Charleston & Savannah Railway v. Johnson

73 Ga. 306 | Ga. | 1884

Blandford, Justice.

The defendants in error filed their bill against the plaintiff in error, in which they complained that plaintiff in error had erected a bridge across a certain navigable stream or water course running into the Savannah river, and by the placing of a certain beam of wood over the stream had impeded the free use and navigation of said water course. They further alleged that, by reason of the obstructions aforesaid, they had lost certain produce boats and flats; and they prayed that plaintiff in error be enjoined from continuing said nuisance, and that they be paid the loss which they had sustained by reason of said nuisance. The jury found all the issues submitted to them in favor of the complain^ ants in the bill, and defendant moved for a new trial on many grounds, which was overruled by the court, and this is assigned as error here.

The direction given to this case by the learned counsel who have argued it makes it necessary for us to lay down only a few rules of law which govern this case. It is shown by the record that the stream of water alleged to have been obstructed is from seventy-five to two hundred'feet wide; that it is fourteen feet deep where the bridge crosses it; that the tide rises and falls three and one-half feet. It also appears that the beam across the main channel was taken away by plaintiff in error soon after the bill was filed, but there remains a beam connecting two piers of the bridge. It also appears, since the removal of the beam, that the stream, is open to navigation to such an extent as to allow free passage to all water craft running thereon. Such a stream of water as this is described to be is a navigable stream, and the public have the right to the free navigation thereof.

If such a stream be obstructed', such obstruction is a nuisance, and may be abated at the instance of any person applying therefor.

The person erecting or causing such nuisance is not entitled to notice and demand to abate the same before action brought. A court of equity has the power, under the allegation in the bill and facts shown on the trial, to. grant the relief prayed for.

We find no error in the reversal rulings and decisions of the court below, and the judgment is affirmed, with directions that the decree be modified so as to enjoin plaintiff in error from placing or putting any other obstructions over said stream than as they now exist.

Judgment affirmed.