text:
    THE STATE OF ALABAMA VS THE MAYOR AND ALDERMEN OF MOBILE.

      Of questions as to nuisance.

      As to the jurisdiction of equity, in cases of nuisance.

    L The streets of an incorporated town, are its highways, sub* ject, in general, to such improvement and alteration as its legislative authority may prescribe, — with a due regard to individual interest.

      %. The extent of the powers of a corporation, is to be ascertained by a reference to such grants as the legislature has made in its favor.
    3. And a corporation can have no rights, except such as are specially granted; or, as are incidental to, or necessary to give effect to the powers specially granted.
    4. A city corporation would not be authorised to exercise the right of appropriating streets, or to narrow or widen them, unless vested with such power, expiessly, by its charter, or in carrying out an incident to such express delegation.
    5. Any obstruction in a highway or street, tending to the anoyance of persons living near them, or which renders the passage through such highway or street, more difficult, and which thus increases the danger of injury to persons or property, — would be a nuisance, within the meaning of the term.
    f>. At common law, where the matter, arising on an inquiry as to a nuisance, consists in the obstruction of a highway,— the question of nuisance, or no nuisance, depends upon the fact, whether the passage through such highway is rendered less commodious.
    7. In this view, the erection of a market house in the center of a street, the-highway of a city, by a city corporation, if inteferring with a commodious passage through such street, would be a nuisance.

      8. Chancery has the right to exercise its jurisdiction, in the case of a nuisance, in restraining the exercise, or the erection of, and in some instances to abate, that, from which irreparable damage to individuals, or great public injury, will ensue.
    9. And this, in the case of a public nuisance, independent of the concurrent jurisdiction of the common law Courts, by indictment.
    10. The jurisdiction of Courts of equit}!, in affording preventive relief in cases of public nuisances, is clearly defensible, where the fact of nuisance, is placed beyond doubt.
    11. And even where the jact of nuisance, h questionable, equity sometimes affords relief by way of injunction, (until a trial at law,) where its denial would produce great public inconvenience.

      12. The principles which govern a Court of Chancery, in entertaining an information, to restrain the exercise of a public nuisance, or to abate one, are—
    First — To prevent irreparable injury from accruing, before a Court, of Jaw, can act definitively.
    Secondly — To avoid protracted and expensive litigation.
    13. Where (he city corporation of Mobile, were vested, by charter, with power to regulate the streets, under certain restrictions, — one of which was, that government street, should be and remain one hundred feet in width; and the corporation weie proceeding to erect extensive market houses, in the center of that street; — on a bill, in the nature of an information, filed by the State’s Solicitor, praying an injunction, whereby the corporation might be restrained, in the erection of such buildings, it was held,—
    First — That the expression in the act of incorporation of the city, that government street should be one hundred feet wide, was equivalent to a declaration that the street should remain open, of that width, independent of any act to be done by the corporation.
    Secondly — That independent of any implication which might arise from the act of incorporation itself, the erection of the market buildings in the center of the street, was a nuisance — it appearing that thereby, the passage through tiie street, was incommoded.
    Thirdly — That in such a case, Chancery might well entertain a bill in the nature of an information, filed by the State’s Counsel, for the object of affording redress.
    On a writ of error to the Circuit Court of Mobile county, exercising Chancery jurisdiction.
    On the sixth day of April, in the year of our Lord, one thousand eight hundred and thirty-six, a notice, signed by the solicitor of the first judicial Circuit, was issued to the Mayor and Aldermen of the city of Mobile, informing them, that on the ensuing day, a bill, in the nature of an information, would be submitted to the presiding Judge of the Circuit Court, then in session, praying that the said Mayor and Aldermen might be restrained from the erection of certain buildings in Government Street, and also, for the removal of obstructions then existing in said street: — -which notice was accompanied by a copy of the bill intended to be filed.
    The bill set out, that the solicitor of the first judicial circuit of the State of Alabama, who prosecuted for the State in that behalf, came, and in behalf of the said State, gave the Court to understand and be informed, that for a long time before the first day of January, in the year of our Lord, one thousand, eight hundred and twenty-one, and until the obstruction thereof, therein after mentioned, there had been, and from the time of such obstruction, there ought to have been, and still of right should have been, a certain common and public highway, called and known by the name of Government Street, leading from and beyond, to a great distance, the public and common street, known and called by the name of Royal street, in the city of Mobile, in the county of Mobile, clown to a certain public and navigable river, called the Mobile river, in said county, for all the citizens in the State of Alabama, to go, return, pass and repass, ride and ■labor, on foot, and on horse-back, and with their cattle and carriages, at their free will and pleat. ■ „ and that on the first day of January, in the yeai . our Lord, one thousand, eight hundred and thirty-five, at the said county, a certain building and erection, of great length, breadth and height, to wit, of the length of fifty feet, of the breadth of forty feet, and of the height of thirty feet, was, and before had been built, erected and fixed, in, and upon, the said common and ancient highway, called Government street, as aforesaid, between royal street aforesaid, and the said river Mobile, — by the Mayor and Aldermen of the city of Mobile — whereby the said common and ancient highway, was obstructed and stopped up, so that the citizens of the State of Alabama, by the said way, on foot, and on horseback, and with their cattle and carriages, could not then go, pass and re-pass, as they had been accustomed to do; and that the said Mayor and Aider-men, the said building and erection, so as aforesaid, built and erected, in and upon the said common and ancient highway, on the fifth day of April, in the year of our Lord, one thousand eight hundred and thirty-six, at said county, and from the time last aforesaid, until the time of filing the said bill, unlawfully and injuriously did keep, maintain and continue, and still did keep, maintain and continue: whereby the said common and ancient highway, during the time aforesaid, had been, and was then obstructed and stopped up, so that the citizens of the State of Alabama, during all that time, had been, and then still were, hindered ancl obstructed in passing and repassing, riding .and laboring on foot, and on horse back, and with their cattle and carriages, in, through and along the said common and ancient highway, as aforesaid, to the vast injury of the value of private property, on said Government street, aforesaid, to the great damage of all the good citizens of the State, at large, and against the peace and dignity of the State of Ala-barna.
    And further — that the said Mayor and Aider-men, had adopted a resolution, under which they proposed and intended] erecting another obstruction of equal or greater dimensions, than that specially referred to, which was to commence at, or near the west end of said building, then erected, ancl to continue as aforesaid, and to extend west-wardly, to a point, where Royal street aforesaid, crossed the said Government street; which said obstruction thus threatened, and intended to be built, by the said Mayor and Aldermen of the city oí Mobile,.would further hinder ancl obstruct the citizens of the State, if erected, in passing and i-e-passing, riding and laboring, on foot and on horseback, and with their cattle and carriages, in, through and along the said common ancl ancient highway, called Government street, as aforesaid; and would further lessen and injure, the value of private property, along on both sides of said Government street, 'to an immense amount.
    To the end therefore, that the said obstruction, built, erected and continued as aforesaid, being as it was, a public nuisance, might be abated, — the said solicitor, prayed that a decree might be rendered, requiring the said obstruction to be removed, and the nuisance to be abated: and also, that the Mayor and. Aldermen of the city of Mobile, might be restrained from erecting and building up the contemplated houses, &c.
    This bill was accompanied by the affidavits of Willis Roberts, Henry Stickney, John Soto, Thomas White, William M. G arrow, Samuel H. Garro wan'd Henry Hitchcock.
    The corporation, by attorney, appeared, and without answer or demurrer, contended, that the Court had no jurisdiction. And the bill was dismissed.

      Stewart and Thornton for the State.
    Mobile was a city belonging to the kingdom of Spain, — Government street is an ancient highway, and was so, under the Spanish government. The soil belonged to the King of Spain, and was held by him, as parens patriot, for the use and benefit of all his subjects. It was dedicated to the public as a highway, and lots were granted to individuals bordering on this highway; they have therefore, the full right, to its use, and the enjoyment of its full benefits. See 4th Paige Oil. Reports, 510. 6 Peter’s R. 431, 438.

      By the cession from Spain, the United States acquired all the title and rights of the King of Spain; and by the admission of Alabama into the Union, the State acquired the right to the soil and jurisdiction, and the sovereign control, for the use of the people of Alabama.
    The corporation of Mobile, is the creature of the government of the State of Alabama. In Europe, some of the municipal authorities, or city governments, have rights of great antiquity, and of a different nature from any in this State; some are from presciption, and sanctioned by such length of time, that the origin of the right cannot now be inquired into. Some exercise rights, which perhaps, the Crown even cannot now control. (See the history of the municipal powers of boroughs and city corporations — Angelí & Ames on corporations.)
    ' But here, nothing of that kind can be pretended. Spain governed her colonies by military officers,— who represented the King. The government was absolute, and no chartered borough rights existed. When Mobile passed to this government, a change of the mode of government of the city, took place; it received a charter; but it was a written charter of incorporation. No powers were vested in the corporation of Mobile, but those granted, and those incidental to such a grant — all the power the corporation has, is acquired by express grant, or by necessary implication — this power is exercised under the authority of the State government, and is subordinate to it. (See the acts of 1819 and 1820.— Toulmin’s Digest Laws of Alabama, 791-792-786.)

      The act of incorporation, under which (he corporation claims and exercises its powers, creates a “public corporation.” Such corporations are under the control and power cf thh State government, and differ from private corporations in this, — that the legislature may alter, change, modify and control them at pleasure. The rights of the corporation may be qualified and aindged, at any time, by the State authority. — (Angelí & Ames 16.
    The State authority then, in this case, is paramount, its dictates must be obeyed by the corporation, and cannot be gainsayed, subverted or coun - teracted by any thing which the corporation can c!o.
    The controversy here, may be considered as between the people of the State at large, of (he county of Mobile at large, and of the citizens of the city of Mobile, immediately affected, and whose rights are protected, established and declared, by the authority of the State law, on the one part, and claiming their rights under that law, in this proceeding; and of the corporation of Mobile, representing the citizens of Mobile, only, (or rather a majority of them,) on the other part. Government street is a public, highway, in which all the citizens of the State are interested, and which all have a right to use — that it has been considered so, is evident from the fact, that the State legislature has thought fit to legislate expressly on this subject. This street is the only one in the city of Mobile, which the legislature has been unwilling to place under the control and authority of the corporation of Mobile.
    By the act of eighteen hundred and twenty,— [Toulmin’s Digest, page ,791,] — it is provided expressly, “that the street called and known by the name of Government street, shall be, and the same is hereby declared to be one hundred feet wide, and it shall be the duty of the corporation, to designate and mark out the northern boundary of it &c. &c.” Here there is an express declaration, that it shall be appropriated exclusively, for the purposes of a highway, by a power of paramount authority, which nothing can defeat. It is to be remarked, that the legislature has, by several acts, given power to the corporation to widen, to extend and to layout new streets', but in no case is power given to suppress a street, or to make one narrower. — [Toulmin’s Digest, 791,-792,-786-]
    Then it is the paramount law of the land, that all citizens of the State, of the county of Mobile, and all the citizens of the city- of Mobile, who chose to do so, [consisting of the minority, as it may be considered, of the inhabitants of that city,] shall have the right to use Government street, of the width of one hundred feet, and every, and any part of it, as a public highway ; and this right is secured to them by the highest authority, a statute of the State; and of which the corporation of Mobile, representing a majority of its citizens, cannot deprive them.
    But in defiance of this right, and of this express law, the corporation lias determined that a portion of that street, shall not be appropriated for use as a public highway, and that it shall not be enjoyed and used .as such, but that it shall be appropriated for another purpose, whereby large revenue is raised and paid into the city treasury- — and the city authorities have accordingly erected three large buildings in it, for a purpose entirely unconnected with a highway, and incompatible with its use as such, — thereby diminishing the breadth of one hundred feet, which was declared to be the proper and necessary width, at that place, for passing and re-passing, by an authority competent to determine what width was necessary, most expedient and proper, for the public benefit, and for the purposes of a highway. It would seem then, to be a plain question, so far as the right is concerned, that the authority of the corporation must yield to the paramount authority of the State legislature.
    The injury complained of then, is, inasmuch as the ground at that place, was declared to be a public highway, that the buildings erected in it, and which prevent the use of the portion of it on which they stand, for the purposes ofpassing and re-passing, — are a nuisance.

    The question here arises, what is a nuisance? And is this one? We insist that it is a nuisance, not because it is a market, or because a market is noxious of itself, fora market, when kept clean, is not of itself a nuisance; but it is a nuisance on ac* count of its location; — it is, because it is in this instance, 11 an obstruction to a highway” and because it prevents passing and repassing in carriages, carts, &c. at that place, where people have the right, to pass. That spot was previously appropriated and used as a highway, and of right; the privilege is now lost, and it cannot any longer be used in that Way, although the right to do so, still exists. It is in this point of view, that it is a nuisance.

      It is not intended by this to admit that it is not a nuisance, also on account of its being a market. The object of a market is to vend provisions, meat, vegetables, fish, &c. — now to encumber the streets of a city or any part thereof, with goods exposed in the streets for sale, whether in stalls, carts, or without, constitutes a “public nuisance at common law;” and it has been so decided. — [l’Sergeant and Rawle, 217-220.] And it has been further held, that a.corporation of a city, by virtue of its general powers, cannot make it lawful to do so — the right to regulate markets does not authorise a nuisance to be erected. — [Ibid.] Even the Crown cannot au-thorise or sanction that which is a nuisance. — [2 Story’s Equity, 202. — Eden on Injunctions, 157,-8.] Nor can the patentee of the King exercise that for which he has a grant from the King, if it be a public nuisance. Then the corporation of Mobile has no power to cause merchandise to be exposed for sale in any of the streets; therefore to erect buildings for that purpose in the streets, and to rent stalls for that purpose, is a nuisance. It is a thing which they cannot do, and cannot license others to do.
    But we take a broader ground than this, and may consider this obstruction in the same light as any other public building, which the corporation might think fit to erect in a public street — say a guard house, a public hospital, a poor house, an engine house, a mayors office, town hall, public water works, baths, gardens, burying ground, or any other thing for public use, or to rent out for account of the corporation and from whiclvto raise revenue. For all such stand on the same footing precisely. All these things, so far as they are established in Mobile, are built upon property purchased by and belonging to the corporation. Why shall not the market be so located'? Why make this distinct on? There is none in law — the one is as lawful as the other. Lately, one hundred thousand dollars, or more, have been expended to purchase a scite for a town hall — if a market is equally useful and necessary, a scite can be purchased whereon to locate it.
    The building then is an obstruction of a highway, and therefore a nuisance. To obstruct a street or road in any manner is a nuisance. — [Eden on Injunctions, 160, 161. 2 Lord Raymond 858. 6 East R. 427. 3 Campbell, R. 230. 7 Mass. R. 378.
    The obstruction complained of, besides being a nuisance, is also a purpresture. A purpresture signifies “an inclosure;” and is defined to be, where one “by building, inclosing, or unlawfully using any liberty, encroaches upon a highway, public river, &c. of the King, or of another.” The erecting of “a beacon,” or making “a causeway there.” [7 Comyn’s Dig. 178. Co. Litt. 277, b.] Judge Story considers a purpresture to be an encroachment upon public property, held by the sovereign for the use of the public, such as highways, rivers, forts, streets and squares.” “Where one takes that to himself, which ought to be common to many.” — ■ [2 Story’s Commentaries on Equity, 201, 202.]
    It is then an appropriation of property belonging to the public, *by those who have no authority to appropriate it to their, use. It makes no difference, whether it be one ór more persons, who claim to appropriate it to their use, whether it be by an individual or by a corporation; the citizens of Mobile have no right to appropriate, to their exclusive profit, that which the citizens of the State, at large, have a right to use as a highway; unless a right to do so can be_shewn, it is an encroachment, and an unlawful encroachment.
    This soil belongs to the State as it belonged to the King of Spain. If, however, the property of any citizen had been taken, when it was declared as a highway, one hundred feet wide, — inasmuch as it was the State which so declared it, and not the corporation, the State would have been compelled to pay for any land condemned for that purpose, not the city, — which had not done it. The State can be sued for any injury done by it to an individual. [See Statute.] Then it is the property of the State and of the public at large, and the corporation cannot seize or claim, the control over it or receive the rents and profits of it.
    It is therefore, a purpresture, and besides, it is a nuisance. There are purprestures which are no nuisances, and there are nuisances which are no pur-prestures. But there is a class of grievances which are purprestures and nuisances at the same time, and the one now under consideration is of that class.
    ■ It is no answer to say that the whole of the highway is not obstructed, An obstruction to any part of a highway, is a nuisance. [6 Munford’s Reports, 308.] In 15 Massachusetts Reports, 240, it is decided, that in an indictment for an obstruction to a highway, the breadth of the highway need not be laid, — it is immaterial — “it is sufficient to aver that the nuisance is on the highway.” Á partial obstruction is as much a nuisance, as a total obstruction. Indeed almost all the cases, are cases of partial obstructions.
    Neither is it an answer to say, that it is for the public benefit. In questions of purpresture simply, where there is no nuisance involved in the case, an inquiry is directed to ascertain whether the building may stand and. be rented for the benefit of the King, or public, as being on the public property, or whether it should be abated as injurious to the public. [2 Story’s Equity, 202. Eden on Injunctions, 157 to 163;] but where the obstruction is also a nuisance, there can be no such inquiry, for it cannot be sanctioned or made lawful. It must be abated. The sovereign power even cannot sanction it, as we have seen. (2 Story’s Equity, 205. .Eden 158.) In 1 Dallas’ Reports, 150, it was ruled that it was no defence against an indictment for a nuisance, to prove that the erection was a matter of public benefit.
    For the same reasons we contend that the corporation cannot exempt the building from being a nuisance. They have' no power to relieve it from condemnation as such. They were entrusted with the power to “keep streets in repair,” “to pass regulations for preserving the same,” “to prevent and remove nuisances,” “to widen and extend streets.” (Toulmin’s Digest, 786,791, 792,) not to obstruct, destroy or dimmish streets, nor to erect nuisances, nor to create them instead of preventing them. No
      such power was ever intended to be given to them by the State. But if it had, the State cannot give the power to erect a nuisance.
    Power was given “to regulate and establish markets, and to rent out the stalls in the same;” — ■ but it was not intended thereby to authorise a nuisance. It cannot be so intended. No rule of construction would allow us to imply that an unlawful thing was intended. Power was given to prevent “the selling of meats, poultry, fish, or game, except at the public market or markets.” This was for the express purpose of preventing those things from being offered in the street, and of having the streets unencumbered thereby. Power was given to the corporation, “to hold real estate,” That was for the purpose of enabling them to purchase grounds to build markets and other public buildings upon. (Toulmin's Digest, 786.)
    The grievance being then established to be a pur-presture and nuisance,” combined, what is the remedy which may be resorted to by those whose rights are infringed, to obtain redress and get rid of it,'? The answer is, that it is by an information in equity, filed by the attorney general; that the Court will decree a perpetual injunction against it, and decree that it be abated. Injunctions lie against corporations, as well as individuals, — 1 Russel and Mylne 181. 2 J. Ch. R. 162. 4 Ibid. 53.
    The first objection made to this proposition is, that Chancery has no jurisdiction in cases of this kind. But this objection it is believed, cannot be sustained. Chancery takes jurisdiction for the purpose of preventing a multiplicity of suits. For every person sustaining an injury, may maintain an action, and-the determination in one case, does not prevent a continuance of the evil, nor determine the right, except as to the particular party, and for that particular cause of action. Besides, where the public is concerned, a more effectual remedy is necessary, and a trial of the right, where the decision may be effectual. The authorities will clearly shew that the Court of Chancery has jurisdiction in a proceeding like this.

      Story says, (2 Story’s Equity 201.) “In regard to public nuisances, the jurisdiction of Courts of Equity, seems to be of very ancient date.” That it is applicable, not only to public nuisances, strictly so called, but also to “purprestures upon public rights.” That the remedy is “by an information of intrusion at common law,,’ or by “an information at the suit of the attorney general in equity,” (page 202.) “That informations in equity have been maintained against a public nuisance, by stopping a highway,” (page 203.) Also harbors, which are a species of highway, (203.) If the soil belongs to the Crown, the remedy exists for a purpresture — if public nuisance merely, then the information in equity still lies. It lies at the suit of the public, and also at the suit of private parties directly interested.” (page 204.)
    In relation to private nuisances, the jurisdiction is more restricted. Sometimes it is restricted to cases where irreparable loss and mischief may ensue. But in cases of “public nuisance,” such as this is, the jurisdiction is undoubted. In Eden on Injunctions, it is said, that “the jurisdiction of Courts of Equity, in cases of purpresture and nuisance, though not very freqnently exercised, is undoubted.” (page 157.) That “the usual mode is to proceed by information at the suit of the Attorney General, but that even this is not necessary, as bills have been sustained without.” — (Eden, 163.) And in speaking of cases commented on, says, “that the jurisdiction might have been sustained on the ground of nuisance, although the acts complained of, were not at the same time purprestures.” (page, 158.)
    In Maddock-s Chancery., it is said, that “in cases of public nuisance, an information may be filed in the name of the Attorney General,” [page 154, 155, 156.] See also Mitford’s Equity Pleading, Jeremy’s Edition, 145: Which sustains the same positions. These authorities cite, in support of the principle, cases decided a longtime ago, and which have always since been relied on, and maintained as authority, and are now so considered.
    A case is refered to as opposed to this position. It is the case in 2 Johns. Ch. Reports, 371. That was a proceeding of this kind, filed against the Utica Bank, to restrain them from issuing notes. But that case was decided on the ground, that a statute of New York, gave a plain remedy for the evil, by quo warranto — See page 376. Also that the matter complained of was no nuisance. — See page 383. And it was expressly distinguished from cases of purpresture and nuisance. The same Court did take jurisdiction, .and restrained even a private nuisance. [2 Johns. Ch. R. 165.] The same principle was also sustained in 5 Johns. Ch. R. 101.— and 6 Johns. Ch. R. 439. The Court did by injunction restrain a defendant from obstructing a street by building a house in it to the injury of the public, and of the property of the neighbors. There can be no doubt of the jurisdiction of Chancery in this respéct.
    The next question is as to what the remedy shall be, which the Court shall grant?
    In some cases it is said, that the Court will not enjoin till the nuisance has been declared such, by a trial at law. But we insist that this rule has no application to a case like this. Here the relief will be a decree to abate the nuisance, and a perpetual injunction. The cases where a trial at law is necessary, are those where it is doubtful if the nuisance complained of, be one or not. This is particularly applicable to cases of manufactories, affecting health and comfort; “in those cases, injunctions are cautiously granted, and not exparte” [Maddock’s Ch. 1 vol. 154-5,-6.] The author there says, “that in cases of private nuisance and of public nuisance, there must be a trial at law.” But this clearly applies to the cases above alluded to, for the auther says, “but in cases where there is an encroachment on the Crown, and producing at the same time public injury, the Crown is entitled to the most effectual way to prevent the injury,”— Eden lays down the same doctrine, [page 159.] Also. Mitford’s Pleading, Jeremy’s Ed. 201, marginal page 145. Story says, “if the purpresture be also a nuisance, it cannot be sanctioned — the Crown cannot sanction it.” • [2 Story’s Equity, 202. It must be abated. [Hardres, 178.]

      What would there be at law to try? No question of fact. There can be no doubt — It is not like a manufactory, creating noxious vapor. There the difficulty is, whether nuisance or not — and that is matter of opinion and of doubt. Here it is a question of authority and of right. No public good is to be taken into the account. £1 Dallas K. 150.] If unlawful to put it there, it cannot be sanctioned. It is a bare question of right in law. If the law allows it to be put there, it is no nuisance; if the law does not, it is a nuisance, because it is put there. There is no occasion for a trial at law here. When we decide the right, all is settled. Even in cases of private and uncertain nuisances, relief has been frequently granted without trial at law. — 2 Johns. Ch. II. 165.
    There can be no inquiry entertained as to whether the market be for the public good or not. That is a question already decided. The legislature representing the people of the Stale at large, has decided that the public good required that the spot whereon the market stands, shall be used asa highway, and not otherwise. If the corporation of Mobile, representing a small portion of the citizens of the State, are of a different opinion, it is immaterial. The law of the State must prevail, and the Court must consider that as a decided question of policy; no inquiry can be had here as to which would most conduce to the public good. The paramount authority and law, must be enforced, and is binding' on this Court.
    The question then is, Whether the corporation of Mobile, can erect any building they please, for their profit and convenience or for public use, whether free or to rent, in any of the public streets of Mobile, and in particular, in Government street. For if they can put the market there, they can put a jail, hospital, or any thing else, by the same right. There can be no distinction drawn. And if they can lawfully obstruct one part of the street, they can another.
    It is said that our position cannot be sound, because we maintain that nothing can be put in the streets. That it is unquestionable that lamp posts, wells and well-houses, can be built and put up in the streets. This is admitted, and it is further admitted, that bridges may be built in the streets. [Lamp-posts and wells are expressly authorised by the charter. — Toulmin’s Digest, 786."] But these things are appendages to highways, and necessary to them; they facilitate travelling, they are in furtherance of the object of a highway; not in conflict with it. A market is not in furtherance and in aid of travelling. The right cannot be sustained in any point of view.
    The owners of property adjoining the market, suffer severely from the nuisance. The south side of Government street, is built up with a row of houses and stores, three and a half stories high, of great value. By a late ordinance, the right of the proprietors, to extend the side walks at that place, to the width of fifteen feet, has been admitted, whereby they are put on a footing with other proprietors on the same street. This has been done, and the side walks are paved with flag stones. That reduces the actual width of the street opposite those houses, to twenty-one feet, seven inches, at one place. This renders access to those stores and houses at all times very difficult, as a carriage cannot turn round in that space; and in market times, when the market carts are stationed all around the market, access with a carriage is absolutely impossible. This the proprietors consider as a great hardship; it diminishes very much the value of their property. And when by a law of the highest authority of the State, they know that they are entitled to a highway in front of their property, one hundered feet wide, they are very restless under the sacrifice of their rights, and will continue so, till the nuisance is abated, and their rights are allowed them.

      Sallee, contra.
    The information alleges that the present market house, is a vast injury to the value of property thereabouts, and a great nuisance to the people of the State, and concludes by praying a decree to abate the present market, and to restrain the erection of another.
    The bill is supported by seven affiants, out of a population of nearly or quite ten thousand in the city alone; and not one of the seven swears, that he ever sustained the slightest inconvenience from the market. How the value of property in the neighborhood is vastly injured, there is not the slightest intimation. There is no relator, or certain number of individuals, either of town or country, who come forward to complain, and who might be made liable for costs. Bui the name of the State is lussred in for the purpose of giving “pomp and circumstance/ to the case. What then is the real gist of the 00867 Why, it is, that one or all those affiants, have, Don Quixotte like, made an attack upon the market house. Viewing it then in its real light, let us proceed to examine the cause.
    In order to do this, I shall arrange it under the following heads:
    First. The corporation in erecting the market house in the street, have either usurped a franchise, or
    Secondly. In exercising a lawful franchise, have so demeaned themselves as to injure the private rights of one or more individuals, or
    Thirdly. Have erected a nuisance which is injurious to the health of the neighborhood, or
    Fourthly. If it be íiot a nuisance in law, yet it ¡must be so offensive as greatly to disturb the enjoyment of life and of property in the neighborhood.
    If the first point be settled in favor of the defendants, the cause is at an end.
    The act passed December seventeenth, eighteen hundred and nineteen, (Toulmin’s Digest, 784,) incorporating the city of Mobile, gives the Mayor and Aldermen very great powers, both executive, legislative and judicial. Acting within the sphere of their charter, and not contravening, any law oí the State qy the United States, their power is supreme. The seventh section of the above act, gives them expressly the power to establish and regulate markets, and to rent out the stalls in the same, &c.
    The market house then, must either be a purpres-ture or a nuisance. It cannot be a purpresture, for a purpresture according to Lord Colie, signifies a close or enclosure; that is, where one, (an individual as I understand him,) encroacheth or makes that several to himself which ought to he common to many. It is laid down by all the old writers, that it might be committed either against the King, the Lord of the fee, or any other subject: but in common acceptation, it is at present understood to mean any encroachment upon the King, either upon part of the demesne lands, or on high ways, .rivers, har-bours or streets, Eden on Inj. 157. Again, 2 Chit. Black. 125. — Where there is a house erected, or an enclosure made, upon any part of the King's demesne, or on a highway or common street, or public water, it is properly called a purpresture. It is perfectly clear from the above definitions, that the public cannot be guilty of a purpresture: otherwise this very capítol is a purpresture, because erected on public property; and by parity of reasoning, the legislature cannot erect toll gates across public roads. Apply the same principles of reason to the Mayor and Aldermen of the city of Mobile, and it must be clear, it seems, that they cannot be guilty of a purpresture in erecting a market house on the street. It may be readily supposed, that it is by not attending to the distinction, as to what the public may do, and what an individual may not do, that the affiants, complainants, have conceived the market in question to be either a purpresture or nuisance. i have thought it necessary to be thus particular, because every purpresture is, in some sense, a nuisance, but every nuisance is not a purpres, ture.

      Having shewn, as I hope, that this is not a pur-presture, I shall endeavor to shew that it is not a nuisance, at least such a nuisance as gives a Court of Chancery, jurisdiction. This brings me to the second point. Having shewn that the corporation of Mobile, has the power by its charter, to erect a market house, — has it so exercised its right as to invade or infringe the rights of private property? Is it pretended that the present market house, or the one about to be built, is so near another ancient market, as to prejudice it? If not,, the Court cannot interfere upon that ground. [Eden In. 165.]
    Is it like the case of Gardner vs The Trustees of thevillage of Newburg? [2 Johns. Ch. II162.] Where the trustees acting under an act of the legislature were about to divert an ancient water course, without making compensation? Certainly not. How then does this market house, vastly injure the value of private property? It is not pretended in the bill, that it is either by stopping ancient lights, or by creating offensive smells, or any thing of that kind. In Eden on Injunction, 164, it is said, that “it is not every diminution in the value of the premises which affords a ground for the Court to interfere. The foundation of the jurisdiction, is that sort of material injury to the comfort of the existence of those who dwell in the neighboring houses, which requires upon equitable principles, the application of a power to prevent, as well as to remedy the evil.”
    The information in this case, presents no such, a case as that of the Attorney General vs Cleaver. [18 Ves. 211.] That was an information at the relation of several inhabitants ofHaUersea and Chelsea, praying, a perpetual injunction against the defendants restraining them from manufacturing soap or black ash, and from boiling, melting, calcining or burning any of the materials used in manufacturing soap or black ash, in their manufactory in the parish of Bat-tersea; or that they might be restrained until trial hj indictment, in the pleadings mentioned.

    A motion was made for an injunction upon several very strong affidavits, describing the process as both offensive and unwholesome; and stating the effects of the smell from the vapor, even across the river, and further to a considerable distance. Yet the Chancellor, Lord Eldon, in that case, refused an injunction, until the fact of nuisance, could be ascertained by the verdict.of a jury, upon the trial on an indictment. The cause was afterwards compromised.
    The present is not like the case of Rex vs White & Ward. — [1 Burr. 333.] In that case the defen-dents had been convicted of a nuisance in erecting and continuing their works at Twickenham, for making acid, spirit of sulphur, oil of vitriol, and oil of acquafortis. The indictment read thus, viz —■ “That at the parish of Twickenham, &c. near the King’s common highway, there and near the dwelling houses of several of the inhabitants, the defendants erected twenty buildings for making noisome, stinking and offensive liquors, and then and there made fires of sea coal and other things, which sent forth abundance of noisome, offensive and stinking smoke; and made &c, great quantities of noisome, offensive and stinking liquors, called, &c. whereby and by reason of which, &c. the air was imnreg-

      mated with noisome and offensive slinks and smells) to the common nuisance of all the King’s inhabitants living,” &c. A motion was made in arrest of judgment. Lord Mansfield decided against the motion, declaring that it was not necessary that the smell should be unwholesome. It is enough if it renders the enjoyment of life and property, uncomfortable.
    It is hoped, I have shewn that by the erection of this market house, neither the right of private property has been invaded, nor the health of the neighborhood affected. Indeed neither of these is pretended.
    The only other point for consideration is, whether the passage of individuals is so obstructed and hindered, as to render the market house a nuisance'? The affidavits do not shew such obstruction. And if they did, still the question would arise, whether the convenience arising to the inhabitants generally, is not equal, or greater, than the inconvenience arising to a few car-men or other passengers, who may choose to pass that way.
    The case of Rex vs Russell, [13 Eiig. Com. Law Rep. 254.] so completely puts this point at rest, that I shall forbear troubling myself or the Court, with further argument. I shall conclude with a remark or two, on the jurisdiction of the Court.

      Iw Attorney General vs Utica Insurance Company, [2 Johns. Ch. Rep. 378,] Chancellor Kent says, “if a charge be of a criminal nature, or an offence against the public, and does not touch the enjoys merit of property, it ought not to be brought within the direct jurisdiction of this Court, which was intended to deal only in matters of civil right, resting in equity, or where the remedy at law was not sufficiently adequate. Nor ought the process of injunction to he applied, hut with the utmost caution.” And again, [page 376,] he says, “I have always understood it to he a general principle, in respect to the powers of this Court, that when a cause depends, simply and entirely, on the solution of a,, dry legal question, the proper forum for the determination of that question, is a Court of law. It appears not to admit of doubt, nor do I understand it to he disputed, that if the defendants, as a corporation, have assumed powers not within their charter, the people of this State, by their Attorney General, have a. complete and adequate remedy at law, either by the common law writ of quo warranto, or by an information, in nature of such writ ” — Vide. also 4 Hen. & Munf. 470, to the same point of jurisdiction.
    What would he the consequence of this Court entertaining jurisdiction'? The prayer of the information, is, ‘‘that a decree may he made by this honorable Court, requiring the said obstructions to he removed, and the nuisance abated:” And the May- or and Aldermen, he restrained from erecting the contemplated additional buildings. What would be the situation of the citizens of Mobile?' Nearly ten thousand souls get their daily .supplies from this market! Suppose the Court to allow a year to abate in, and permit the marketing to go on during that time as usual, where will the Mayor, &c. -go? The public convenience must be consulted in locating the market house. The moment a site is selected, some half a dozen individuals may take it into their heads, that they cannot suffer a market house to be erected, “between the wind and their nobility:” And then we shall have another complaint about the “vast injury” to private property, &c. and so on, toties quoties, until there shall not be a place in the city where to build a market house. The precedent attempted to be set in this case, is dangerous in its principle. An enterprising individual, with capital, has only to purchase a very large property in the city, determine to force some particular branch of business in that part of the town, the fancy dry goods business, if you please, and forsooth, the humble retail grocer, the son of Vulcan, the sailor’s boarding house, the fisherman’s huts, &c. all become nuisances, and injure his property in value. - This doctrine could be better urged in Constantinople, but can never be admitted in a country of equal rights and of equal laws. If the market house, in this instance, mars the beauty of that part of town in which it is situated, it is a matter that belongs exclusively to the citizens of Mobile.
    If the number of small shops that may be on one side of this market, and which are supported by it, render the opposite side, less elligible for fancy dry good stores, that is not a matter for the State of Alabama, its Attorney General, or this Court.
   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.


source: Caselaw Access Project

author: HOPKINS, C. J.

license: Public Domain

text:
    PERRY VS HEWLETT, et al.

      Of the breach of covenants, impossible to be performed.

    1. The covenant of the hirer of a slave, to return it to the owner at the expiration of the term, — is discharged by the death of the slave.

      2. But the hirer of a slave is bonnd, on his covenant to pay' the price agreed on, notwithstanding the death of the slave, before the term of service expires.
    3. But where, on an entire contract, by covenant, to pay a particular sum for the hire of two slaves for a certain term, one of the slaves dies, and the other is taken by the owner, out of the possession of the hirer, without his consent, before the expiration of the term, — the covenant of the hirer to pay for the hire of both slaves, is thus discharged.
    In this case, an action of covenant, was brought by Aaron Perry, against Augustin A. Hewlett, Augustin Hewlett and William Milligan, in the Circuit Court of Morgan. The cause of action, was an agreement under seal, whereby the defendants, on the twenty-third of December, eighteen hundred and thirty-three, covenanted to pay the plaintiff the sum of one hundred and fifty dollars, for the hire of two negroes, and to return them on the twenty-fifth day of December, eighteen hundred and thirty-four.
    The case was tried on the plea of covenant, performed, with an agreement that any matter might be given in evidence, which would constitute a de« fence: and under this plea, the case was submitted to a jury, and a verdict found for the defendants.
    The case was removed into this Court, by a writ of error, founded upon a bill of exceptions, which disclosed the following circumstances, to wit: — ■
    The plaintiff after producing and reading in evidence, the covenant declared on, proved that Au-gustin A. Hewlett, had the possession of the slaves, from the date of the covenant, until sometime in the month of June thereafter, — when one of the slaves, a female named Fanny, died. That the surviving slave, on being permitted to visit the plaintiff, shortly afterwards, was detained by him.
    The Court charged the jury, that the death of the female slave, if it occurred without the fault or negligence of the defendants, — discharged the covenant to return her.
    Also, that if the plaintiff detained the surviving slave from the defendant, for a part of the term of hiring, — the covenant to pay for the hire of 'both slaves, was discharged.
    The plaintiff also submitted in testimony, a writ, issued, in a suit then pending, from the office of the clerk of the Circuit Court of Morgan county, wherein the defendant, Augustin A. Hewlett, was the plaintiff, and Perry, the defendant; and which purported to have been brought to recover damages for the detention of said surviving slave, by the said owner.
    The plaintiff asked the Court to charge the jury, that by reason of defendant’s suit against the plaintiff, to recover damages for the detention of the said slave, no advantage could be claimed of such detention, on said" trial. Which the Court refused.
    The cause was argued here by S. Parsons, for the plaintiff in error, and by Ml Clung, contra.
   HOPKINS, C. J.

This was an action of covenant, which was tried upon, an issue, taken to the plea of covenants performed, with leave to the defendants, to give any special matter in evidence, which would constitute a good defence. On the trial of the cause, in the Circuit Court of Morgan county, it was proved that the bond, dated the, twenty-third of December, eighteen hundred and thirty-three, containing the covenants, for the alleged breach of which, the action was brought, was made by the defendants, upon the hiring of two slaves by the plaintiff, to the defendant, Augustin A. Hewlett, for the year eighteen hundred and thirty-four.

The defendants covenanted, among other things, to pay to the plaintiff, on or before, the twenty-fifth of December, eighteen hundred and thirty-four, for the use of the slaves for that year, one hundred and fifty dollars,' and also to return the slaves to him, on the twenty-fifth day of December, eighteen hundred and thirty-four. That one of the slaves died in the possession of the defendant, Augustin A. Hewlett, in June, eighteen hundred and thirty-four, who shortly afterwards permitted the other one, to go on a visit to the plaintiff, and that the plaintiff detained the said slave, from the time of the visit.

After the commencement of this action, the defendant, Augustin A. Hewlett, brought a suit against the plaintiff', for his conversion, for a part of the year, eighteen hundred and thirty-four, of the surviving slave. It does not appear, that the last mentioned action has been determined, and there is no evidence in the record, of any other alleged breach of covenant, than the failure of the defendants'to pay the sum of one hundred and fifty dollars, and return the slave Fanny, who died in June, eighteen hundred and thirty-four.

The Circuit Court gave two several instructions to the jury.—

First — That the death of Fanny, if without fault or negligence of the defendants, discharged the covenant to return her.

Second. — That if the plaintiff detained the other slave from the defendants, for a part of the year, for which they had hired the slave, they were discharged from their covenant to pay the hire of both slaves.

The Court refused to instruct the jury, that the action, which Hewlett had brought for the partial conversion of the surviving slave, destroyed the right of the defendants to insist, they were discharged from their covenant to pay hire. To the instructions, and to the refusal of.the Court to instruct, the plaintiff excepted,

The first question made in this case was, whether the plaintiff be entitled to recover the value, of the slave, Fanny, His right to do so, was asserted' to be.the effect of the failure of the defendants,, to perform their express covenant to return the slave; It is admitted that if the obligation were implied by law, it would be discharged by the death of the slave, without the negligence of the defendants.— But a distinction» has been established by decisions, between obligations imposed by law, and those created by the terms of contracts. In the latter, the obligation is not impaired, by events, which will excuse a party from the former. The distinction rests on authority, rather than upon principles of reason; but Courts are bound to respect it.

The .express covenant of a tenant, to leave the lease-hold premise,§• in good repair, binds him to repair any injury to them, or answer in damages for his failure to do so, although the injury was caused by an act of God, or of a public enemy. The destruction of the premises from such causes, will not excuse him from the payment of the rent, which he had covenanted to pay.

It is clearly settled also, that a contract, to do an act, which it was lawful to do, when the contract was made, will be discharged by a statute passed afterward, and before the day of performance, prohibiting such an act. It is a good excuse for the failure to perform an obligation, condition or promise, possible when either was entered into, that it became impossible before the day fixed for performance.

Where a person let to main-prize, dies before the day when his main-pernors are bound to produce him, their obligation is discharged. It is a good excuse for not returning a "borrowed horse, which the bailee had promised to return, upon the request 'of the bailor, that the horse died without the default of the bailee, before a request was made; and a covenant to leave a wood in as good plight as the wood was in, when the lease was made, will be discharged, by the destruction, afterward, of the wood by a tempest

The most obvious difference, between the cases of express covenants of tenants, and the others which have been mentioned, is, that in the former, the accident, although it was unavoidable, which produced the injury, did not necessarily prevent the party from performing his covenant. The same accident; which destroyed the premises, did not make it impossible to rebuild them, or pay rent.— But in the other cases, the inevitable accident, made it impossible to do the act, which the party had agreed should be done.

The defendants in this case, were prevented by the death of the slave, Fanny, without their default, from returning her according to their covenant, and they are entitled to a discharge, from so much of their contract, as the act of God disabled them from performing. By the contract of hiring, the hirer acquired an interest in the slave, during the term fixed by the contract, and the plaintiff, except that interest, .retained all the property which he ever had in the slave. The dea$a of the slave, at the time it occurred, caused a loa» to the hirer of her services, for the unexpired pfort of the term, who is not excused, by that event, from the payment of her hire. The hire, is the purchase money, of an interest in the slave, for the term, and that interest, was at the risk of the hirer. The death of the slave, terminated the interest in her, of both parties, and there is less plausibility, in the reasoning, which was employed to make the hirer, an insurer of the property of the master, than there might be, in an argument, to shew the claim of the fprmer against the latter, for indemnity, for the loss of dhe slave, for a part of the term. The latter, transferred an interest, in the slave, for a year, upon an adequate consideration. If during the term, a third person had sued the hirer of the slave, and recovered her, upon a better title than the plaintiff’s, the recovery would be conclusive against the title of the plaintiff, if he received notice of the pen-dency of the suit, in time to defend it.

After such a result of an action against the hirer, his failure to return the slave at the end of the term, would be no breach of covenant, for which a complaint of the plaintiff ought to be entertained. In such a case, the hirer’s loss of the possession, and inability to return the slave, would be the consequences of the breach of the plaintiff’s own implied warranty, of the title and the possession, to the bailee, during the whole term, and no hire could be recovered. The event which put an end to the interest of both parties in the deceased slave, determined with higher authority, than can be claimed for the judgments of human tribunals, that the plaintiff never had a title to her which could endure any longer.

If in the contract of hiring, the separate hire of bach slave had been fixed, the right of the plaintiff to recover the hire of the deceased one, would be unquestionable; but the covenant is to pay one hundred and fifty dollars, as the hire of both slaves.— The parties never agreed as to the separate hire of; either, and the Court has no power to make a contract for them in this respect.

As the contract is entire, and the plaintiff deprived the hirer of the possession of one of the slaves, for part of the term, the next question is, whether he lias a right to recover any thing. Hiring is one species of bailment, and one of the implied obligations of the bailor, is to do no act, which will deprive the bailee of the thing, during the time of the bailment.

The covenant of a landlord, to repair or rebuild, and that of a tenant to pay the rent, are independent of each other, and a breach of the latter, cannot be defended, upon the ground that the landlord refused to rebuild the premises which had been destroyed. Yet if a landlord evict his tenant, no rent can be recovered.

The same doctrine is applicable to a claim for wages or hire, where a bailor has deprived the bailee of the possession of the thing, before the end of the period of the bailment.

The plaintiff is not entitled to recover any thing as hire of the slave,' which he detained from the hirer, during the latter part of the term; and as the contract to pay the hire of both is entire, nothing-can be recovered.—Cutler vs Powell.

It is not necessary to consider, whether the defendant Hewlett, is entitled to the remedy which he sought by his action, against the plaintiff.— Neither a right to a remedy, nor the want of one, for the illegal act of the plaintiff, in detaining the surviving slave, eonld restore the right to hire, which was forfeited by the plaintiff’s own wrong.

The Court is' of opinion that there is no error in the instructions of the Circuit Court.

Judgment affirmed.

      6 Viner’s Ab. 407. Sec. 3.-6. 6 Mass. Rep. 63. Chitty on Cont. 272. 6 Term R. 650. 8 Term R. 259. Platt. on Cov. 275. 1Law Lib. 121.

       Dall. R. 210. Am’r Ju. Oct. 1833. Art. 3. pa. 250.

      Platt. on Cov. 198,-274,-275,-283,-284. 1 Law Li. 87,-121,— 125.

       Coke Lit. 206. 3 Com. Dig. 96. (D. 1,) 121. (L. 12.) (L. 13.) 7. Mass. R. 325, 338. 1 Ld. Ray. 317-321. 1 Salk. 198.

      1Bac. Abr. 433,- Q. 1 Coke 98. 3 Com. 121 (L. 12.)

      5 Munf. Rep. 483. Platt on Cov. 87. 1 Law Li. 87.

      1 Bibb’s Rep. 536. 1 Ala. Rep 257. 4 Hayw. Rep. 10.

      Story on Bail. 255,-256,-262.

      Platt on Cov. 197. 1 Law Li. 81. 1 Ld.Ram. 77,-369. 1 Term R. 671. Co. Litt. 148. Cowp. R. 242.

       1 Salk. Rep. 65.

       6 Term. R. 326. 1 Salk. 65.


author: GOLDTHWAITE, J.

text:
    JONES and PARSON' heirs VS INGE and MARDIS' heirs.

      Questions as to the construction of the Creek treaty of 1832.

      Of recitals in a patent — how far evidence.

    1. A patent cannot be considered as conveying any interest to the grantee, anterior to its date.

      %. But a patent may be shown to be connected with, and to relate back to a previous inchoate legal tide.
    3. Under the Creek treaty of 1832, an Indian reservee, when his land had been selected and set apart, by location, became entitled to the possession, until disposed of by him according to the terms of the treaty, or voluntarily relinquished or abandoned.
    4. And this right to the possession, was a legal estate, which could have been enforced in a Court of law.

      5. By the provisions of this treaty, the Indian was authori-sed to convey his title and interest in the selected land, with the approval of the President of the United States.
    6. And after such approval, the contract of conveyance became valid, vesting in the grantee, all the estate vested in the Indian by the treaty, and his location.
    7. The action of the President of the United States, in relation to these contracts, is final and conclusive; and precludes any inquiry in a collateral way, into the identity or capacity of the Indian, parting with his interest, unless in a suit, in which one of the parties claims, under or through him.
    8. And how far such latter, party might be permitted to contest the recitals in a patent — qumre.
    9. But a mere stranger has no right to enquire if the recitals in'a patent, be true or false.
    10. So the recitals in a patent do not operate, so as to give a right of action, antecedent to its date.

      11. And where, for the purposes of a suit, it becomes necessary to connect the recitals in a patent, with an antecedent estate, the titles to such an antecedent estate, must be produced.
    This action was trespass to try titles, determined in the Circuit Court of Talladega county.
    The case was commenced on the twenty-fifth day of August, eighteen hundred and thirty-five, in the name of Samuel W. Mardis and William M. Inge, who sought to effect a recovery against Parsons and Jones, of a tract of land, known as the east half of section four, in township nineteen, of range five.
    The pleas of the defendants were, not guilty, and upon them, a verdict was rendered for the plaintiffs. ,
    A bill of exceptions taken in the progress of the case, disclosed — that the plaintiffs in the action, produced, and proposed reading in evidence, a grant of the land in dispute, issued by the President of the United States, to Ansel Sawyer; which grant was dated on the twenty-ninth day of February, in the year, one thousand, eight hundred and thirty-six.
    The grant recited, that whereas Hogillis-i-nihaw, one of the Creek tribe of Indians, by virtue of the treaty, between the United States, and the said Creek tribe of Indians, made the twenty-fourth day of March, eighteen hundred and thirty-two, — became entitled, out of the lands ceded to the United States, by the said treaty, — to the east half of section four, in township nineteen of range five, east; which said tract, with the approbation of the President of the United States, had been duly sold, and conveyed by said Hogiliis-i-nihaw, to Ansel Sawyer — which appeared by the conveyance thereof, dated the seventeenth day of January, eighteen hundred and thirty-five, with the approbation of the President, endorsed thereon — dated the first day of February, eighteen hundred and thirty-five: — then in consideration of the premises, said land was granted to said Ansel Sawyer.
    To the reading of this grant in testimony, the defendants objected — ,on the ground, that it bore date subsequent to the institution of the suit, and because the recitals contained therein, as to the deed from Hogillis-i-nihaw to Sawyer, were not ev-' idence of the facts recited, in said grant. But the Court overruled the objection, and suffered the grant to be read in evidence, deciding, that the recitals contained in the grant, were proper evidence of the facts therein stated.
    The plaintiffs then produced, and read in evidence to the jury, a deed of conveyance, of the land in question, from Ansel Sawyer, to themselves, dated the 9th day of June, eighteen hundred and thirty-five. And also, proved a demand and refusal, &e.
    The defendants then offered to prove, that the said Hogillis-i-ni-haw, was not the head of a Creek family, either at the date of the treaty, or when the Indians were located: And that he was an infant, at the time he was said to have conveyed the land: Which testimony the Court refused.
    To all which the defendants accepted, and took a writ of error to this Court.

      Pedí for the plaintiffs in error, — Chilton, contra.
   GOLDTHWAITE, J.

The plaintiffs in the Court below, on the trial of this cause, shewed in evidence, a patent from the United States to An-sel Sawyer, for the land in controversy. This patent is dated, the twenty-ninth of February, eighteen hundred and thirty-six, and recites, that Ho-gillis-i-nihaw, one of the Creek tribe of Indians, by virtue of the treaty made the twenty-fourth day of March, eighteen hundred and thirty-two, became entitled, out of the lands ceded to the United States, by the said treaty, to the tract of land, which is the subject of this suit, which, with the approbation of the President of the United States, had been duly sold and conveyed, by the said Indian, to Ansel Sawyer, as appears by the conveyance thereof, dated the seventeenth of January, eighteen hundred and thirty-five, with the approbation of the President of the United States, indorsed thereon, dated first of February, eighteen hundred and thirty-five, deposited by the said Ansel Sawyer, in the general land office of the United States. They then shewed in evidence a deed for the land, from Ansel Sawyer to them, dated the ninth of June, eighteen hundred and thirty-five.

To the introduction of this patent in evidence, the plaintiff in error objected, as it bore date after the commencement of this suit, but the Circuit Court overruled the objection, because the recitals in the patent shewed, that the deed from Hogillis-i-nihaw to Sawyer, was made and approved by the President, before suit brought; and the Court decided, the recitals in the patent, to be evidence of the facts recited.

The exception of the plaintiffs in error, to the admission of the patent in evidence, and to the opinion expressed by the Circuit Court, as to the effect of the recitals therein contained, are presented by the assignments of errors, for the examination of this Court.

It is insisted, that if the recitals in the patent are to be taken as evidence of the facts recited, yet no legal title was shewn to be in the defendants, when this suit was instituted.

The patent can convey no interest to the grantee, anterior to its date, but it might be shewn to be connected with, and to relate back, to a previous inchoate legal title. Thus, a patent may be shewn to have' been founded, on a certificate of entry and purchase, and to be connected with the legal title, created by the act of entry. So in the present case, the patent might be shewn to have emanated from the location of the land, to Hogillis-i-nihaw, if that is to be considered as a legal estate.

So far as the question now presented, involves the consideration of the title, we think that the patent may be entirely placed out of view, for it is clear, that if no legal title was in existence, when it issued, for the land, it could have no effect to support an action previously commenced. But if the recitals are evidence of the facts stated, it was made to appear, that the Indian named, was entitled to a reservation of the land in controversy, under the treaty of eighteen hundred and thirty-two; and that he had. with the aonroval of the President, conveyed it to Ansel Sawyer, on the seven • teenth of January, eighteen hundred and thirty-five. If then the Indian was possessed, of a legal title, by virtue of his location under the treaty, and was capable of transmitting this title to Sawyer, by conveyance, the defendants in error, did shew such title to the premises, in dispute, as should enable them to recover, in the absence of a legal de-fence.

By the treaty of eighteen hundred and thirty-two, Indians of a particular description, were entitled to a tract of one half section of land, to be selected in the manner pointed out by the treaty, and the land was to be reserved from sale for their use, for the term of five years, unless sooner disposed of by them. All intruders were to be removed from the reservations, for the term of five years, or until conveyed to white persons; and at the end of five years, all the Creeks, entitled to their reservations, and desirous of remaining, shall receive patents therefor, in fee simple, from the United States.— These are the terms used in the treaty, and we can arrive at no other conclusion, than that the Indian, after his tract of land had been selected, and set apart by a location, was entitled to the possession of the same, until he should dispose of it, according to the terms of the treaty, or should voluntarily relinquish or abandon it; and this right was a legal estate, vested in the Indian, and could be, by him. enforced in a Court of law. But although the Indian may, under the treaty, be entitled to a legal estate, in his reservation, when located, if may not follow as a consequence, that he can transfer'this right to another, so as to vest in. him, a similar title. The treaty must therefore, again .be resorted to, in order to ascertain how far, and in what manner, he may, (if empowered to do so at all,) transmit his estate, or any other estate, to a purchaser under •him.

The third article, provides, that these tracts, (re-' servations allotted to Indians,) ■ may be conveyed, by the persons selecting the same, to any other persons, for a fair consideration, in such manner as the President shall direct. • The contract shall he certified by some person, appointed for that purpose by the President, but shall not be valid, until the President approves of the same.

A title shall be given by the United States, on the completion of the payment.

Again, the second article, in speaking of the lands reserved by the Indians, — ‘‘which tracts shall be reserved from sale for their use, for the term of five years, unless sooner disposed of by them.”

Again, in the fifth article, the right to remove'an intruder from the reservation, under the summary mode pointed out, in that article, is taken away, as soon as the lands “are conveyed to white persons.”

We do not doubt, that these provisions of the treaty, were intended to authorise the conveyance of the title and estate, which the Indian was entitled to possess and enjoy, and that so soon as the conveyance is rendered valid, by the approval of the President of the United States, the purchaser, or grantee, from the Indian, is entitled to all the estate, which was vested in the Indian, by virtue of the treaty, and his location; and that he is furthermore entitled, under the latter clause of the third article, to receive a title from “the United States, on the completion of the payment.” "

The case of Chinnubbee vs Nicks, et al. (3 Porter, 362,) has been cited, and relied on by the plaintiffs in error. With the decision made in that case, we remain satisfied, — believing the law to be there correctly laid clown: but the Court do not attempt to settle, that the reservee has no legal title, but merely, that he is possessed of no such estate, as his widow- could be endowed of.

See also the case of Herring vs M’Elderry, et al. (this vol. 161,) in which it is ruled, that until approval of the contract bij the President, the purchaser, from an Indian reservee, has no legal or equitable title to the land purchased.

Having thus arrived at the conclusion, that if the recitals in the patent, are to be considered as establishing the facts recited, the defendants in error, did shew such a legal estate, as would enable them to maintain this action, it remains to inquire if the recitals were properly admissible in evidence.

It is not difficult to ascertain the general rule, as to the effect of recitals in deeds of an ordinary description. It is well settled that they may be evidence against him, who executed the deed, or claims under the party.—(7 Comyn. Dig. tit. Testmoigne, B. 5. page 432. Penrose vs Griffith, 4 Binn. 231. Garwood vs Dennis, id 327. Morris vs Vanderin, 1 Dall. 67. Denn ex dem Colden vs Cornell, 3 Johns. Cases, 174. Shelly vs Wright, Willes 9.) But as against a stranger, a recital is no evidence. (7 Comyn. Dig. tit. Testmoigne, B. 5, page 492.) — And it is generally no proof of tire deed recited, for if a patent, or lease be recited, it ought to be proved. (Ibid.) So if a patent be recited to have been surrendered, and the patent be proved by one party, to be in esse, the other ought to prove the surrender. (Ibib.) Yet if the recital be relied on to prove the patent, it shall also be proof of the surrender. (18 Viner Ab. 163. Earl of Montague vs Lord Preston, 2 Vent. 171.)

Such are the general rules: — but it is conceived, that the peculiar situation of the parties interested in the titles and estates, created by virtue of the treaty of eighteen hundred and thirty-two, requires,an essential modification of these rules, as applicable to those estates.

By the treaty, so far as the disposition of any estate in the lands, allotted thereby, is concerned, the Indian is placed under the care and protection oí the President, and he supervises and approves every step, taken in relation to a sale or conveyance. He is to direct the manner in which the land may be conveyed. The contract in relation to the sale, is to be certified by some person appointed for that purpose, by him, and it has no validity, until it receives his approval; and finally, a title is to be given by the United States to the purchaser. We cannot resist the conclusion, that it was intended by the parties to the treaty, that the action of the President, on all these matters, was intended to be final and conclusive; at least, so much so, as to preclude any inquiry in a collateral way, into the identity or capacity of the Indian, who is said to have parted with his interest in the land, — unless in a suit, in which one of the parties might claim under or through him. How far such a party might be permitted to contest the recitals, in the patent, is a question which will not receive a decision, until a case shall be presented with proper parties to require it. A mere stranger, shewing no title whatever, ought not to be permitted to litigate a question, in which he has, and can have no interest. The title can alone be derived from the United States, or from the Indian, with the approval of the President; and if a patent has been issued by the United States, for the land, no other individual than the Indian, has any interest, which can entitle him to controvert the sufficiency of the grant.

But notwithstanding, we have arrived at the conclusion, that a mere stranger has no right to inquire if the recitals in the patent, be true or false, yet the case now to be decided, presents a question which is not affected by this conclusion. At the time when the suit was instituted, the defendants in error, (if the recitals in the patent are in conformity with the facts,) were invested with a title, sufficient to authorise and maintain their action; but this title they do not produce in evidence. The evidence, on. which they rely, amounts to no more than an admission, by the United States, that Sawyer, on. the seventeenth of January, eighteen hundred and thirty-five, had a legal estate in the land sued for, derived from the Indian reservee; and in consequence, they convey to him, on the twenty-ninth of February, eighteen hundred and thirty-six, the fee, which previously, had remained in them.— This admission cannot so operate, as to give a right of action, antecedent to the date of the patent.'— An analagous case is put in the books, which shews conclusively, that no such effect can be given to an admission. If a lease be recited in a release, yet it is no proof against a stranger, without shewing that the lease is lost. (7 Comyn. Dig. tit. Testmoigne, B. 5, page 432.) Yet the release would be sufficient to pass the estate, from the date of its execution.

So in this case, the patent' conveys the fee, from its date, and if it becomes necessary for the purposes of this suit, to connect it with the antecedent estate, the title to such antecedent estate, should have been producedj

The Circuit Court, having ruled, that the recitals in the patent, were proper evidence of the deed, from Hogillis-i-nihaw to Sawyer, pronounced an erroneous opinion, for which the judgment must be reversed, and the cause remanded.

HOPKINS, C. J. not sitting.