{ "id": 4833363, "name": "George McLean et al. v. James Mathews", "name_abbreviation": "McLean v. Mathews", "decision_date": "1880-12-13", "docket_number": "", "first_page": "599", "last_page": "605", "citations": [ { "type": "official", "cite": "7 Ill. App. 599" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "49 Ill. 499", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2604205 ], "opinion_index": -1, "case_paths": [ "/ill/49/0499-01" ] }, { "cite": "22 Ill. 140", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5282440 ], "opinion_index": -1, "case_paths": [ "/ill/22/0140-01" ] }, { "cite": "34 Mo. 259", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 989468 ], "opinion_index": -1, "case_paths": [ "/mo/34/0259-01" ] }, { "cite": "27 Tex. 68", "category": "reporters:state", "reporter": "Tex.", "case_ids": [ 2105379 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/tex/27/0068-01" ] }, { "cite": "3 Hill, 621", "category": "reporters:state", "reporter": "Hill,", "opinion_index": -1 }, { "cite": "14 Wend. 250", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2017112 ], "opinion_index": -1, "case_paths": [ "/wend/14/0250-01" ] }, { "cite": "71 Ill. 193", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5312277 ], "opinion_index": -1, "case_paths": [ "/ill/71/0193-01" ] }, { "cite": "9 Wend. 570", "category": "reporters:state", "reporter": "Wend.", "opinion_index": -1 }, { "cite": "4 N. H. 520", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 6756776 ], "opinion_index": -1, "case_paths": [ "/nh/4/0520-01" ] }, { "cite": "2 Watts. 23", "category": "reporters:state", "reporter": "Watts", "case_ids": [ 1840039 ], "opinion_index": -1, "case_paths": [ "/watts/2/0023-01" ] }, { "cite": "71 Ill. 193", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5312277 ], "opinion_index": 0, "case_paths": [ "/ill/71/0193-01" ] }, { "cite": "9 Wend. 570", "category": "reporters:state", "reporter": "Wend.", "opinion_index": 0 } ], "analysis": { "cardinality": 757, "char_count": 14151, "ocr_confidence": 0.503, "pagerank": { "raw": 4.643594115661138e-08, "percentile": 0.2911459316740088 }, "sha256": "0e852a7b64e6883375ae64b1313e42005328ca54453110ee98ccaaaf5b4fedc6", "simhash": "1:8b6e65ea2ebd88e3", "word_count": 2537 }, "last_updated": "2023-07-14T19:15:10.588151+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "George McLean et al. v. James Mathews." ], "opinions": [ { "text": "Wilson, J.\nThe evidence tended strongly to show that prior to, and at the time of the acts complained of, the plaintiff\u2019s boat was an obstruction to the navigation of the Chicago river. She was an old boat, having been built for the Illinois Stone Company, about twenty years prior to her removal by the defendants, and had been used for transporting stone on the canal. She was subsequently bought by the plaintiff, and after being used by him for a time, was laid up in the summer of 1873, at a dock of which plaintiff had the control, on the south branch of the Chicago river, a little north of Fuller street bridge, where she remained unused, until removed by the defendants in 1876. During most of this period she was sunk to her decks, and a part of the time was so insecurely fastened as to frequently break lose from her moorings, and swing partially out into the channel, to the hindrance and delay of passing vessels.\nThere was also testimony by tugmen who were in the habit of passing up and down the river, to the effect that owing to a bend in the river, near where the plaintiff\u2019s boat lay, it was difficult to get past there, with a vessel in tow without colliding with the canal boat. One of them says: \u201c It was impossible almost to get a vessel from the Danville elevator without getting afoul of this canal boat.\u201d\nAnother: \u201cWith the Gale\u201d (the name of plaintiff\u2019s boat) \u201c lying at the docks partially sunk, as she was for two years, in towing a vessel up and down the river in that vicinity, the tow would rub alongside of her as soon as you pulled her round the bend. If you have a big vessel you would have to stop her right where the canal boat was, and if you stopped, the chances were that it would crowd against the canal boat. If the canal boat was not there, I would get my tug as near as T could to the docks. Then you wouldn\u2019t have to stop your schooner.\u201d\nThe bridge-tender, who saw the boat daily, says: \u201c The suction of a propeller going up there, would smash her adrift very often; it always caused her to get adrift; that is, when a propeller passed through the river it created a suction, and pulled her loose from the dock, when she would drift right across the channel.\u201d\nWithout quoting further from the testimony, it is enough to say that the evidence on that branch of the subject is uncontradicted, and is of such a character as to leave little room for doubting that the plaintiff\u2019s boat, at the time of her removal by the defendants, was, and for a period of over two years preceding had been, an obstruction to the navigation of the river at the place in question.\nIt is a settled principle of the common law, that whatever obstructs travel in public highways and navigable streams is a common or public nuisance, which may be removed and abated by any of the king\u2019s subjects. 4 Black. Com. 167; Earp v. Lee, 71 Ill. 193. In Comyn\u2019s Dig. Tit. Action on the Case for a Kuisance, D. 4, it is said: \u201cIf it be a common nuisance, as a gate erected across a highway, every one may throw it down.\u201d In Bacon\u2019s Ab. Tit. Nuisance, 6: \u201cAnyone may pull down or otherwise abate a common nuisance, as a new gate, or even a new house, erected in a highway; for if one whose estate is prejudiced by a private nuisance may justify the entering into another\u2019s grounds and pulling down and destroying it, it cannot but follow, a fortiori, that any one may destroy a common nuisance.\u201d\nThe cases of The King v. Russell, 6 East, 427; The King v. Cross, 3 Camp. 224; and The King v. Jones, 3 Ib. 229, all are to the effect that any obstruction of a public street or highway for an unreasonable length of time, although in the prosecution of a lawful business, as in the loading or unloading of wagons or drays, or by stages waiting and soliciting passengers, is indictable as a public nuisance, although room enough might still be left for the accommodation of the public on the opposite side of the street. So, too, depositing boxes or other articles on the street in front .of one\u2019s store or shop, except so long as may be necessary for. the convenient dispatch of business, or the suffering of one\u2019s horses to remain hitched in the street for an undue length of time, is a nuisance; foi\u2019, as was said by Lord Ellenborough, in 6 East: \u201cThe primary object of the street is for the free passage of the public, and anything which impedes that progress without necessity, is a nuisance.\u201d\nIt is upon precisely the same ground that the proprietor of a dock on a navigable stream, may not fasten a boat or other water-craft to his dock and suffer the same to remain there permanently, if thereby an obstruction is created to the free and unimpeded navigation of the stream. If by reason of his ownership of the dock, he has the right, as claimed by appellee\u2019s counsel, to thus occupy a portion of the stream during his pleasure, he would have the the same right to extend his dock into the river the same distance, or to build any other permanent structure there, and thus appropriate to his own use, in perpetuity, a portion of a navigable river.\nThe material questions arising in the present record are fully discussed in Hart v. the Mayor of Albany, 9 Wend. 570, and we will quote a passage from the opinion of the court in that case, as expressive of our views in the case at bar. The proprietors of a certain dock privelege had constructed in the Hudson river at Albany in front of their lots a floating ark, or boat, with a roof and convenient openings for receiving and discharging freight. The question was was whether this was an obstruction to navigation. Mr. Justice Sunderland, who delivered the opinion of the court says:\n\u201c If the basin be considered as part of the Hudson river (a great public highway), the right of appellants to appropriate any portion of it to their own exclusive use is equally unfounded. They, like all other citizens, can use it only as a highway for the purpose of navigation; they have no right to exclusively occupy any portion of it, by either floating or permanent buildings or obstructions. This float, if permanently moored and continued in the open part of the river, thereby rendering navigation less safe and convenient, would, I apprehend, most clearly be a public nuisance liable to be indicted as such, or to be abated without indictment by any individual who might be injured or aggrieved by it. * * * Every citizen has a right to the unobstructed passage over the navigable waters and public highways of the state; and I apprehend he mav remove any obstruction to his passage, and that it will not be necessary, for him to aver in his justification that he was specially impeded by it. If this be so, I apprehend, with the Chancellor, that this corporation cannot be held to an action for the exercise of a power which every member of the community possesses. But if the true doctrine be that asserted by the complainant\u2019s counsel, that no one but a person aggrieved can remove a public nuisance, the corporation whose duty it is to preserve the public streets, the docks and slips, and the river opposite thereto, from being in any manner obsrncted may well be considered a party aggrieved by any such obstruction.\u201d\nThe case from which we have quoted was so entirely similar in its facts to the ease at bar, and its reasoning so satisfactory, that it may well be considered as decisive of the present suit. We do not understand that it was seriously questioned that the Board of Public Works is the proper party to remove obstructions from the Chicago river whenever they exist. The Chicago river and its branches are made by law a part of the Chicago harbor, of which the harbor-master has the supervision, acting under the orders and directions of the Board of Public Works, or under ordinances and resolutions of the Common Council, as the case may be. In the present case, the defendants, who removed the boat, acted under the immediate orders of the Board of Public Works, and that, we think, was sufficient, if indeed, they had not the right to remove the obstruction as public nuisance without any orders.\nThe assignment of errors questions the correctness of the instruction given by the court on behalf of the plaintiff as follows:\n\u201c If the jury believe, from the evidence that the canal boat in question was the property of the plaintiff, and that said canal boat was recently fastened to the dock which belonged to or was under the control of said plaintiff, and that while said canal boat was so securely fastened -to said dock, the said defendants, or some of them, directed by the others, took possession of said canal boat without the consent of the plaintiff, and forcibly re-removed the same, and set said canal boat adrift upon Lake Michigan, whereby said canal boat became lost to the said plaintiff, then the jury should find the said defendants, or such of them as participated in or directed such removal, guilty, and should assess the plaintiff\u2019s damages at such sum as will compensate him for the value of said canal boat at the time the same was so taken hv the defendants.\u201d\nThis instruction is erroneous, by reason of its ignoring the question as to whether the boat was an obstruction to the navigation of the river: Upon the hypothesis stated in the instruction there was nothing for the jury to do hut to find a verdict for the plaintiff, for there was no dispute as to the facts therein recited. The jury were, in effect, told that the plaintiff was entitled to recover whether there was an obstruction or not. The question of obstruction was distinctly put in issue by the defendants\u2019 plea of justification, and it was to this issue that the evidence was mainly directed on the trial. The real con tro very was as to the alleged obstruction, but this was practically taken away from the jury by this instruction, which was the only one given on either side. In this the court erred.\nComplaint is also made of the action of the court in refusing all of the defendants\u2019 instructions. It is sufficient to say that none of them, in the form in which they were asked, were proper, and there was no error in their refusal.\nThe. judgment of the court below must be reversed for the reasons hereinabove stated, and the case be remanded.\nEeversed and remanded.", "type": "majority", "author": "Wilson, J." } ], "attorneys": [ "Messrs. Quigg & Tuthill, Mr. J. S. Grinnell and Mr. W. H. Condon, for appellants;", "Messrs. Avert & Comstock, for appellee." ], "corrections": "", "head_matter": "George McLean et al. v. James Mathews.\nCommon nuisance. \u2014 Whatever obstructs travel on a public highway or navigable stream, is a common nuisance, and may be abated by any of the Mng\u2019s subjects. So, where plaintiffs had fastened an old, disused, and nearly sunken boat to a pier in such a way as to impede the navigation of the Chicago river, the defendants, acting under the authority of the Board of Public Works, had the right to remove it as a public nuisance, if indeed they did not have the right to do so without any orders.\nAppeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.\nOpinion filed December 13, 1880.\nThis was an action of trespass brought in the court below by appellee, James Mathews, against appellents, for taking from the south branch of the Chicago river, a canal boat, owned by Mathews, and towing it out into Lake Michigan, and, as is alleged, setting it adrift, whereby it was lost and destroyed.\nThe defendants filed a plea of not guilty, also a plea of justification, setting up in substance, that the defendants, Prindeville, Thompson and Wahl were commissioners of the Board of Public Works ,.of the city of Chicago, and that as such commissioners they were charged with the duty of keeping the channel of the Chicago river free from obstructions, and to remove therefrom anything which, by obstructing the passage of water-craft, became a nuisance therein; that the plaintiff^ boat was an old, worthless and abandoned hulk, which was lying at the place mentioned, in the plaintiff\u2019s declaration, without proper moorings; that it obstructed the channel and was a nuisance, which continually endangered vessels passing and repassing in. the river; that these facts coming to the knowledge of the Board of Public Works, the defendants, Prindeville, Thompson and Wahl, acting in their capacity as commissioners of the Board of Public Works, in pursuance of the laws of the state of Illinois, and the ordinance of the city of Chicago, after having made diligent effort to find the owner of the boat, in order to notify him to remove the same, and having failed to discover him, caused the same to be removed from the channel of the river, as they lawfully might.\nThere is a further allegation that the defendants, McLean and Hammond, were employed by the commissioners to remove said obstruction, and that they acted while removing the same under and by virtue of the commands of said commissioners.\nTo this plea the plaintiff replied de injuria,. There was a jury trial, which resulted in a verdict for the plaintiff for $700, on which the court entered judgment, and defendant\u2019s motion for a new trial having been denied, they bring the case to this court, and assign various errors.\nMessrs. Quigg & Tuthill, Mr. J. S. Grinnell and Mr. W. H. Condon, for appellants;\nthat a vessel sunk in a navigable stream is a nuisance, and may be removed, cited Rung v. Shoenberger, 2 Watts. 23; Hopkins v. Crombie, 4 N. H. 520; Hart v. The Mayor, etc. 9 Wend. 570; The King v. Russell, 6 East, 427: The King v. Cross, 3 Campb. 224; The King v. Jones, 3 Campb. 229; Bacon\u2019s Abr. \u201cNuisance, \u201d 6; Comyn\u2019s Dig. \u201cNuisance, \u201d 4; James v. Hayward, Cro. Ch. 184; Houghton v. Butler, 4 T. Rep. 364.\nHpon the right of appellants to remove the boat as a nuisance: Earp v. Lee, 71 Ill. 193; 1 Bishop\u2019s Crim. Law, \u00a7 704; 1 Dillon on Mun. Corp. \u00a7 311; Angell on Watercourses, 49; Wetmore v. Tracey, 14 Wend. 250; Renwick v. Morris, 3 Hill, 621; Selman v. Wolfe, 27 Tex. 68.\nThe question whether it was a nuisance is for the jury: Lackland v. North, 34 Mo. 259; Selman v. Wolfe, 27 Tex. 68; Stumps v. Kelly, 22 Ill. 140; C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499.\nIt is the duty of the court to instruct upon the material points made by the pleadings and evidence: Hilliard on New Trials, 167; Proffatt on Jury Trials, 312.\nMessrs. Avert & Comstock, for appellee." }, "file_name": "0599-01", "first_page_order": 595, "last_page_order": 601 }