| Ill. | Dec 15, 1848
The Opinion of the Court was delivered by
The question of jurisdiction may be disposed of in few words. Independent of any statutory provision, the State as a political corporation has a right to institute a suit in any of her Courts, whether it be required by her pecuniary interests or the general public welfare demand it. If the subject of the suit be local, the suit must be commenced in the county of its locality, unless she is authorized by special statute to commence it elsewhere. The subject of this suit is local, and the bill was properly filed in St. Clair county, where the alleged nuisance was about being erected. Whatever might have been said against the right of the Court to bring the City of St. Louis before it as a party, that question is waived by the voluntary appearance and filing a demurrer to the merits of the bill. All the other parties were brought before the Court in the mode pointed out by law.
The jurisdiction of the Court over the subject matter of of the suit was also undoubted. The Court of Chancery may grant preventive as well as remedial relief, and this may be done where the act threatened would be punishable Under the criminal laws as a nuisance. It was admitted that the Court may prevent or remove a private nuisance, and it is equally clear that it may do so when the nuisance affects the public generally; although it is not always bound to interfere in either case. No better case could be desired to illustrate the necessity of this jurisdiction than the one before us. If the acts here threatened would amount to a nuisance, the remedy offered by a criminal prosecution, would be entirely inadequate to the protection of the public franchise, for the works once erected, it is admitted on all hands that no human power could ever remove them, and such are the interests involved on the one hand, that the prospects of a prosecution which could only be followed by a light punishment, present no sufficient terrors to restrain the parties.
But the important question presented by this record is, whether the works in progress would amount to a nuisance. It is admitted that the object of these works is, and the effect will be, to entirely obstruct the eastern channel of the Mississippi river, flowing between the main Illinois shore and Bloody Island. The whole of this, together with the island, as well as all the contemplated works, are entirely within this State. The principal channel of the river, with about five-eighths of the water, passes west of Bloody Island; and this channel is used for all ordinary purposes of navigation, passing up and down the river; while the eastern channel can only be navigated with a small class of steam boats, and with flat boats, keel boats and barges ; although in a very high stage of water, it is safe for the very largest class of boats; and in a very low stage, it is hardly navigable at all, but is used for mooring boats. Although the Mississippi river is not what is termed by the Common Law a navigable stream, yet it is so, in fact, and has been declared to be so, and recognized as such by numerous treaties and many public laws. While its outlet and western border belonged to Spain, it was declared in the fourth section of the treaty of 1795, between the United States and that povyer, “ that the navigation of tiie said (Mississippi) river in its whole breadth, from its source to the ocean, shall be free only to his subjects and the citizens of the United States, unless he shall extend the privilege to the subjects of other powers by special convention. ” 8 U. S. Stat. at large, 141. And by the fourth Article of the Ordinance of 1787, it is provided, “ that the navigable waters leading into the Mississippi and St, Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other State that may be admitted into the confederacy, without any tax, import or duty therefor. ”
It is an important inquiry to determine what kind of jurisdiction, the several States, through and between which this river and its tributaries run, may exercise over such parts of them as are within their respective limits, without violating the rights thus secured to the citizens generally. This is certainly a delicate question, and in its solution, it is necessary to examine, as well the rights and benefits secured to the citizens of all the States, as the powers and jurisdiction of the several States over the portions of this great highway, within their several boundaries. Indeed,' the determination of the one settles the other; for the sovereign power of these States over this highway, is only limited, or diminished by the guaranty of rights to the common citizens of the Union, But for that guaranty, the sovereign power of the States over the portions of the river within their limits, would be the same as it would be over any other of their highways. What then is this common right guarantied to all ? What benefits were they to derive from it, and what were the privileges which they were to enjoy ? The object to be attained was the promotion of commerce, and the rights secured are purely commercial. The States can do nothing which will substantially abridge those rights, but may do anything which will not have that effect, which they could do but for this guaranty. Without this guaranty, the States might "treat any portion of this river within their limits as a highway or not, and if made a highway, their control and jurisdiction over it would be the same as over an} other of their highways. This guaranty of rights to the citizens of other States, although made before the creation of any of the States through, or between which it flows, may be construed precisely as if it were a grant made subsequent to, or at the time of their formation. The Ordinance itself does not declare the Mississippi river to be a common highway and forever free to all the citizens of the Union, but the navigable waters leading into it. This common right of the free navigation of that river was considered as already ex- - isting, and the extent and nature of that right may be understood from the provisions made in relation to the tributaries, as all were undoubtedly intended to be placed on the same footing. There are two prominent restrictions upon the States to be formed ; one was that these rivers should never be closed against the citizens of other Sates, and the other that no tax, impost or duty should be exacted of them for the navigation of these highways. Where no material or substantial obstructions are created by the States, within whose limits those rivers run, the citizens of the other States cannot complain. The substance of the right secured, is, that of free transit. Suppose one State or nation guaranty or grant to the citizens or subjects of another, the right of freely traveling over its public roads, would it be denied that such State or nation might narrow or change the location of such road, provided its free and commodious passage was not interrupted thereby? It is the substance of the right that is to be observed, and when that js enjoyed, no ground of complaint exists. The several States may, within their own jurisdictions, do whatever they please with this river, so as they do not infringe upon these rights, nor otherwise violate the rights of others. This power is necessary to the States for the proper management of their own domestic concerns, and has been habitually exercised by all ever since their first formation. They may change the current of this river, or even stop up some of its confessedly navigable channels, whenever they find it necessary to their own well being, the same as any other highway, taking care that they leave a free navigation to those who have a right to navigate it. As in the case before us, admitting this eastern channel to be unquestionably navigable, and hence a part of the highway, this State has a right to fill it up entirely and unite the island with the main land, if the main channel is still left open to free and uninterrupted navigation. If, in doing this, private property would be damaged, compensation would have to be first made for that. The exercise of such a power, at this or some other point might be indispensable for the terminus of a railroad or canal or some other public work. Without this power, the jurisdiction of the States over this portion of their territory would not be worth the name. It requires no vivid imagination to see in the future, the immense improvements that are to spring up all along both banks of this river from its source to its mouth, which will be of immense advantage not only to the States in which they are situated, and the local interests in their neighborhood, but to the general navigation of the streams, and all made too, by the exercise of this power by the States over this great public highway. To deny this, is to deny the right of improvement, as well as the power of injury. The absolute necessity of this power may be. illustrated by many familiar instances ; such as the improvement of the Naples fiats in the Illinois river. There the river is broad, and nearly as navigable in one part as another, and who would deny the right of the State to compress the water into a narrow compass, and thus deepen the channel.
But because the State may do this in its sovereign capacity, it does not follow that any individual, over whose land the river flows, may do the same. The State may shut up or abolish a public road running over my land, while if I obstruct it without the sanction of law, I erect a nuisance, although the road may be entirely unnecessary. These works are erected with the license and approbation of the ■owners of the soil over which the eastern channel flows, and the case must therefore be considered precisely as if the works were being erected by the owners themselves. We fully recognize their right to make any erections on their own land, which do not infringe upon the public easement, ■hut they have no more right to erect a nuisance in the public highway, than as if the title to the land was in the State. It is not for individuals, but for the State to judge, whether the whole of a public highway is necessary for the public accommodation or not. Hence, it has been repeatedly held, ■that any erection or obstruction placed in any part of a public road or street which deprives the public of the use of ■any part thereof, is a nuisance.
In Hart v. The Mayor of Albany, 9 Wend. 584, Mr. ■Justice Sutherland says: “The public are entitled to the use and enjoyment of the whole of a highway, and no individual can appropriate a portion of it to his own exclusive use, and shield himself from responsibility to the public, by saying that enough is still left for the accommodation of others.?? This law is administered in its fullest extent in 6 East, 427, and seems to be tire generally admitted doctrine, with some few exceptions, as where materials are temporarily placed in the street to be used in erecting a building, leaving sufficient room for the passage of the public on the other side. And the law seems to be quite as tenacious of the rights of the public in navigable rivers and harbors. In The King v. Ward, 31 Eng. Com. Law R. 92, the subject was carefully examined, and the previous cases reviewed, and it was held, that although a public nuisance by an erection -in a harbor was counterbalanced by the public ben® arising from the act complained of, yet it constituted no defence to an indictment for the nuisance. And subsequently, in The Queen v. Randall, 41 Eng. Com. Law R. 272, where the defendant had erected a wharf between high and low water marks on a navigable river, the effect of which was to deepen the centre of the river, and improve the general navigation, the Court “left it to the jury to say whether the wharf itself occasioned any hindrance or impediment whatever to the navigation of the river by any description of vessels or boats,” and told them that they were not to take into their consideration the circumstance that a benefit had resulted to the general navigation of the river, by the mid-channel of the river being kept clear, as proved by the defendant’s witnesses.” Although this last case, considered by itself, may be thought to go too far, it seems to be the well settled rule in prosecution for nuisances, that the defendant cannot set off equivalent or even greater benefits resulting to the public, for the erection of a real and substantial obstruction in a public road or river. In other words, a private citizen may not take the public welfare into his own hands, and justify himself for such a violation of some of its rights, under a plea of a general benefit. The erections proposed are unquestionably of such a character as to amount to a nuisance, if the eastern channel be a part of the public highway, for they would destroy it altogether, and the Court has not the discretion to excuse this, even on account of a greater benefit which might accrue to the public. We must, then, address ourselves to the inquiry whether this channel is navigable, for by this alone can we determine whether the public have an easement there.
The facts agreed upon show, that for all crafts which "usually navigate this river, except steam boats, and even for a small class of these, this channel is navigable at an ordinary stage of water. Not many years since, all the commerce of that river was carried on in boats which might navigate this channel as well as the other, and such is the case now to a very considerable extent. This channel affords much better navigation than the best water in many places in the Illinois and Ohio rivers, and probably many other of the tributaries of the Mississippi, which are confessedly public highways. It would be absurd to hold that no part of the river is navigable except where the largest class of boats can pass. A stream may be navigable for one class of boats, and not for another. Should we hold that this part of the river is not navigable, because all classes of boats cannot pass there, then by the same rule should we have to determine that those parts of the river, where the water is so strong that they can only be navigated by steam boats, are not navigable. One is only capable of being navigated by one class of boats, and the other, by another. The only feasible and practicable rule is, to hold all parts ' of the river navigable which may be navigated by any class of vessels habitually in use on the river.
If this Illinois channel is not a part of the public highway, then the public have no right to navigate it, and consequently whoever goes there is a trespasser upon the owners of the soil. Such a result would hardly be insisted upon; nor do I imagine that it would be denied that the defendants would be responsible for any damage which a boat might sustain by running upon the works complained of, and yet, such would not be the case, if the defendants had a legal right to erect them. There is no middle ground on this subject. This eastern channel is either a part of the public highway, or it is not. If it is, then these erections infringe upon the public franchise, and are a nuisance ; and if it is not, then the public have no easement there, and cannot be justified in encroaching upon the exclusive property of the proprietors. Either the public easement must be confined to the main channel of the river, or it extends over every part of it which is capable of being navigated. The latter, we have seen, must be the rule. Each one who navigates the river, has the right to choose the channel which suits him, without question from any individual, subject, to be sure, to certain statutory regulations.
We cannot entertain a doubt that the eastern channel of the Mississippi river between Bloody Island and the main land, is in fact, and within the meaning of the law, navigable, and apart of the common highway. We have sought in vain for satisfactory authority, vesting in the Court a discretion to continue or dissolve the injunction, as it might deem most conducive to the public good. Had we that discretion we should not hesitate to affirm this decree ; for if we were permitted to form an opinion, we could not doubt, judging from the facts as agreed upon in, this case, that the best interests of the public, as a whole, would be thereby subserved. But that opinion, as the case stands, could only be expressed as individuals, and others might judge differently. The discretion involved is .vested in another branch of the government. We are not at liberty to look at these general results in determining whether these works would amount to a nuisance. The Executive or Attorney General may very properly have considered it an imperative duty, to protect the rights of the State against encroachment, leaving it to the Legislature where the question properly belongs, to say whether permission should be given to proceed with these works.
It is not every purpresture that amounts to a nuisance, and if it does not, when the interposition of a Court of Equity is invoked, it will take upon itself to inquire whether, all things considered, the interests of the State would be promoted by its interference, and if they would not, the Court will refuse its aid. But if the purpresture amounts to a nuisance, then the Court cannot inquire how the public good may be affected, but will interpose and abate or restrain the nuisance, (2 Story’s Eq. Jur. § 922,) for the Court cannot sanction a public nuisance. It must not, however, be understood that a Court of Equity will, in all cases even of public nuisances, interpose its extraordinary powers, for if the ordinary Courts of Law are equal to the emergency, redress must there be sought. But where, as in this case, the nuisance could never be abated, and the public rights could never afterwards be enjoyed, the Court may not evade its manifest duty as pointed out by the law, but must effectually and in earnest interpose its restraining power. It is the business of another department of the government to determine whether the welfare of the State, and the interests of the public can permit these works to progress. While we might be of opinion that it would eminently promote the publie welfare to fill up this eastern channel, and permanently unite Bloody Island with the main land, it is possible that the Legislature might think that it would be better for the interests of the State, to let the water work its way, and accomplish what is anticipated in the report of one of the engineers, and change the main channel of the river to the east of the island. If such a result can be prevented by the exercise, of any legitimate power by the owners of the banks, now being washed away, as by riveting them, we think the State could not complain, but propriety and self-interest, as well as public duty should have dictated an application to the proper authorities, before any attempt was made to fill up and entirely destroy a navigable channel of the river, situated entirely within the State.
It has not been our purpose to go beyond the case before us, and the questions growing out of, and indispensably connected with it, in our discussion of the rights of the States, within whose jurisdiction the Mississippi and its navigable tributaries are, and of the rights of individuals over whose lands they flow; for it must be apparent to every reflecting observer, that many important questions must arise, affecting as well the rights and interests of communities and States, as of individuals, from the effect produced by the ever restless action of this mighty torrent, which is constantly changing its bed, and in general seeking a shorter way to the ocean. In the settlement of these questions the greatest consideration will be required. It cannot, however, be denied that the State, as such, has a right to insist that one of the navigable channels of this river, lying entirely within its own borders, and which is a part of the public high wav, shall not be destroyed without her consent. The Legislature is the proper department to judge what the interests of the State require, or may permit, and it is there, and not to the Courts, that appeal must be made, for the sanction of, or permission to arrest these works.
The decree of the Circuit Court must be reversed with costs, and a decree entered here making the injunction perpetual.
Decree reversed.
Trumbull, J. having been of counsel in this case, took no part in the decision.