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floating storehouse or vessel for the receiving and delivering of goods and merchandise in any public river, or any port or harbor, or in the basins, or in the docks thereof, is such a permanent appropriation and exclusive occupation of a public river, and such an obstruction thereof to its free and common use, as to be indictable as a public nuisance. Under an act of the legislature giving an individual and his assigns the right of erecting and maintaining a dam upon navigable waters, and the dam was so constructed as to impede the navigation beyond what the act authorized; it was held, that this rendered pro tanto a nuisance.2
When vessels are sunk by misfortune and inevitable accident, and without any fault on the part of the owner, it is not a nuisance, should the wreck be not removed. But a buoy must be placed over it for the common safety, and this was held by Lord Ellenborough to be the only proper and specific notice, the one which all understand and are bound to attend to. The party liable, in such case, though he is not liable to indictment, for not removing the wreck, he is liable in damages to an individual occasioned by the neglect of such notice. An action on
1 Hart v. City of Albany, 9 Wend. (N. Y.) R. 571. 2 Renwick v. Morris, 3 Hill (N. Y.) R. 621.
Rex v. Watts, 2 Esp. R. 675.
'Harmond v. Pearson, 1 Campb. R. 515.
the case was brought for neglect of the defendant in not placing a buoy over his lighter, which by accident had been sunk in the river Thames, whereby the plaintiff's barge had struck against the lighter and been greatly damaged. No buoy was placed over the wreck until two or three days after, though a watchman was stationed near the spot to warn all vessels to avoid it; and, when on duty, the watchman desired the people on board the barge to keep off, but his admonition was disregarded. The plaintiff, under these circumstances, had a verdict, as a verbal communication, being liable to be misunderstood, was not a sufficient warning.1
In an action on the case to recover damages for injury done to goods on board of a vessel while she was lying at anchor in the river Delaware, by a vessel coming up the river in the night time, it was held, that if the anchored vessel was moored in the channel without a visible light burning at the time, or, if her watch was not on deck, and did not do what was customary for the purpose of avoiding a collision, there was such negligence as to bar the action, though there might have been negligence on the other side. It was an undoubted rule, the court considered, that for a loss arising from mutual negligence, neither party can recover."
Harmond v. Pearson, 1 Campb. R. 515.
2 Simpson v. Hand, 6 Whart. (Penn.) R. 311. In Vanderplank v. Miller, in an action for running down a vessel, (1 Mood. & Malk. R.
All obstructions to navigation which are not occasioned by misfortune or inevitable accident, and without any fault on the part of the owner, and which are not authorized by the legislature, are of course public nuisances, and as such, subject the authors of them to indictment;1 and if licensed by the legislature, or by statute, it is the business of the defendant, in an indictment to bring his case within such statute, as an exception. It is very well known to be settled law also, that all public nuisances are likewise liable to be abated; and the remedy by abatement is in all respects concurrent with that by indictment. In Arundel v. McCulloch, in Massachusetts, the question was, whether the doings of the defendant in cutting down and removing a bridge erected over a river without authority from the government, were justifiable on his part; and the court declared it to be clear, that when any public
169; S. C. 22 Eng. Com. Law R. 280), it was held, that the plaintiff could not recover unless the injury was attributable entirely to the fault of the defendant. If the plaintiff were partly in fault, and by care might have avoided the accident, he cannot recover. This was a case of an action by the owner of goods sunk. The case of the De Koch in admiralty, was a case where both were in default, the court ordered a mutual contribution. (Vol. 2 of Law Reporter, 311.)
1 Russell on Crimes, 274; Rex v. Ward, 4 Adol. & Ell. R. 384; S. C. 31 Eng. Com. Law R. 384.
2 Commonwealth v. Church, 1 Burr (Penn.) R. 105.
Coates v. New York, 7 Cow. (N. Y.) R. 558; Miles v. Hall, 9 Wend. (N. Y.) R. 315; Renwick v. Morris, 3 Hill (N. Y.) R. 621. 4 Arundel v. McCulloch, 10 Mass. R. 70.
way is unlawfully obstructed, any individual, who has occasion to use it in a lawful mode, may remove the obstruction; and they considered it settled, that he may even enter upon the land of the party erecting or continuing the obstruction, for the purpose of removing it, doing as little damage as possible to the soil; as nothing more was done, than was necessary to procure a safe passage for the defendant's vessel, the court were satisfied, that no trespass was committed by him. A corporation of a city, whose duty it is to prevent obstructions in a navigable river, will be considered a party aggrieved, and may by its own act, without indictment, abate them as nuisances.1 As lapse of time will not bar a prosecution for a public nuisance, and as the remedy by abatement is concurrent with the remedy by indictment, although a public nuisance has existed a very long time (more than twenty years), the remedy by abatement is not barred. The common law remedies for a public nuisance will not be affected by a statute imposing a penalty for the offence, unless negative words be added, evincing an intent to exclude the common law remedies; 3 or, in other words, the addition of a penalty by statute for a common law offence, is merely cumulative, and in the
' Hart v. Mayor, &c. of Albany, in error, 9 Wend. (N. Y.) R. 571. Russ. on Crimes (Am. Ed. of 1836) 274; Renwick v. Morris, ub. sup.; Miles v. Hall, ub. sup.
Dwarris on Stat. 678, 679.
absence of words expressly to the contrary, such statute detracts nothing from the ordinary remedies at law.1
But notwithstanding the above ordinary remedies for public nuisances, by indictment and by the act of the party aggrieved, it is now well settled, that a court of equity may take jurisdiction of them, by an information filed by the attorney general; and the interposition of that court in such cases, though rare, is said to be by no means a modern branch of equitable jurisdiction. The doctrine has been recog
1 Renwick v. Morris, ub. sup. ; Commonwealth v. Ruggles, 10 Mass. R. 391.
2 Eden on Injunct. 262, who refers to an information filed by the attorney general in the reign of Elizabeth. 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; but the jurisdiction seems to have been acted on with great caution and hesitancy. Thus it is said by Lord Elden, that instances of the interposition of a court of equity, in England, upon the subject of public nuisances, are confined and rare, and more is to be collected from what has been done in the court of exchequer upon discussion of the right of the attorney general, by some species of information, to seek on the equitable side of that court relief as to nuisance, and if the term may be used, preventive relief. Attorney General v. Cleaver, 18 Ves. R. 211. Chancellor Kent, in 2 Johns. Ch. R. 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. But 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 dan