Lead Opinion
The following opinions were filed January 7, 1913:
As we understand it, the turning point in the case in the court below was the fact that the plans of the bridge were not approved by the common council, as required by sec. 9 of ch. IX of the city charter, and that the structure was held to be a nuisance on that ground. There is a dispute between the parties as to whether or not the evidence shows they were so approved. A careful examination of the evidence adduced by both sides satisfies us that the plaintiff made a prima facie case showing that the plans were
In Barnes v. Racine,
“If the contention for the demurrer is sound, it would devolve upon a plaintiff, whose right to the free navigation of public waters has been interrupted by an impediment which prima facie is a nuisance, to prove that the defendant acted under an assumed authority, but was not justified, because his acts were outside of the limitations of his authority; in Other words, to negative facts by way of defense which are peculiarly within the knowledge of the defendant.” .
The demurrer to the complaint was therefore overruled.
In Texarkana & Ft. S. R. Co. v. Parsons,
The case of Maxwell v. Bay City B. Co.
It is apparent that none of the cases cited by the respondent touch the precise question presented by the case at bar, namely, Did the failure of the city council to approve the plan of the bridge constitute it an unlawful structure in navigable waters ? It is undoubtedly the general doctrine of all courts that legislative authority to build and maintain a structure in navigable waters must be strictly followed, so far at least as any deviation therefrom would affect the degree to which it might impede or obstruct navigation. But it does not follow from such rule that an omission to conform to a prescribed mode of procedure in the erection of a structure, not affecting the question of navigation, renders it a nuisance on the ground that it unlawfully obstructs navigation.
The only attack made upon the bridge in this case is that it constitutes a nuisance because it unlawfully obstructs navigation. It is not claimed to be a nuisance for any other reason. Hence, if it can be shown that its obstruction of navigation is pursuant to lawful authority, it ceases to be a nuisance so far as this case is concerned.
The Kinnickinnic river is a navigable stream over which the federal government has exclusive control relative to structures placed therein or thereover which affect its navigability. 30 U. S. Stats. at Large, 1151, ch. 425, sec. 9 et seq. This statute provides that such structures across rivers and other waterways the navigable portions of which lie
In Pennsylvania v. Wheeling & B. B. Co. 18 How. (59 U. S.) 421, it was held that an act of Congress which declared a bridge across the Ohio river a lawful structure, staid the execution of a judgment theretofore rendered by the supreme court of the United States declaring the bridge to be a nuisance and directing it to be abated, on the ground that
In the Clinton Bridge Case, 10 Wall. (77 U. S.) 454, it was held that an act of Congress declaring a bridge across tbe Mississippi to be a lawful structure abated a suit in chancery previously begun praying an injunction against tbe building of tbe bridge as a nuisance. Tbe court say:
“In tbe present case tbe act of Congress having passed pending tbe suit, it gave tbe rule of decision for tbe court at the final bearing upon tbe same principle that tbe act in tbe ’Wheeling Bridge Gase staid tbe execution of the decree directing its abatement.”
Speaking of tbe power of Congress over navigable waters, tbe court in Wisconsin v. Duluth,
“It is a power which has been exercised ever since tbe government was organized under tbe constitution. Tbe only question ever raised has been bow far and under wbat circumstances tbe exercise of tbe power is exclusive of its exercise by tbe states. And while this court has maintained, in many cases, tbe right of tbe states to authorize structures in and over tbe navigable waters of tbe states, which may either impede or improve their navigation, in tbe absence of any action of tbe general government in tbe same matter, tbe doctrine has been laid down with unvarying uniformity, that when Congress has, by any expression of its will, occupied tbe field, that action was conclusive of any right to tbe contrary asserted under state authority. Tbe adjudged cases in this court on this point are numerous.”
Re-affirming this doctrine, tbe court, in Monongahela Nav. Co. v. U. S.
“Upon wbat does tbe right of Congress to interfere in tbe matter rest? Simply upon tbe power to regulate commerce. This is one of tbe great powers of tbe national government,*258 one whose existence and far-reaching extent have been affirmed again and again by this court in its leading opinions, and the power of Congress over such natural highways as navigable streams is confessedly supreme.”
It must be held, therefore, that the failure of the city council to approve the plan of the bridge does not constitute it an unlawful structure in navigable waters. To hold otherwise would be to declare that unlawful which paramount authority says is lawful.
No matter how long plaintiff had used the south channel, it could acquire no prescriptive or other right to its continued use. Kelley v. Salvas,
The south abutment of the bridge cut off access to plaintiff’s property from the side. The city did not cut it off from the front, for the jury found that it had nothing to do with the placing and maintenance of the piling described, and but for such piling plaintiff’s dock could be reached through the new channel from the front. A riparian’s right of access is from the front only. Gould, Waters (3d ed.) § 153; 1 Farnham, Waters, p. 302; Keyport & M. P. S. Co. v. Farmers’ Transp. Co. 18 N. J. Eq. 13; Jenks v. Miller,
Respondent’s claim that Kinnickinnic avenue is not sixty-
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.
Dissenting Opinion
(dissenting). The judgment appealed from was rendered in an. action at law tried before a jury pursuant to ch. 137, Stats., which authorizes the court in actions of this kind to award damages and also to' order the nuisance abated. Judgment was rendered against the defendant for $500 damages as authorized by sec. 3181 of that chapter. The circuit court certified that the abatement of the alleged nuisance was unnecessary. He added to this, however, a provision that the refusal to abate the same should be without prejudice to the right of the plaintiff to bring such action or actions as it may be advised for its damages by reason of the continuance of said nuisance, and also to abate the same if the city defendant should fail or neglect to either abate the nuisance or acquire by purchase or condemnation the rights of the plaintiff infringed by the continuance of said nuisance. The jury had by its verdict found that the difference in amount between the rental value of plaintiff’s premises with the bridge as it is, and that value if access thereto had remained as formerly for the period between September 1, 1908, and December 1, 1909, was $500. They further found that the value of plaintiff’s premises had been depreciated by the erection of the bridge in question to the
The bridge in question spans the Kinnickinnic river at the crossing of that river by a city street known as Kinnickinnic avenue, and plaintiff’s land on its easterly side abuts on Kin-niekinnie avenue, and on its northerly side, where its dock was maintained, it forms the southerly bank of the Kinnic-kinnic river. The Chicago, Milwaukee & St. Paul railroad-crosses Kinnickinnic avenue at an acute angle a short distance north of the northerly bank of the Kinnickinnic river, and, maintaining this angle of divergence, the railroad crosses the Kinnickinnic river a short distance westerly or up-stream from the bridge in question on a railroad bridge, and continuing southerly forms the westerly boundary of plaintiff’s land. Erom this it must be apparent that the farther north we move the northerly boundary of plaintiff’s land the shorter will be that boundary, reaching practical zero at the apex of the triangle formed by the crossing of Kinnickinnic avenue by the railroad a short distance north of the north bank of the Kin-nickinnic river. The Kinnickinnic river is a public highway and navigable. The common council of the city has power by ordinance to establish dock and wharf lines. City Charter, ch. IX. Dock lines had apparently been established in 1877, as admitted by pleadings and shown by several plats in evidence. The plaintiff’s dock did not extend out to this dock line at the westerly or up-stream end thereof, and it gained some in length thereby. The abutment upon which the old city bridge turned was placed about midway in the old channel, so that when the bridge was swung open there was a clear passage on the southerly side of the center
Acting under ch. 97, Laws of 1905, the city undertook the improvement of the harbor, including the Kinnickinnic river at this point. This improvement included the making of a new channel for the Kinnickinnic river at the place in question northerly of and nearly parallel with the old channel. Plans of this improvement and of a new bascule bridge made necessary thereby were submitted to and approved by the secretary of war. These plans contemplated that the new city bridge in question spanning the Kinnickinnic river at its crossing by Kinnickinnic avenue should be changed into a bascule bridge and so moved to the north that the aprons of the lift would span the new channel, while the former or old channel was closed by an abutment or approach or solid part of the bridge, whichever it may be called, cutting off the former access to plaintiff’s dock from the down-stream side and through the old south channel. This left the only access to plaintiff’s dock through the new channel, where the railroad bridge and the city bridge were much nearer together, and from this channel no practical use of plaintiff’s dock could be made unless it extended its dock into the stream beyond the old dock line northerly to a point between these bridges at the bank of the new channel, which would leave it but a short and comparatively worthless dock property. The learned counsel for respondent sets forth the situation as he sees it in the following language:
“The alleged nuisance was primarily the south abutment of the new city bridge, which completely closed the channel through this south draw of the old city swing bridge and impaired its access to its dock lying immediately west of the abutment.”
Oh. 97, Laws of 1905, requires the city officers in charge of such public improvement to prepare without unreasonable delay and submit for the approval of the common council a
The word “nuisance” represents a very general conception of legal wrong so vague in respect to bounds or definitions as to be almost useless in ascertaining and determining rights. True, many things might be specified which are in reason and by precedent clearly nuisances and other things which are not nuisances, but as said by Cooley: “It is very seldom indeed that even a definition of a nuisance has been attempted, for the reason that to make it sufficiently comprehensive it is necessary to make it so general that it is likely to define nothing.” Cooley, Torts (2d ed.) ch. 19. There must be some violation of law, public or private, some injury, and that is always included in the term ‘-‘nuisance.” When the illegal act offends only against law which exists for the protection of the public, it is damnum absque injuria as to all persons who only suffer loss therefrom common to all the affected public,
In the instant case, the requirements of navigation being satisfied by the approval of the secretary of war acting under law conferring that authority upon him, it could not be said that the bridge in question is a nuisance because it impairs and impedes navigation. That cannot be a nuisance which is authorized by a valid statute. It would also be an unnecessary and an unconscionable burden on the city to allow this judgment to stand in the form in which it is entered, declaring this bridge a perpetual and continuing nuisance and subjecting the city to many forms of liability arising in favor of persons whose rights are in no wise affected by the manner in which this bridge is constructed. The statute, ch. 137, Stats., permits a judgment in the form here given by the circuit court, but only in cases to which such form of judg
By force of the state constitution, neither the state nor any agency thereof can take the property of any person without compensation, but this does not forbid the infliction of damages when there is no taking. A municipal corporation making an improvement solely for the benefit of the public, under ample authority granted by the legislature and performing the work in a circumspect and careful manner, is not answerable for consequential damages produced thereby to property. in the vicinity of such improvement no part of which is taken or used therefor. Alexander v. Milwaukee,
It may be that the facts here in evidence would support a verdict finding that the south approach of the bridge in ques
No state has gone farther in vindication of this rule than this state; indeed it has gone farther than I would were the ■question a new one, and much farther than is required to support a judgment for plaintiff in the instant case. Crossett v. Janesville, supra, is unquestionably sound, but when we come to Dore v. Milwaukee,
A motion for a rehearing was denied, with $25 costs, on February 18, 1913.
