#### GEORGE H. WALKER, *Appellee and Complainant, vs.*CLARK SHEPARDSON, *Appellant and Defendant.*

APPEAL IN EQUITY FROM THE MILWAUKEE CIRCUIT COURT.

When a bill in equity sots forth acts of the defendant creating a public nuisance, by placing obstructions in a stream navigable in fact, for which he might be indicted, if those acts also create or cause a private and special injury to the plaintiff, and it appears that the defendant persists in the commission of those acts, which must inevitably result in especial injury to the plaintiff, the court will interpose by injunction to prevent the threatened injury.

Placing obstructions in the bed of the Milwaukee river (navigable in fact), in front of the complainant’s lot and dock, thereby blocking up and obstructing the channel of the stream, shows special damage to the plaintiff, distinct from the public injury, and also indicates the manner in which the injury to the plaintiff will be accomplished.

In June, 1853, the complainant hies his hill in the Circuit Court of Milwaukee county, setting forth that he is now, and has been for more than six years last past, the owner in fee simple, and in possession of certain real estate known as water lots, situated in the city and county of Milwaukee, and described as lots two, three, four, five, six, seven, eight, nine, ten and eleven, in block three, in Walker’s Point of the city of Milwaukee. That said lots are bounded on the north and east, towards, and lie adjacent to, Milwaukee river, which said river, from its mouth up to, and for a great distance above said lots of complainant, has always been, and still is, a common and public highway, navigable for sail and steam vessels of the class usually employed in trade and navigation upon the waters of Lake Michigan, into which the waters of said river flow; and the complainant further says, that in or about the year 1848, he built and constructed a wharf *385or dock at an expense of several thousand dollars, along the line between said lots and the river, and caused the "bed and" channel of said river, in front of, and adjacent to, said lots, to be dredged and cleaned out, and made of sufficient depth to render said dock freely and conveniently accessible to all vessels, propellers, steamers and other craft, of the largest class employed in the navigation of the said river.

And the complainant alleges further, that he is entitled to the free and undisturbed use and enjoyment of the channel of the said river, for the ingress and egress of vessels and commerce to and from said dock and wharf, and to have said channel and every part thereof kept entirely free and clear of all artificial obstructions and erections therein, that shall or may, in any wise, unlawfully interfere with, hinder, interrupt, or prevent such free and undisturbed use or enjoyment thereof for the purposes aforesaid.

And the bill further sets forth, that on the fifth day of May, 1853, the mayor and common council of the city of Milwaukee, being thereunto lawfully authorized by an ordinance of said city, passed and established a dock or wharf line for the western side of said river, (giving a description thereof,) and that the said dock line so established, extends from the north extremity of the complainant’s dock, from a point in the line dividing the fourth and fifth wards, on a direct line with the complainant’s said dock, to a point at or near the junction of the waters of Milwaukee river with the waters of the Menomonee river, a tributary to said Milwaukee river, a distance of about two hundred feet; and that said line nowhere touches the bank of the said Milwaukee river above low water mark.

*386The complainant further states that Clark Shep-ardson and others, in disregard of the complainant’s right, and the right of all other citizens of the State of Wisconsin, to the free and uninterrupted use and enjoyment of the said Milwaukee river as a common and public highway for the purposes of navigation, and in defiance of the said ordinance of the city of Milwaukee, are, and have been for the space of more than three weeks last past, engaged and employed in wrongfully and unlawfully blocking up and obstructing the channel of said Milwaukee, river, in front of the complainant’s said lots, by driving timber or piles into the bed of said river, and by filling up and stopping said river by logs, timbers, spars, gravel, &c., 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 in its capacity for the passage of vessels engaged in the navigation thereof, is diminished and injured, and a large portion of the said channel is rendered wholly impassable and useless for the public.

That the said defendant purposes and intends to construct a wharf in and upon the channel of the river, in front of complainant’s said lots ; that the defendant has already wrongfully driven more than one hundred piles into the soil and bed of the river, extending into the channel thereof more than fifty feet beyond the said dock line and below the water mark, adjacent to the said lots, and has, by that means, enclosed, taken possession of, and appropriated to his own exclusive use, for the purpose of constructing a wharf aforesaid, a considerable portion of the bed and navigable channel of said river, extending outside *387of and beyond the said dock line, and the line the complainant’s wharf, about sixty feet in length across said river, and about one hundred feet in width1; that the channel of said river is thereby confined and straitened, to the serious detriment of the public use and enjoyment thereof, and particularly to the lots and wharf of the complainant, and that the same is a common and public nuisance.

That the said constructions and erections greatly hinder the use and enjoyment of the said dock and lots of the complainants, and that if the defendant is allowed to complete and maintain the same, they will be rendered difficult of access from the river, and that the ingress and egress of vessels and other water craft navigating the river, will be seriously obstructed thereby. That the projection of the said obstruction erected by the defendant, beyond- the legally established dock line, and in front of the complainant’s lots, will hinder, cut off, and prevent communication between said lots of the complainant and the main channel of the river, and the said lots and dock and wharf will thereby sustain great and irreparable injury and damages in the premises, by the diminished use and convenience thereof, and by the reduction and depreciation of the value thereof; and that he believes,,if completed, the said obstructions will confine the main current of the said river, and divert the same from the vicinity of the wharf of the complainant,' where the same would naturally flow if unobstructed, and will create eddies and counter currents, setting back upon that portion of the river immediately adjacent to the complainant’s wharf, and will cause, that portion of the river to be filled up by deposits of sand and other materials.

*388The bill prays for an injunction; that the same may be perpetual ; that the obstructions already erected may be removed.; and for general relief.

To this bill a general demurrer was filed, which was overruled by the court below, from which ruling the defendant appealed.

*Lynde & StarJc,*for appellee.

1. The court commissioner was authorized to grant an injunction. *JR. S. chap.*131, *seal 5 ; Sess. Laws of*1850, *chap.*53, *seo.*1.

2. By demurrer, defendant admitted the matter’s averred in the bill to be true. 1 *Barb. Oh. Pr.*166 ; *State of It. I. vs. State of Mass.,*15 Peters, 233.

3. The Milwaukee river is navigable in fact, and a common highway by nature. It was declared to be a common highway, to be forever free, by act of Congress, ordinance of 17 8 7, article 4, and by act of August 6, 1846, (_S. *S. p.**190, *seo.*3.) Also by article nine of State Constitution, *It. S.p.*33 ; see also, *An gell on Water (bourses,*561.

4. The acts of defendant, as charged in the bill, constitute a plain case of purpresture, or public nuisance. Any obstruction to a navigable stream is, upon the most established principles, a public nuisance. *Angelí on Watercourses, 570, 572; Georgetown vs. Alexandria Gon. Co.,*12 Peters, 97 ; *Hart vs. City of Albany,*9 *Wendell,*584, 607 ; *Bao. Ab. title Nuisance, A.p.*227, 228, or to any part of it. The permanent appropriation and exclusive occupation of any part of a public river, is an obstruction to its free and common use, and indictable as a nuisance. *Hart vs. May- or <&e. of Albany,*9 *Wend.*584*et post.; Ztespublioa vs. Oackoell, 1 Dallas,*150. In *Kean vs. Stetron, 5**389*Pick.*492, it was considered that the whole of a igable river, within high water mark on each side, was public highway. 3 *Pent's Com.*431, note; *Sto-ver vs. Freeman,*6 *Mass.*438*Lansing vs.*Smith, 4 *Wend.*21. The same principles apply to all public highways. *Same eases above cited; Commissioners déc. vs. Long, Parson's Select Fg. Ca.*143 ; *Cooper et al. vs. Gorrirs dec. of Detroit, Harrington! s Oh. P.7'2;*2 *Watts,*23 ; 19 *Pick.*147 ; *Warehouse in*Boston, 3 *State Pep.*202-6. Any obstruction to the river is prohibited under penalty. *R. S.*182, 897. The State has jurisdiction over it. 3 *How. U.'S. R.*212.

5. The jurisdiction of courts of equity to restrain purpresture and nuisance by injunction, is well established. 2 *Story's Eg. Juris.*921, 2, 3, 4, *and cases cited and referred to ; Mohawk R. R. Co. vs. U. S. R. R. Co.,*6 Paige, 563 ; *Eden .on Injunctions,*261, 267 ; *Georgetown vs. Alexandria Con. Co.,*12 *Peters,*91; *Angelí on Watercourses,*575; *Atiy General vs. Eowles,*2 *Mylme & Craig,*12^-30, *(in note to Story's Eguity Juris, see.*924); *Atiy General vs.*Richards, 2 *A.ustruther,*603-6, *cited in Parson's Select Eg. Ga.*145-6 ; *Atiy General vs. Cohoes Co.,*6 *Paige,*133. This jurisdiction is assumed because of their ability to give a more complete- and perfect remedy, to prevent irreparable mischief, *dec.*2 *Story's Eg. Juris.*§ 924.

6. If the thing sought to be-prohibited be in itself apparently a nuisance, and not merely liable to become so, under possible or probable circumstances or contingencies, the court will interfere by injunction, without waiting trial, and will grant relief. *Earl of Rip-on vs. Hobart,*3 *Mylme dé Craig,*169, (reprinted in 8 *Eng. Ch. R.*331, 469, and cited and approved by Chancellor Walworth in 6 *Paige,*563 ;) *Story's Eg.**390*Juris, seo.*924, note/ 9 *How.*29; *Gomlrs v-s. Long, Parson!s Select Eq. Ga.*146, *and oases there cited.*

11. Complainant has averred special injury to himself, as owner of property on the river injured by defendant’s acts, which are ■ sought to be prohibited. This renders public nuisance private as to him, and entitles him to file a bill for an injunction, and rely in equity, in his own name. The ground of relief is special injury to the complainant. 2 *Story's Eq. Ju-ris. seo.*924-5 *etseq.; Spencer vs. Birmingham & London E. P. Go.,*8 *Eng. Gh. R.*392; *Lampoon vs.*Smith, 8 *Sim. Gh. R.*272, *(in*8 *Eng. Gh. R.*435 ;) *AtPy General vs. Gleaver.*18 Vesey, 211; *Crowder vs.*Tinkler, 19 *id.*616 ; *Gornmg vs.*Lowerre, 6 *John. Oh. R.*439 ; *State of Penn. vs. Wheeling Bridge Co.,*13 *Howard,*566-7-8 ; *Gomlrs vs. Long, Parson!s Select Eq. Ca.*148 ; *Angelí on Watercourses, sec.*572 ; *Eden on disjunctions,*267-8, *and note*6.

8. The injury to complainant is irreparable — not adequately to be redressed at law. *Penn. vs. Wheeling Bridge Go.,*13 *How.*562; 2 *Story’s Eq. Juris, sec.*926, 788 ; 2 *Eden on Injunctions,*271-276 ; *Buck vs. Stacy,*2 *Russ.*121.

*P. Yates,*for the appellants.

. *1.*The complainant does not show himself entitled to the easement or right claimed by him. *Gale <& Whatley on Easements,*313-315; *Olmsted vs. Loom-is,*6 *Barb. S. G. Rep.*152-165 ; *Eishe vs. Wither,*7 *id.*395. It was a private basin, which he may lawfully fill up again at his pleasure. 6 *Gowen’s Rep.*539, *in note.*The jurisdiction of chancery is merely to protect the *legal right. Smith vs.*Eiger, 2 *Eng.**391*Com. £aw and Ch. Rep.*161. “ Disadvantage to the plaintiff* is not the test.” *id.*

2. It is not alleged in the bill that the complainant “ *has suffered*some *private, direct and material*damage, beyond the public at large, *as well as*damage otherwise irreparable.” 9 *Howard's Rep.*10, 27; *Bigelow vs. The Hartford Bridge Go.,*14 *Gonn. Rep.*580 ; 2 *Story's Eq., sec.*925 ; *Lansing vs. Smith,*8 *Goto. Rep.*146 ; 4 *Wend.*9 ; *Dr alte vs. The Hudson River Railroad Go.,*7 *Barb. S. G. R.*508 ; 2 *Story's Eq. sec.*928.

The rights alleged to be infringed, must be clear, definite and certain; and if .not so appearing in the bill, the defendant *must*deyiv/>for he will lose the costs of the litigation. *Olmsted vs. Loomis,*6 *Barb. S. G. R.*165.

8. The bill does not only not allege that he “ has suffered some private, direct and material damage, beyond the public,at large, as well as damage otherwise irreparable,” but it does not state “ *how the complam-ant's property toill be injuredSpooner vs. McGon-nell,*1 *McLeatis Rep.*360.

“Though a demurrer admits *all allegations,*it admits them *not as facts,*but as allegations, and from which an inference is to be drawn.” *Messenger vs. Harntnond,*1 *Eng. Gom. Law and Oh. Rep.*98.

The bill charges an obstruction of public navigation — “a public nuisance” — (of which the public authorities can alone complain, *Seely vs. BiehopfS Conn. Rep.*135,) without the least pretence that the plaintiff luts suffered the least injury *in fact,*but only the appreliension of an “inconsequential injury," (14 *Conn. Rep.*580,) or *“ contingent future*damages, or *incidental or consequential*injuries of *indefinite*amount, *392n°f caPaWe of estimation,” (7 *Barb. S. C. R.*508,) “a mere diminution of tlie value of tlie property, without irreparable mischief” (2 *Story's Eg. seo.*925,) “ instead of the great, continued and irreparable injury,” and producing some *“private, direct*and *material damage, beyond the public at*large,” demanded by Justice Woodbury, in 9 *Row.*10. *Del. & Maryland R. R. Co. vs.*Slump, 8 *Gill*479.

4. “ A *strong*case must be presented, and the impending danger must be *imminent and*impressive, to justify the issuing of an injunction.” 7 *Barb. S. C. R.*508 ; *Wingfield vs. Crenshaw,*4 *Hen. c& Murf.*474.

Lord Eldon held, as late as 16 *Ves.*216-219, “ there is no instance of holding it a nuisance, and therefore enjoining it, *without a*tried.” But in the more recent case of the *Earl of Ripon vs. Hobart,*(3 *Mylne c& Keene,*169, reprinted in 8 *Eng. Oh. Rep.*331,) Lord Brougham deduced from the prior decisions the following clear and very just rule, applicable to all cases of this character. It is expressed as follows : “If the thing sought to be prohibited is *in itself a*nuisance, the court will interfere to stay *irreparable*mischief, without waiting the result of a trial. But if the thing sought to be restrained is not *unavoidably and in itself noxious,*but only something which may, according to circumstances, prove so, *the court will refuse to interfere until the matter has been tried at law?*This rule has been adopted by Chancellor Walworth almost *verbatim,*in *Mohcrnk Bridge Co. vs. The Utica & Schenectady Railroad Co.,*6 *Paige,*554, 563; 16 *Viner's Ab.*39, 40.

5. This is “transcendant and extraordinary power, and is therefore to be used sparingly, and *only*in a *plain and clear*case, (9 *How.*33,) and was never before *393attempted to "be brought into requisition *without tice*to the defendant. 18 *Ves. 216*; 19 *id.*621; *Ohittu's Ida. Die/., title Nuisance:*1 *MoLean'-s Rep.*360 ; and every other case of application for an m-junction of this character to he found in the hooks.

As to the *absolute rights*of riparian proprietors, see 3 *Cushing's Rep.*91-105. Mode of dividing land among proprietors situated upon a *stream*— Knight *vs. Wilder,*2 *Cushing's R-*199. How divided, when hounded on a *cove*— Gray *vs.*Reluce, 5 Cushing, 10.

The test between rivers *entirely*private, and those private, subject to the public use, *consists im the fact,*whether they are susceptible, or not, as a *common passage for ihepublic, {The People vs. Pratt,*17 *Johns.*211,) not in high water only, *{Munson vs. Hunger-ford,*6 *Barb. 8. C. R.*270,) nor with skiffs, <fcc., but generally and commonly, and for some purpose useful to trade or agriculture. *Rowe vs. Granite,*21 *Pick. R.*344.

The State itself cannot, (much less the city corporation, which is still further restrained by our Constitution, *art.*xi., *sec.*2,) *without*compensation, make waters navigable which are not so by nature. *Comal Commissioners vs. The People,*5 *Wend.*423.

*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.