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Georgetown v. Alexandria Canal Company, 37 U.S. 12 Pet. 91 91 (1838)

Georgetown v. Alexandria Canal Company

37 U.S. (12 Pet.) 91


A bill was filed by the Corporation of Georgetown on behalf of themselves and the citizens of Georgetown against the Alexandria Canal Company, stating that the company was constructing an aqueduct across the Potomac River within the corporate limits of Georgetown, that the Potomac was a public highway, and that the free use of the river was secured to all persons residing on the border of the river or interested in its navigation by the compact of 1785 between Virginia and Maryland. The aqueduct, with the works of the Alexandria Canal Company, the bill stated, obstructed the navigation of the river and injured the owners of wharf property on the same. The bill asked an injunction to stay the further proceedings of the defendants and for other relief. The Alexandria Canal Company, incorporated by Congress, denied the right of the Corporation of Georgetown to interfere in the matter, denied that their works are within the corporate limits of Georgetown and that the court has jurisdiction to interfere or can restrain them from prosecuting their works under their charter, averring they have not transcended the power granted to them by Congress on 26 May, 1830. The circuit court dismissed the bill, and, on an appeal to the Supreme Court, the decree of the circuit court was affirmed.

The compact between Virginia and Maryland, in 1785, was made by the two states in their character of states. The citizens individually of both commonwealths were subject to all the obligations and entitled to all the benefits conferred by that compact. But the citizens of each individually were in no just sense the parties to it. These parties were the two states of which they were citizens. The same power which established it was competent to annul or to modify it. Virginia and Maryland, if they had retained the portions of territory which respectively belonged to them on the right and left banks of the Potomac, could have so far modified this compact as to have agreed to change any or all of its stipulations. They could, by their joint will, have made any improvements which they chose, either by canals along the margin of the river or by bridges or aqueducts across it or in any other manner whatsoever. When they ceded to Congress the portions of the territory embracing the Potomac River within their limits, whatever the Legislatures of Virginia and Maryland could have done by their joint will after that cession could be done by Congress, subject only to the limitations imposed by the acts of cession.

The act of Congress which granted the charter to the Alexandria Canal Company is in no degree a violation of the compact between the States of Virginia and Maryland or of any of the rights that the citizens of either or both states claimed as being derived from it.

The Potomac River is a navigable stream, or part of the jus publicum, and any obstruction to its navigation would, upon the most established principles, be a public nuisance. A public nuisance being the subject of criminal jurisdiction, the ordinary and regular proceeding at law is by indictment or information, by which the

Page 37 U. S. 92

nuisance may be abated, and the person who caused it may be punished. A court of equity may take jurisdiction in cases of public nuisance by an information filed by the attorney general. If any particular individual shall have sustained special damage from the erection of it, he may maintain a private action for such special damage because to that extent he has suffered beyond his portion of injury in common with the community at large.

While it is admitted by all that the jurisdiction of a court of equity in cases of nuisance is confessedly one of delicacy, and accordingly the instances of its exercise are rare, yet it may be exercised in those cases in which there is imminent danger of irreparable mischief before the tardiness of the law could reach it.

There are cases in which it is competent for some persons to come into a court of equity as plaintiffs, for themselves and others having similar interests. Such is the familiar example of what is called a creditor's bill. But in all these cases the parties have an interest in the subject matter which enables them to sue, and the others are treated as a kind of plaintiffs with those named, although they themselves are not named.

The appellants filed their bill in the court below in July, 1836, stating in substance that they were deeply interested in the trade and navigation of the Potomac River, a common highway, the unobstructed use of which is secured by a compact in 1786 between the States of Virginia and Maryland. That the appellees, under the alleged authority of an Act of Congress of 26 May, 1830, are engaged at Georgetown and within its corporate limits in constructing an aqueduct over the said river. That the said aqueduct is designed to rest on massive stone piers having their foundation on the solid rock at the bottom of said river. That to build said piers coffer dams are used around the site of them, with a double row of piling, the inner and outer rows of piling twelve or thirteen feet apart. That the appellees have finished one pier. That in building it, they filled up the space between the inner and outer rows of piling with clay and earth. The appellants expressed fears, that the clay so used would injure the harbor of the town and channel of the river, but they were assured by the appellees that the clay so used, on completing the pier, should be taken away, and not permitted to be swept into the harbor and river. The bill further states that in the construction of the second pier, then in progress, the appellees not only used clay between said rows of piling, but threw large masses of clay and earth into the open river outside the outer row of piles; that the current of said river and freshets to which it was subject had swept and

Page 37 U. S. 93

would sweep said clay and earth into the channel and harbor, and had materially injured and would injure said channel and harbor. That the appellants had expended large sums of money (in part granted to them by Congress) in deepening the channel of the river below the town, and that the depth of water had been materially lessened, caused in part and materially by the said works of the appellees.

The bill further states that the appellants, before filing their bill, remonstrated against the use of said clay and earth in the open river outside the dams to the officer in charge of the work, but he asserted his right so to use it, and would use it when the safety of his works in his judgment required, and was so instructed by his principals.

The bill further stated that the appellants had reason to believe and did believe that the said operation would be renewed in the construction of the six or more remaining piers of the aqueduct if not arrested by the order of the court, to the manifest injury if not ruin of their harbor and channel. The bill further averred that the appellees were without sufficient means to complete the work, and called for a statement of their funds. The bill also averred the charter of the appellees of May, 1830, to be unconstitutional because it obstructed navigation. It prayed a perpetual injunction against the appellees in the use of clay and earth inside or outside the dams and against the progress of the work so conducted in which they were engaged, and for further relief, &c.

The answer denied the right of the appellants to sue and the jurisdiction of the court to enjoin for a public nuisance, and to give the relief prayed, denied that there was any injury, or damage, and if any, that it was within the corporate limits of Georgetown, and averred the validity of the Act of Congress of 26 May, 1830, and their right to proceed under it. The answer avers that the said charter was granted with the knowledge and acquiescence of Georgetown, that a large amount of money had been obtained and expended on the work, and that appellees confidently believed an ample amount had been and would be furnished to complete it. They further averred that they had employed skillful and scientific engineers, that they had adopted the most approved plan (as set forth in the bill), and that if any injury had occurred or should occur to the river or harbor of Georgetown, which they denied, it was the necessary and inevitable result of the work itself. The answer admits that in building the second pier, in consequence of a freshet in June, 1836, alleged to have swept off the original deposit at the bottom

Page 37 U. S. 94

of the river round the pier, and thereby loosening the outer piles of the dam, they did throw in clay outside the outer rows of piles to replace said deposit; that it was necessary to do so, and the only practicable means to save their work; that it was an emergency not likely again to arise, and that it did not and could not produce the mischiefs alleged and apprehended by the complainants. To so much of the bill as averred the financial inability of appellees to complete the work and called for a development of their resources they demurred. Proof was taken on both sides and filed with the bill and answer, the general replication filed, and the cause by consent set for final hearing. The court below refused to grant the injunction and the relief prayed and dismissed the bill, and the appellants thereupon appealed to this Court.

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