13 Barb. 32 | N.Y. Sup. Ct. | 1852
The plaintiffs seek to enjoin the defendants from tearing down and removing their dam as a nuisance. The complaint alledges that one Sylvester F. Peck, in pursuance of authority granted by the legislature of this state, by chapter 315, of the laws of 1824, erected a dam across the Onondaga creek, on Marsh lot No. 37, in the Onondaga salt springs reservation, and erected a mill on lot No. 28, and constructed a ditch or mill race from the dam so constructed to the mill; and that the said mill and premises now belong to the plaintiffs in fee, and are worth thirty thousand dollars; that the destruction and removal of the dam will entirely destroy the value of the said property. It is alledged that the mill and privileges have been used by the said Peck and his assigns from about the year 1824. That the defendants, on the eleventh day of December, 1850, declared said dam and mill pond, which are situated within said city, a public nuisance and detrimental to the health of the city, and directed the street commissioner to remove said dam, unless the owners thereof should do so by
The act of 1824, authorizing the erection of the dam in question, was rendered necessary by reason of the restriction imposed upon the owners of the land through and over which the Onondaga creek flowed, by a former'act of the legislature declaring the creek to be a public highway, and prohibiting the obstruction of the navigation thereof by the erection of dams or otherwise. (2 R. L. 285.) But for this restriction the owners of the premises would have had the right to erect the dam and use the water in the manner prescribed by the act of 1824, without the sanction of the legislature; and the only effect of the act last quoted is to remove the restriction imposed by the former act, and relieve the parties from their liability to prosecution by indictment or otherwise, for obstructing the navigation. (Crittenden v. Wilson, 5 Cowen, 165. Renwick v. Morris, 3 Hill, 621.) The question, therefore, is the same that it would have been if the stream had been and was the property of the plaintiffs, and on which the public had no easement, and no legislation had been had in respect thereto; and is, whether the defendants, in the exercise of their municipal powers, have the right, without trial or notice to the party interested, to destroy a large and valuable property, under the pretense that the property is a nuisance, endangering the health of the city. The defendants claim the right, under their act of incorporation, to adjudge the premises to be a nuisance, and then to abate the nuisance by a destruction of the property. It is not the attempt of an individual to abate a nuisance, upon his own responsibility, and relying upon his ability to prove the existence of the nuisance, in excuse of the trespass, which in some eases is allowable, although it may be questioned whether the rule would apply to a case like this. The defendants claim that their adjudication upon the question of nuisance, is final, against the owners of the property, and a protection to any one acting under their authority in the removal of the dam. And inasmuch as this claim is one of great interest to dwellers in our cities, and
Van Wormer v. The Mayor, &c. of Albany, (15 Wend. 262,) was an action to recover for the pulling down by an agent of the defendants, of a barn and shed of the plaintiff. The ground upon which the buildings stood had been declared a nuisance by the board of health of the city, and had been ordered to be leveled. The buildings were pulled down to carry this ordinance into effect. The destruction of the buildings was incidental to the' leveling of the ground upon which they stood, and was not ordered by the defendants. The transaction was in 1832, at the time of the first visitation of the country by the Asiatic cholera, and the defendants were held justified by the circumstances of the case and the very large discretionary powers which had been vested in the board of health, which it will be seen by reference to the acts were much more comprehensive than those delegated to the defendants by their charter. (1 R. S. 440. Laws of 1832, p. 581, 2, § 5.) The plaintiff in that case had notice of the proceedings, and admitted the character of the premises and the necessity for digging them down. It was a case sui generis, and should not be applied to a case differing in circumstances as this does. The People v. The Corporation of Albany, (11
The only other question is, whether it is a proper case for an injunction; and upon this point there can be, I think, no serious doubt. The injury threatened is a permanent injury to the freehold, under a claim of right which I think entirely unfounded. It is at least doubtful whether an adequate compensation by way of damages could be had, and if it could, the interests of all
W. F. Allen, Hubbard and Pratt, Justices.]
The judgment should be affirmed.
Pratt, J. was of the opinion that the common law remedy by indictment did not exist, and that the only remedy was by application to the county court, under the act authorizing the dam to be erected.
Judgment affirmed.