Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-07-13

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OFFICIAL
BpiniOit Of the Supreme cOart OF the state
Of Tennessee, delivered AZ JaoksOns Ms
April Term, 1854.
TIE Memphis 8 Ohio r. r &c. Is. Hicks & Pope
This action is brought to recover damages for the
obstruction Of the free navigation Of Hatehie river
By the plaintiff In erer in the erection Of bridge
over the same, by which the steamer " Bluff City
Ess prevented from ascending the same, From
recovery Of aboHt $500 damages, the Company sp-.
pesled.
The construction Of the bridge was authorized by
the charter Of the plaintiff, but with The pTopsO,
that the navigation of such water course shall not
thereby be Obstructed" It IS argued that this has
reference only to a permanent obstruction BY the
bridge when completed, bus not TO any temporary
distractions which became necessary or cenvenient
in the process Of erection If these were absolutely
necessary, and the work could not be done without
them; and they were only continued Tor 3 reason,
bic time, the position might be maintained but II
the work could be done without the disturbance Of
the conflicting rights Of navgators, OF II way TO
pass could have been kept open, ana was not
then 1t would be unauthorized, and public NUS
an0e.
The authority to throw bridge over navigsble
stream is an exception from the general law, by
which it is forbidden, granted to the Legislature 10
view Of the great advantages to the public, which
are expected TO result from the improvement. IL
must confined to the limits and conditions OF the
greut, and not touch any further upon the common
right to the free use Of the stream
The construction commended for, would require Us
to hold, that the Legislature intended to suspend
the right of nav cation for the length Of time that
might be necessary to build bridges, and then,
when finished If it should not impede navigation it
would fall under the sanction Of the law
We are not Of the opinion that the conflicting
right Of navigation was TO be suspended a. all, not
! - III IL ~
in effect 10 late case at Knoxville, where Baiir BAD
Company were indicted for obstructiDg a county
road We held the Company liable in that case.
In the case before us, there is no doubt but that
the river was impassabe for boats by the tempors-
~ erections made for the building Of the bridge,
and that the steamboat Of the defendants was pre-
vented from ascending the stream, and thereby sus-
tanned loss.
very plausible point is made in reference to the
variance between the character of the damages
laid in the declaration, and those upon which
covery was had under the charge Of the Court
The verdict was based upon the expenses incurred
BY the boat in making the trip which rendered
fruitless by this obstruction. The damages alleged
in the declaration are that they we're deprived Of
the profits gains and advantages which they might
and otherwise would have made by the use and en-
ploymeRt of said steamboat " Bluff City" in the
carriage and conveyance Of the said goods, wares
and merchandise, in and upon said naTigable
stream.
The point made is, that there is no proof that
there was on board any goods, wares, or merohan-
disc" upon freight, but the verdict is based upon
the expenses Of the trip, which the Court charged
might be looked to as the measure of damages,
though lot specified in the declaration.
1t Is true that the remedy for a public nuisance
is generally by indictment, and that suit Of an in
dividual can only be maintained for some particular
damage to him. Bl: Com, 1920, aud note III.
1 Bacon, 255. To make a declaration good, some
particular injury must be stated But it is not in
dspensible for recovery, that the injury shall be
proved precisely as laid This would be too string
ent for the present liberal state Of pleading and
4 practice. The profits that might probably have
/ been made by the trip, were properly excluded BY
! the Court as the measure Of damages, on account
Of the uncertainty and speculative character Of such
/ rule.
/ Such rule, Sedgewick on Dam, 69-70, as to the
/ probable amount Of freight that might have been
/ made OF O back load of cotton, would not have
been the proper criterion Of damages. This would
| be too indefinite and contingent. Perhaps in 8
case like this the safest and best rule that laid
I down by the Court If the trip was rendered fruit
Tess in the language of the charge, by the Obsruc
| ton the party was certainly injured tc the extent
Of the expenses. This word fruitless excludes the
} idea that anything was otherwise, made by the
! trip, but that it was entirely lost As to the ex
/ penses the proof is conflicting, as in all cases Of
/ opinion. But the jury have settled it. In conneo
ton with this, the Court charged, that the plant
/ ifs knew of the obstruction, they could recover
nothing This was certainly strong enough for the
company, but its correctness need not be considered
/ as they do not occupy attitude to complain.
The discussion in relation to the temporary OBJ
struotion of highways by improvements, unloading
&C., upon the general law on the subject Of iDju-
ries from nuisanees, need not be examined, as the
statute in this case forbds the obstruction without
Limitation or exception. Nor does this case make il
necessary TO consider how far the rashness care
lessness Of the party complaining would ezhOnorste
/ the other party Ii the damage had been an injury
to the boat or hands, cargo, by the obstruction
! that doctrine would be appropriate.
We cannot concur, either IN the position that thC
I true measure Of damages would be the time
detention necessary for the removal Of the obsruo
ton. That might be So if the boat we're to submit
to that course for then there might, perhaps be
/ other damage But the owners of the boat are no
bound to rest upon their oars and wait for the re
/ moval of a nuisance, unless they choOse+o do so
In this case they elected return snC stand upoI
| their claim for damages We find no error in thu
! case, and affirm the judgment. CARUTHERs.
Test: NJ. d WEIGH, Clerk.