SPOKANE MILL CO. V. POST.
429
years a spurious business, manufacturing and selling imitation goods, and using labels that they must have known were calculated to deceive and defraud. They are hardly in position to come into court and assert equities growing out of that business against the manufacturers of the genuine article, whose trade-mark they have been infringing. It is not a case of innocent use with complainants' knowledge and acquiescence; nor is it a case where it is shown that the complainant had sufficient knowledge to lead him to the fact, and therefore should be deemed conversant. Regarded in any and every point of view, the plea is insufficient. The defendants will be allowed 20 days within which to present an answer and apply for leave to file the same.
SPOKANE MILL CO. V. POST
et al.
(Circuit Court, D. Idaho. April 9, 1899.) 1. NA.VIGABLE WATERS-OBSTRUCTION-NUISANCE.
2.
Rivers and streams, when of such size and channel that they may be used for the purpose of floating or in the transportation of any article of commerce, are public highways. While any obstructions placed in the same which will prevent such use are a public nuisance, they may be abated upon the action of a priM vate individual who suffers some special damage, not common to the entire COmmu· nity.
The party asking such abatement must allege and show that the commerce fol' which he would utilize the stream is lawful.. (SylLabus bV the Court.)
SAME-PLEADING.
In Equity. Bill by the Spokane Mill Company against Frederick Post et al. to enjoin the obstruction of a stream, and abate a nuisance. Heard on motion for a temporary injunction and on demurrer to the bill. Injunction refused, and demurrer sustained. Edgar Wilson, for plaintiff. Albert Hagan and John R. McBride, for defendants. BEATTY, District Judge. The complainant alleges that, by obstructions placed in the Spokane River by defendants, it is prevented from floating down the stream a lot of logs it now has just above such structions, as well as from so using the river in the future as it has used it in the past, and asks the abatement of the obstructions. Responding to the order to show cause why a temporary mandatory injunction should not issue, the defendants deny the general allegations of the bill and the affidavits of complainant, and also demur to the bill as insufficient to justify the relief sought. The complainant is not asking the relief of a merely temporary restraining order to prevent waste and preserve the property as it now is pending litigation, but the extraordinary writ by
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·.VOl., QQ.
stat*,shallb"" changed, .the property destroyed, ·nuisanceabated. ''l'ojustify this proceeding, such an of. must· appear as would demonstrate clearly the of most lawless aggression by the defendants, and strong prQbability of such great and irreparable loss and injury to complainant fiS otherwise be Protected, . J'he facts are llot fully before me, but,in!)ojar as they are,.I aID not impressed with the belief that the situation is such as to justify complainant's reg.uest. So far as can be obse:rl'ed, it callnot benecessary at any time ,to remove from said river all the weirs, dams, and obstructions asked by the complainant, butit seems to mesome Cllange in the construction of the boom may be made, which will permit the use of the stream by all. It is quite probable such change' will not leave the river as free as it was by nature, and may work some inconvenience to all using it; but the water, as well as the light and the air and the rest of Nature's bequests, are not for the sole benefit and use of any single individual, corporation, or interest, but for all, as far as they can be usefully appropriated. I am not prepared, from the facts now before Irie,tosay what change should be made it such boom, even if I were convinced complainant is likely to suffer the injury above referred t6; buttne' facts dci not show it will he without a remedy for any immediate 10$s suffered. Any order, there/ore, W now· remove the obstructions. complained of, or any of them, must be and is refused. But there is another reason 'wllythis order will not now be made. It is notshowl1 that· complainant is lawfully removing the logs from Idaho. It may be said that it does not appear from the alleglltions that complainant is engaged in acontrahand trade, and that the court is justified until the contrary is shown in regarding the business as lawful. It does, however, appear from the evidence that the United States marthis court, in bis .efforts to protect the governmp,nt and prevent unlawful exportation of, its timberfrom this state, has been in the maintenance of the boom and obstructions conJplalned" of;' and the court cann()t avoid the knowledge that gross depredations have rece;ntly been made upon the public timber lands in the portion of the state referred t9 in. th!". pleadings. ; There is sufficient, at least, to put the c'ourt on its guurd, and for it to require, before acting, ,such positiveinformation of the facts that it an unlawful business. This is not indulging in any. presumption that th.e complainaritis guilty of any violatiol1 of law,but, as the granting Qf the unusual relief asked is a. matter somewhat within the discretion it should be exercised adversely to the complainant until it. shall, clearly appear that the law isuot being viplated.. Moreover, one asking t,bis extraqrdinary relief should first establish beyond queetion that he is elltitled to it, thlltno fault lies with him, that his llands1!-re cleau; :aud thjs, too, by direct, and not by inferential, averIt is very'certain that if, in this case, it positively appeared the question Wl'lre cut from the public. lauds of the gov.,,
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431
erninent', the request would, . ,be reftlsed: The contrl1.ry, I think, should be manifest by allegations and proof. In this respect the bill t6 thb objection taken. . As the temporary injunction is refused, and the bill should be amended, at least in the particular referred to, I might stop here; but other questions having been raised, a brief notice of them maybe taken. The aefendants ask the dismiss.ill of the bill, also, becauEle the complainimt'may have relief at law. The statute upon this subject is section 723, taken from the act of 1789, by which it is provided that a suit cannot be sustained in equity "in any casewhere a plain, adequate, and com plete remed y may be had at 'law." The supreme court has said, speaking through Mr. Jnstice FIELD; in Whitehead v. Shattuck, 138 U. S. 151, 11 Sup. Ct. Rep. 276, "it would be difficult, and perhaps impossible, to state any general rule which would determine in all cases what would be deemed a suit in equity, as distinguished from an action at lawi" to which maybe added that this difficulty is not lessened by the various decisions upon this vexing question. The statute is that remedy by law must be, not only plain and adequate, but it must be complete; otherwise, equity may be invoked. Could the complainant obtain at all it asks in this action? If so, to that forum must it be remitted. ·If the only relief sought were for the damage resulting from the detention of a certain lot of logs 'referred to, law would afford What would be held a complete remedy; but the complainant asks further relief. It alleges it has long been accustomed to use this river as a highway for the transportation of logs to its mill, and that it desires and: intends to continue such use in the future, and that defendants are' now reE'isting the claim of complainant, and intend and threaten to so continue. If the complainant has the right to so use the river, then it is a continuing right. The interference therewith may be of daily occurrence, and' would, in law,lead to a multiplicity ofsuHs,-to constant annoyance. As said in the Wheeling Bridge Chse; 13, How. 562:
"This injury is of a character for which an action at laW could afford no adequate redress. It is of daily occurrence, and would require numerous, if not daily, prosecutions for the wrong done; and from the nature of thatwrong the compensation could not be measured 'or ascertained with any degree precision. "
While complainant may at law obtain relief, at ,least in part, the damage it sufferfl by defendants' acts, it cannot obtain all it asks and is entitled to, ifithllS the right claimed t<fthe use of that stream. It can by law, in theory at least, obtain damage for itspresellt actual loss, bilt cannot be awarded future protection. Its remedy,therefore, in that forum is not complete, and only in this can it be. It is further urged that complainant sh6uld at least first have its assertedright to such atlaw. This rille is not imperative 'upon application for an inlerlocutoryinjunction. Moreover, it is a familiar principle that, when a court of eqUity is entitled to and assu'mes the jurisdiction; of a caUSe, it determines it fully in all re-
432
FEDERAI, REPORTER,
vol. 50.
specte. 11lis familiar doctrlpe is reaffirmed in HoTJp,nd v. ahallen, S. 3 Sup. Ct. Rep. 495. It was urged in that case, against jurisdiction of the court, that the title of the property had not been judicially determined, to which the court said: "It not an objection to the jurisdiction of equity that legal questions are presented for consideration which might arise in a court of law. If the controversy be one in which a court ,of equity only can afford the relief prayed for, it!! jurisdiction is unaffected by the character of the questions involved." A.different principle is not asserted in 138 U. S., 11 Sup. Ct. Rep., supra. ,While by that action the complainant asked the removal of a cloud from his title, it appeared the defendant was in the actual possession of the property in controversy, and that what complainant sought was possessio.n of his property, and the affirmance of his title thereto. The court as, by ejectment, he could both recover the possession and deterheld mille the title, he had a complete remedy at law. Had there been some relief asked, and justified by the facts stated, doubtless the cause would have been retained in the equity forum. The ancient English lVle that one must thrice maintain his title'by ejectment before entire justice will be awarded him is, fortunately, not the law here. It would appear that if, in, case; all a party asks, and to which, under the allegations, he would be entitled, cannot be granted him by law, it does. not afford him,a complete remedy, and equity then may. This certainly is the rule when the equitable relief is prayed in good faith, not a mere incidental, but an important, issue in the cause. It ill also claimed thatthElir acts, as complained of, constitute a public nuisance, and, cannot be abated by this action through a private person or corporation. The law ,upon ,this subject is clearly settled. When the nuisance is apubJic one, and applies alike to all the individual members of the public, only the public, through its proper agents, can maintain an action for its An individual may maintain the action when J:ie suffers some, special damage. The difficulty more often is to determine when the damage suffered by the inqividual is special, and such as ,is not shared in common by all, the individuals of the COlmnunity. In this case, com plainant has alleged a special damage in the detention of a certain lot of logs. 'This was a special damage suffered in this particular instance, in which other members of the community did not share. It is true others would have suffered in the same way, perhaps to a different degree, had they attempted to run logs down the river; but, if what others might suffer under the same circumstances were made the rule, then in no case could it be said individuals ever suffer special damages from a public nuisance. In the Wheeling Bridge Case, supra, it was held that the bridge was a public nuisance, and that the state, as an individual, for th,e protection of its individual interests, and not as a state for the protection of the community, could maintain the action to abate it. There are many cases, and SOllie quite similar to the case at bar,in which an individual has been allowed to bring bis action to abate a public nuisance because of SOllie special dam"'ge he I think the tacts in this case bring it within that rule.
Whether the Spokane river is either a navigable stream, or such as the law denominates a "public highway," is a controlling factor in this cauete. It is unnecessary to discuss the old English rule and definition of a navigable stream. However applicable it may have been to their physical condition, it never has been to ours, nor have we adopted it as law. Most sections of our timbered country are traversed by streams of such size that they may be utilized for the economical and convenient transof .,the timber products. In fact, without them, in a mountaJnous, undevf'loped country, the timber would be practically unavailable and useless. From the earliest settlement of the country, all the streams, wher,e convenient, have been thus used. It is safe to assert that generally, throughout the United States, all streams of sufficient size to be used for trade in the transportation of merchandise or products of au:y kind are public highways, and free to the equal use of all, and the title ,of riparian to the bed of the stream is subject to such public use. That the stream is not meandered by the government survey is iimnaterial, for the purchase of its bed does not include its waters or their control. ' It is'Qrged:that because defendant Post has so long resided upon and improved the stream in question, and now owns the land upon both banks, including the intervening islands, he now has the right to use and control it,. practically, as he will, including a right to place such obstructions in the current for his own purposes as will deprive others of any use thereof as a public highway. While great consideration is due the adventurous and enterprising pioneer, such a claim as this should not be conceded to any. The adoption of such a principle would enslave any country to the iron rule of its few discoverers. The defendants assert that the complainant, a large milling company, isby this;'lction inequitably asking the destruction of. their property and business. But grant the defendants what they claim, and the public general,ly, desiring to use the ri ver, would be subject to their exactions. Every man floating timber down this stream would sell to them at such pricesas they might arbitrarily fix, or pay them tribute for the right to pass on to other markets. If such were the law the courts would, with lagging step, so enforce it, but the contrary is too well established to now leave a court in doubt of its way. In so far as the facts are developed, they indicate that Spokane river is of sufficient size and of such a channel as to be held a public highway. If this indication is confirmed by a full production. of the facts, its waters must so far flow unfettered tQat they may be utilized by the public for transportation purposel;l. I do not, however, imagine this will result in any great damage to any of defendants' works, and at most only to some inconThe weir spokep of, probably, need not be disturbed, but by a change or proper construction of the boom the desired end can be reached. The motion for temporary injunction is refused, the,demurrer is sustained;al1d complainant is permitted to amend its bill, and Costs against complainant are allowed. v.50F.no.5-28
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B. D. NettI, l"'or7c. April 28, ,
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LD,lIlMnBUB - ClWiTB. . .BBBTJI-WHBNTOBBPaOVIDBD-AB,BNa- OJ'
'nON",' aQsence of any stipulati9n 81 to the within which a berth shall llrovided within a reasonable tim,e, or .be pr()"ided for a shipaftel' an-i,val, it within lIuCh tinle as usage proVides, WhiCh 'tune, by the ordinary usage of the pori; e>t New yodt., is 24: hoursa;eter notice ,of arrival. ' PUTT HATCHES. ", FAST .1 SlIIP OAK , "
I.
,
cb,",ter; of:a 'VllBselhaving' '011l' ,hatches provides tbat the ship shall . AieQb,arge."1'II fast allIIn!': n cb.llorter lIay.itli nothing about, tb.e numbel' of hatbhes to be ulled, and the wnarves at which four hatches'can be simultaneouilyworked in the port:belng the exception, and being no 'evidence that vessels !>flinch to discharge fro;m 1141 four at once1 the charterer l.a ndt 'bound to provide a berth wheJ:8 all four can be used at once; out ful1l.l18 hil dU"t y, b,Y sendi,D,g, the ShiP. to, such,a,re,aso,nabl,Y fit, berth, as is, c,u,s,tomary for h,er size aDd class, and. by seeing to it, at such that no lUndrances on the dock, so the vessel may discharge. as fast as sbe, can deliver, with the usual appliances therefor. ' qa,
After a ship il berthed, and permit to discharge obtained, the chazot,erK ta for'dilla., caused by the nonattendance of acUstomhiluse inspector. '
CUllTOM;llOU8B INSPECTOR.
.!
IIi' Admiralty,
C'onver8k Kirlin, for libelants.
Libel for demurrage.
BROWN, Judge. The charter of the :I{olmepl'Qvided that she "shoUld discharge at one berth in New York harbor, as or· deted by chaherers; anf SUbsequent removal to beat charterers' expense." Another etipulation was tbat she should "be discharged as fast as she cap deliver in oordihary working hours. " " The lltttet stipulation relates to the rate of she commences; 'It. has nothing to do with the time within which a berth should be provided itfte,r arrivaL' ,,Itt 'the .absence of any charter stipulation on that point, to when'the laydays begin, the berth must be within a reasdn!dble time,'oi'suchtime as usage By the dinary usage of this port, .24 hours ,after notice, of. arrival is for procuring a.berth., Within time a to wbich tbeyessel was directed, was ready for her; bth throUgh the vescoming ::pri3i- to the time' notified and going sel's faulty a,,:"ay at ofly}n$ and wa.lting a she mlght have done, for the time appOInted, she dld'Ilot get Into bet until the of the 11th; ,and the was begun on th,e fol'; lowing day. It being high water from 8 to 9 o'clock she could hate taken her berth as well at half past 10 or' 1111.. M. on the 11th, as at 6 P. K. No demurrage, or towage, is, therefore, allow.ed for the 1 1 t h . '
'or
