THE STATE OF ALABAMA VS THE MAYOR AND ALDERMEN OF MOBILE, 5 Port. 279

COLLIER, J. The solicitor of the first Circuit in behalf of the plaintiff in error, filed an information in Equity, in the Circuit Court of Mobile, in which it is alleged that Government street, in that city, was a public highway, previous to the first day of January, one thousand, eight hundred and twenty-one, subject to be used by all persons as such ; yet the same has been greatly obstructed, by the erection of several large houses therein; and that private property on that street, has been greatly injured and depreciated in value, by such erections.

It is further alleged, that the defendants have adopted measures with the view to the erection of another extensive market house, in Government street, which will still further hinder and obstruct its free and uninterrupted passage. These allegations are sustained by several affidavits, which make part of the record. The information prays that an injunction may issue, to restrain the erection of the market house, threatened and intended to be built.

And upon a notice to shew cause, why this prayer should not be granted, counsel appeared before the Circuit Court: when upon full argument, the injunction was denied, and the information dismissed. To revise which decree, a writ of error, has been sued out, returnable to this Court. In the written arguments with which we have been furnished, this case is supposed to depend mainly upon these questions. First. — Do the facts, stated in the information, shew a nuisance, either committed or intended'? Second. — Has Equity, jurisdiction over the subject, so as to afford a remedy'? 1.

By the act of eighteen hundred and twenty, entitled, “An act supplementary to the act, entitled

an act to incorporate the city of Mobile” — .among other things, it is enacted, “That the said corporation shall have power to widen, extend and regulate the streets, lanes and alleys, within the limits of said city, provided, that no street, lane or alley, now existing, shall be widened, or extended, so as to infringe upon, or interfere with, any dwelling houses or other house, in the occupancy of any inhabitant of said city, without the consent of the owner or claimant thereof.

And provided moreover, that the street called and known by the name of Government street, shall, and the same is hereby declared to be, one hundred feet wide; and it shall be the duty of the said corporation, to designate, and distinctly to mark out, the northern limits of said street, according as the same were established by the Spanish Government, as nearly as can be ascertained by the Spanish records, by the records of the land office, or by any other evidence, which they may deem satisfactory; and the limits, when so ascertained, marked out, and designated, shall be the permanent, northern boundary of said street.” Here an authority is given to the corporation, to regulate the streets, &c. of the city, which authority is restricted, by an inhibition, that they shall not be so “widened or extended, as to infringe upon, or interfere with, any dwelling houses or other house,” &e. “without the consent of the owner,” <&c.

By the second proviso, Government street is declared to be one hundred feet wide, &c. and this is equivalent to a declaration, that it shall remain open of that width, notwithstanding any act to be done by the corporation. Though all powers which are essential to theim ternal police of the city, are granted, by the act of incorporation, and the acts supplementary thereto, the legislature have, in the second proviso, declared a standing veto, to any act of the corporate authorities, proposing to trench upon the prescribed limits of Government street.

If the corporation were to authorise the owners of property on either side of this street, so to improve it, as to diminish the width of the street, no one would question, but that, a power had been exercised which was inhibited by the legislature. And is authority less violated by erecting houses in the centre of a street'! In the one case, it would be an unusal, and therefore more striking, violation, promising no public benefit as an equivalent.

In the other, the erection of a market house, in a public street, though certainly a great annoyance, to those living contiguous, or having occasion to pass it frequently, is not so palpable a breach of authority, because it is more usual, and offers in return, the semblance, at least, of public convenience. In either case, it would be an obstruction, which the corporation could not legalise, unless it were permitted to exercise powers, expressly withheld, by the source from' which it derived its functions.

The streets of an incorporated town, are its highways, subject, in general, to such improvement and alterations, as its legislative authority may prescribe; in which a due regard is to be had to individual interests : and sometimes an equivalent rendered for the sacrifice of private property.

The extent of the powers of a corporation are to be ascertained by a reference to grants, which the legislature have made in its favor; for, as an artificial person, it can have no rights, except such as are specially granted, or those which are incidental, and necessary to give effect to the powers thus granted.—The People vs Utica Insurance Company

An act of incorporation, is an enabling act,—it imparts to the corporate body, all the power it possesses.—Head & Armory vs The Providence Insurance Company. And if the right to appropriate streets, to narrow, or widen them, is not given, either by express delegation, or as an incident, by the legislature, it cannot exercise the power. In the case before us, the corporation, (as we have seen,) is vested with power to regulate the streets, &c. of the city, under certain restrictions, one of which is, that Government street, shall be one hundred feet wide.

The legislature have withheld the right from the corporation, to regulate that street, in disregard of this restriction; any act then, done by the corporate body, which contracts its limits, must be invalid, as an usurpation of authority.' The information charges, that the erections already made, greatly obstruct and stop up Government street, so that it cannot be used as a highway, by persons on foot, on horse bach, with carriages, &c. as they had been accustomed, and were authorised to use it.

And a diagram accompanying the record, (if it cao be considered a part of it,) shews the width of that street, at different points, and the length and width of the market houses erected; from all which, it appears, that the .surfaceuncovered, at several points, was considerably less than one hundred feet, adding together, the open space on either side of the erections.

We incline to the opinion, (though it cannot be necessary to decide- the question here,) that the street should present an unobstructed open surface, of one hundred feet in width, and that it is not enough that the space on both sides of an obstruction, should be as much as one hundred feet. While the streets of a town are its highways, they may also be the public highways of the country.

And in the present case, the legislative declaration, prescribing the dimensions of a street, excludes the action of the corporate body, so far as it comes in conflict with the paramount will of the legislature, and must, in itself, be taken to make it a highway, free to the passage of all persons, for all legitimate purposes. In regard to the first question, it remains but to inquire, whether the obstruction made, as well as that contemplated and intended by the defendants, does or would amount to a nuisance.

Russell, in his treaties on crimes, says, nuisance “signifies any thing that worketh inconvenience.” And Bacom defines a common nuisance to be an offence against the public, either by doing a thing, which tends to the annoyance of all persons, or by neglecting to do a thing which the common good requires. If we were to take these

definitions for our guide, we should have no difficulty in determining, that the obstruction made and intended, come up to the idea of the offence, in a city so populous and so commercial as Mobile.—-Do they not tend, to the annoyance of persons living near them? And by narrowing a street, render more difficult its passage, and increase the danger of injury to persons or property, from collision of carriages and other causes'? But we need not deduce our conclusions from general

definitions. Bacon in treating of nuisances in highways, remarks that “it is clearly agreed to be a nuisance to dig a ditch or make a hedge over-thwart the highway, or to erect a new gate, or to lay logs of timber in it, or generally to do any other act, which will render it less commodious.” And further, “that it is no excuse for him, who lays logs in the highway, that he laid them only here and there, so that the people might have a passage through them, by windings and turnings.” — Rex vs Watson.

Thus we learn, that at common law, where the particular charge is the obstruction of a highway, the question of nuisance, or no nuisance, depends upon the fact, whether its passage is rendered “less commodious.” So that we discover in the case before us, the erection made, and that intended, are ,and would be a nuisance. This view being decisive, we are relieved from considering, whether the act of the legislature does not from implication, make it a nuisance, to make any erections in the street, though the convenience of passing it, may not be interfered with thereby. 2.

Touching the jurisdiction of Equity in cases of nuisance, though the cases in which it is exercised are not frequent, yet we think it undoubted. It is founded on the right to restrain the exercise, or the erection of that, from which irreparable damages tq individuals or great public injury would ensue.

Speaking upon this subject, Mr Justice Story remarks : “In regard to public nuisances, the jurisdiction of Courts of Equity, seems to be of a very ancient date; and has been distinctly traced back to the reign of Queen Elizabeth.” In cases of public nuisances, properly so called, an indictment lies to abate them, and to inflict other punishment upon the offenders. Butin England, it was competent also, for the Attorney General to file an information in equity, to redress the grievance.

The instances in which that Court has lent its aid, are chiefly confined to informations seeking preventive relief, to inhibit the doing of some act, or performing some work, which when done, would amount to a public nuisance. In these cases the Court proceeds by wayof injunction. Informations in Equity have been maintained in some cases, where the object to be effected, extended even to the abatement of a public nuisance.

In such cases, the jurisdiction of the Courts, is predicated, upon the ground, of the ability of Equity to give a more complete, and perfect remedy, than is attainable at law, in order to prevent irreparable mischief, and also, to suppress oppresive and vexatious litigation. “In the first place, they can interpose, where the Courts of law cannot, to restrain and prevent such nuisances, threatened or in progress, as well as to abate those already existing.

In the next place, by pctpetual injunction, the remedy is made complete, through all future time:—■ Whereas an information, or indictment, at the common law, can only dispose of the present nuisance; and for future acts, new prosecutions must be brought.

In the next place, the remedial justice may be prompt and immediate, before irreparable mischief is done; whereas at law, nothing can be done, except after trial, and upon the award of ' . , , judgment.” In an anonymous case, (reported in 3 Atkin’s R. 750,) a motion was made for an injunction, to stay the building of a house, to inoculate for the small pox, — Lord Hardwick, conceding the jurisdiction of Equity, (which was not questioned,) remarks, that bills to restrain nuisances, must extend to such as are nuisances at law; and the fears of mankind, however reasonable, will not create a nuisance,— but inasmuch as it had not been settled, that such an erection created that offence, the injunction was denied.

In the case of the Attorney General vs Cleaver, there was an information in Equity filed against the defendant, praying an injunction to restrain him from manufacturing certain articles, and from the use of certain materials in the manufacture. Lord Eldon did not deny the jurisdiction of the Court, but thought, it proper, to refuse the injunction until it could be ascertained by a trial at law, that the subject of complaint, was a nuisance; and to be informed of this, took measures to expedite a trial upon indictment.

In Crowder vs Tinkler, the jurisdiction of Equity qy injunction, on the ground that property is likely to sustain irreparable injury, is conceded; and the Lord Chancellor considered the propriety of awarding the writ, to depend upon the question, whether upon all the affidavits, or the nature of the subject complained of, it was so clear that it constituted a nuisance, as to authorise the interposition of the Court, without first putting the case in a course of trial at law.

So in the case of the Attorney General vs Nichol, an- information was filed at the relation of the Scottish Hospital against Nichol, to enjoin the obstruction, and darkening of the ancient lights of the Hospital;—an injunction having been'granted, its dissolution was afterwards moved before the Lord Chancellor, who thought that the jurisdiction of Equity, could not be disputed, notwithstanding the common law remedy, by action or indictment.

In the case of the Attorney General vs Utica Insurance Company, an information in Equity was exhibited against the defendant, charging the company with exercising banking powers and privileges, without authority therefor, and in derogation of law. The Chancellor was of opinion, that the legal remedy, by iniormation in nature' of a quo war-ranto, was adequate to check the operations of the company, if they were unauthorised,—and that, that was a criminal proceeding.

He further deter,mined that the charge was an offence against' the public, and could not be brought within the direct jurisdiction of Chancery, which was intended to deal only in matters of civil right, resting in Equity; or where the remedy at law was not complete.— That the process of injunction should be cautiously awarded, with great discretion, and only when necessity requires it, The Chancellor, after stating that the exercise of the banking power, charged in the information, does not produce such imminent and great mischief to the community, as to call for this

summary remedy remarks: “I know that the Court is in the habit of restraining private nuisances to property, .and of quieting persons in the enjoyment of private right; but it is an extremely rare case, and may be considered, if it ever happened, as an anomaly, for a Court of Equity to interfere at all, and much less preliminarily, by injunction, to put down a public nuisance, which did not violate the rights of property, but only contravened the general policy.”— These remarks were certainly uncalled for, by the decision of the case, for it is there determined that the exercise of the banking power, if it be unlawful, is not a public nuisance.

And to the same effect, is the case of the Attorney General vs The Bank of Niagara. If the Chancellor intended to be understood, according to the literal import of the terms he employs, either he is in error, or else the learned Judges and authors whom we have cited, have mistaken the law, and with all deference for his judgment, we are disposed to think the former most probable.

The jurisdiction of Courts of Equity, in affording preventive relief, in cases of public nuisances, we understand to be clearly defensible, both upon authority and principle, where the fact of nuisance is placed beyond doubt: if this fact be questionable, the aid of that Court is usually withheld ; but even then it has sometimes been given by way of injunction, (to continue until a trial at law,) where its denial would be productive of great public inconvenience.

The principle upon which Equity entertains an information to restrain the exercise of a public nuisance, (as the employment of an offensive manufacturing establishment,) or to abate it, has been already stated to be, in the first case, to prevent irreparable injury, before a Court of law could act definitively, — and in the second, to prevent a protracted and expensive litigation, which must generally be the case where there are many persons to defend.

The information in the case at bar, is not as explicit as it should be, in disclosing the difficulties, (if any exist,) to adequate redress at law, so far as it regards the market houses already erected; and though the proof may be ample, it will not be competent to give the relief sought in respect to those, unless the information be so amended as to present upon its face, a good title to the aid of the Court. That the principles indicated by this opinion, may be carried out, the decree of the Circuit Court must be reversed, and the cause remanded.

And an injunction is directed to issue from this Court, according to the prayer of the information, returnable' to the Circuit Court of Mobile, to continue, until, in the opinion of that Court, the Equity of the information shall be fully met and removed by the answer and proofs, to come in and be taken in the case. And the costs of this Court, must be paid by the defendants. GOLDTHWAITE, J. not sitting. 15 Johns. R. 358. 2 Cranch.

R. 168. 1 Vol. 295. 3 bacon's Ab. 497. 2 Lord Raym. 856 2 Russ. on C. 461. 2Story's Com. 201. 2 Story’s Com. 201. 2 Mitford’s Plead. 144 Eden on Inj. 157. 2 Story’s Com. 203 & 4. 18 Ves. Ch. R. 211. 19 Ves. Ch. R. 617. 16 Ves. Ch. R. 338 2 Johns. C. R. 371. 1 Hopkins, Ch. R. 354.