public nuisance generally, the court would not interpose by injunction until it had been tried at law. The complaint is, therefore, to be considered as of not a public nuisance simply, but what, being so in its nature, is attended with extreme probability of irreparable injury to the property of the plaintiffs, including, also, danger to their existence; and on such a case, clearly established, I do not hesitate to say an injunction would be granted.”

The principle is also distinctly asserted and acted on by Chancellor Kent in the case of Corning and others v. Lowerre, 6 John. Ch., 439. In that case a bill was filed for an injunction to restrain the defendant from obstructing Vestry street, in the city of New York, and averring that he was building a house upon that street, to the great injury of the plaintiffs, as owners of lots on and adjoining that street; and that Vestry street had been laid out, regulated and paved for about twenty years.

The injunction was granted; the chancellor said that here was a special grievance to the plaintiffs, affecting the enjoyment of their property and the value of it. The obstruction was not only a common or public nuisance, but worked a special injury to the plaintiffs.

The principle then is that in case of a public nuisance, where a bill is filed by a private person, asking for relief by way of prevention, the plaintiff cannot maintain a stand in a court of equity, unless he avers and proves some special injury.

§ 722. The corporate authorities of a town cannot claim the abatement of a public nuisance, suing as the representatives of the people of the town.

With this principle as our guide let us now examine the pretensions of the appellants in this case. Who are they? Not, indeed, a private person, but a corporation. They profess to come into court for themselves and for the citizens of Georgetown. Now, it is not even pretended that, in their character of a corporation only, they have any power or authority given to them by their charter to take care of, protect and vindicate, in a court of justice, the rights of the citizens of the town in the enjoyment of their property, or in removing or preventing any annoyance to it. Nor does such a power attach to them in their corporate character upon any principle of the law in relation to corporations. The complainants, then, must, as in the case of private persons, to maintain their position in a court of equity for relief against a public nuisance, have averred and proved that they were the owners of property liable to be affected by the nuisance, and that, in point of fact, they were so affected, so as that they thereby had suffered a special damage. Now there is no such averment in this bill. The appellants seem to have proceeded on the idea that it appertained to them, as the corporate authority in Georgetown, to take care of and protect the interests of the citizens. In this idea we think they were in error; and that they cannot, upon any principle of law, be recognized as parties competent in court to represent the interests of the citizens of Georgetown. Nor is the difficulty obviated by associating with them the citizens of Georgetown as persons in whose behalf they sue. There are indeed 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 that and all other cases of a like kind, the persons who by name bring the suit and constitute the parties on the record have themselves an interest in the subject-matter which enables them to sue, and the others are treated as a kind of co-plaintiffs with those named, although they themselves are not named; but in this case

it has been already said that the appellants have no such interest as enables them to sue in their own name, and consequently the whole analogy fails. Moreover, if the citizens of Georgetown were even parties on the record, the objection would equally lie against them, unless they could show a special damage as a ground to stand upon.

With these views we are of opinion that the decree of the court below, dismissing the appellants' bill, is correct; it is therefore affirmed, with costs.

§ 723. What constitutes.- A livery-stable is not per se a nuisance, and its erection will not be enjoined even where it is to be built in the residence part of the town. Flint v. Russell,* 7 Rep'r, 265.

§ 724. Laundry business is not a dangerous occupation, nor in any sense a business contrary to good morals or public policy. The Laundry Ordinance Case, 7 Saw., 526.

$ 725. The smoke, steam and noise of a locomotive running upon a lawfully built railroad are not nuisances. Miller v. Long Island R. Co.,* 10 Rep'r, 197.

§ 726. Where a permit has been given to put up a building, only a clear departure from the terms of the permit, or danger to the public interests, will warrant a court of equity in arresting midway the construction of the building and having it summarily torn down. Dainese v. Cooke, 1 Otto, 580.

§ 727. An excavation lawfully made may become a nuisance by omitting safeguards. Thus where, in accordance with an ordinance, the grade of a street was raised, which necessitated the raising of the sidewalks also, and a property owner, in raising his sidewalk and filling in, made an area which, being left open, caused severe injury to a foot passenger who fell therein, held, that, the municipal corporation having been compelled to pay damages therefor, the property owner was liable over to the corporation notwithstanding the ordinance providing for raising the grade of the streets. Robbins v. Chicago City, 4 Wall., 657 (§ 796-99).

§ 728. A public gaming house is a common nuisance at common law. United States v. Ismenard, 1 Cr. C. C., 150.

§ 729. In navigable rivers and waters.- Where a raft obstructs navigation in a river, and no reasonable effort is made by those owning or in charge of it to clear the way for the passage of vessels, the master of a steamboat awaiting passage may take measures to get it out of the way; but mere delay, not unreasonably prolonged, does not justify the boatmen in the summary destruction of the raft in order to make a passage. Lallande v. Steamboat C. D., Jr., Newb., 501.

§ 730. A city building a dike into a navigable river, but which in no way impedes the ravigation thereof, is not liable for damages to riparian owners on the other side of the river. Rutz v. City of St. Louis, 10 Fed. R., 338.

§ 731. A vessel has no right to obstruct navigation on a river by stretching a line across it. McCord v. Tiber, 6 Biss., 409.

§ 732. A private person owning a tannery, flour-mill, saw-mill, stores and warehouses, a wharf and water-lots, and stock in a plank road leading from the town where they are situated, which is upon a river navigable for steamboats, schooners and other vessels, and from which trade is carried on with other ports, in which he participates, may enjoin a railway company from obstructing the navigation of the bay into which the river empties, when such obstruction will materially injure the trade of the town. Works v. Junction R. Co., 5 McL.,

425.

§ 733.

bridges.― Bridge piers and landing-places constructed upon the shores of lakes, rivers or other navigable waters are not per se nuisances, unless they unreasonably obstruct navigation; and whether they are nuisances or not is a question of fact. Dutton v. Strong, 1 Black, 31.

§ 734. The United States courts have power to determine whether a bridge constructed or to be constructed over a navigable river is a nuisance with respect to navigation although such river lies wholly within the limits of a state. Devoe v. Penrose Ferry Bridge Co.,* 3 Am. L. Reg., 79.

§ 735. A bridge was built across the Mississippi river at Rock Island. The portion of it on the western half of the river was built with piers parallel to the current, and high enough to permit the passage of boats without chimneys, and of rafts. Held, very doubtful whether such portion of the bridge constituted a nuisance. Mississippi & M. R. Co. v. Ward, 2 Black, 485.

§ 736. If a bridge is put up for a public purpose in a reasonable situation over a navigable river, and a reasonable space is left for the passage of vessels in the river, then it is not a nuisance.

Ibid.

§ 737. In considering whether a draw-bridge is an obstruction (nuisance) or not, the unskilfulness of seamen and of bridge-tenders, and the probability of the men at the draw being ready to open it, will not be allowed any weight. The presumption is that these men will perform their duties properly. Works v. Junction R. Co., 5 McL., 427.

§ 738. A draw-bridge over a navigable water is cause some delay of the navigation of the water. Columbus Ins. Co. v. Peoria Bridge Co., 6 McL., 70; 238.

not necessarily a nuisance, although it Works v. Junction R. Co., 5 McL., 425; Jolly v. Terre Haute Bridge Co., 6 McL.,

§ 739. In public streets.-The tunnel of the St. Louis Bridge & Tunnel Company was open at a point in the public street, exposing an unguarded excavation fourteen feet in depth. Petitioner, a child four years old, had wandered from home and fell into the excavation, suffering a fracture of the thigh. Held, that an unguarded excavation in public streets is a nuisance. Hagan's Petition,* 5 Dill., 96.

§ 740. By contractor, liability of principal. Where work done on or in connection with private city property creates a nuisance in the street, some defect or obstruction, the liability of the property-owner for injury occasioned thereby is not removed by the fact that the work constituting the defect or obstruction was performed by a contractor. Robbins v. Chicago City, 4 Wall., 657 (§§ 796–99).

§ 741. Notice.- The rule requiring notice to abate a nuisance before beginning an action for damages does not apply to an obstruction of a navigable river or other public highway. It applies only to cases where the complaint is against the grantee of land on which a previous owner has erected a nuisance. He who erects a nuisance, even on his own land, is not entitled to notice. Mo. Riv. Pack. Co. v. Hannibal, etc., R. Co., 1 McC., 289.

§ 742. Authorized by law. A charter may license a nuisance until it is revoked, but it does not guaranty exemption from the exercise of the police power of the state. Fertilizing Co. v. Hyde Park, 7 Otto, 670.

§ 743. The state legislature having authorized the building of a street railway in a certain manner, a federal court cannot interfere with such construction on the ground that it is a nuisance. Currier v. West Side, etc., R'y Co., 6 Blatch., 487.

§ 744. Abatement of - Injunctions.- Chancery will intervene to abate an obstruction to a river that is a nuisance. State of Pennsylvania v. Wheeling, etc., Bridge Co., 13 How., 518. § 745. A bill in equity lies to abate a public nuisance. Mississippi & M. R. Co. v. Ward, 2 Black, 485.

§ 746. In federal courts equity will not interfere to abate a nuisance until plaintiff has either exhausted his legal remedy, or has shown that he has no adequate remedy at law. Parker v. Winnipiseogee L. C. & M. Co., 2 Black, 445.

§ 747. Injunction to abate a nuisance is only granted in cases of great urgency and irreparable injury, and never to a private individual unless he has suffered special damages. Irwin v. Dixon, 9 How., 10.

§ 748. Where bill is filed to restrain defendants from excavating on the shore of a lake and thus lowering the water-level, to the injury of plaintiff's mill privilege, and the answer denies all the allegations of the bill, and that plaintiff has any interest in said waters, etc., held, that the bill must be dismissed for lack of jurisdiction; that in cases like the above, unless the right of the plaintiff is clear, or there is danger of irreparable injury from the continuation of the nuisance, or unless, where the right is clear and the injury certain, an injunction is necessary to prevent a multiplicity of suits, or to suppress oppressive or interminable litigation, equity will not entertain jurisdiction. Parker v. Winnipiseogee L. C. & W. Manufg. Co., 1 Cliff., 247.

$749. Public, when abatable at suit of private person—Special damages.― A bridge across a navigable stream is not indictable as a nuisance by the United States; but a private person or corporation may proceed against it in the federal courts. State of Pennsylvania v. Wheeling, etc., Bridge Co., 13 How., 518.

§ 750. Complainant in a bill in equity to abate a public nuisance must aver and prove special damages to himself individually. Mississippi & M. R. Co. v. Ward, 2 Black, 485. § 751. A public nuisance is not abatable by injunction at the suit of a private person unless he suffers a special damage thereby. Spooner v. McConnell, 1 McL., 339.

§ 752. Before an abutting lot owner on a street can restrain the putting down of a railway thereon he must show special damage to himself thereby. Osborne v. Brooklyn C. R. Co., 5 Blatch., 366.

§ 753. Where, in the course of municipal improvements authorized by the state, wharves are constructed which will interfere with access to certain private wharves and warehouses, a federal court will not grant an injunction unless there appears to be a violation of some national law. Griffing v. Gibb, McAl., 211.

§ 754.

jurisdiction.

A federal court sitting in an Iowa district only extending to the middle of the Mississippi river cannot abate a nuisance on the Illinois side of the river. Mississippi & M. R. Co. v. Ward, 2 Black, 485.

§ 755. Where a private person sues in a federal court to abate a public nuisance, it is not essential to confer jurisdiction that the amount of special damage he proves shall be equal to the sum necessary to give a federal court jurisdiction. The value of the object, i. e., of the abatement of the nuisance, sought is the sum to be considered in reference to the jurisdiction. Ibid.

§ 756. A bridge was built over the Mississippi river. Held, that a federal court in Iowa having jurisdiction only to the middle of the stream could not decree the destruction of the three spans of the bridge within its jurisdiction, thereby rendering the other half of the bridge useless, especially as complainant's use of the river was on the Illinois side, and the Iowa part of the bridge was not as to him a nuisance. Ibid. $ 757.

parties.-A. of New York, the B. Co. of Illinois, and the C. Co. of Iowa, united in the construction of a bridge over the Mississippi. D. filed a bill against the C. Company to abate the bridge as a nuisance. Held, that A. and the B. Co. were not necessary parties. Ibid.

§ 758. It is not necessary to make all persons injured by a public nuisance parties to a bill in equity to abate it. Ibid.

§ 759. Miscellaneous.— In cases of nuisance, prescription, whatever the length of time, has no application. Every day's continuance is a new offense, and it is no justification that the party complaining came voluntarily within its reach. Pure air and the comfortable enjoyment of property are as much rights belonging to it as the right of possession and occupancy. If population, where there was none before,-approaches a nuisance, it is the duty of those liable at once to put an end to it. Fertilizing Co. v. Hyde Park, 7 Otto, 668.

$ 760. If the jury on the trial of an indictment or action at law for a nuisance, or a court of chancery on trial of a bill to abate a nuisance, has a reasonable doubt whether the thing in question is in fact a nuisance, then it must acquit or find for the defendant. Mississippi & M. R. Co. v. Ward, 2 Black, 485.

§ 761. The plea of the general issue in actions of trespass or case does not necessarily put the title in issue. Hence a former verdict and judgment in an action on the case for a nuisance is not conclusive evidence of the plaintiff's right to recover in a subsequent action for the continuance of the same nuisance. Richardson v. City of Boston, 19 How., 263,

§ 762. Where a private nuisance is committed in one state, injuring the property of a person in another state, the latter is entitled to a remedy in the courts of the state in which the unlawful acts are committed. Stillman v. White Rock Mfg. Co., 3 Woodb. & M., 539.

§ 763. A public nuisance will not be tolerated on the ground that the public will derive some benefits from its continuance. Works v. Junction R. Co., 5 McL., 425.

§ 764. A municipality has no power by ordinance to declare a wharf a nuisance and order its removal as such, when in fact it is not a nuisance. Yates v. Milwaukee, 10 Wall., 505.

XI. STREETS AND HIGHWAYS.

[See CORPORATIONS.]

SUMMARY- Liability of municipal corporation, §§ 765, 767, 768.- Corporations liable for acts of agents, § 766.- Remedy over of municipality, §§ 767, 772.—Part of street owned and used by private corporation, § 768.— Negligence of water company in use of streets, § 769. Awning knocked down by a teamster, § 770.— What necessary to charge municipality, 771.-Liability where work is done by a contractor, §§ 772-776.- Owner concluded by judgment against contractor, § 774.— Private area, § 777.— License to leave an area open, § 778.— Excavation, § 779.— Causeway, § 780.— Bridges, §§ 781, 784.— Question for jury, § 782.— Rhode Island statute applies to sidewaiks, § 783.— Stump in sidewalk, § 785.

§ 765. A municipal corporation is liable for an injury occurring by reason of a defect in a highway which it, having notice, neglected to repair. Water Co. v. Ware, §§ 786, 787. § 766. Corporations are liable for the negligent and unskilful acts of their servants and agents whenever those acts occasion special injury to the person or property of another. Weightman v. The City of Washington, SS 805, 806.

§ 767. A municipal corporation is liable in damages for injuries to persons by nuisances in the streets, but it has a remedy over against the party in fault. City of Chicago v. Robbins, $$ 793-795.

§ 768. A municipal corporation is liable in damages for the defective condition of its streets

to any one suffering injury thereby, and this liability of the municipality is not affected by the fact that the part of the street on which the injury occurs is in the proprietorship of a private corporation, e. g., a bridge company. Ericsson v. Manchester, §§ 800-802,

§ 769. A horse drawing a buggy along the streets in St. Paul became frightened at a steam drill worked by servants of a contractor employed by a water company authorized by the city to make excavations, etc., necessary to carry out its scheme of municipal improvement. The water company had agreed to be responsible to the city for any injuries which might result from the negligence of its servants. Plaintiff was thrown out of the buggy and injured. He sued the water company for damages. Held, that it was liable. Water Co. v. Ware, S$ 786, 787.

§ 770. A teamster who reins his team into a gutter so that the rack of his wagon strikes and knocks down a portion of a wooden awning is negligent, and a person injured thereby cannot recover of the town. Merrill v. Portland, §§ 788-792.

§ 771. In order to recover from a municipality for an injury upon a highway six conditions must exist: 1. That the highway was one that the inhabitants of the town were bound to keep in repair. 2. That it was out of repair and defective at the time of the injury. 3. That plaintiff was injured thereby. 4. Reasonable notice of the defect to the town. 5. Ordinary care by plaintiff. 6. Absence of contributory negligence of plaintiff or the concurrent negligence of third persons. Ibid.

772. R. contracted in writing with B. to erect a building on his lot, which included an excavation of the sidewalk next to and adjoining it. The contract contained a stipulation that B. was to be liable for any violation of any city ordinances in obstructing streets and sidewalks, or accidents resulting from the same. R. was in the city, and occasionally at the building, and was there while the excavations were going on, and was spoken to frequently by the superintendent about the dangerous condition of the area. W. one night, while exercising reasonable care in passing along the street, fell into the excavation and was greatly injured. He brought suit against the city and recovered a judgment for $1,500 and costs, which the city was forced to pay. The city thereupon brought an action against B. for indemnity. It was shown in evidence that an ordinance had been violated. Held, that the city was entitled to recover. City of Chicago v. Robbins, §§ 793-795.

§ 773. R. was not estopped from showing that he was under no obligation to keep the street in a safe condition, and it was not his fault that the accident happened; yet as he had no express permission from the city to encroach on the street he was engaged in an unlawful work, and the digging of the area was in itself a nuisance. Ibid.

§ 774. R. was concluded by a judgment recovered against a corporation for his act of negligence, because he knew that the suit was pending and could have defended it. An express notice to him to defend the suit was not necessary in order to charge his liability. Ibid. § 775. The owner of a lot where a building nuisance is permitted is liable, although the fault was in his contractor. Ibid.

§ 776. A person contracting for work is liable for the acts of his contractor in obstructing the street while building an area. Robbins v. Chicago, §§ 796-799.

§ 777. A private area is not a public work although the street grade was raised in forming it. Ibid.

§ 778. License to leave an area open and unguarded in a street cannot be inferred from the failure of city authorities to object to its construction. Ibid.

§ 779. An allegation in a declaration that the place for an area was excavated is sufficiently sustained, although the proof show that in fact there was not an excavation of the area, but that the street grade was raised so as to create a hole where the area was. Ibid.

$780. A causeway is a highway or public street. Ericsson v. Manchester, §§ 800-802.

§ 781. The plaintiff brought suit against the defendant city to recover damages for injuries received by reason of a defective bridge in one of the streets of the city. The city was vested by its charter and by general statute with the title, and full control and jurisdiction over all streets within its corporate limits. Held, that the city was liable for any special damage arising out of neglect in keeping the streets in proper condition. Nebraska City v. Campbell, 803.

§ 782. Action against a municipal corporation to recover damages for an injury occasioned by a fall over an obstruction in a sidewalk. Held, that it was a question for the jury whether, having reference to its location and uses, the sidewalk was reasonably safe and convenient. City of Providence v. Clapp, § 804.

783. The statute of Rhode Island requiring highways to be kept in repair applies to sidewalks in cities, and to obstructions from falls of snow. Ibid.

§ 784. Plaintiff was passing in an omnibus going over a bridge. The bridge extended over Rock creek in the city of Washington, and in consequence of its unsafe condition gave way, whereby the plaintiff was thrown into the creek and received serious injuries. It was shown