143 N.C. 485 | N.C. | 1906
after stating the case: This appeal was argued before us with marked ability and learning, counsel citing authority for the support of their several positions. His Honor did not find the facts upon which he based his judgment refusing the injunction.
It will be convenient, in the discussion of the question presented, to state the uncontroverted facts material to the decision. The town of Washington, conceded to be a prosperous commercial community, containing about 8,000 inhabitants, is located on the north side, we will assume, of Pamlico River, about thirty-six miles above its mouth and (for this purpose) about three miles below the conjunction of said river with Tar River. The said river from its mouth to and above said town is navigable. That considerable traffic has been and is now carried on by the people of said town, over said river, with people living above and below Beaufort and adjoining counties. That said traffic is carried on by means of sailing, steam and gas vessels of considerable tonnage; that said river flows by and past the entire length of said town; there are a large number of wharves, stores, warehouses, together with several sawmills to which logs are brought in rafts from above and below said town, and the lumber is carried to market on barges towed by tugs down said river. That these mills and wharves are located both above and below the county (or highway) bridge which crosses said river, abutting on one of the streets of said town, the larger number of said mills and wharves being below said county bridge. The county bridge has a draw of thirty-six feet.
“That from a point below tke draw of tke said bridge, a distance of 2,500 feet, tke ckannel runs a practically straigkt course, about northwest by north coming up, and southeast by south going down. That tke ckannel continues then in a straigkt line above tke said draw for a distance of 1,300 feet. That any vessel coming up tke said river has a direct approach to tke said draw of 2,500 feet, and any vessel going down tke said river has a direct approach to tke said draw for a distance of 1,300 feet. That a direct approach to tke draw in tke county bridge, wkick crosses tke said river from Bridge Street in said town, going up tke said river, is about 450 feet; and that coming down tke said river a direct approach can be made to tke said county bridge 'draw for a distance of about 950 feet. That above tke town of Washington tke ckannel becomes more winding and crooked, and there is no point on the' river between tke town of Washington and tke point three and one-half miles up the said river where tke ckannel continues a straigkt course for a longer distance than 2,400 feet. That affiant has had opportunities of experience and observation in tke matter of tke construction of bridges across navigable waters, and knows that the bridge now being built by tke said company is modern in character and of approved design, and that tke draw of tke said bridge is of a character recognized by tke experts as being safe, convenient and readily opened and closed, and suck as is in common use in railroad bridges at tkis time. That from Willow Point above, tke course of tke river is very winding, with sharp turns and short stretches of water, and tke location of a bridge
The defendant’s charter, Private Laws 1903, ch. 1, authorizes the company to construct a railroad from Ealeigh in Wake County in an easterly direction * * * to or near the town of Greenville; thence on the south side of Tar Elver to some point on, near, across river in Pitt or Beaufort counties, above or near the town of Washington; thence to or near the town of Washington * * * as shall be determined by said board of directors.” The charter was arfiended by the General Assembly, Private Laws 1905, ch. 5, permitting the road to be carried to Snow Hill, in Greene County; thence to Greenville thence “to or near some point on the south side of Tar Eiver in Pitt or Beaufort cbunties,” etc.
Defendant alleges, and it is not denied, that prior to' the amendment of its charter by the General Assembly of 1905, it “proceeded to lay out and locate its line of railroad, and determine upon crossing the said river at the point at which it now proposes to construct its bridge.” That on the day the summons was issued in this action, the bridge was more than one-fourth completed. We omit any reference to the
Before proceeding to discuss the question whether, and to what extent, the proposed bridge would impede, obstruct or interfere with navigation, we will dispose of the two preliminary questions raised by the pleadings and argued before us:
1.' Are the plaintiffs or either of them entitled to sue, that is, have they alleged such special and peculiar damage, different in kind from the public generally, by reason of the construction and maintenance of the bridge, as under the settled principles of law give them a right to sue?
2. Does the charter of defendant road authorize it to construct a bridge over Pamlico Kiver at any point, or is it restricted to the construction over Tar Ni ver?
The obstruction or interference with the navigation being a public nuisance, it is elementary learning that no private citizen may sue therefor, unless he suffers some damage which is not common to the public, or, to express it affirmatively, he may sue by showing that he sustained some special peculiar injury, different in kind from the public. Manufacturing Co. v. Railroad, 117 N. C., 579, where the authorities are cited in a well-considered opinion by Mr. Justice Avery. The question is discussed and the latest authorities cited in Joyce on Nuisances, 267-271. We have no’difficulty in finding that none of the plaintiffs who sue, in respect to their citizenship of the town of Washington, are entitled to do so upon the averment in the complaint. Mr. Eowle avers that he is the owner of • a sawmill on .said river, located above the proposed bridge, and that he procures the logs to be sawed at his mill in rafts coming over said river, both from above and below the proposed bridge; that he ships his lumber to market over said river in barges which must be towed by tug-boats down the river and through the draw in the bridge.
It is not clear, upon tbe authorities, whether tbe allegations bring these plaintiffs within the principle entitling a private citizen to sue in such cases. If we look beyond our own decisions, we find much conflict in the cases applying the rule. We incline to the opinion, without undertaking to discuss and reconcile them, that upon the allegations in the complaint, plaintiff Fowle is, upon the authority of Manufacturing Co. v. Railroad, supra, entitled to maintain the action. Baird v. Shore Line Railroad Company, 6 Blatchf. (C. C.), 276 ; Hickok v. Hine, 23 Ohio St., 523 ; Wood on Nuisances, 853.
The right of plaintiffs Pedrick and Jones is much more doubtful. We do not very clearly perceive how their right to use the right of navigation for the purpose of having their boats to pass up and down the river differs, in kind, from that of all other persons. Mr. Wood says: “It is not enough that he has sustained more damage than another; it must be of a different character, special and apart from that which the public, in general, sustains, and not such as is common to every person who exercises the right that is injured.” Nuisances, 646. In Clark v. C. & N. Railroad Co., 70 Wis., 593, Lyon, J., says: “The complaint herein alleges that the plaintiff owns a steam yacht, upon which he desires to travel daily and carry passengers between Neenah and Appleton; that in his business of a manufacturer he is largely interested in transporting freight up and down the Fox Eiver, past the point where defendant’s bridge is located, and would transport such freight by river but for the bridge; but now boats, passengers and freight have to take a circuitous route by reason of the bridge. The complaint fails to state where the plaintiff’s business is carried on, or that he owns any
We are of the opinion that the plaintiffs, other than Mr. Fowle, fail to show any right to sue. It is not very clear that he has such right, but, as he alleges that he owns and operates a mill on the banks of the river and is, in that sense, an abutting owner, we think, and, for the purpose of passing upon the other questions, hold that the action will lie.
It is held by some courts, and with reason, that a court of equity will entertain a bill to enjoin a proposed public nuisance by one who might not be able to maintain an action at law. “The strictness of the original rule has been greatly modified since the days of Lord Coke,” Joyce on Nuisances, sec. 424; Wiley v. Elwood, 134 Ill., 281 (28 Am. Rep., 673; 9 L. R. A., 726). In such cases the reason upon which the principle is founded, to avoid a multiplicity of suits, does not apply. It is uniformly held, however, that the courts in such cases will act with great caution in interfering at the suit of private citizens. The State is the proper party to complain of wrong done to its citizens by a public nuisance.
In regard! to the second question, it will be well to state, as the basis of this discussion, a few elementary principles, before proceeding to consider the peculiar language of the
It is suggested that, by a proper construction 'of the charter, the defendant is restricted to the construction of a bridge across the Tar River, and that the eastern terminus of this river is at Willow Point, about three miles above the town of Washington. Defendant suggests that the point is not the terminus of Tar River, but that it continues, by that name, until it reaches and passes the town of Washington. It is conceded that the eastern terminus of the river is not fixed by any legislation. We do not deem it at all decisive of the right of defendant to cross the river “near” Washington to fix the exact terminus. It is evident from the language of the records and affidavits that, whatever may have been the understanding in the past, the town of Washington is now understood to be located on the Pamlico River. We note that the charter of the Washington Toll Bridge Company, granted 24 December, 1812, empowers the company “to build a bridge across Tar River, above the town of Washington, in Beaufort County, and near the said town, to commence at Bridge Street.” Washington Toll Bridge Co. v. Commissioners, 81
It is well known that in our State other rivers have been called by more than one name in different localities. The purpose of the Legislature was to authorize the defendant to construct a road from Raleigh to Greenville, thence on the south side of Tar River to Washington, which is on the north'side of the river, the exact status of which, in respect to its name, is not ascertained. No one doubts that the road was to cross “the river in Pitt or Beaufort' counties above, or near, the town of Washington, as shall be determined by the board of directors.” These facts are thus settled: it was to cross the river from the south to the north side, to some point “above or near the town of Washington.” It is not seriously contended that the road must cross at Willow Point, or that to cross at such point1 is either desirable or practicable.
We fully concur with the position of the learned counsel for plaintiff in regard to the rule by which grants of power to corporations are to be construed. The authorities cited sustain them. “All public grants are strictly construed; nothing can be 'taken against the State by presumption or inference.” Delaware Railroad Tax, 18 Wall., 206; State v. Freeport, 43 Me., 202. In ascertaining whether the charter
“We cannot doubt that where an unrestricted grant of power is made to a corporation to construct a road between two points, it carries with it the right to cross navigable watersj if they interfere in a course or route which is otherwise reasonable and practicable, and if the road can be constructed without destruction of the public easement or seriously impairing its convenient enjoyment and use.”
The power to cross the river is given by necessary implication. It would be to attribute to the Legislature either ignorance of the geography of the State or a purpose to trifle with an important subject to say that it did not know that to leave Greenville at a point on the south side of Tar River and go to Washington did not necessarily involve crossing some river “above or near’ Washington.”
Having reached the conclusion that the defendant has, by its charter, the right to cross, that is, construct a suitable bridge over the river, the question arises, whether it is restricted to such crossing above Washington. To adopt this construction would be to eliminate the word “near.” If the Legislature intended to fix the point of crossing definitely “above” Washington, it was unnecessary to use the word "near.” As said by the Supreme Court of Massachusetts: “The first and most obvious suggestion is, that the Legislature did not intend to fix with absolute certainty and precision the point of departure for the new road, which the defendants were authorized to build. In using language which was so vague and indefinite as to leave open for future determina
We are thus brought to a consideration of tbe question whether tbe location, in tbe light of tbe evidence before us and for tbe purpose of disposing of tbis appeal, is reasonably necessary to tbe accomplishment of tbe purpose for which tbe power is granted, and whether, in tbe light of such evidence, we can say that it is reasonably practicable' to locate tbe bridge above tbe county bridge. We concur with tbe plaintiff in saying that if tbe location of tbe bridge below tbe town will create a nuisance, and if defendant reasonably can accomplish the same purpose by placing it above the town, tbe charter will be so interpreted as to confine it to such location. 16 A. and E. Enc., 1001 (1 Ed.).
In Hickok v. Hines, 23 Ohio St., 523, it is said: “Corporations or public officers are not authorized to obstruct tbe navigation of a river under a legislative grant of power, merely for tbe building of a bridge across tbe river, when tbe bridge can reasonably be constructed so as not to destroy tbe navigability of tbe river.” In that case the Court found that the effect of tbe proposed bridge “would effectually destroy all navigation and practically destroy tbe navigability of the river above tbe bridge.” Tbe right to build a bridge was not denied, but tbe contest related to tbe hind of bridge that-might lawfully be constructed. An injunction was sought only against the building of a bridge “ without a drawTilman v. Wolfe, 27 Texas, 68, was an action for damages for obstructing a navigable stream. Tbe jury found that tbe obstruction was a nuisance, and tbe Court held that the statute
We have held at this term, in Thomason v. Railroad, that power conferred upon a railroad company to construct and operate a railroad must be exercised with a due regard to the rights of the public and of the owners of property abutting or near to the road. In Met. Asylum Dist. v. Hill, 6 L. R. (1880-81), 193, the jury, upon an issue submitted, found that the erection of the hospital for the reception of smallpox patients would be a nuisance, endangering the health of the persons living near-by. It was ruled by the House of Lords that the language of the statute did not authorize the establishment and maintenance of the nuisance.
The power being in the Legislature to authorize the obstruction of a navigable stream by the erection of another highway, as a county bridge or a railroad bridge, the courts will not undertake to control the exercise of the power. The question whether the proposed bridge, if an" obstruction, is necessary for the public convenience, is for the Legislature, but in interpreting statutes, by which it is claimed the power is conferred, the courts will apply the rule of strict construction and interpret them upon the theory that the Legislature did not intend to confer power to unreasonably or unnecessai'ily obstruct the highway or navigation. Earnham on Waters, sec. 1296.
Eor the purpose of deciding the controverted questions of fact, necessary to dispose of the motion for an injunction, in no manner ■ affecting the rights of either the State or such persons as may be entitled to sue, to have these questions in some appropriate action decided by a jury, we are confined to the complaint and answer, together with the affidavits and exhibits filed. It is not seriously contended that the proposed bridge will obstruct, that is, altogether prevent, boats, barges or rafts passing up and down the river, or. that in the
We have examined with care the affidavits filed in the case. Eliminating the complaint and answer, we find an irreconcilable conflict of opinion in the affidavits, while there is but little of fact. Seventeen persons who either own or operate sail, steam, or gas vessels and boats on said river, express the opinion that the proposed bridge will seriously impede, impair and obstruct navigation. Twenty-one persons who say that they are in the same position to form opinion, are equally explicit and positive in expressing the opinion that the proposed bridge will not materially burden, impede or obstruct navigation upon the said river, nor will it seriously interfere with or tend to diminish or discourage commerce upon the said river. Each of the affiants gives the reasons upon which
Eecurring to the parties to the action, we note that the complaint used as an affidavit is not verified by Mr. Pedrick or Mr. Jones. The affidavit of Mr. Haines is very full and explicit; he has large opportunities for knowing the conditions, and his opinions are entitled to much weight. Mr. Packard, an intelligent and evidently well-informed man and resident engineer of defendant, says that he has unusual opportunities for observing the character and class of commerce carried on upon the river. That he has made careful sounding examinations and surveys for the purpose of ascertaining the depth, width, character and course of the channel for a distance both above and below the town of Washington. He gives the result of his work as stated herein. He says that during the month of September pilings were driven at the points at which the center pier and end piers of the draw will be located. That from the time of the driving of the pilings to that of making the affidavit there has been left open some
In the light of this conflict of opinion and in view of the fact that courts of equity are cautious in interfering with a public improvement upon an allegation of apprehended injury, we would hesitate to enjoin the further construction of this bridge. Judge McLean in Works v. Junction Co., supra, a controversy much like this, says that where the evi-
Several witnesses express the opinion that it would be practicable for defendant to locate its bridge above the county bridge. The testimony in this respect is conflicting.
In Barnes v. Calhoun, 37 N. C., 199, plaintiff sought to enjoin the construction of a mill for that it would create a public nuisance, sobbing lands and injuring the health of the people. The testimony was conflicting. Judge Gaston said: “IJpon the whole, we confess that the strong leaning of our opinion is with those who think that the apprehensions of the plaintiff are not without foundation. But we do not, on that account, feel ourselves authorized to grant the extraordinary remedy which he asks of us. We entertain no doubt of the right of this Court thus to act in cases of undoubted and irreparable mischief, and we hold that it may thus act upon the application of individuals, not only in the case of a private nuisance, but where the individuals suffer special injury, in the case of a public nuisance also. Spencer v. London and Birmingham Railroad Co., 8 Simons, 193. But it will only act in a case of necessity, where the evil sought to be prevented is not merely probable, but undoubted. And it will be particularly cautious thus to interfere, where the apprehended mischief is to follow from such establishments and erections as have a tendency to promote the public convenience.” lie emphasized the right of the plaintiff to sue at law for damages, and, if necessary, upon a verdict establishing the nuisance, apply for equitable relief.
In Attorney-General v. Lea, 38 N. C., 301, Judge Nash, citing Attorney-General v. Blount, 11 N. C., 384, says that the Court will enjoin a public nuisance “in a plain case.” (Italics his). In this case an injunction to enjoin the erection of a public mill was dismissed. In Simpson v. Justice, 43 N. C., 115, plaintiff sought to enjoin a private nuisance. Pearson,
There is another view; of the case pressed upon our attention. It appears that the defendant made contracts for the construction of the bridge and expended large amounts of-money in the preparation for its placing; that for several months it was at work thereon. That pilings were driven, the foundation of the structure made and, as one witness said, about one-fourth of the work done before any application was made for an injunction. It is said in reply to this that plaintiffs had made application to the Attorney-General to institute suit, and were awaiting action by him. While the delay in bringing the action is not controlling in our minds,
TJpon a careful review of the evidence and authorities, we concur with his Honor, and his judgment must be
Affirmed.