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The following observation of Lord Tenterden seems most clearly and most justly to disclose the law upon this subject. In the case which I have been commenting upon, his Lordship says (a), "Admitting that there is some public benefit, both from the price and condition of the coals, still I must own that I do not think those points could properly be taken into consideration in the question raised by this indictment. That question I take properly to have been, whether the navigation and passage of vessels on this public navigable river was injured by these erections."

Whether the alleged obstruction to the navigation of the River Tyne be really such, and therefore a nuisance, it is the peculiar province of the jury to determine (b). However, upon the statement of facts of which we are possessed, we may hazard the assertion, that if they do not disclose a nuisance, then the Treatise De Jure Maris may be said to contain no description of any nuisance, and the case of Rex v. Lord Grosvenor is an erroneous decision.

(a) 6 B. & C. 602. (b) Another indictment was preferred for the same erections, at the last Assizes at Carlisle; and the jury returned as a verdict, "We find that part of the navigable channel of the Tyne, opposite Wallsend, has been narrowed, straitened, and obstructed; but that the trade of Newcastle has notwithstanding increased."

may owe its improvement to a hundred various sources, besides the staiths in question, this fact by no means proves any benefit peculiarly arising from the егесtion thereof. But even if such were clearly the case, yet upon the principle which I have been aiming to support in the text, this verdict is equivalent to that of Guilty.

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If we admit the obstruction, then no plea of public

benefit, however great, which does not apply to the right

⚫ of navigation (and if it did, there could in such case be : no obstruction) can be any defence to the indictment, for the following reasons:

1st, Because if it be no nuisance in one case, it can be none in another; since if it be lawful for one person to cause such an erection, the same liberty must be granted to any other owner of the soil; and so on, until the river would be actually choaked up.

2dly. Or if this be denied, inasmuch as a reasonable space must be left for the navigation, then is the law both partial and unintelligible. For why is one man to receive any preference over his neighbour? Or how is it to be decided what is space sufficient for the public? The trade on the river may increase, and although what is now left free for navigation appears to be " a reasonable space," it may, in future years, be inadequate to the traffic. It is scarcely for a Court of Justice to look into futurity, and by foretelling how much the public wants may hereafter require, to decide this question of right upon the plea of expediency or policy.

3dly. Suppose it were admitted that the obstruction is not to be considered a nuisance, as thereby the public derive an advantage in loading their vessels; this is still no excuse for the obstruction at such time as it is not in use for that purpose. Therefore it would follow, that one and the same obstruction is to be considered an indictable offence against the public interest at one period, and a benefit to that interest at another.

4thly. As was forcibly remarked by Mr. Brougham, arguendo, the existence of this public benefit is capricious and dependant upon the will of the owner of the staith; he may at any time cause the staith to be closed; and it is even probable that in a few years it will become entirely useless, owing to the exhaustion of the coal-mines. In such events the obstruction must still be held no nuisance, or it must be abated. And those who declare it at present to be no nuisance, should shew how they will distinguish between the existence of the obstruction when in its harmless or its injurious state; with what evidence they will be satisfied; and what mode of remedy they will provide for its abatement, if it be proved to be obnoxious.

5thly. The question of benefit, which would thus be the point for the jury to decide, is one which the prosecutor can never prove by witnesses or the defendant disprove. The evidence would be endless and unsatisfactory. And why? Because its object would be to prove, not a fact, but an opinion. Nor could the defendant ever discover from the record what is the real point at issue, and how to shape his defence.

In the observations which I have thought it my duty to make upon the above case, let me not be understood as being opposed to public improvement. If these staiths do produce a general benefit (and I have never meant to deny that such may be the case), it is only required that they should be established by the authority and under the care of Parliament. By no other sanction can they be legalised. And it is right that it should be so; for no other jurisdiction can accompany a licence to make these erections with such provisions and regulations as are requisite to prevent too great an infringement upon the public interest. If by law one may be erected, by law there is no certain limit to the number; and when one is erected according to law, it can never by legal process be

events; and may declare how many shall be erected, how far they shall extend into the river, how they shall be used, and when and how they shall be removed, if their removal should ever be found necessary; and may impose all such other guards as shall be thought proper for the protection of the rights of navigation.

SECONDLY: How nuisances in highways are to be removed, and the offenders proceeded against.

It seemeth to be certain, that any one may pull down or otherwise destroy a common nuisance, as a new gate, or even a new house, erected in a highway; for if one whose estate is or may be prejudiced by a private nuisance actually erected, as a house hanging over his grounds or stopping his lights, may justify entering into another's ground and pulling down and destroying such a nuisance, whether it were erected before or since he came to the estate; surely it cannot but follow à fortiori that any one may lawfully destroy a common nuisance. And as the law is now holden, it seems that in a plea justifying the rernoval of the nuisance, you need not shew that you did as little damage as might be; although such an averment is usually inserted in these pleas of justification (a).

But although any one may abate a common nuisance, obstructing a highway, and remove the materials, yet he cannot convert them to his own use (b).

(4) See 1 Hawk. P. C. c. 75. 8. 12, and 2 Roll. Abr. 144, 145,

and the cases there cited.

(b) 1 Hawk. P. C. c. 76. s. 157.

It is certain that nuisances or annoyances to highways, whether positive in the nature of actual obstructions, or negative, as for the defect of proper reparation, may be made the subject of an indictment; which is the mode of proceeding usually adopted. So they may be pre

sented in the Leet or at the Sessions (a).

And as public rivers are highways, all nuisances and impediments of passages of boats and vessels may be punished by indictment or presentment in the leet, sessions of the peace, oyer and terminer, or before justices of assize. So they may be removed by the parties themselves, without any process of law (b). And Lord Hale describes (c) the king's jurisdiction in reformation of nuisances, as being "to reform and punish nuisances in all rivers, whether fresh or salt, that are a common passage, not only for ships and greater vessels, but also for smaller, as barges and boats; to reform the obstructions or annoyances that are therein to such common passage."

It is a general rule, that a private action cannot be maintained for a public injury. Thus in Regina v. Saintiff (d), Holt, C. J. says, "If there be a common footway for all the queen's subjects, if it be in decay, an indictment must of necessity lie for it, because an action on the case will not lie without a special damage." And therefore case lies not for hindering a man's passage in a common highway, because he has no more damage than

(a) It may here be remarked, that the punishment awarded by the Legislature, as we shall see in the next two Sections, is only supplementary to and does not over

phens . Hayns, Raym. 250, and
Rex v. Balme, Cowp. 648.

(b) De Jure Maris, ch. 3. p. 9.
(c) Ibid. ch. 2. p. 8.
(d) 6 Mod. 255.-Holt, 129,-

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