The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-12-15
SUPERIOR COuRT-speCIAL TERM.
The Manhattan GasIight Company in Coul

Observation-Disclosures of Navigation.
The Manhattan Gdstt0ht Company uS james Bar
ker-This is motion on the part OF the plaintiffs to
restrain the defendant the owner OF dstillery in
Eighteenth and Nineteenth streets, near the North
river, from discharging his refuse mash into the
common sewer, the waters of which carry said
mash into the Hudson or North river, and. as the
plaintins alege 1t there sinks to the bottom
Of the navigsble stream, and Is thereby q
nuisance, and Is injurious to navigation and
specially injurious to them the paints In this suit
they also aege that the Corporation leased to them
the right to collect wharfage on the front OF the
river, where the sewer empties into the stream.
The defendant denies explicitly and clrcumstan-
TALLY each and every allegation In the complaint;
and alleges that instead Of the refuse Of his dis
tillery sinking and lesscning the depth OF water It
floats away with the current; and that 1t is the
therefr0m that are floating into the slip and are less
enng It's depth, II 1t Is lessened and that Is not
The defendant further alleges that the plaintis
own all the property around him 1.-THE defendantl
and that they are also DESTROYS OF owning the prop
erty upon which his distery Is built and that this
effort their part IL not 80 much the interest they
have in keeping the river deep as 1t Is effort to
He s 10
and annoy defendant, 80 as to make him part with
his property upon which mis- dlstiiiery Is placed to
Judge McCunn--First, the plaintifs assert that
tain injuries will result from the use by defendant Of
the sewer. alleged by them. Second, that 1t In
wolves certain public wrongs offences against the
public by reason OF their being injured In certain
privileges they have received from our municipal
Corporation, and they claim q right 10 maintain an
action In equity In their own names to restrain the
defendant from such usurpatlons and to prevent and
remedy such public wrongs-to w.t. the maintain
ing OF public nuisance. The Corporation has not
leased TO them anything but the right to collect
wharfage at their docks, fronting on this river. and
ttno rlx hoir NIL hahn
as much Interested In the use OF the plain
tifYs are Notwithstanding the proximity Of plaintiffs
action can be maintained innumerabe others could,
thereby leading To absolute confusion The tls pub
ilca or user OF our great rivers or highways Is IN
the people; and tney and they alone are the trustees
to guard and protect Them This Is the English doc
trne, as well as ours Il Hume's Eng, 2l7).
Bmt tne u.ae 70 n,gnways ~ A t - not IN
little occasion to resort to the English books for
guide in this respect. Every state In this Union has
adopted statutes expressly on this subject, and the
acts Of own Legislature are especially clear and
explicit on this score, 80 that If an individual en-
croaches ON the great rivers or highways OF the
nation ample remedy can at once be applied In the
name OF the people and by tile competent law officer
elected appointed Tor that purpose, and 1t il not
viii OF individuals or special corporations
who may Imagine themselves grieved TO apply
remedy 80, The .o relief prayed lo.od for by
the grounds that the act imputed to the defendant is
public nuisance or the usurpaton OF q franchise
filling up Of highway, US plaintiffs complain.
Ii Is true 1t may not affect every citizen equally
alike, but In Judgment OF law, assuming that no
special injury IL shown, they have the same right 20
complain. Now II will not be maintained for one
moment that an action will lie by an individual
citizen for such an offence such a course would
confound all distinctions between public and pri-
waite rights and would lead to great confusion. This
the doctrine held Ia the OF Davies w. The.
IL is the undoubted rule OF law that highways tand
navigabe rivers are great highwaysl belong to the
pubic rights they belong Il absolutely and there
Is right In the adjacent owners OF the soil. Io
man, Treaties, p. x5s.l The portion OF the river
which plaintiffs complain that defendant Is lling up
therefore belongs TO the people IL Is theirs a. a
great public highway, absolutely under their con-
troll and for their use and they alone, and not tho
plaintiffs, can seek or naintatn remedy TO prevent
lis being injured.
Again, an injunction should never be granted
pending the action tpeadsnte htel on light grounds
or In doubtful cases. The universal rule is, where
the right ~ not clear and transparent and the danger
great, or tho apprehended mischief irreparabe, 1t
should not be granted until the rights OF the parties
are fully ascertaned by trial In open court, with
witnesses, and every opportunity allowed the parties
against whom the remedy IL sought TO be enforced
Co convince the mind OF the Court that the
remedy should not DO granted THIS was held
In this courto be the rule In the case OF Redned vs.
Middleton II Dos, 6sel. l Am aware that this rule
has been varied sometimes where for instance de-
PENDANT IL about TO permit or do injury To real pro-
perry and where his claim thereto IL doubtful and
where tho injunction would only be Of q transtory
injury, aud where compensation could be easily
awarded; but that Ia not the case Ia this instance
Here the DEFENDANTS large business IL entirely
stopped the machinery engaged In his distiery Idle
and becoming seriously impaired the longer tremains
In that condition. Under these circumstances, and
In the exercise OF sound discretion, must adopt tho
greatest caution before l allow these paintifs TO
maintain their Injunction because, a. have said
before the granting and continuing OF an Injunction
must always rest la the SOUND discretion OF the
Court lWolerlson va. Anderson, John, oh :. 204l
The well established rue--that II the answer denies
explicitly and positively the grounds on which
the equity claim In The bin rests, the
Injunction 70 stay must be dtss Owed
must not be departed from, and I can
nothing whatever Ia this case 10 form the slightest
exception TO that rule The answer or the defendant
ia directly responsive to the very gravamen OF the
complaint and In the strongest manner denies its
allegations IN toto. lie denies that the mash from
his dstillery In the slightest degree lessons the
depth OF water at the place complained or or at any
otter place and swears positively that the plainiins
themselves, from their vast establishment for
making gas, Nil up with coal tar and other
debris the wharf or dock which ~ the
subject matter In dispute. Now, the answer IN
all respects Is strictly responsive to the bill because
~ positively, explicitly aud ciroulnstantialy denies
all It's allegations; and the rule Is wei settled that
are bound TO take all the allegations In the answer
true ON this motion and at tis stage OF tue pro.
Cced.ugs u seems 10 me from the alldhVts, anu
nom al inspection Of tue premises the rght VI lhis