The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-12-15

pIaints is entirely consonant with sound principles
OF equity; moreover the theory that n the answer de-
ton must be dissolved.i SIS based upon the principe
that the answer must be taken true; but We mast
not carry tins @ 20 ai e ~ my sSs a - u mat
bill the Injunction must be dissolved II the Court
sufficient reasons Tor maintaining the IN.
junction. and that lt entertalnS doubts about the
truth OF the allegations aimed In the answer and
that irreparabe injury viii be done NOT GRANTED,
then aud In that case, wi.s' T.; Inv s snc
denials In the answer. IL may ia Its u.s.
creton maintain the Injunction; Bus sncn ~
not the here. The doubts entertineu
In the mind OF the Court are doubts formed ABOUT
the truth Of the complaint and atldavts upon which,
this injunction Is founded. IL cannot be INFERRED
from the mere fact OF proximity that tue owner =,
river, which Is public highway, has some interest
therein merely by reason OF his proximity inns -
an error which has been extensively lndulged In. ~
was set at rest however by the Court in the case
Gould va. The Hudson Railroad Company q sell
ana se ssy ssa sSo~ anaoSous to high
ways on water IN Com, S25; ii Barb, 20.
And no doctrine Is more firmly settled than that FOR
public nuisance the government alone can prose-
cute; and that those who do not suffer 10y Violation
Of Jaw otherwise than as members OF the commu
sustain me in this view could cite many autho
rifles. One or two however, will he sufficient
Clerk vs.. sayhook q Com, $780, smith vs.; Boston,
466. II public nuisance work private
injury to q person that person may have
remedy by private action for damages. and,
in n proper case, may have on injunction.
noisome odor issuing from public nuisance, sucn
a. issues from the aintiiis' gasworks, wiz nave
this effect, If 1t pervades the surrounding atmos
phere, enters the adjacent dwellings and either en-
dangers the health dlsurbs the comforts OF those
dwelling therein. noise upon the public highway
in like manner penetTates the dwellings, and dis
turbs the inmates. / think these are the only IA
stances in which a nuisance Ia the public highway
work particular injury to private individual
merely in virtue OF Its proximity. The only other
cases in which private injury may result from
nuisance in highways are those wnere the actual
passage is Thereby interierel with.
IT. for instance, by means OF an obstruction in the
public highway q man Is arrested in his progress
over 1t ana put to EXPENSE TINS s special damage,
ana an action will lie. This was the rule held by
Chief Justice Shaw, III Smith w. Boston u Cnsh.l;
but the case have supposed, and that In seventh
Cush and the like cases, II viii be seen are all cases
OF special damage, and arise in the common right OF
passage which belongs to every citizen; and the
right OF action such cases Is less perfect be-
cause the platu resides or his property Is great
distance from the locus IN quo, nor Is 1t more
imperfect because he happens to own an adJoin-
ing lot. The gravamen OF the action, its whole es-
sence is that he had right of passage and was
hindered from using IT, and suffered special damage.
1t is clear therefore, that in OF Nuisance by
the obstructing of public highway private per-
son can have no action but for actual injury received
In this case the proof would not at this stage OF The
proceedings warrant me III holding that the plaintiffs
can make out even pri,na tacie case Of personal
| injury or damage. Until very recently no one
doubted the doctrine and in this and in all the
districts OF Supreme Court IN this STATE except
ing the rs II stitnat no private action can oe
any wrong against the State. Public nuisances arc
subject to Indictment; and IN aid Of the courts d
| law equity At the suit OF the government will step
| IN; but that the contrary doctrine has been sane
toned In high places might be treated with levity
But even as II stands now In First judicial dis
rict believe the adludcations are evenly balanced
for and against the rule. 1t must follow therefore
from all That have said that upon the plaintiffs
own showing they cannot, as matter OF law, nam
tain this injunction. But in addition TO the law be
ing against their right to maintain this mi junction
| we have the facts running counter to their views
| and that IN the most decisive TERMS
The defendant in his answer positively denies
| every allegation In the complaint, and In addition
to his answer he shows by himself and six other
witnesses that he Is not the cause OF essening the
depth OF water in the river. On the contrary, lac
| shows that the plaintiffs themselves are lesSening
the depth OF the water 1t Is lessened at all. And
| these allidavits on the part OF the defendant are
| only met by the complaint OF the plaintiffs and two
| Witnesses neither OF whom are as clear IN their
statements the witnesses for the defence SO that
upon the facts n presented to me, am constrained
to deny this motion.