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Renwick v. Morris

7 Hill & Den. 575 Court N.Y. Sup. Ct. English

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p. 575
Renwick vs. Morris.

Headnote

Where an act was passed giving a person the right of erecting and maintaining a dam in a navigable river, and the dam was so built as to obstruct the navigation beyond what the act authorized; held, a public nuisance, and liable to abatement pro tanto by any one, though it had stood for more than twenty years.
The-right of abating or indicting a public nuisance is not affected by a statute imposing a penalty for the offence, unless negative words are added evincing an intent to exclude common law remedies.
Where a new offence is created by statute, and a penalty provided for it, no other punishment can be imposed. Per Walworth, Chancellor.
So where a new right is given by statute, and a remedy provided for the violation of it, the party is confined to this remedy. Per Walworth, Chancellor.
On error from the supreme court, where the judgment of the superior court of the city of New-York was affirmed. For a statement of the facts, and the opinion of the supreme court, see 3 Hill, 621 et seq.
J. Blunt Sp B. F. Butler, for the plaintiff in error.
1st. The plaintiff’s dam was constructed under the act of April 8th, 1813, (3 Laws of N. Y., Web. & Skin. ed. p. 161,) and could not be abated except by legal process. (Crenshaw v. The Slate River Company, 6 Rand. Rep. 145 .) 2d. A penalty was provided by the act for obstructing the navigation, and therefore the remedy by abatement could not be resorted to. (Commonwealth v. Chapin, 5 Pick. 199 .) ,3d. Where a right or claim to use a dam has been enjoyed or exercised without interruption, for twenty years, under a statute, individuals cannot abate it except by legal process. (The King v. Montague,
p. 576
4 Barn. & Cress. 598, 602; The People v. Platt, 17 Johns, Rep. 195 ; The King v. Smith, 4 Esp. N. P. Rep. 111; The King v. Bond, 2 T. R. 767; The King v. Rogers, 4 Burr, 2523.)
D. Lord Jun., for the defendant in error,
cited and commented on Thompson v. The People, ( 23 Wend. 537 ;) Mills v. Hall, (9 id. 315;) Weld v. Hornby, (7 East, 195;) Hart v. The Mayor of Albany, ( 9 Wend. 571 , 577, 3 Paige, 213, S. C.;) Wetmore v. Tracy, ( 14 Wend. 250 , 254.)

The Harlem river was an arm of the sea and a public navigable river; apd it.was a public nuisance to obstruct the navigation thereof without authority of law. The act of the legislature did not authorize the obstruction of the navigation of the river in the manner in which it was done by the dam in question. The length of time which this public nuisance had been continued did not legalize it; for every continuance of the obstruction was of itself an offence. (Mills v. Hall, 9 Wend. Rep. 315 .) In the case of The King v. Montague, (4 Barn. & Cress. 598,) the question arose between a public road and a navigable passage; and as the public road had existed so long that it was impossible to show that the navigable stream existed at the time the public road was made, the court presumed that the right of navigation had been extinguished in favor of the conflicting public right of the road. But the decision of the court of king’s bench in the case of Folkes v. Chad, ( 3 Doug. Rep. 340 ,) shows that twenty years continuance of a nuisance is riot a bar to an indictment to abate it; and if so, any individual may abate it as a public nuisance.

Where a new offence is created, and a penalty is given for it, or a new right is given, and specific relief given for the violation of such right, the punishment or remedy is confined to that given by statute.[1] But giving a superadded penalty for the

(a) (a) See Stafford v. Ingersoll, ( 3 Hill, 38 , 41, 2.)

p. 577
erection or continuance of a nuisance does not prevent the common law right of the public to have it indicted and removed as a nuisance; nor does it prevent its being abated in the usual way by individuals, at the peril of showing that it was a nuisance, and that they did no unnecessary injury in removing it.

Here the questions of fact were all properly submitted to the jury, who have found for the defendant upon every point which was material to his defence.

I think the judgment should therefore be affirmed.

Senators Porter and Lott also delivered opinions in favor of affirming the judgment of the supreme court. And

On the question being put, “Shall this judgment be reversed?” all the members present who heard the argument, twenty-three in number, voted for affirming.

Judgment affirmed.

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