Harris v. Thompson , 9 Barb. 350 ( 1850 )

By the Court, Hand, J.

The Hudson river, at the location of the dam in question, is a public river for the purposes of navigation ; or, as it is termed, a public highway; though being above the flow of the tide, it is private property in other respects. (Palmer v. Milligan, 3 Caines, 207. Commissioners of Canal Fund v. Kempshall, 26 Wend. 404. People v. Platt, 17 John. 199 Angell on Water Courses, 159.) Any obstruction to its navigation is, prima facie, a public nuisance. (Jennings ex parte, 6 Cowen, 518, and note. Ang. on Wat. Courses, 201, and the cases there cited.) The doctrine, that the proprietor of the bank of a river owns to the thread of the stream, as applicable to the Hudson, was somewhat shaken by the opinions of some senators in the case of The Canal Appraisers v. The People, (17 Wend. 571; S. C., Canal Comm’rs v. People, 5 Id. 423.) But that controversy may, perhaps, be considered as decided upon the peculiar phraseology of the grant, practical location, and the supposed applicability of the civil law. At all events, these considerations, and the close vote on that occasion, make it not conclusive against the old rule; and the subsequent cases of The Comm’rs of the Canal Fund v. Kempshall, and Child v. Starr, I think, may be considered as restoring that rule to its former authority. (26 Wend, 404. 4 Hill, 869.) Were it otherwise, the long occupancy by the plaintiffs and their grantors, and their actual possession at the time of the alledged injury, would be sufficient, prima facie, against strangers.

It is said, that it being proved that the state built the dam, the plaintiffs can not tap it, or use the surplus waters; and that consequently no right of action accrued for a deprivation of the water, unless they can show a license or purchase from the state. (See Varick v. Smith, 5 Paige, 137.) But there is no proof that the state ever made compensation to the plaintiffs for the water the plaintiffs were using at the time of this .transaction. The plaintiffs, too, were in possession, and the defendants, irrespective of the question of nuisance, were strangers ; and again, if it was state property no one could object but the state. (Varick v. Smith, 5 Paige, 137; S. C. 9 Id. 563. Stiles v. Hooker, 7 Cowen, 266. And see Russel v. Men of Devon, 2 T. R. 660.) And it would seem, the plaintiffs would be entitled to the surplus water, without purchase or agreement; at least, unless otherwise disposed of by the state. (Varick v. Smith, supra.)

The counsel for the defendant further insists, that the charge in relation to the statute of 1830, was incorrect. That law was a recognition of the rights of the mill owners, and, I am inclined to think, also a pledge on the part of the state, that, upon certain conditions, the dam should be continued. There was a compliance with those conditions; the payment of the entire sum by the Messrs. Bleeckers enuring to the benefit of all the mill owners. The phraseology of the 4tli section is very inartificially expressed, but the intent is apparent. And it may also be considered that this statute, the performance of its stipulations, and the rebuilding of the dam, was tantamount, as to third persons, to a license to use, if not a sale of, the surplus water. And if so, it would not be unconstitutional. Private property can not be taken for private use. (2 Kent, 339. Varick v. Smith, supra. 1 Perkins’ Domat, 248, et seq. Const, of 1821, art. 7, 5 7, Of 1846, art. 1, § 7. 9 Paige, 559.) But is always subject to the necessities of the public, on making compensation. (Id. 12 Co. 12. Vattel, b. 1, ch. 20, § 244, et seq. Dyer, 36, b. Gardner v. Village of Newburgh, 2 John. Ch. 162. 2 Burlamaqui, p. 3, ch. 5. Rogers v. Bradshaw, 20 John. 734. Bloodgood v. M. & H. R. R. 18 Wend. 1. Coates v. Mayor of New- York, 7 Cowen, 585. Mayor of New- York v. Lord, 17 Wend. 29.0. 15 Vin. Necessity, A. 8.) And it is with the sovereign power to determine upon the necessity and expediency of the appropriation, (lei) And the courts have no power to review that determination. (Id. Smith’s Stat. and Const. 467.) They have no sovereign power; they do not make laws, but administer justice. They may inquire whether the intended use is public or private. Certainly, this may be done where the property is not taken into the immediate charge of the state; but the public are to derive benefit through the operations of a corporation. That was one question in Bloodgood v. Mohawk & Hudson R. R. Co. (supra.) But when it is ascertained that the purpose is public, the inquiry stops. If it appeared by the act itself that the dam was to be repaired or maintained, solely for the benefit of the mill owners, the court would consider it nugatory, so far as it purported to authorize the appropriation of pri vate property. Especially, in a case in which the state did not take and retain the control and management of the property. A state may lay off its sovereignty for certain purposes. (Bank of U. S. v. Planters' Bank of Georgia, 9 Wheat. 907. Ang. dp Ames on Corp. 29. Mayor, &c. of New- York v. Bailey, 2 Denio, 433.) ' But this work was then, and had long been, a state work; and the law was not invalid, because its operation tended to benefit individuals, directly or indirectly; nor for the reason that the mill owners shared the burden of paying the damage to owners of contiguous land, and of supporting a dam. The dam belonged to the state, at least sub modo, and was under its control, and was used, or was subject to be used, by the state. That particular portion kept in repair in pursuance of the alledged agreement with Col. Young, belonged to the state, as much as the other portions. And, in this view, it is immaterial whether that was a valid contract.

Nor did the neglect of the state to keep the dam in good preservation, take away its public character. The state can no$ be deprived of its canals because its officers suffer them to become dilapidated. ÍTor have they power to declare the public property abandoned. The completion of the canal, parallel to the river, it is true, has rendered this dam and the side cut comparatively useless to the state. But that does not authorize its destruction by individuals.

But, admitting the dam to be erected by the state, and for state purposes, it is contended that, if it is injurious to health, and endangers the lives of the citizens of the state, it is a nuisance. The learned counsel for the defendants, in his request to charge, put this point to the court in a strong light. It was disposed of at the circuit with reference to the case before the court, and, on that point, I had no difficulty. As an abstract question, it would be painful to suppose that the state, except in cases of immediate and absolute necessity, could, legally erect and maintain works known to be destructive ef the health and lives of its citizens. It has been said, that a law, opposed to natural equity, is void. (Day v. Savage, Hob. 87. Bonham’s case, 8 Co. 234. 1 Bl. 41, note 3. And see Medler v. Bishop of Winchester, Hob. 224.) But if this be so, which it is not necessary now to decide, it must be some flagrant enactment; and then, I suspect it would be very difficult, in most cases, to obtain jurisdiction of the question. War is destructive of life and property, and yet, it was never pretended that a government or its agents were liable to respond in courts of justice, because the war was inexpedient or unjust. (And see Martin v. Mott, 12 Wheat. 19; Vanderheyden v. Young, 11 John. 150.) Besides, sovereignty, being the fountain of justice, can not be sued in its own courts. Fortunately, there is no danger of such injustice in a country where the laws are made by the people or their immediate representatives. If, through inadvertence, an instance should happen, no doubt it would be speedily redressed by legislation.

The decision at the circuit was, that, to the extent that the dam was maintained by the state, or by its authority, it could not be a nuisance. But, so far as it was maintained or repaired by private persons solely for their own benefit, it might be; even though a license to that effect had been given by the state officers. That, so far as they maintained it for private use and benefit, the plaintiffs stood upon the common ground of riparian owners, and could recover, unless the dam was. a nuisance and was abated for that cause. And, in that case, it might be a nuisance. But, as it could not be a nuisance in the condition the state kept it in, and as the plaintiffs had a right to Use the water it furnished in that condition, they could recover for any injury sustained by abating it below its capacity as maintained by the state.

The principle, that it could not be a nuisance in the condition in which the state allowed it to remain, seenis unquestionable. It is a legal solecism, to call that a public nuisance, which is maintained by public authority. Even an act of a corporation, which would otherwise have been a nuisance, has been deemed lawful, because authorized by it's charter; Both bridge's would have been considered nuisances, in Charles River Bridge v. Warren Bridge, if they had not been authorized by statute. (11 Pet. 420, 559.) In many reported cases, the only question was, whether the act complained of, was in conformity to the statutory license. (Renwick v. Morris, 3 Hill, 621. Calkin v. Brchm, 4 Wend. 667. The Queen v. Great North of England Railway Co., 9 Ad. & Ellis, N. S. 315. King v. Scott, 3 Id:542. Rex v. Pease, 4 B. & Ad. 30. Rex v. Morris, 1 Id. 441. First Baptist Ch. &c. v. Utica and Sch. Railroad Co. 6 Barb. S. C. Rep. 313, and cases there cited. Lynch v. Stone, 4 Denio, 358.) In some of these cases, deviations from the license were held, pro tanto, nuisances.

From some obiter remarks in a few cases, It might, perhaps, be inferred that it was .ah open question, whether laying fails in a street in a city, might be a nuisance. (Hamilton v. N. York , and Harlem Railroad Co., 9 Paige, 171. Drake v. Hudson River Railroad Co., 7 Barb. 508. Brower v. Mayor of NeivYork, 3 Barb. S. C. Rep. 254.) But where express authority to do a particular act has been given by the legislature to a corporation, for purposes deemed of public utility, I think there could be no difficulty. If not expressly given, dr if there be an abuse of the authority, there is no protection, further than is enjoyed by private enterprise. The cases of The Mohawk Bridge v. Utica and Schenectady Railroad Co., (6 Paige, 554,) and Hudson and. Delaware Canal Co. v. New-York and Erie Railroad Co., (9 Id. 328,) were conflicts between corporations possessing franchises, granted on the ground of public benefit; and in none of these cases was the charge of nuisance sustained.

It is said, the king can not pardon, or grant dispensation, for some nuisances. Where a bridge is repairable by a subject, the king can not pardon him from repairing it, because all the subjects of the realm are interested in it; (Plow. 487. 12 Co. 30. 2 Hawk. P. C. 543, 5 33. Vaugh. 333. 4 Black. 398. And see 3 Hall. Const. Hist. 84, et seq.;) nor grant a dispensation or license to, or prospective pardon for, that which is malum in se. (12 Co. 30. Vaugh. 332.) But that is a question of prerogative, and does not apply to the power of parliament to declare what shall not be a nuisance; for that power is absolute and without control. (1 Bl. 162.) The power of our legislature is the same, within the limits prescribed by the constitution. That has fixed limits to the exercise of legislative authority, and the forms of government are here delineated by the mighty hand of the people. (Patterson, J. in Van Hornets Lessee v. Dorrance, 2 Dall. 308.) It has been said that the general and state government, between them, possess sovereign power. (Savage, C. J. in People v. Saratoga and Rensselaer Railroad Co., 15 Wend. 133.) This proposition requires qualification. Some powers are withheld by the constitution, and are therefore dormant, until the people, with whom, here, is the jura, summi imperii, shall, by an alteration of the constitution, see fit to exercise it. But within these limits, unless, perhaps, when it violates natural equity, legislation is without control. When this power bears upon individual interests, undoubtedly, it should be clearly expressed, and clearly within the constitutional limits. In this country, as has been quaintly observed, unlike monarchical governments, it is all against one, instead of one against all; and no doubtful powers should be exerted against private rights. The royal prerogatives and powers, and the rules for enforcing them, as defined in the Saltpetre case, (12 Co. 12,) would here be very unacceptable. But, as we have seen, this right of eminent domain, which is the sovereign or transcendental power or right of making use of any property the subject possesses, for the necessities of the state, has been exercised in favor of railroads; and the authority sustained by our highest court. (18 Wend. 1.) The case before us stands on a broader foundation. Our canals are the property of the state, the public domain; which, the people have declared, by the constitution, shall remain the property of the state and under its management forever. (Const, art. 7, h 6. Const, of 1821, art. 7, § 10. And see 1 R. S. 226, § 52: 218, § 5; Laws of 1887, ch. 457, § 6 ; Baker v. Johnson, 2 Hill, 348.) Whether this -forbids the abandonment of any of them or any part thereof, in future, even by legislation, it is not necessary now to decide. Most certainly, no private person can destroy our public works because the state neglects them, or because he considers them dangerous or injurious. ' And a prosecution by the people, for doing what the people have enacted shall be done, would be an absurdity. And not less so, if done, not only by the mandate of the people, but on their own property and for their benefit. The construction contended for by the defendants would be subversive of law, and tend to anarchy.

New trial denied.