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nized by the supreme court of Massachusetts, that where it is obviously necessary that a nuisance should be immediately suppressed, as in the case of a powder house, or a slaughter house, or a chemical laboratory, equity will interfere until the slower process by indictment can be put in motion.' But the very fact, that there have been doubts on the subject of equitable jurisdiction in cases of public nuisances, should be sufficient to induce caution on the part of a court of equity. In cases of public nuisance, there is an undisputed jurisdiction in the common law courts by indictment; and a court of equity ought not to interfere in a case of misdemeanor, when the object sought can be as well attained in the ordinary tribunals. A bill or information was filed in the court of chancery of New Jersey, by the attorney general, in the name of the state, charging the defendants with being in the act of erecting a bridge over the Passaic river, which is a navigable stream, in such a way as to interfere materially with the navigation ; and it called upon the court, on the ground that the bridge would be a serious detriment to the community and a public nuisance, to interfere and prevent the further erection of the same; and also to order the same to be abated. By the erection of the bridge, the information charged, great mischief and irrepara
ger of irreparable mischief before the tardiness of the law could reach it. Georgetown v. Alexandria Canal Co. 12 Peters (U. S.) R. 91. 1 Rowe v. Granite Bridge Corp. 21 Pick. (Mass.) R. 344.
ble injury would ensue to the public. But the application for an injunction was denied, on the ground, that a court of equity ought not to interfere in a case of misdemeanor, when the object sought can be as well attained in the ordinary tribunals; and in this case, the proper course was by indictment at common law.1 In all cases of public nuisances requiring immediate suppression, the equity side of the the supreme court of the United States have jurisdiction.2
If an individual receives special damage from a public nuisance, it renders it, as regards him, a private nuisance, he having suffered to that extent beyond the rest of the community; and it has therefore been long well established, that he may maintain an action on the case as if it were a private nuisance, for such particular damage.3 In an action on the case for a nuisance, the declaration alleged, in substance, that the defendants wrongfully placed beams and spars in a certain navigable river, whereby the access from the river to the plaintiff's public house was obstructed, and "divers persons, who would otherwise have come to the plaintiff's house and taken refreshments there, were hindered and prevented from so doing." It was held, that the declaration did not state a public nuisance, and that
1 Attorney General v. New Jersey Rail. and Trans. Co. 2 Green (N. J.) Ch. R. 136. See post, Ch. VII.
2 Georgetown v. Alexandria Canal Co. 12 Peters (U. S.) R. 91. Ib. Cary v. Brooks, 1 Hill (S. C.) R. 365.
even if it had done so, the plaintiff would have a right of action for the particular injury to himself; and that the general allegation of particular damage to himself was sufficient, and without alleging the loss of any particular customers.1 The erection of a dam in navigable tide water under an act of the Pennsylvania legislature (of 23 March, 1803) which causes the formation of an obstruction in the water below, subjects him who erected or maintains it to any damage, in an action on the case, which such obstruction may occasion to any navigator. The court in a case in Maryland, left it for the jury to decide whether, by the construction of an embankment in the river Patapsco, the plaintiff had sustained special damage. An action on the case will lie by the owner of salt meadow on a navigable stream, for obstructing by a dam, the natural ebb of the tide, and thereby injuring the grass on such meadow.* Where the legislature of Massachusetts authorized a corporation to build a mill-dam across a navigable river of a given height, and to keep up the same head of water throughout the year, but provided no remedy for any person whose lands should be thereby injuriously flowed, it was held, that the remedy must be by an action at common law, and not by a
Rose v. Groves, 3 Dowl. Pr. Cases (N. Series) 61. 2 Bacon v. Arthur, 4 Watts (Penn.) R. 437.
Harrison v. Sterrett, 4 H. & McHen. (Md.) R. 540. 4 Turner v. Blodget, 5 Met. (Mass.) R. 210, (note.)
process under the statute of 1795, c. 74, respecting mills.1
As it is well established, that a court of equity may interpose by the preventive remedy by injunction in cases of alleged apprehended and irreparable mischief from private nuisances, and as public nuisances become private as regards an individual reasonably apprehending therefrom a particular injury to himself, he may file a bill in equity in respect of a public nuisance under such circumstances. But the principle undoubtedly is, that in case of a public nuisance, where a bill is filed by a private person, asking for relief by way of prevention, the plaintiff cannot stand in a court of equity, unless he avers and proves some special injury.3 A bill was filed for an injunction to restrain the defendant from obstructing a street in the city of New York, which averred, that he was building a house upon that street to the great injury of the plaintiffs, as owners o lots on and adjoining the street; the injunction
1 Cogswell v. Essex Mill Corp. 6 Pick. (Mass.) R. 94.
* See opinion of the court, by Shaw, C. J., in Rowe v. Granite Bridge Corp. 21 Pick. (Mass.) R. 344. Though the grant of a right to erect wharves, and employ steam-boats, if destructive of the paramount rights of general navigation and fishing, may be void; the remedy is not by injunction, which is only applicable to special injuries in violation of private rights. Delaware and Maryland Rail Ro. Co. v. Stump, 8 G. & Johns. (Md.) R. 479.
Crowder v. Tinkler, 19 Ves. R. 616; Georgetown v. Alexandria Canal Co. ub. sup.; Mohawk Bridge Co. v. Utica and Schen. R. Ro. Co. 6 Paige (N. Y.) Ch. R. 554.
Kent, chancellor, saying, that here was a special grievance to the plaintiffs, affecting the enjoyment of their property and the value of it; that the obstruction was not only a common or public nuisance, but worked a special injury to the plaintiffs.1 It was held by the same court in 1834, that where lands are dedicated to the use of the inhabitants of a city or incorporated village for a public square, a bill may be filed not only in the name of the corporation to restrain the erection of a nuisance thereon; but the grantee of a lot adjoining such square, may file a bill to restrain the grantor from violating a covenant that it shall be kept open for the benefit of his lot, and he may join with the corporation in the suit. In such cases it is not necessary that the attorney general should be a party, although the nuisance is one which subjects the author of it to indictment.3 In Sampson v. Smith, the vice chancellor said "Here the plaintiff represents that something has been done which is highly injurious to himself, and also to certain other individuals; which averment it was not necessary for him to make. In a case so constituted I do not see, if the
' Corning v. Lowerre, 2 Johns. (N. Y.) Ch. R. 439.
2 Trustees of Watertown v. Cowen, 4 Paige (N. Y.) Ch. R. 510.
3 Spencer v. Birmingham and London Railway Co. 1 Cases relating to Railways and Canals, 159; Georgetown v. Alexandria Canal Co. 12 Peters (U. S.) R. 91.
4 Sampson v. Smith, 8 Simons, Ch. R. 272.