117 Mich. 458 | Mich. | 1898
This is a proceeding by bill in chancery to compel the abatement of a nuisance. The alleged nuisance consists of the steamer Milton D. Ward, which lies aground in Detroit river, near what is known as the Water Works Park. The complainant is a corporation authorized to sue and be sued, and has been by statute authorized to accept as a gift a sum of money devised to the board to be used for the purpose of .beautifying and ornamenting the grounds. The grounds devoted to a park have a frontage on Detroit river of about 1,000 feet, and are kept open to the public as a park known as the Water Works Park. The land is also used for the general purposes of the corporation. In the summer of 1892 an epidemic of cholera was threatened. The board of health of Detroit assumed to make a contract with defendant Grummond, the owner of the Milton D. Ward, to lease of him the steamer, with the privilege of buying. This contract was not definitely authorized by the common council, hut the board of health actually took possession of the boat, and admittedly retained it in possession for nearly two years, when it caught fire through the neglect
The questions which are raised are:
(1) Whether this wreck is a nuisance.
(2) If a nuisance, is it a private nuisance, such as the complainant has the right to have abated at its private suit ?
(3) Is the defendant Grummond or the city, either or which, responsible for the nuisance ?
“When a vessel is lost by the act of God or by accident, the owner suffers oftentimes great damage; and, when she is a total loss, it seems a great hardship to add to his misfortune the duty of removing the wreck. It would discourage commerce to hold him to so severe a duty; for who would engage in trade if, when he has lost his vessel, he might be forced to incur an expense of more than her original cost in removing the wreck from some difficult position? If compelled by the accident to abandon his property, the duty of removal should rather fall on the public, who are interested in the navigation, than on him.”
This case does not show the existence of these reasons for exemption. This sunken wreck is not the result of an accident. After all the injury which can be claimed to have resulted from accident had occurred, the boat was still afloat, and might easily have been removed. She subsequently sank because water-logged, and because she was abandoned. She was not abandoned because she had sunk.