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Mississippi & Missouri Railroad Company v. Ward, 67 U.S. 2 Black 485 485 (1862)

Mississippi & Missouri Railroad Company v. Ward

67 U.S. (2 Black) 485


l. A public nuisance may be abated on a bill in equity brought by a private party who has suffered special damage.

2. It is necessary for the plaintiff in such a bill to show that he has sustained and is still sustaining individual injury by the nuisance.

3. But where the bill is brought in a federal court, it is not necessary to show that the plaintiff's damage amounts to the sum which is required to give the courts of the United States jurisdiction.

4. The jurisdiction is tested by the value of the object to be gained by the bill, and that object is the removal of the nuisance.

5. The private party, though nominally suing on his own account, acts rather as a public prosecutor on behalf of all who are or may be injured.

6. If he has partners in the particular business affected by the nuisance, he need not join them as plaintiffs, any more than he need join other persons who have suffered similar injuries.

7. A bill in equity to abate a nuisance is a local suit, and can be brought only in the district where the nuisance is situated.

8. Where the nuisance has been erected and is maintained by several persons or corporations, those who are not within the jurisdiction of the Court need not be joined as defendants in the bill.

9. In a bill for the abatement of a nuisance brought in the District Court of the United States for the District of Iowa, that Court can exercise no jurisdiction (locally) beyond what a state court of Iowa might have exercised.

10. The nuisance complained of being; a bridge across the Mississippi where that river divides the States of Illinois and Iowa and the state line being in the middle of the river, the District Court for Iowa has no power to abate the nuisance (if it be a nuisance) on the Illinois side.

11. If the obstruction to navigation complained of was created by piers erected on the Illinois side, that was an offense against the laws of Illinois, and neither a state court of Iowa proceeding

Page 67 U. S. 486

by indictment nor the federal court for that district sitting in equity can inquire into the facts or furnish a remedy.

12. Inasmuch as the removal of the three piers and three spans of the bridge erected between the middle of the river and the Iowa shore would not materially remedy the nuisance complained of, though it would render the bridge useless, this Court will not affirm a decree which orders such removal.

13. If the removal of that part of the bridge which is within the jurisdiction of the Court would not improve the navigation of the river so far as the plaintiff is concerned, he is not entitled to a decree in his favor.

14. In a suit for the abatement of a nuisance, a court of equity confining its inquiries within the limits of its local jurisdiction, must be governed by the same rules which a court of law would act upon in trying an indictment for the same nuisance.

15. The rule of law is that where a bridge over a navigable stream is erected for public purposes, and produces a public benefit, and leaves a reasonable space for the passage of vessels, it is not indictable.

16. Another rule is that the bridge must appear plainly to be a nuisance before it can he so decreed, since a court of equity, proceeding by bill, like a criminal court trying an indictment, must give the benefit of all reasonable doubts to the defendant.

17. The Mississippi River being a boundary between states throughout nearly its whole length, there are judicial difficulties in dealing with nuisances between its shores which can only be removed by legislation.

On the 7th of May, 1858, James Ward filed his bill in the district court, praying for an abatement of the Rock Island Bridge over the Mississippi River, averring it to be a public nuisance, specially injurious to him as an owner and navigator of steamboats to and from St. Louis, Missouri, to St. Paul, Minnesota. The bill alleged that the Mississippi River is a navigable

Page 67 U. S. 487

stream, the boundary line, in whole or in part, of ten states; that it is used as a channel of commerce and navigated by boats, vessels, rafts, and flat boats. That steamboats, with other craft in tow, require a space from 120 to 140 feet in width, and, where the bridge is require the entire width of the river for transit, with at least 60 feet of clear space above for masts and chimneys. Lumber is one of the largest items of transportation, and by reason of the winds and currents, rafts require the entire unobstructed bed of the river. The navigation of the river is a necessity of trade, and almost the only means of transportation between Wisconsin, Northern Iowa, Minnesota, and the upper Mississippi. The complainant is part owner of certain steamboats plying between St. Louis and St. Paul, and his profits depend upon the safety of the navigation. He avers that he has, by the treaties with France in 1803, the acts of Congress, and the universal principle recognized by the common law, a right to the free and unobstructed navigation of the river in all parts of it. He further asserts that the navigation has been interrupted and rendered dangerous and difficult by the erection of a bridge from Rock Island, in the State of Illinois, to Davenport, in the State of Iowa; that the river at that point is only about 1,300 feet wide; that it is at the lower end of the Rock Island Rapids, which Rapids are eighteen miles in extent above the bridge, with a fall of twenty-five or thirty feet in that distance; that the current is unusually rapid at that point and difficult of navigation, and that anything in the bed of the river greatly injures the safety of boats, especially in high winds. The bill sets out at length the manner in which the construction of the piers and abutments of the bridge has imperiled navigation and obstructed the stream. The complainant alleges special damage to his own boats occasioned by the obstruction, the amount, in the instance of one boat, reaching a thousand dollars. Owing to the danger of navigation, he has been compelled to pay largely increased premiums for insurance occasioned solely by the bridge. The bridge and obstructions were placed in the river by the Mississippi & Missouri Railroad Company, who are made defendants, with the aid and assistance of the Chicago &

Page 67 U. S. 488

Rock Island Railroad Company, and a bridge company created for the purpose of its erection by the State of Illinois and by the aid of other persons to the complainant unknown. The Mississippi & Missouri Railroad Company have been hitherto and still are maintaining the said bridge as their own possession and for their own use and benefit. The said company, by themselves or in combination with the other companies named which are not within the jurisdiction of the court, are about to increase the obstruction in the river by greatly enlarging the piers of the bridge. The said bridge is a common nuisance now, and the increase of the size of the piers will increase the danger and obstruction and further hinder and delay complainant's boats in their passage. From the number of disasters, the difficulty of procuring evidence, the expense of preparing for trial, and the peculiarity and diversity of the injuries sustained, suits at law would not compensate for the damage.

The prayer of complainant was:

"That on the final hearing of this bill, the court will order, adjudge and decree that said bridge was erected in violation of law, and is an obstruction to the navigation of said river, and that the same is a nuisance, and particularly to your orator, and that the said bridge and the piers thereof and all material used therein which injures and obstructs the free navigation of said river be abated and removed, and the said river be restored to its original capacity for all purposes of navigation."

The defendant in his answer admits that the Mississippi is a channel of commerce navigated by boats, vessels &c., and that steamboats sometimes have barges in tow, but denies that they require the space alleged, and avers that the width of boats with their barges does not usually exceed seventy feet, so that the whole width of the river is not necessary to the safe transit of such boats. Denies that sail vessels ever navigate the river. Admits that the amount of lumber rafted down the river is great, but avers that rafts do not usually exceed seventy feet in width, while the piers of the bridge are two hundred and fifty feet apart.

Defendant neither admits or denies the ownership of said

Page 67 U. S. 489

bridge, and avers that if it is so, the joint owners with defendant ought to be made parties defendant herein, and claims the same benefit as though objection had been taken by demurrer for want of proper parties herein; that he has no knowledge or information as to purpose for which said boats were built or the business of complainant; denies that complainant has the right as claimed in all parts of said river; and avers that the right to build a bridge is as sacred as the right of navigation where no material obstruction is created, and denies that the treaties, acts of Congress and principles of law prevent the construction of a bridge; denies that the navigation has been obstructed or rendered dangerous and difficult by the erection of a bridge, as alleged; that the waterway is one thousand three hundred and twenty-two feet; that the current through the draw in high water is about five miles per hour; that in time of high winds, boats were not accustomed to go over the rapids.

The answer describes the bridge minutely, and avers that since its completion in 1856, there have been more than one thousand seven hundred passages of steamboats through the draw, many of them with barges in tow, one with six barges. Defendant admits that the interruption in the flow of water caused by the bridge increases the current flowing past said bridge, but avers that such increase does not exceed the rate of one half mile per hour.

Defendant has no knowledge or information as to any injury to the steamboats of said complainant as alleged, but if either has been so injured, it was out of the steamboat channel and negligently and improperly navigated and managed, as the current is straight and direct through the draw on the Illinois side of the draw pier, and if the boats had been put in their proper positions, they would have passed through safely.

Defendant has no knowledge or information as to increased rates of insurance.

Admits that the defendant and the Railroad Bridge Company, a body corporate and politic created by and existing under and within the State of Illinois by an act of the Legislature of the

Page 67 U. S. 490

State of Illinois, jointly erected said bridge at the joint and equal cost of said companies, and are the owners thereof, and that the same was permitted and authorized by the laws of the respective States of Iowa and Illinois, and that said parties are using the same as their joint possession and property, and not separated, and for the use and benefit of the passage of the trains of cars of this defendant and the Chicago & Rock Island Railroad Company, and this defendant insists that the said Railroad Bridge Company is a necessary party hereto, and that no decree granting relief as prayed in said bill can be given without materially affecting and destroying the property and interest of said Railroad Bridge Company, and defendant claims the same benefit for want of proper parties as though it had demurred thereto for that cause.

Defendant further alleges that on the 11th day of June in the year 1855, the said Railroad Bridge Company, with the assent of this defendant, conveyed by deed of trust or mortgage to Azariah C. Flagg the said railroad bridge and its appurtenances to secure the payment of four hundred bonds of $1,000 each, made and issued by the said Railroad Bridge Company for the construction of said bridge, and that such deed of trust or mortgage was duly recorded in the Recorder's Office of Rock Island County, in the State of Illinois, and in the office of the Recorder of Deeds, in Scott County, Iowa; that such deed for trust is outstanding and in full force; that a decree abating the bridge would entirely destroy the interest held by said Flagg under such mortgage, and this defendant says that said Flagg is a necessary and proper party to this suit, and that a decree as prayed for cannot be made without destroying the interest and property of said Azariah C. Flagg.

Defendant admits that it and the Railroad Bridge Company intended to repair pier No. 4 by adding four feet on one side and five feet on the other; this has been found necessary by reason of cracks in it and the danger of its yielding to the pressure of the ice at the breaking up of the river in the spring, the such structure has cost nearly $500,000 and would be in danger unless said repairs and addition to the pier were made.

Page 67 U. S. 491

Defendant admits that it has built a railroad to Iowa City as charged, that the eastern terminus of said railroad is the eastern boundary of the State of Iowa as prescribed in its articles of association.

Defendant denies the increased obstruction or hindrance or delay and damage from the enlargement and repairs; and avers that complainant has an adequate remedy at law.

As to the refusal of persons to ship freight on complainant's boats by reason of the danger of passing the bridge, defendant does not believe it.

A large body of conflicting testimony was taken to establish the respective allegations of the bill and answer. After several preliminary hearings, the cause was submitted upon the bill, answer and evidence. The court rendered a decree in favor of the complainant and ordered that so much of the bridge as was in Iowa should be abated. From this decree defendant appealed to the Supreme Court of the United States.

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