that it was absolute destruction to the mill. Vide also Crockford v. Alexander, 15 Ves. 138. In all these cases there was no dispute about the plaintiff's title; that was a conceded point in all of them. But in Pillsworth v. Hopton, 6 Ves. 51, an injunction to restrain waste was denied, the defendant being in possession and claiming by an adverse title; and in Smith v. Collyer, 8 Ves. 89, it was refused where the title was disputed as between devisee and heir at law.

This doctrine was several times under the consideration of Chancellor Kent. In Stevens v. Beekman and others, 1 Johns. Ch. 318, he refused an injunction to restrain the defendants from cutting timber from land of which the plaintiff was in possession as owner, although it was alleged that the premises were principally, if not exclusively, valuable on account of the timber. He adverted to the doubts and difficulties of Lord Thurlow and Lord Eldon as to injunctions for trespass, and expressed his own conviction that the public convenience would not be promoted by the exercise of such jurisdiction, except in cases of a very peculiar nature, where irreparable injury would otherwise arise. In Livingston v. Livingston, 6 Johns. Ch. 497 [10 Am. Dec. 353], the defendant and his tenant claimed a right to estovers in the land of the plaintiff; there had been an action at law tried and decided in favor of the plaintiff, and another suit was pending on the same question. In this stage of the case, the plaintiff applied for an injunction to restrain the defendant and his tenants from cutting any more timber; the injunction was granted on the ground of preventing multiplicity of suits. The right having been decided in favor of the plaintiff in one action, and another suit at law being still pending, the chancellor held it just and necessary that the further disturbance of the freehold should be prevented until the right was finally settled. The chancellor referred to the English cases in which injunctions to restrain trespasses had been granted, and said the principle of the jurisdiction in all of them was to preserve the estate from destruction; he also referred to the then recent cases of Garstin v. Asplin, 1 Madd. Ch. 150, as showing that the general rule in England was that an injunction will not lie in a naked case of trespass where there is no privity of title, and where there is a legal remedy for the intrusion; that there must be something peculiar in the case so as to bring the injury under the head of quieting possessions, or to make out a case of irreparable mischief or of jeopardy to the inheritance.

This doctrine was again considered and elaborately discussed by Chancellor Kent in Jerome and others v. Ross, 7 Johns. Ch. 315 [11 Am. Dec. 484], where he dissolved an injunction which had been granted by one of the vice-chancellors, restraining the defendants from taking and carrying away stone from a ledge or mass of rock belonging to the plaintiff, for the purpose of being used in the construction of a dam connected with the Champlain canal. He again referred to the English cases, and again remarked that they were all cases of great and irremediable mischief, which damages could not compensate, because the mischief reached to the very substance and value of the estate, and went to the destruction of it in the character in which it was enjoyed. The case before him he held distinguishable from those, by the fact that the plaintiff did not aver or show that the mass of rock on which the trespass was committed was of any essential use or value; and he remarked that if the plaintiff was entitled to an injunction in that case, he did not see why every man in the possession of land might not call for an injunction to protect him from his neighbor's trespasses in every possible case; that he thought it inexpedient, upon every principle of justice and policy, to substitute the chancery. remedy of injunction for the more gentle common law remedy by action; and the assessment of damages by a jury, except in very strong, peculiar, and aggravated instances of trespass, where the injury could not well admit of recompense. He referred to several cases in which incorporated companies and other public bodies had been restrained by injunction in cases of trespass; but they were all cases in which they clearly exceeded their powers, and were making permanent appropriations of the land, and were destroying the inheritance of the complainants: Agar v. The Regents' Canal Co., Coop. Eq. 77; Shand v. Henderson, 2 Dow. 519; Hughes v. The Trustees of Merton College, 1 Ves. 188. In this last case, Lord Hardwicke granted an injunction against the commissioners of a turnpike. company, who forcibly entered the complainant's garden, dug up his roots, etc., and took from it gravel for their road. Although a very aggravated case, Lord Hardwicke said that if there had been any ground of doubt as to the authority of the commissioners, he would not have interposed until that doubt was removed, and finally determined at law; but none such existing, the nature of the injury was such as to entitle the complainant to an injunction: Vide, also, 2 Johns. Ch. 162, 463. The principle of interfering by injunction to prevent multi

plicity of suits, is applicable only to cases where the right is controverted by numerous persons, each standing on his own ground, and not to the case of one or more persons persevering in repeated acts of trespass, notwithstanding suits and recoveries against them: Lord Tenham v. Herbert, 2 Atk. 483; Eldridge v. Hill and Murray, 2 Johns. Ch. 281. In Livingston v. Van Ingen, 9 Johns. 507, the defendants were restrained from navigating the Hudson river with boats propelled by steam, in violation of an exclusive right conferred upon the complainants by a long-continued series of legislative acts. The right of the complainant was held to be clear, and the injury not easily susceptible of compensation by way of damages.

To entitle the complainants in this case, therefore, to an injunction upon the principles established and recognized in the cases above referred to, it was incumbent upon them to establish at least a strong prima facie right to erect and continue their float in the basin in the manner and for the purpose stated in the pleadings; and to show that if it should be removed or destroyed, the injury would be irremediable and incapable of compensation by way of damages. The burden of establishing the right rests upon the complainants. They invoke the extraordinary interposition of a court of equity to protect their property against a trespasser, and must bring themselves within the established principles upon which alone a court of equity will interpose in such cases. They appear to me to have utterly failed in establishing their right; in the first place, there is no presumption in its favor arising from long-continued and unmolested exercise and enjoyment. They were warned by a formal notice from the corporation before their machine was completed that its erection was considered illegal. It was erected in direct violation of an ordinance of the corporation of the city of Albany. The complainants neither show nor claim any exclusive or peculiar right to erect and use a float of this description within the basin. It is conceded that the proprietors of any other line of tow boats, or any individual or association of individuals engaged in the shipping and transporting of merchandise, would have the same right to erect a similar machine, and that it would be equally convenient and advantageous to them. It is admitted that if this right should be generally exercised, and any considerable number of these floats should be permanently moored within the basin, it would destroy the main purpose for which it was created, and instead of promoting the public convenience they would then become

a public nuisance. The object of the construction of the basin was to afford a safe harbor for canal boats and vessels navigating the river, while engaged in transhipping produce and merchandise, the one from the other, or in unlading and taking in their cargoes in any other manner. All the provisions of the act show that the common, free, and uninterrupted use of every part of the basin was intended to be secured to all the canal boats and vessels that might enter it; and a right permanently and exclusively to occupy any portion of its waters by any individual or association of individuals is utterly inconsistent with the purpose for which it was created, whether it be considered a mere basin or dock, or a public highway. If the complainants can moor a floating storehouse in the basin, it is not perceived why they may not erect a more permanent building, with its foundation on the bottom of the basin.

It is very immaterial to the public how far either below or above the surface of the water the obstruction reaches; it impedes the navigation or other use of the basin neither more nor less on that account; and a row of brick or wooden storehouses, extending from one extremity to the other of the basin, in front either of the pier or of the city docks, at a convenient distance from them, with occasional intervals for the purpose of access to them, may be erected and maintained, for aught I perceive, upon the same principles on which the right to erect the float in question is maintained. It may very well be that the convenience of the public at large would be promoted by it; that additional facilities for the transhipping of goods would be afforded; and that enough of the basin would still be left for the accommodation of the sloops and boats that might enter it. And yet, conceding all this, would any man contend that such erections could be justified? It seems to have been supposed by the complainants in their bill, and also by their counsel, that the circumstance of their being the owners or lessees of the pier lots, opposite to which their float is moored, gave them a right, in relation to that part of the basin, which otherwise they might not have possessed. I see no foundation for this opinion. The act authorizing the construction of the basin, Laws of 1823, page 128, made it the duty of the commissioners of the land office to grant, by letters patent, to the commissioners appointed by that act, the land under water, occupied by said mole or pier, as soon as it should be completed; and the commissioners were to divide it into lots, and sell those lots at auction. The purchasers, as proprietors of the pier, acquired

certain rights in relation to canal tolls and wharfage and dockage, but they have no right to appropriate or use the waters of the basin, or the land under those waters, in any manner which other citizens have not. Whatever may have been the intention of the complainants, it is obvious that their claim, if sustained, may affect most injuriously the proprietors of the city docks and of the pier; that although there may be some conveniences for the purpose of loading and unloading vessels in a floating store-house, which rises and falls with the tide, and which may be approached by boats on all sides at the same time, over a store-house of the same description upon land, yet the most material advantage is the saving to the proprietors the expense, either by way of rent or purchase, which they would have to incur in order to obtain as large an area upon the pier or dock. The store-house of the complainants, of the dimensions of one hundred and twenty by forty-two feet, costs them about two hundred dollars per annum, that being the interest of the sum expended in building it; accommodations to the same extent. on the lower floor of a store or stores on the pier would probably cost at least five times as much. It pays no dockage or wharfage, because it is not a vessel which navigates the Hudson river; and I presume no tax is imposed upon it, either as real or personal estate. If advantages of this character, and to this extent, can be legitimately obtained and enjoyed, there will be little demand for store-houses or lots, as long as there is a vacant spot left in the basin where a floating store-house can be moored.

If the basin be considered merely as a part of the Hudson river (a great public highway), the right of the appellants permanently to appropriate any portion of it to their own exclusive use is equally unfounded. They, like all other citizens, can use it only as a highway for the purposes of navigation; they have no right exclusively to occupy any part of it, by either floating or permanent buildings or obstructions. This float, if permanently moored and continued in the open part of the river, thereby rendering the navigation less safe and convenient, would, I apprehend, most clearly be a public nuisance, liable to be indicted as such, or to be abated without indictment by any individual who might be injured or aggrieved by it. It certainly is not less a nuisance, if the views which I have expressed are correct, for being placed within the basin. The cases of The King v. Russell, 6 East, 427; The King v. Cross, 3 Camp. 224; and The King v. Jones, Id. 229, all show that