7 F. 438 | U.S. Circuit Court for the District of Eastern Missouri | 1881
This is an action at law for the recovery of damages consequent upon the alleged injuries caused by defendant. The plaintiff was owner of real estate in Illinois, opposite the city of St. Louis. Said city built, it is averred, on its shore, unlawfully, a dyke, whereby 40 acres of plaintiff’s
First, that the action is local, beng for damages to tho realty of the plaintiff in another jurisdiction.
This suit is brought in the United States circuit court here, of which the defendant, a corporation, is an inhabitant, within the meaning of the acts of congress pertaining (hereto. Being a municipal corporation it could not he an inhabitant of, or found within the jurisdiction of, Illinois, or of the United States circuit court for said district; and hence, if the common-law rule as to local actions must prevail, the plaintiff is remediless, practically, however great the wrong sustained, because no legal service could he there had.
It seems that the old rule as to local actions should not he considered applicable to suits of this nature. Where there is a wrong there must be a remedy. The injury in this case was caused by defendant acting within another jurisdiction.
Second. Defendant contends that the dyke built by it was under authority of Missouri statutes, and consequently was not 'unlawful, despite the averments in plaintiff’s petition to the contrary.
Gan such a proposition he raised by demurrer to tho petition? If the United States courts are bound to take notice of public acts of every state, and the state of Missouri, by statute, authorized the dyke to be erected, then it was a lawful structure, intraterritorially, if properly erected, and does not fall within the rules concerning nuisances. Transportation Co. v. Chicago, 99 U. S. 635; Weeks, Damnum Absque Injuria, § 8; Radcliff v. Mayor, 4 Comst. 195; and various other cases cited, especially Imler v. Springfield, 55 Mo. 125.
There are, however, other and graver considerations involved, to which the attention of counsel was directed in the course of the argument, with the request that they would .examine the same, and the authorities to which the court referred. In the absence of any such aid, the court is asked to pass upon a grave question concerning the rights of riparian owners on opposite sides of the river to that where dykes, etc., are constructed, provided such a question can, in the present state of the pleadings, he raised by de
The question intended to be raised by demurrer cannot be so raised. The court must be informed by answer, on trial, whether the dyke interfered with the navigability ot the river, and transcended the power of the state in the premises. It is obvious that if, in the absence of congressional legislation, each state bordering on the Mississippi river may prescribe what its citizens may do, destructive of the navigability of the river, and to the great damage of owners occupying the opposite shore, then such a state statute would have an extraterritorial effect—a proposition not admissible.
In the light of the views thus presented, the demurrer must be overruled, so that the parties may present to the court, the facts on which their respective rights are based.
Since the foregoing opinion was written, Judge McCrary has passed on a question, not the same as that here presented, but one which throws some light on the subject,—City of St..