Walker v. Shepardson, 2 Wis. 384

Walker v. Shepardson

2 Wis. 384 | Wis. | 1853

By the Court,

Whitow, C. J.

• The bill of complaint sets forth that the complainant is the owner of certain lots in the city of Milwaukee, lying adjacent to Milwaukee River ; that the river is navigable for sail and steam vessels of the kind usually employed in the trade and commerce of- the lake, into which the river flows; that the complainant constructed a dock, or* wharf, along the line between the lots and river, and caused the bed or channel of the river *394*n °f an(i adjacent to said lots, to be dredged and cleaned out, and made of sufficient depth to render said dock freely accessible to all vessels employed In the navigation of the river; that the mayor and common council of the city of Milwaukee passed an ordinance establishing a dock line on the west side of Milwaukee river ; that said dock line extends from the north extremity of the complainant’s dock, on a direct line with said dock, to a point at or near the junction of the waters of the Milwaukee river with the waters of the Menomonee river, a distance of about 200 feet, and that the line nowhere touches the banks of said Milwaukee river, above low water mark. The bill charges that the defendant has been employed in wrongfully and unlawfully blocking up and obstructing the channel,of said Milwaukee river in front of the complainant’s lots, “by driving timbers or piles into the bed of said river, and by filling up and stopping said river with logs, timber, spars, earth, gravel and other materials, thereby hindering and obstructing the flow of the waters of said river in their natural and wonted course, whereby the channel of said river is greatly straitened and obstructed, and its capacity for the passage of vessels engaged in the navigation thereof, is' diminished and injured, and a large portion of the channel aforesaid is rendered wholly impassable and useless to the public.”

The bill further charges that the defendant intends by means aforesaid, to build and construct a wharf, or dock, in and upon the channel and waters of the said Milwaukee river, in front of the lots of the complainant, and for that purpose has driven a large number of ¡flies into the bed of the river, extending into the channel of the river more than fifty feet beyond the *395said dock line, and beyond the low water mark, or line of said river, adjacent to the lots of the complainant; and by means of the piles so driven, has enclosed and appropriated to his own exclusive use, for the purpose of constructing his dock, or wharf, a considerable portion of the bed and navigable channel of the river, outside and beyond the said dock line, and beyond low water mark ; that the channel of the river is thereby confined and straitened, to the serious hindrance and detriment of the public use and enjoyment thereof, and particularly to the injury of the dock and lots of the complainantand that the erections made and proposed and intended, greatly interfere with, hinder and obstruct the use and enjoyment of the said dock and lots. The bill contains other allegations, but it is not necessary to notice them, as they do not materially vary the case as above stated.

To this bill there was a general demurrer interposed, for want of equity. The demurrer was overruled, and from the order overruling it, an appeal was taken.

We think the order of the Circuit Court was correct. We must consider the complainant as the lawful owner of the lots and dock, and that -the latter was lawfully built in the place described in the bill. We must consider Milwaukee river as a stream navigable in fact, and hence a public highway, for the passage of boats and vessels, and We must consider that the defendant was, at the time when the bill was filed, engaged in driving piles into the bed of the river in front of the complainant’s lots, and thereby blocking up and obstructing the channel of the stream; as these facts are alleged in the bill, and admitted by the demurrer.

*396The acta of the defendant, as stated in the hill, show that he was creating a public nuisance, by placing obstructions in a stream, navigable in fact, for pe might be indicted. In cases of this nature, where the acts which create the public nuisance, cause also private and special injury to the plaintiff, an action at law will lie; (Lansing vs. Smith, 8 Cow. R., 146, and the cases there cited,) and where the complainant in a bill in equity shows that acts are about to be committed which will inevitably produce the same result, the court will interfere by injunction to prevent the threatened injury, if it is of such a nature as to justify the issuing of the injunction. (Earl of Ripon vs. Hobart, 3 Mylne & Keene, 169; Story’s Equity Juris., sec. 924, a.) Objection is made to the bill, that it does not state how the complainant’s property will be injured. But we think that the charge made in the bill, that the defendant was placing obstructions in the bed of the river in front of the complainant’s lots and dock, thereby blocking up and obstructing the channel of the stream, not only shows that special damage, quite distinct from that which the public will suffer, will be sustained by the complainant, if the defendant is permitted to complete the erection of the nuisance, but indicates also how the injury will be accomplished. Upon the whole, we are of opinion that the bill should be answered, and that the Circuit Court decided correctly in overruling the demurrer.

Order of the Circuit Court affirmed.