36 How. Pr. 233 | The Superior Court of New York City | 1868
First. The plaintiffs assert that certain injuries will result from the use by defendant of the sewer, as alleged by them.
Second. That it involves certain public wrongs or offences against the public, by reason of their being injured in certain privileges they have received from our municipal corporation ; and they claim a right to maintain an action in equity, in their own names, to restrain the defendant from such usurpations, und to prevent and remedy such public wrongs, to wit: the maintaining of a public nuisance. The corporation has not leased to them any thing but the right to collect wharfage at their docks, fronting on this river, and the river being a public highway, and others being as much interested in the use of the same as plaintiffs are, notwithstanding the proximity of plaintiffs’ property to the nuisance complained of; yet if this action can be maintained, innumerable others could, thereby leading to absolute confusion. The jus publicum or user of our great rivers or highways is in the people; and they, and they alone, are the trustees to guard and protect them; This is the English doctrine, as well as ours (1 Hume’s Eng. 217). But the title to high
It is true it may not affect every citizen equally alike, but in judgment of law, assuming that no special injury is shown,' they have the same right to complain. How it will not be maintained for one moment that an action will lie by an individual citizen for such an offence. Such a course would confound all distinction between public and private rights, and would lead to great confusion. This was the doctrine held in the case of Davies agt. The Mayor (4 Kern. 506).
It is the undoubted rule of law that highways (and navigable rivers are great highways) belong to the sovereign power, and are part of its royalties or pubEc rights; they belong to it absolutely, and there is no right in the adjacent owners of the soil (Hoffman’s Treaties, 238). The portion of the river which plaintiffs complain that defendant is filling up therefore belongs to the people. It is theirs as a great public highway, absolutely under their control, and for their use, and they alone, and not the plaintiffs, can seek or maintain a remedy to prevent its being injured.
Aagain: An injunction should never be granted pending the action (pendente lite), on light grounds or in doubtful
The well established rule—that if the answer denies explicitly and positively the grounds on which the equity claim in the bill rests, the injunction to stay must be dissolved—must not be departed from—and I can see nothing whatever in this case to form the slightest exception to that rule. The answer to the defendant is directly responsive to the very gravamen of the complaint, and in the strongest manner denies its allegations in toto. He denies that the mash from his distillery in the slightest degree lessens the depth of water at the place complained of, or at any other place, and swears positively that the plaintiffs themselves, from their vast establishment for making gas, fill up with coaltar and other debris, the wharf or dock which is the subject matter in dis
It seems to me from the affidavits, and from an inspection of the premises, the right of this defendant to have a final judgment against these plaintiffs is entirely consonant with sound principles of equity; moreover, the theory “that if the answer denies all the equity of the bill, the injunction must be dissolved,” is based upon the principle that the answer must be taken as true, but we must not carry this doctrine so far as to say that, as a matter of course, if the answer denies the equity of the bill the injunction must be dissolved-If the court can see sufficient reasons for maintaining the-injunction, and that it entertains doubts about the truth of the allegations contained in the answer, and that irreparable injustice will-be done if not granted, then, and in that cáse,, notwithstanding the denials in the answer, it may, in its discretion, maintain the injunction. But such is not the case here. The doubts entertained in the mind of the court are-' doubts formed about the truth of the complains ;..,d affidavits upon which this injunction is founded.
It cannot be inferred from the mere fact of proximity that the owner of land adjoining a public highway or fronting on a river, which is a public highway, has some interest therein, merely by reason of his proximity. This is an error which has been extensively indulged in. It was set at rest, however, by the court in the case of Gould agt. The Hudson R. Railroad Co. (2 Seld. 541). Now, I have shown that highways on land are strictly (legally) analogous to highways on water (21 Conn. 325 ; 11 Barb. 525). And no doctrine is more firmly settled than that for a public nuisance the government alone can prosecute; and that those who do not-suffer by a violation of law otherwise than as a member of the community, cannot maintain any remedial action. To
If a public nuisance work a private injury to a person, that person may have a remedy by private action for damages, and in a proper case, may have an injunction. A noisome odor issuing from a public nuisance, such as issues from plaintiffs’ gasworks, will have this effect, if it pervades the surrounding atmosphere, enters the adjacent dwellings, and either endangers the health or disturbs the comforts of those dwelling therein. A noise upon the public highway in like manner penetrates the dwellings and disturbs the inmates. I think these are the only instances in which a nuisance in the public highway can work a particular injury to a private individual merely in virtue of its proximity. The only other cases in which a private injury may result from a nuisance in highways, are those where the actual passage is thereby interfered with.
If for instance, by means of an obstruction in the public highway, a man is arrested in his progress over it and put to expyii'v, tins is a special damage, and an action will lie. This was the rule held by Chief Justice Shaw, in Smith agt. Boston (7 Cush.), but the case I have supposed, and that in 7 Cushing and the like cases, it will be seen are all cases of special damage, and arise in the common right of passage which belongs to every citizen; and the right of action in such cases is no less perfect because the plaintiff resides or his property is a great distance from the locus in quo, nor is it more imperfect because he happens to own the adjoining property: The gravamen of the action, its whole essence is, that he had a right of passage and waa hindered from using it, and suffered special damage.
It is clear, therefore, that in case of a nuisance by destruction of a public highway, a private person can have no action but for actual injury received. In this case the proof would
The defendant, in his answer, positively denies every allegation in the complaint, and in addition to his answer, he shows by himself and six other witnesses, that he is not the cause of lessening the water in the river; on the contrary, he shows that the plaintiffs themselves are lessening the depth of the water, if it is lessened at'all. And these affidavits on the part of the defendant are only met by the complaint of the plaintiffs and two witnesses, neither of whom are as clear in their statements as the witnesses for the defense; so that, upon the facts as presented to me, I am constrained to deny this motion.