3 N.J. Eq. 136 | New York Court of Chancery | 1834
The title of this suit shows that it involves matters of public concern. The attorney general has presented a bill or information in the name of the state of New-Jersey, against the defendants, and charges them with being in the act of erecting a bridge over the Passaic river, which is a navigable stream, in such way as to interfere materially with the navigation; and calls upon this court, on the ground that such bridge will be, or is, 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 obviated and abated.
The information is of great length, and I will advert to only a few prominent parts of it. It'sets out the act incorporating the New-Jersey Railroad and Transportation company ; by which it appears that the company are to cross the Passaic anc! Hackensack rivers with their road, contiguous to or south of the bridges over those streams; and by which act it is directed, that
It charges', that the company first located their road through Broad street, so as to cross the Passaic near the old bridge; that they abandoned that route and located a new one, crossing the river a mile below the old bridge; that this being strongly opposed, they abandoned it, and resolved to place their bridge across the river at the- north end of Moses Dodd’s dock, with a draw in it of forty-five feet. That in July they commenced driving piles; when it was discovered that the part of the bridge intended for the draw measured only thirty-five feet, and was near the western abutment of the bridge. That a number of the owners of prosperty above, applied to the directors on the subject, and gave notice that measures would be taken to prevent the draw from being constructed of such size. Public meetings were called, and finally a committee was appointed with instructions to pursue legal measures to prevent or remedy the evil.
The information then charges, that by the erection of the said bridge great mischief will ensue to the public; that it will be an irreparable injury, and is now an apparent public nuisance ; that the erection of the bridge and draw in the manner in which they are now being constructed is contrary to express agreement, and that as early an application as practicable has been made for an injunction.
Some affidavits have been taken and read by both parties. Those of the relators go to sustain some of the principal allegations of the bill. Those of the defendants deny the fact charged, that the railroad was ever actually located through Broad street down to the old bridge, or on any other route than the one it now
This information is to prevent or abate a public nuisance, and the application now made is to prevent the alleged nuisance.
It would seem at first, incongruous and improper for this court to interfere in cases of public nuisance. The very fact that nuisances of that character are offences against the community, and necessarily saver of criminality in a greater or less degree, would seem to distinguish them as matters not proper to be dealt with by this court. But the jurisdiction of chancery, to a certain extent, in cases of public nuisance, appears to be admitted, although it has rarely been exercised. It is asserted by lord Hardwicke, in Baines v. Baker, Amb. 159 ; 3 Atk. 750 ; and is considered as existing by lord Eldon, in the case of the Attorney General v. Cleaver, 18 Vesey, 211. lie speaks with caution upon the subject, as though it were new, but not disputed ground. Chancellor Kent, in Attorney General v. the Utica Insurance Company, 2 John. Chan. R. 37 la appears rather to question the jurisdiction;
The very fact, however, that there may be a doubt on the ■subject by intelligent jurists, should be sufficient to induce caution on the part of this court. 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.
Admitting the jurisdiction, is there any thing in this case to warrant the interference of the court by way of injunction ? In the view I take of the subject, I do not think it necessary to in,-quire whether there has been a violation of faith .on the part of the defendants, or whether they have exceeded their powers, or .exercised those granted to them in a wanton and oppressive manner. For from the case made by the bill and affidavits, I
The injunction is a preventive remedy. It interposes between the complainant and the injury he fears or seeks to avoid. If the injury be already done, the writ can have no operation, for it cannot be applied correctively so as to remove it.
If the writ were to issue in this case, according to the prayer of the information, and the company were to be injoined from doing any more work on the draw or bent, and commanded to stop until the further order of the court, it might, and doubtless would operate as a punishment to them. It would prevent them from using their property and deriving any benefit from it, but it would afford no aid to the relators. Even if it were made perpetual, it would give them no relief. If it be said, that the company will by this means be induced to do what is believed by the 'complainants to be right, and widen their draw so as to do Justice to the navigating interest; the answer is, that such is not
This difficulty appears to have presented itself very early, and to have continued down to the time of presenting the information. The piles were driven, and the location and size and position of the draw fixed on in the month of June. In July, at a meeting where some of the relators were present, it was resolved that the bridge then erecting was a public nuisance, and ought to be abated. In the information, it is called an apparent public nuisance ; and a part of the prayer is, that the nuisance be abated. One of the witnesses swears, that it is now a public nuisance. Of what possible benefit, then, can the injunction be, except to punish the party for an alleged abuse of power.
The relators insist, that they have made their application as soon as practicable; that they confided in the agreement of the company as to the width of the draw, and were deceived. Admitting this to be all true, it is not perceived that the case is varied. If the nuisance be erected before the party has time to prevent it, the only remedy is to have it abated.; and whether it be accomplished by the deception of the party or by other means, the province of the court remains the same.
If the relators shall seek to abate the alleged nuisance, the proper course, as it appears to the court, is by indictment at common law. The fact, whether it be a nuisance or not, is proper to be tried by jury, whether the proceeding be in this court or elsewhere; and it would seem as though the common law courts were the more appropriate tribunals for all matters of this character.
The application for an injunction is denied, with costs.
“ In regard to public nuisances, the jurisdiction of courts of equity seems to be of very ancient date ; and has been distinctly traced back to the reign of queen Elizabeth. The jurisdiction is applicable not only to public nuisanees, strictly so called, but also to purprestures upon public rights. In cases aS public nuisances, properly so called, an indictment lies to abate them and
