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that they were specially aggrieved by the gate. It seems to be sufficient to show that the obstruction was illegal, and that the party removing it, either as one of the community at large in the case of a public highway, or by special grant in the case of a private way, had a right to an unobstructed passage there. Every citizen has a right to an unobstructed passage over the navigable waters and public highways of the state; and I apprehend he may remove any obstruction to his passage, and that it will not be necessary for him to aver in his justification that he was specially impeded by it. If this be so, I apprehend with the chancellor that this corporation can not be liable to an action for the exercise of a power which every member of the community possesses. But if the true doctrine be that asserted by the complainants' counsel, that no one but a person aggrieved can remove a public nuisance, the corporation, whose duty it is to preserve the public streets, the docks and slips, and the river opposite thereto, from being in any manner obstructed, may well be considered a party aggrieved by any such illegal obstruction.

If this is a case in which the corporation or any other person had a right summarily to remove or abate this obstruction, then the objection that the appellants by this course of proceeding may be deprived of their property without due process of law or trial by jury, has no application. Formal legal proceedings and trial by jury are not appropriate to, and have never been used in such cases: 2 Cow. 819, n. b; 8 Wend. 85.

On the whole, I am of opinion that the decree of the chancellor ought to be affirmed; but I desire to be understood as placing that opinion principally upon the ground that the complainants have failed to show a case which entitles them to the special interposition and protection of a court of equity according to the well-established principles of that court.

ALLEN, Senator. It was admitted by the counsel for the appellants that the bounds of the county of Albany extonded to a line drawn through the middle of the main stream of the Hudson river, and consequently that the basin and pier were within the corporate limits of the city. The appellants deny, however, that the powers of the common council over the basin extend further than to preserve and maintain good order within the bounds of the city, and, therefore, that the ordinance assuming that the float or ark of the appellants was a nuisance, and the order to remove it were contrary to the powers granted to them by their charter and the statutes amending it, and was

a proceeding not warranted by the constitution of the state. By the act of the legislature, sess. 49, c. 185, sec. 15, the corporation are authorized to regulate docks, wharves, or whatever may be necessary in and about the same; to abate or remove any nuisances; to regulate bridges, wharves, and slips; to prevent all obstructions in the river near or opposite such wharves, docks, or slips; to prevent the incumbering of the wharves or slips; to regulate the police of the city; to be commissioners of highways in and for the city; and generally to make all such rules, by-laws, and regulations for the order and good government of the city, and the commerce and trade thereof, as they may deem expedient, not repugnant to the constitution or laws of the state; and to inflict penalties for the violation of any bylaw, not exceeding twenty-five dollars for any one offense. These are the statutory powers possessed by the corporation, and under which they are authorized to regulate the docks, wharves, and slips, to remove any nuisance from them, and to prevent obstructions in them. By the terms docks, wharves, and slips, the piers, bulkheads, and matters surrounding them are meant; and the jurisdiction of the corporation, therefore, for the above purposes is extended over the waters of the river to the center of the same, and every erection in or on it, including the basin and pier docks alluded to.

By one of the points made by the appellants, the extent of this jurisdiction is denied, and it is contended that the basin forms a part of the canal, and is subject only to state regulation, and they refer to the act of 1823, c. 111, in support of this position. But no part of that act, or any other act of the legislature, declares the basin to be a part of the canal; the act alluded to only directs the canal commissioners to charge tolls on all canal boats entering the basin from the canal, or which shall leave the basin for transportation on the canal, for its entire length, in the same manner as if it were part of the canal. If the basin was a part of the canal, why are the words "as if it were" used? Evidently to show that it was not a part of the canal, but that the regulation in the payment and receipt of tolls should be the same as those on the canal. In their grant to the owners of the pier lots, the legislature no doubt took into consideration the advantages that would result to the canal boats, craft, and rafts of lumber, in the accommodation of entering an extensive basin at the termination of the canal where they could he secure from flood or tempest, instead of entering the river where they would be exposed to both; and therefore,

as an encouragement to the undertaking, and without doing any injustice to the owners of the boats or vessels who used the basin, they granted certain privileges, such as the toll on the canal boats, and double wharfage on all vessels or other craft navigating the Hudson river which entered the basin.

The appellants contend also that, by the statute, the leading object of the basin was to facilitate transhipments of produce and merchandise, and that if the ark has tended to effect this object it is no nuisance. The preamble of the act of 1823 states that the construction of the basin would enable transhipments to be made between canal and river craft without the cost and delay of cartage and storage. In passing this act, it is quite clear to my mind that the legislature could not have had in view any such construction as the float or ark, in order that transhipments might be facilitated. By the words of the preamble, it must have been intended that the transhipments alluded to were those that would probably take place between the canal boats and the vessels navigating the river employed in carrying the produce of the country to a market, and in no other way. The word transhipment, according to Webster and other lexicographers, is the act of transferring goods from one ship to another. This float or ark, however, is neither a ship nor vessel capable of being navigated; neither is it a canal boat or a river craft, as its immense size will not permit it to float out of the basin or pass through the canal, nor was it intended for any other purpose than a store-house, and therefore the delay of storage is not avoided by its use. It did not come through the canal, and therefore paid no toll; neither did it come through the lock, and therefore has not navigated the Hudson river, and is not subject to double wharfage. It is, in fact, an erection not in the contemplation of the statute, or of the owners of the pier.

The powers of the corporation, it appears to me, are sufficient to authorize the removal of this float or ark, if they shall deem it a nuisance, and injurious to the trade and commerce of the city. One of the specific powers granted to the corporation is to abate and remove any nuisance in any wharf, and to prevent all obstructions in the river near or opposite such wharf. The good government of a populous city requires that the municipal authority should possess in certain cases summary jurisdiction, and it appears to me that the legislature intended by the act of 1826 to invest the corporation of Albany with the necessary powers to remove an obstruction so formidable as the one

alluded to. In addition to the power to abate or remove nuisances, they are authorized to forfeit and seize all bread made contrary to the fixed assize. How, it may be asked, are they to abate or remove a nuisance, or cause a forfeiture of bread, except by a summary proceeding? If it is answered that the statute authorizes a penalty of twenty-five dollars, I reply, first, that the power to inflict penalties is optional, as is the power to imprison for certain offenses, either of which may be inflicted or neither, as they shall deem expedient; second, that the remedy by penalty is incomplete to effect the object; as in the present case, if the corporation had recovered the penalty, the evil would still have remained, the pecuniary advantages accruing to the appellants far exceeding the penalty; and if they had repeated the action again and again, the mischief would not have been removed, as the advantages to the appellants would enable them to pay any penalty the corporation are authorized to exact. A power to prevent the continuance of the nuisance, therefore, by means not to be resisted, appears to be essentially necessary, in order to the due administration of justice. Where there are no negative powers in a statute, the court will allow ex necessitate a latitude of construction. The construction must be according to the intention, and must be, from the whole taken together. All statutes made for the public good must be expounded in such manner that they may, as far as possible, attain the end of their enactment. It is the duty of judges to give such construction as will redress the mischief and advance the remedy, and to suppress all evasions that may be attempted to continue the mischief. The law will not, by any construction, advance a private interest to the destruction of that of the public, but, on the contrary, will advance the public interest as far as possible, though it be to the injury of private interests. Whenever a statute gives a discretionary power to any person to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statue constitutes him the sole and exclusive judge of the existence of those facts. It is no answer that such power may be abused, for there is no power which is not susceptible of abuse: 14 Petersd. 513; 1 Stra. 253; 12 Wheat. 31. The construction I have given the act of 1826 is in accordance with the foregoing precedents, which authorizes, as I think, the conclusion I have arrived at, that ample power was delegated by that law to remove the evil complained of.

If, however, I should be wrong in the construction of the

statute, I think it can hardly be disputed that the obstruction. may be removed as a common nuisance. Blackstone defines a nuisance to be whatever unlawfully annoys or doth damage to another, and such nuisance may be abated, that is, taken away, or removed by the party aggrieved thereby, so as he commit no riot in doing it. Burns says it seems to be certain that any one may pull down or otherwise destroy a common nuisance, for if one whose estate is or may be prejudiced by a private nuisance, may justify the entering upon another's ground, and destroying such a nuisance, it can not but follow a fortiori that any one may lawfully destroy a common nuisance; and as the law is now holden, it seems that in a plea justifying the removal of a nuisance, a man need not show that he did as little damage as might be: 3 Bl. Com. 5; 3 Burns' Justice, 222. Is not then the float or ark a common nuisance? The ark is represented by the appellants to be one hundred and twenty feet in length, and forty-two feet in width; they are in possession as tenants of only one hundred and ten feet on the pier, in front of which the float or ark is moored. It appears, then, that the ark occupies ten feet more of the waters in front of the pier than what is owned by the appellants. It is permanently fixed at this place by piles driven into the bottom of the river or basin, to which it is fastened. By the diagram annexed to the answer it is shown that the float lies immediately in a line with the lock or entrance into the basin, and must, therefore, more or less obstruct the free navigation of it. The act of 1823 provides that no wharfage or other charge shall be exacted from the canal boats or other craft, or rafts of lumber entering from the canal, for lying alongside the pier or bridges. Here is a general permission for the canal boats and rafts of lumber to lie at the pier free of expense, and to them, therefore, the float which occupies permanently one hundred and twenty feet of this pier, must be an obstruction of the privilege granted by the act. By the act of 1828, c. 164, the corporation are authorized to excavate and deepen the basin in front of any pier lot, the expense to be apportioned among the lots, and paid by the owners or occupants thereof. The operation of excavating, however, is obstructed by this float, permanently fixed as it is by piles driven into the bottom of the basin. The petition of the owners and proprietors of the pier lots set forth in the answer of the respondents represents the float as injurious to their rights and property; and as an improper use of the basin by the persons who have placed the float in it, and as an im

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