearly $500,000 and would be in danger unless
said repairs and addition to the pier were made.
Page 67 U. S. 491
Defendant admits that it has built a railroad to Iowa City as
charged, that the eastern terminus of said railroad is the eastern
boundary of the State of Iowa as prescribed in its articles of
association.
Defendant denies the increased obstruction or hindrance or delay
and damage from the enlargement and repairs; and avers that
complainant has an adequate remedy at law.
As to the refusal of persons to ship freight on complainant's
boats by reason of the danger of passing the bridge, defendant does
not believe it.
A large body of conflicting testimony was taken to establish the
respective allegations of the bill and answer. After several
preliminary hearings, the cause was submitted upon the bill, answer
and evidence. The court rendered a decree in favor of the
complainant and ordered that so much of the bridge as was in Iowa
should be abated. From this decree defendant appealed to the
Supreme Court of the United States.
MR. JUSTICE CATRON.
James Ward charges the Mississippi & Missouri Railroad
Company with having created a nuisance by erecting a bridge across
the Mississippi River at Rock Island, and prays that the nuisance
may be abated.
The respondent resists the relief prayed on the ground, among
others, that the complainant does not stand in a position to
maintain this suit.
Ward was part owner of three steamboats -- and commander of one
of them -- navigating the river in successive trips between St.
Louis and St. Paul; and which boats, the complainant alleges, were
much injured and delayed by the bridge, which he avers is a great
obstruction to navigation -- amounting to a prominent nuisance. It
is insisted that Ward cannot sue alone, and could only come before
the court jointly with the other part owners
Page 67 U. S. 492
of the vessels injured and delayed. He seeks no damages by his
bill, but only an abatement of the nuisance, as a preventive remedy
against future injury and delay.
A bill in equity to abate a public nuisance, filed by one who
has sustained special damages, has succeeded to the former mode in
England of an information in chancery prosecuted on behalf of the
Crown to abate or enjoin the nuisance as a preventive remedy. The
private party sues rather as a public prosecutor than on his own
account, and unless he shows that he has sustained and is still
sustaining individual damage, he cannot be heard. He seeks redress
of a continuing trespass and wrong against himself, and acts in
behalf of all others who are or may be injured; nor is there more
necessity for joining with his partners in the prosecution than
there is for his joining in the suit any other person as
complainant who has sustained injury. Gibbons on Dilapidation 402.
The character of the nuisance and the sufficiency of the damage
sustained is to be judged by the courts.
Iverson v. Moore,
Ld.Ray 486; 1 Salk. 15; Gibbons on Dilapidation 403. But the want
of a sufficient amount of damage having been sustained to give the
federal courts jurisdiction will not defeat the remedy, as the
removal of the obstruction is the matter of controversy, and the
value of the object must govern.
It is next objected that there are not proper defendants brought
before the court. The Chicago & Rock Island Railroad Company,
who own the bridge on the Illinois side of the river, and the
Bridge Company, who built it, and also A. C. Flagg, who holds a
mortgage on the bridge as trustee for others who advanced money to
aid in its erection, are not made parties to the suit. The Chicago
& Rock Island Railroad Company and the Bridge Company are
incorporated, and located in the State of Illinois, and Flagg
resides in the State of New York. The alleged nuisance is situate
in Iowa, and being local, the suit could only be brought in that
state, and therefore the court had no power to bring these parties
in interest before it.
If the Iowa corporation could have been individually indicted
for creating the nuisance, no reason exists why it should not
be
Page 67 U. S. 493
individually prosecuted in chancery for its abatement. But the
facts present a much more serious objection to the complainant's
right to sue than either of those above stated. The Constitution of
Illinois calls for the middle of the Mississippi River as the
western boundary of that state, and as Iowa was admitted into the
Union after Illinois, a line in the middle of the river is the
dividing line between the states.
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. On that
part of the bridge within Iowa and its piers the court below acted,
and ordered that the structure should be removed.
In considering the merits and the other question as respects the
complainant's right to sue, some additional facts need be
stated.
This bridge is one thousand five hundred and seventy feet long,
and the number of piers is six. Three of them are on the Iowa side
of the river. The draw pier is the fourth; it is three hundred and
eighty-six feet long at its bottom, and forty-five feet wide. The
draw space on the Iowa side is one hundred and eleven feet, and on
the Illinois side one hundred and sixteen feet wide in the clear.
The distance from center to center of the small piers is two
hundred and fifty-seven feet. The long pier stands at an angle with
the thread of the current of about twenty-four degrees, and the
small piers are nearly on a line with the thread of the current.
The Illinois draw passage is directly over the deepest channel of
the river, and directly over the usual track of steamboats before
the bridge was built. The Mississippi is about one thousand four
hundred and ten feet wide at the bridge, and the middle of the
river is about eighty feet westwardly of the long pier.
The Illinois draw passage (one hundred and sixteen feet), the
width of the long pier (forty-five feet), and the eighty feet
between it and the eastern line of Iowa cover a space of two
hundred and forty feet of waterway, and which embraces the main
channel,
Page 67 U. S. 494
where steamboats have at all times navigated. 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 to indict. He asks nothing from the person of the
defendant, but seeks to remove a local object, because he has
sustained special damage from that object.
The district court had no power over the local object inflicting
the injury, nor any jurisdiction to inquire of the facts, whether
damage had been sustained, or how much. These facts are beyond the
court's jurisdiction and powers of inquiry and outside of the
case.
The district court ordered three spans of the bridge and three
of its piers to be removed, extending to middle of the river. And
what would be the consequence if we were to affirm that decree? It
would, as a consequence, render the bridge useless throughout, but
it would not materially remedy the nuisance complained of. The
navigation would certainly not be improved so far as the
complainant is concerned by removing the Iowa end of the bridge.
The cross-currents alleged to exist would remain; the large eddy at
the lower end of the long pier and the obstruction to the Iowa draw
passage by the eddy would still remain.
In the next place, is the bridge west of the Illinois boundary
an
unreasonable obstruction, and therefore a nuisance,
that a court of chancery can lawfully remove? In considering this
question, we must be governed by the same rule on which a court of
law could proceed in case of an indictment against the Bridge
Company for committing the nuisance, and the rule is that if the
abridgement of the right of passage occasioned by the erection was
for a public purpose and produced a public benefit,
Page 67 U. S. 495
and if the erection was in a reasonable situation, and a
reasonable space was left for the passage of vessels on the river,
then it is not an unreasonable obstruction and indictable.
Rex
v. Russell, 6 Barn. & Cresw. 566;
54 U. S. 13
How. 623; 15 Wend. 133.
Then again, the obstruction to navigation must be plainly a
nuisance within this rule before it can be removed by decree. If
the proceeding was by indictment and the jury doubted whether the
obstruction was a nuisance or not, they would be instructed to
acquit the defendant, and so if this case was referred to a jury to
try the fact and they doubted, they would be bound to acquit. And
the same rule applies in a court of chancery where the court
ascertains the fact of nuisance. 2 Story's Com. on Eq.,
203-204.
To say the least in this case, it is certainly very doubtful
whether the bridge on the Iowa side is a serious obstruction
amounting to a nuisance.
The smaller piers on that side are parallel with the current
passing through them, and do not occasion much impediment of
navigation to boats without chimneys, nor to rafts.
The main channel
where steamboats uniformly pass before
the bridge was built, and must now pass, is eastwardly of the
middle of the river and on the Illinois side. On this state of the
facts, it must be admitted that it is hardly possible to deal with
the whole obstruction of any bridge across the Mississippi River,
it being a boundary between states almost throughout its whole
length. And it is difficult to decree in any case of material
obstruction unless the whole nuisance is in the power of the court.
The case before us presents the difficulty very prominently. The
plaintiff's case mainly rests on the fact that the draw pier is at
an angle to the current, and it is assumed that if this pier was
reconstructed parallel with the current and the draw on the
Illinois side was widened, the obstruction would be removed to a
degree making it short of a nuisance. Now this is a question that
we cannot examine, nor reach by a decree, as the relief suggested
is clearly beyond our power in this suit. Congress could extend the
jurisdiction of the federal courts across the Mississippi River by
enlarging the judicial districts on
Page 67 U. S. 496
either side, or it could confer concurrent jurisdiction on
adjoining districts, extending to trespasses and torts committed
within the shores of the river. But the courts of justice cannot do
it unless authorized by an act of Congress.
It is also insisted with great earnestness that the public is
entitled to the free navigation of the
whole river from
bank to bank, and as the western half of the river is undeniably
within the jurisdiction of Iowa, it follows that the bridge is a
clear nuisance within that district to the extent of half its
length. According to this assumption, no lawful bridge could be
built across the Mississippi anywhere, nor could the great
facilities to commerce accomplished by the invention of railroads
be made available where great rivers had to be crossed.
It is ordered that the bill be dismissed and that the costs
be divided -- each party paying its own.
MR. JUSTICE NELSON, dissenting.
I am unable to agree to the opinion of the majority of the Court
in this case. The main issue presented on the pleadings and proofs
involves the question whether or not the free navigation of the
Mississippi River is obstructed by the erection of the bridge in
question across its bed.
The bridge spans the entire stream. As I understood the opinion,
it neither denies nor admits the obstruction, but places the
decision upon the ground that the jurisdiction of the Court is
incompetent to reach or deal with the question.
The east line of the boundary of the State of Iowa and which
constitutes the boundary of the district of the federal court, and
of course of its jurisdiction, is the middle of the Mississippi
River, and the same line constitutes the west boundary of the State
of Illinois, and of course the limit of the jurisdiction of the
federal court in that state. One moiety, therefore, of the bed of
this river is embraced within the local jurisdiction of this court
for the District of Iowa and the other moiety within the
jurisdiction of the court for the District of Illinois. Neither
court possess any local jurisdiction over the entire river, and
hence the idea that neither court is competent or equal to deal
with the obstruction,
Page 67 U. S. 497
and especially that the court in the Iowa District cannot deal
with it on the Illinois side, and for the same reason the court in
the Illinois District could not, if the suit was in that court,
deal with it on the Iowa side.
Now one plain answer to this course of argument seems to me is
that the obstruction complained of is an obstruction of the moiety
of the river on the Iowa side, and within the admitted jurisdiction
of the court. There can therefore be no want of power in the court
to deal with this part of the obstruction. Indeed, it is the only
federal court that can deal with it.
I have not been able to discover any answer to this view, as it
respects the jurisdiction of the court, or its duty to exercise it.
It is admitted that this moiety of the river has been wholly
obstructed so far as the free navigation of the same is concerned
-- a total obstruction by the erection of the bridge.
I am aware it is said or intimated that the main navigable
channel of the river is on the Illinois side, and hence the removal
of the obstruction on the Iowa side could not remedy the wrong
complained of. But is this an answer? It may be admitted that the
channel on the Illinois side affords the best navigable channel at
all seasons of the year for the passage of boats. But the Iowa side
or moiety is also navigable, and perhaps for two-thirds of the
season quite equal to that on the other side, if not in a superior
degree, for the navigation of many of the boats and watercraft
employed on this river. Even in the season of low water, the depth
of the water on the Iowa side ranges from six to ten feet at or
near the bridge, as shown by the surveys of the government
engineers.
But I do not place my dissent to the opinion of the Court wholly
nor even mainly on the ground above stated, but upon much higher
and broader ground.
The right to a free and unobstructed navigation of this river on
the part of the public, and especially of the citizens of the
United States, depends upon the Constitution and the Laws of the
United States -- the public law of the country.
The local laws of the states have no control over it. I speak
now of the free and unobstructed navigation of the river, and
Page 67 U. S. 498
according to this general or public law, the right of navigation
exists over every party of it. No principle is better settled or
more generally admitted. The reason given is well stated by Lord
Denman in
Williams v. Wilcox, 8 Ad. & Ell. 314, and
perhaps no river or navigable stream affords a better illustration
of the soundness of the principle, or of the reasons upon which it
is founded, than the river in question. The reasons are
"that the nature of the highway which a navigable river affords
-- liable to be affected by natural and uncontrollable causes,
presenting inconveniences in different parts and in different
sides, according to changes of wind or direction of the vessel, and
attended by the important circumstance that upon no one is any duty
imposed by the common law to do that which would be analogous to
the ordinary repair of a common highway to remove obstructions --
namely clear away sand banks and preserve any accustomed channel --
all these considerations,"
he observes,
"make it an almost irresistible conclusion that the paramount
right, if it existed at all, must have been a right in every part
of the space between the banks."
Now this principle, if acknowledged and applied in this case,
affords not only ground for the exercise of the jurisdiction of the
court, but makes it a duty to inquire into the question of
obstruction and deal with it according as the pleadings and proofs
may require or justify.
I agree that this principle has been modified by the judgment of
this Court in the case of the
Wheeling Bridge, in its
endeavor to harmonize this public right of navigation with the
subordinate right of the states to erect bridges over these
navigable waters.
The Court there determined that in the erection of a bridge
under state authority, if there still existed a free and
unobstructed navigation of the river, the bridge would not be
considered a nuisance, but upheld as lawful.
The bridge in question is entitled to the benefit of this
modification of the principle. And I agree that if there is a free
and unobstructed navigation of this river on the Illinois side, it
would afford an answer to the admitted obstruction on the side in
Iowa. But this is the only answer that can be given, and it
Page 67 U. S. 499
is apparent that this answer raises the question whether or not
such a channel was left open -- a question which the court must
hear and determine, and without hearing and determining which in
favor of the defendants, the decree must pass against them.
It seems to me, therefore, without pursuing the case further,
that the material question in the case before the court below was
whether, notwithstanding the erection of the bridge, a free and
unobstructed navigation for the passage of boats existed on the
Illinois side of the river, and hence, necessarily, whether or not
the bridge constituted an obstruction over that channel. If it did
not, then the case fell within the qualification of the principle
as applied in the
Wheeling Bridge case. If it did, then
clearly no defense was shown to the admitted obstruction of that
part of the river on the Iowa side.
I express no opinion upon the question of fact, the obstruction,
as that question is not reached according to the decision of a
majority of the Court.
I am requested to state that MESSRS. JUSTICE WAYNE and CLIFFORD
concur in this opinion.
