5 Port. 279 | Ala. | 1837
The solicitor of the first Circuit in behalf of the plaintiff in error, filed an information in Equity, in the Circuit Court of Mobile, in which it is alleged that Government street, in that
It is further alleged, that the defendants have adopted measures with the view to the erection of another extensive market house, in Government street, which will still further hinder and obstruct its free and uninterrupted passage.
These allegations are sustained by several affidavits, which make part of the record.
The information prays that an injunction may issue, to restrain the erection of the market house, threatened and intended to be built. And upon a notice to shew cause, why this prayer should not be granted, counsel appeared before the Circuit Court: when upon full argument, the injunction was denied, and the information dismissed. To revise which decree, a writ of error, has been sued out, returnable to this Court.
In the written arguments with which we have been furnished, this case is supposed to depend mainly upon these questions.
First. — Do the facts, stated in the information, shew a nuisance, either committed or intended'?
Second. — Has Equity, jurisdiction over the subject, so as to afford a remedy'?
1. By the act of eighteen hundred and twenty, entitled, “An act supplementary to the act, entitled an act to incorporate the city of Mobile” — .among
Though all powers which are essential to theim
In either case, it would be an obstruction, which the corporation could not legalise, unless it were permitted to exercise powers, expressly withheld, by the source from' which it derived its functions.
The streets of an incorporated town, are its highways, subject, in general, to such improvement and alterations, as its legislative authority may prescribe; in which a due regard is to be had to individual interests : and sometimes an equivalent rendered for the sacrifice of private property. The extent of the powers of a corporation are to be ascertained by a reference to grants, which the legislature have made
An act of incorporation, is an enabling act,—it imparts to the corporate body, all the power it possesses.—Head & Armory vs The Providence Insurance Company.
In the case before us, the corporation, (as we have seen,) is vested with power to regulate the streets, &c. of the city, under certain restrictions, one of which is, that Government street, shall be one hundred feet wide. The legislature have withheld the right from the corporation, to regulate that street, in disregard of this restriction; any act then, done by the corporate body, which contracts its limits, must be invalid, as an usurpation of authority.'
The information charges, that the erections already made, greatly obstruct and stop up Government street, so that it cannot be used as a highway, by persons on foot, on horse bach, with carriages, &c. as they had been accustomed, and were authorised to use it. And a diagram accompanying the record, (if it cao be considered a part of it,) shews the width of that street, at different points, and the length and width of the market houses erected; from all which, it appears, that the .surfaceuncovered, at several points, was considera
We incline to the opinion, (though it cannot be necessary to decide- the question here,) that the street should present an unobstructed open surface, of one hundred feet in width, and that it is not enough that the space on both sides of an obstruction, should be as much as one hundred feet.
While the streets of a town are its highways, they may also be the public highways of the country. And in the present case, the legislative declaration, prescribing the dimensions of a street, excludes the action of the corporate body, so far as it comes in conflict with the paramount will of the legislature, and must, in itself, be taken to make it a highway, free to the passage of all persons, for all legitimate purposes.
In regard to the first question, it remains but to inquire, whether the obstruction made, as well as that contemplated and intended by the defendants, does or would amount to a nuisance.
Russell, in his treaties on crimes,
Bacon in treating of nuisances in highways,
Thus we learn, that at common law, where the particular charge is the obstruction of a highway, the question of nuisance, or no nuisance, depends upon the fact, whether its passage is rendered “less commodious.” So that we discover in the case before us, the erection made, and that intended, are ,and would be a nuisance.
This view being decisive, we are relieved from considering, whether the act of the legislature does not from implication, make it a nuisance, to make any erections in the street, though the convenience of passing it, may not be interfered with thereby.
2. Touching the jurisdiction of Equity in cases of nuisance, though the cases in which it is exercised are not frequent, yet we think it undoubted. It is founded on the right to restrain the exercise, or the erection of that, from which irreparable damages tq individuals or great public injury would ensue.
In cases of public nuisances, properly so called, an indictment lies to abate them, and to inflict other punishment upon the offenders. Butin England, it was competent also, for the Attorney General to file an information in equity, to redress the grievance. The instances in which that Court has lent its aid, are chiefly confined to informations seeking preventive relief, to inhibit the doing of some act, or performing some work, which when done, would amount to a public nuisance. In these cases the Court proceeds by wayof injunction.
Informations in Equity have been maintained in some cases, where the object to be effected, extended even to the abatement of a public nuisance. In such cases, the jurisdiction of the Courts, is predicated, upon the ground, of the ability of Equity to give a more complete, and perfect remedy, than is attainable at law, in order to prevent irreparable mischief, and also, to suppress oppresive and vexatious litigation. “In the first place, they can interpose, where the Courts of law cannot, to restrain and prevent such nuisances, threatened or in progress, as well as to abate those already existing. In the next place, by pctpetual injunction, the remedy is made complete, through all future time:—■ Whereas an information, or indictment, at the common law, can only dispose of the present nuisance; and for future acts, new prosecutions must be
In an anonymous case, (reported in 3 Atkin’s R. 750,) a motion was made for an injunction, to stay the building of a house, to inoculate for the small pox, — Lord Hardwick, conceding the jurisdiction of Equity, (which was not questioned,) remarks, that bills to restrain nuisances, must extend to such as are nuisances at law; and the fears of mankind, however reasonable, will not create a nuisance,— but inasmuch as it had not been settled, that such an erection created that offence, the injunction was denied.
In the case of the Attorney General vs Cleaver,
In Crowder vs Tinkler,
So in the case of the Attorney General vs Nichol,
In the case of the Attorney General vs Utica Insurance Company,
The Chancellor, after stating that the exercise of the banking power, charged in the information,
If the Chancellor intended to be understood, according to the literal import of the terms he employs, either he is in error, or else the learned Judges and authors whom we have cited, have mistaken the law, and with all deference for his judgment, we are disposed to think the former most probable.
The jurisdiction of Courts of Equity, in affording preventive relief, in cases of public nuisances, we understand to be clearly defensible, both upon authority and principle, where the fact of nuisance is placed beyond doubt: if this fact be questionable, the aid of that Court is usually withheld ; but even then it has sometimes been given by way of injunction, (to continue until a trial at law,) where
The principle upon which Equity entertains an information to restrain the exercise of a public nuisance, (as the employment of an offensive manufacturing establishment,) or to abate it, has been already stated to be, in the first case, to prevent irreparable injury, before a Court of law could act definitively, — and in the second, to prevent a protracted and expensive litigation, which must generally be the case where there are many persons to defend.
The information in the case at bar, is not as explicit as it should be, in disclosing the difficulties, (if any exist,) to adequate redress at law, so far as it regards the market houses already erected; and though the proof may be ample, it will not be competent to give the relief sought in respect to those, unless the information be so amended as to present upon its face, a good title to the aid of the Court.
That the principles indicated by this opinion, may be carried out, the decree of the Circuit Court must be reversed, and the cause remanded. And an injunction is directed to issue from this Court, according to the prayer of the information, returnable' to the Circuit Court of Mobile, to continue, until, in the opinion of that Court, the Equity of the information shall be fully met and removed by the answer and proofs, to come in and be taken in the case. And the costs of this Court, must be paid by the defendants.
15 Johns. R. 358.
2 Cranch. R. 168.
1 Vol. 295.
3 bacon's Ab. 497.
2 Lord Raym. 856 2 Russ. on C. 461.
2Story's Com. 201.
2 Story’s Com. 201. 2 Mitford’s Plead. 144 Eden on Inj. 157.
2 Story’s Com. 203 & 4.
18 Ves. Ch. R. 211.
19 Ves. Ch. R. 617.
16 Ves. Ch. R. 338
2 Johns. C. R. 371.
1 Hopkins, Ch. R. 354.