The republic. [volume] (Washington [D.C.]) 1849-1853, 1852-03-31

boats and the persons aged in commerce are not
parties to this suit and the State has
no right 10 prosecute tor them She must not only
show that boats with high chimneys are more pro-
hable TO the owners and better Tor commerce than
those with lower ones but she must also show that
the necessity OF reducing them VIII lessen the pro-
fits of her canals see no proof in the record by
any sufficient to establish that fact; and we
are called upon TO demolish structure which cost
more than $500 900, to save the State of Pennsy-
vania from this speculative, questionable, and at
most inconsderable loss. 1t seems to me that, ii
the pow and jurisdiction Of this Court were clear
and supported by precedents, yet this Court, upon
settled principles of equity Jurisprudence, would
refuse TO destroy property of 80 much value,
and which the public by its proper officer, does not
charge to be a nuisance, merely to guard against
the possibility OF an inc loss by the State
Ii s precisely OF those cases In which the Court
would at all events require the party to establish
his right law before he comes into equity, or to
make the Attorney General party, and give the
public an opportunity of being heard where its in
terest is so deeply involved.
do not doubt the power Of the court Of chance
ry To abate public nuisance upon an Information
in chancery to which the Attorney General is
party. But even in a of that kind there must
be danger of rreparable mischief before the tardi
OF the law can reach 1t. This Is the doctrine
OF this Court in the Of the City OF Georgetown
cs The Alexandria Canal Company, II Pet, 49,
But such case is not now before US. The Attor
ney General is not party. Penns yvania
individual for private right. And in case
of this description am not aware Of any case emit
tied TO be regarded as authority in this Court,
where chancery ever interiered by Injunction
cept by way oil prevention; that ia, to stay the
contemplated structure unit! 1t could be decided,
in proceeding to which the public was party,
whether it was public nuisance or not. We must
be careful not to coniound cases OF public nuisance
with merely private ones; for, in the former, the
public have interest 10 abate 1t II n nuisance,
and to protect il it is not and therefore, have a
right to be heard whether the trial be in equity or
at law.
| This was evidently the opinion Of this Court in
| the of the city Of Georgetown Us. the Alexan-
dria Canal Company, and also in the Gaze OF Crow.
| der Thinker, 10 Yes, Ole. therein cited with
| appreciation. In the last mentioned case, where
the court nerfcrcd for prevention and not to abate
a'structure already completed, the chancellor pac-
ed the injunction upon the ground that the nuisance
about To be erected would be attended with ex-
treme probability of irreparable injury to the pro-
perry OF the plaintiffs including also danger to their
existence; and this clearly established in that
before he awarded the injunction. Such is the
rne upon this subject which was sanctioned by this
Court. Certainly no one of the material circum
stances which existed in Crowder es. Tinker can
be found in this. And if the principles decided
here in the case of the city of Georgetown the
Alexandria Canal Company recognised the
law of this Court, can see no foundation for the
injunction in the case before US. For il not only
has none Of the circumstances in II upon which the
injunction granted in Crowder u.s. Tinker.
but in that case, strongly it appealed to the pre-
ventive power of the court OF chancery, the court
merely suspend the erection until the question of
public nuisance not could be tried by jury up
on an indictment IL did not grant perpetual in
junction. and still less did it order what had already
been constructed to be abated or removed.
So far, have considered the upon the as
sumption that the bridge, upon common law prin-
cipies, would be n nuisance. And admitting that
1t would be one, think, for the reasons above
stated, that in the absence Of any legislation upon
the subject by Congress this proceeding cannot be
maintained shall, therefore, very briefly ex
evidence.
am by no means prepared TO say thai this bridge
would be public nuisa nce even at common law.
The evidence Of the degree in which it obstructs
navigation is exceedingly voluminous, and il is
impossble TO go fully into examination Of lite
comparative weight in a. manner that would do
justice to the subject, without making this opinion
itself volume 1t is sufficient to say that, in all
questions Of this kind, the general convenience and
interest ofthe public in the travel and trade
the river. as well as on its waters must be taken
into consideration. For whether il ID public nui-
sance or not depends upon whether il ia or is not
injurious TO the public. The cases in the State
courts and In the circuit courts of the United States
referred 10 IN the argument, which shall not stop
here TO examine. In my opinion maintain this doc
trine. And upon principle, Independently OF adlu-
dications, IL cannot be otherwise structure which
promotes the convenience OF the public cannot be
a nuisance to IL. And the public whose interests
are to be looked TO in this lie not the public of
any particular town district Of country or State
or States, but the great public Of the whole Union.
Taking this view Of the question, and looking to
the testimony, as set forth IN the record and
especially to that unerring test experience, which
the lapse Of time has afforded, am convinced that
the detriment and incon venience Ia the omrnoreo
and travel on the riyer are small aud occasional
only, while the advantages which the public dc.
rives from the passage over IL are great and
slant. And IL the courts Of the United States had
common law jurisdiction. and the question wac
legally before vs., TO determine whether this bridge
was public nuisance or not, am Of opinion that
i is not, and that the advantages which the great
body Of the people Of the United States reap from
II outweigh the disadvantages and inconvenience
sustained by the commerce and navigation of the
river.
Moreover, the jurisdiction exercised in this case
i new and without precedent in this Court Bridges
have been erected over many navigsble rivers, and
built SO near the water that vessels can pass only
through draw. Such bridges are unquestionably
obstrucuons, and impede navigation. For where
the vessels propelled by sais, and the wind is
unfavornblo, they arc often detained, not only for
hours but for days Tho courts Of the United
States have never exercised jurisdiction over any
Of these obstructons, nor declared them TO be
nuisances. ] should be unwilling, in a case like
this, 70 exercise this high and delicate power with
out precedcnts 10 support me in analogous Cases
The demolition Of THE bridge would occasion a
heavy loss to the parties and much iuconve ncnco
20 large portion Of the community The United
States are not parties 70 this proceeding, and the
particular Injury sustained by the complainant IL
exceedingly small; and il is solely for the protec.
ton OF her small, remote, contingent, and spccu.
lative interest In tolls, that this bridge 10 pulled
SpNuB III IL must DC remembered mat, nlthOuRh
we sec in the testimony that injuries alleged 20
have been suffered by others, yet the State Of Penn
sylvania is the only party 10 this proceeding-tbe
only one who appears In this Court complainant;
and her particular lOss is the only ground on which
jurisdiction IL claimed, and the only injury which
the Court is called on 10 redress or has a right to
consider IN this proceeding
The testimony, too, il conflicting; men OF emi-
hence and slcli, and well qualified TO speak on the
subject differing widely in their testimony. And
am the more unwilling 10 assume this question
able jurisdiction, because the legislative depart.
ment Of the General Government has undoubted
power over the whole subject, and may regulate
the height Of bridges over the Ohio, and Of the
ebimueys ofsteambOsts when passing under them;
and may while II guards the rights Of navigation
IN 'he stream, at the same time protect the rights
Of passage and travel over a. That department Of
the Government has better means too Of obtaining
information than the narrow scope Of judicial pro.
ceedings can afford. II may adopt regulations by
winch courts Of justice msy be guided In any in.
qury like this with some degree of certainty, in.
stead Of leaving them 10 the underlined discretion
which must nov be exercised in every case that
may be brought before us. without being able 10
lay down any certain rule by which this deere.
ton may be limited. II is too near The confines of
legslation; and think the Court ought not to az.
sumo 10.