Renwick v. Morris — 3 Hill & Den. 621

Majority

p. 621

Renwick vs. Morris.

Headnote

Under an act of the legislature giving to M. and his assigns the right of erecting and maintaining a dam upon navigable waters, the dam was so built as to impede the navigation beyond what the act authorized ; held, that this rendered it, pro tanto, a public nuisance, and liable to be abated by any person.

The remedy by abatement is in all respects concurrent with that by indictment.

Accordingly, though a public nuisance has existed for more than twenty years, the remedy by abatement is not barred.

The right of abating or indicting a public nuisance will not be affected by a statute imposing a penalty for the offence, unless negative words be added evincing an mtent to exclude common law remedies.

p. 622

Error to the superior court of the city of New-York. Renwick sued Morris in the court below in trespass, for tearing away a part of the plaintiff’s dam over the Harlaem river, a navigable stream. The dam was built under an act passed April 8th, 1813. (Webst. áf Skin. ed. Laws, a. 161.) The act authorized Robert Macomb to build the dam ; and, at the time of the alleged trespass, it had stood more than twenty years. The right to the dam had been acquired by the plaintiff. The second section of the act provided, that the dam should be so constructed as to admit the passage of boats and vessels accustomed to navigate the river ; and the third section imposed a penalty of $5 on Macomb, his heirs or assigns, for every obstruction or delay in the passage of such boats or vessels, caused by his or their default. There was evidence that, ever since the erection of the dam, boats commonly used in the navigation of the river had frequently been obstructed in their passage through the dam ; that at high tide it was impossible for them to get through ; and that there was no draw or contrivance in the dam by which vessels with masts could pass. In September, 1839, the defendant, with others, removed the dam between three abutments, and took away one abutment. The court below charged the jury, 1. That, the river appearing to be navigable, the dam was a public nuisance if not built and maintained according to the law authorizing its erection ; 2. That if the jury should find it to be a public nuisance, then the defendant had a right to abate it by his own act, notwithstanding the length of time which had elapsed since its erection ; 3. That in doing so, the defendant had a right to remove so much of the dam as was necessary to make a safe and convenient passage for all vessels at any time of tide which had been accustomed to navigate the river; 4. That if, in opening the passage, the defendant removed more of the dam than was necessary, or did any unnecessary injury to the same, he would then be a trespasser pro tanto. The plaintiff’s counsel excepted to the charge. The jury found a verdict for the de

p. 623

fendant, and, after judgment, the plaintiff sued out a writ of error.

J. Blunt,

for the plaintiff in error, cited The King v. Montague, (4 Barn. & Cress. 598, 602 ;) The People v. Platt, ( 17 John. 195 ;) The King v. Smith, (4 Esp. N. P. R. 111 ;) The King v. Bond, (2 T. R. 767 ;) The King v. Rogers, (4 Burr. 2523 ;) Commonwealth v. Chapin, (5 Pick. R. 199 ;) Weld v. Hornby, (7 195.)

P. Beardsley, for the defendant in error.

The Harlaem river being navigable, Macomb and his assigns would, independently of the statute, have been guilty of a public nuisance in building the dam. The only effect of the statute was to vest a power in him and his assigns to build and maintain the dam in the manner prescribed by the legislature. It follows, that any excess or irregularity in the exercise of that power, by which the navigation became obstructed, was, pro tanto, a public nuisance. Were it not for the age of the dam and the imposition of a penalty by the third section of the act, it is not denied that such excess or irregularity might be corrected by abatement, subject to the limitations mentioned by the court below in their charge to the jury. I have looked into the cases cited for the plaintiff in error, and they give no countenance to the idea that, because a public nuisance may have been continued more than twenty years, the remedy by abatement is therefore gone. It is very well settled that lapse of time will not bar a prosecution for a public nuisance; (1 Russ, on Cr. 274, Am. ed. of 1836 ; Folkes v. Chad, 3 Doug. 340 , 343 ;) and I am aware of no case denying that the remedy by abatement is in all respects concurrent with that by indictment. (Pee Coates v. New-York, 7 Cowen, 558, 604. Mills v. Hall, 9 Wend. 315 .)

Nor does the imposition of a penalty by the statute take away the right of abatement. Nothing is better settled, as a

p. 624

general rule, than that the addition of a penalty by statute, for a common law offence, is merely cumulative; and that without negative words, such statute detracts nothing from the remedies formerly allowed by law. (Dwar. on Stat. 678, 679.) The case of Commonwealth v. Chapin, ( 5 Pick. 199 ,) relied on for the plaintiff in error, went on peculiar grounds and has no application to the case before us. In The Commonwealth v. Ruggles, ( 10 Mass. Rep. 391 —3,) though the statute declaring the offence to be a public nuisance, itself prescribed a summary remedy, yet Sewall, J. said this was merely cumulative, and that an indictment would lie notwithstanding. (Dwar. On Stat. 680, S. P.) Here it is not necessary to go so far in order to sustain the charge of"the court below.

Judgment affirmed,^[1]

(a) (a) See Wetmore v. Tracy, ( 14 Wend. 350 .)

Cases cited

Mills v. Hall 9 Wend. 315 N.Y. Sup. Ct. p. 623