The weekly hawk-eye. [volume] (Burlington, Iowa) 1858-1860, 1859-05-17
OPINION or THE COUNT.

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| The showing made by the parties 10 this CO
10, that the city Was authorized by the oct
the Legislature, Of Feb. 9Th, 1851, to loca
Hawk-Eye Creek, BY changing lie natural cha
mel from the western boundary line Of said oil
to the Mississippi River.
That on the 2sth day Of February, 1859, Ii
City Council passed an ordinance "for the 10
cation Of the bed of Hawk-Eye Creek, betwee
the west side Of Front Street and low wate
a... On the Mississippi River" and providin
for opening channel accordingly, to low wate
mark.
Ii il proposed to open the channel, accordin
to the plat attached to the petition, in s:raigh
line through the grounds of defendants. from th
west line Of Front Street to the east line Of ID
accretions.
The petition states that from time immemo
rial said creek has been forming alluvial de-
posts in said river, in front Of the nsostA Q
said crssk, and that recently, said alluvial for.
nations have become 90 great, that with somt
considerable artificial filing in of earth it s sup
posed that several acres Of what is called al
iuvion. or new land, will be added to the mair
shore-to that certain strip of land lying in
front of the city, and dedicated by the United
States to public use"
The petition also shows that said stream in
time Of freshets, transports large quantities Of
earth, soil, and other substances, which are de-
posted in the Mississippi River, in front Of tn
mouth of said creek, At points and places where
the water forms eddies by reason Of the con-
fuence of the currents Of the stream and
river"
II charges "that said company have caused
to be placed upon said alluvion or accretions
vast quantities of earth, &C., and that in so
doing said Company was about to make great
changes, at and around the mouth of said creek,
and to materially change the channel of said
creek, between the west boundary of Front
Street aud the Mississippi River, from the natu-
raj channel thereof"
The petition further shows, that on the 18th
day of May, 1858, there was submitted to the
citizens of said city the question whether they
would, upon certain conditions, convey the al
luyion or accretions to defendants, and says the
electors complied with the proposition and so
voted to give to them the accretions or allu-
Won.
The petition then charges that since the elec
ton the defendants have caused to be placed
upon said alluvion and aceretions vast quanti-
ties of earth and other substances, and in so
doing said Company was about to make great
changes, at and around the mouth Of said creek.
The petition then represents that great evil
10 the city will follow from the filing up Of the
llluyion or accresions and stopping Of the chan
,el of the Hawk.Eye Creek. The petition in
Is prayer asks that said Company be ordered
md decreed to remove all material placed by
hem in the channel of said creek, as located by
'aid ordinance, and that defendants be enjoined
rom putting in any more distractions, and be
,njoined perpetually from interfering with the
bed of the creek, as located by the ordinance.
The plat accompanying the petition as an
exhibit shows that the original survey of said
D. land, now known as Front Street, and that
he surveyor located the mouth of Hawk-Eye
Creek at or near the eastern boundary of said
"trip, the mouth of Hawk Eye remaining where
I was originally, in all times of high water.
The plat shows by the dotted lines, marked P
md o, that the Company are filling in upon
he accretions, outside of the mouth of Hawk
Eye, or its junction with the Mississippi, that is,
hey are filling up and making peninsula in the
Mississippi River, outside of the mouth of Hawk
Eye Creek; and not hindering the creek from
lischarging its water in the Mississippi River,
outside of the original survey. The protest of
defendants, made an .exhibt by the CON-
claimants, shows that what the defendants are
low doing, is in pursuance of contract with
plaintiff.
1t does not appear that defendants are tres.
passing upon any private right, or upon any
public right And for all they are doing they
eem to have ample authority from complain
lnts.
The apprehension that defendants may do
to injure somebody, is not sufficient
ground for an injunction.
The Court is clearly of opinion that defend
Ints have no right to encroach. by filling up the
lccretions, upon that 'gua,.tity of land of
proper width" on the river bank, dedicated for
'ver to the public use. They cannot so turn the
course Of the Mississippi or of Hawk-Eye Creek
Is to interfere with the strip of land, either by
hrowing Hawk-Eye Creek upon Front Street,
n damages to the city, or whosoever may be
INJURED. The creek has a right of way, OUT
tide Of Front Street, and if defendants obstruct
Is passage they must be held responsible for
Ill damages resulting therefrom.
In regard to the probable injury to arise in
he future, by the creek discharging itself on
he west side of the accretions, and thereby in.
uring the landing below, the Court has to say
hat it is not disposed to resort to the exercise
# the high power of injunction to restrain de-
endants from prosecuting their work. The eff
ects OF making the peninsula in the Mississip-
j, can only be made apparent by time, and no
hancellor should stop by this prerogative writ
great public work upon suspicion merely, or
pon the conjecture Of engineers.
The City Council of Burlington have a police
over to execute their laws, extending to the
liddle of the main channel of the Mississippi
liver. The defendants can never claim, sue
essfully, any exemption from the police power
the city, nor from the taxing power, as We
link, but they may have private rights, with
hch there is no power to interfere.
1t appears from the petition that the CITY
ouncil have passed an ordinance to open a |
assage way for Hawk-Eye Creek through the
rounds OF the defendants, and that steps have |
cen taken in accordance with law, to condemn |
he right Of way. From this, it would appear
TAT there is an adequate and complete remedy |
law for complainants, and that they are Dur. |
ling it. A Court of Chancery will not inter- |
re until the remedy at law is exhausted, and |
ot even then, unless q clear case is made of |
iltul and wrongful resistance, or a clear alb
nee OF legal night is shown to resist the cl i'm |
compliments as asserted by the ordinance.
Considering this ease therefore upon the De-
ton, and its exhibits, without reference to the
lswer, there would seem to be not a sufficient
lowing made for an injunction. But when in
with the answer, no doubt remains
to the duty of the Court.
The answer shows among other things, that
.tendants are working under contract made
it'll plaintiff, in pursuance of an Ordinance OF
e City Council, ratified by a vote OF the peo.
e of Burlington, at an election appointed for
at purpose; that authority for this, Ordinance
I'd vote rests upon an express law of the
nited States, ceding this ground called allu-
an to the City of Burlington, with power to
spose of it, and also upon law of the State
Iowa, charging the powers Of the City of
arlington, and authorizing the CITY to sell
dispose Of the accretions as they deemed
Oper.
The answer shows that the contract was regu.
rly made by plaintiff with defendants, for
liable consideration, and that by the terms of
is contract, the defendants have agreed with
antiffs to do the very thing of which they
mplain, and which they seek to enjoin deten-
nts from doing.
The answer with its exhibits, the plat, the
idavits, of Hebard and Thielson, shows that
Q defendants are thus far working upon The
ound sold them by compliments, and in pur-
aDce OF the contract of sale, and thus far
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