powers delegated to them by their charter in the manner in which they attempted to exercise their rights. If this case stopped here, there would be no hesitation in awarding our judgment, because of the latter defect against the respondents. But it is contended that the float is a nuisance, and that the corporation had a right, as a person in law, to abate and remove it. It was not denied on the argument that the respondents, as a "person in a political capacity created by the law," had an equal right with natural persons to abate nuisances; but it was averred, on the part of the appellants, that the float was not a common nuisance, and that, if it was, the respondents were not prejudiced by it in their corporate character, and therefore could not abate it. Is it a nuisance of so common or public a nature as to justify its dejection? A common nuisance is that which worketh hurt, inconvenience, or damage to all the king's subjects, and not merely to some particular person: 3 Bl. Com. 5, 216; 4 Id. 167; or that which is to the common nuisance of all passing by: Vin. Abr., tit. Nuisance, A.; 1 Hawk. b. 1, c. 75, secs. 1, 4; 12 Petersd. Abr. 792, in notis; 3 Burns Jus. 221. Thus it was held to be a common nuisance for a ship of three hundred tons to come into Billingsgate dock, to which all small ships coming with provisions to the markets of London might come, but that no great ship ought or used to come there: Queen v. Leech, 6 Mod. 145. So of a gate placed on the highway and so fixed that the king's subjects could not pass without interruption: James v. Hayward, Cro. Ch. 184. So to divert part of a public navigable river, whereby its current was weakened and made unable to carry vessels of the same burden it could before: King v. Mansfield, Noy. 103; or laying timber in a public river, although the soil on which it is laid belong to the party, provided it obstructs the necessary intercourse: 3 Bac. Abr. 686; Stra. 1247; 1 Hawk. 363, n. 1. So it was held to be a nuisance for a wagoner to keep one or more wagons constantly before his storehouse in the public street, although there was sufficient room for two carriages to pass abreast on the opposite side of the street: King v. Russel, 6 East, 427; or for a stage coachman to stand with his coach in a particular part of the street for an unreasonable length of time waiting for passengers: Rex v. Cross, 3 Camp. 224; or for a man to erect a wharf on the public property, although its erection might be beneficial, and sufficient room be left for a free passage in the river: Respub. v. Caldwell, 1 Dall. 150. There can not, then, be any doubt that the float of the appellants, permanently lo

sance.

cated as it is in the basin, which was constructed for public purposes, and to which the appellants have no right further than any other citizen navigating its waters, is a common nuiIts character is not altered by their not having, as in 6 East, occupied the whole basin, nor by benefiting a portion of the public, as in 1 Dallas, or by owning the adjacent pier lots, as in Strange. It is sufficient to know that they have without right appropriated to their own use a portion of that which was designed for the benefit of all; that they have obstructed the free navigation of this public basin, which was the primary object of its construction, and have adopted a practice which, if sanctioned, would result in the entire destruction of public and common benefits.

Car. 184; 3
These cases

Nor do I entertain any doubt that the respondents, as a corporate body, had a right to abate the nuisance. Any person may abate a common nuisance. Such I understand to be the language of the cases: See 2 Salk. 458; 2 Roll. 31; Vin. Abr., tit. Nuisance, T., sec. 3, W., sec. 4; Cro. Burns' Justice, 224; Hawk. b. 1, c. 75, sec. 12. contain no limitation of the power of abating nuisances to those prejudiced by them. Some cases, however, are of that character. Blackstone, 3 Com. 5, speaking of common and private nuisances, says they may be abated by the party aggrieved. In Viner's Abr., tit. Nuisances, W. and V., it is said that a common nuisance may be abated or removed by those persons who are prejudiced by it, and they are not compellable to bring actions to remove them; but it is also said on the same pages, without qualification, in one place, that every man, and in another, that any person, may abate a common nuisance. In Petersdorff Abr., tit. Nuisance, IV. n., it is laid down that a nuisance may be removed by the party grieved entering and abating it, and that the same rule applies to public nuisances; and in support of the latter position reference is made to the case of James v. Hayward, which I have already cited from Cro. Car. 184. But that case is explicit in saying that any person may abate a common nuisance. It is not, therefore, clear to me that the rule as to a common nuisance is to be understood in this qualified sense. In the case of a private nuisance it is undoubtedly true that its removal can only be lawfully effected by the party aggrieved, and if the rule were the same in regard to a public nuisance, I do not well see how that changes the power of dejection, or how the case of the appellants could be aided by it; for a common nuisance is

an unlawful act, whereby the whole community is injured; all, therefore, are aggrieved, and all have a right to abate it. Testing this case, however, by the rule in the qualified sense for which the appellants contend, I apprehend that the right and power of the respondents are not changed by it. The injury produced by the float in question is to the trade of the city of Albany. How can it otherwise than aggrieve those who, by the charter, are clothed with the right and the duty to watch over and protect that trade, and to make such rules and regulations for its good order and government as will best advance the interests of the whole. Created, then, as a corporate person by their charter, and clothed thereby with certain interests in the trade injured by the nuisance in question, the respondents had, in my opinion, a right to abate and remove it; but they had no right to convert the materials of which that nuisance was composed, in any degree to their own use, or to remove the materials farther or otherwise than was necessary to abate the nuisance: 3 Burns' Justice, 224; Dalt. C. 50.

Much stress was laid by the counsel for the appellants upon the fact that the exercise of the right claimed by the respondents would result in the destruction of their property without the benefit of a trial by jury, and that consequently the ordinance in question was a violation of the constitution and the bill of rights. The same objection would apply to the dejection of every nuisance, yet nothing is clearer or better settled than the right to exercise this power in a summary manuer, not only where the whole community is affected, but where a private individual alone is injured. It is a right necessary to the good order of society, and the reason why the law allows this private and summary method of doing one's self justice is, because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy, and can not wait for the slow progress of the ordinary forms of justice: 3 Bl. Com. 5. But while this self-adjustment of injuries is allowed in this and other instances, the law has wisely thrown around its exercise those safeguards which protect the citizen from the exercise of undue force and the peace of society from those riots which might result from it. When such danger threatens, then, and then alone, is a resort to courts of justice compelled. The destruction of the thing which constitutes the nuisance, when its dejection can be produced only by such destruction, is not sufficient to compel a resort to courts as the only mode of redress: Vin. Abr., tit. Nuisance, S. T.; 1 Hawk., b.

1, c. 75, sec. 12; 2 Salk. 459; Sir W. Jones, 222: Petersd. Abr., tit. Nuisance, IV. The appellants, then, have no cause of complaint that the nuisance which they have produced can be abated only by its destruction. It is their own fault that they have expended large sums in erecting a vessel which is a nuisance in the eye of the law; and of such a size that it can not be removed without being torn to pieces. So far, then, as it may be necessary to take this vessel to pieces in order to remove it, the respondents have a right to go, and no further.

The injunction was general in its terms, restraining the respondents, their officers, servants, and agents, from intermeddling with the float or ark, and I am of opinion that it was rightfully dissolved.

TRACY, Senator. I concur in the result of Mr. Justice Sutherland's opinion, that the decree of the chancellor dissolving the injunction be affirmed, but I put this concurrence expressly on the grounds that the complainants' right to maintain their float in the basin is not sufficiently clear and indisputable to entitle them to the extraordinary interposition of the court of chancery for its protection, and that the complainants do not show that the injury they might sustain by its destruction would be remediless at law.

I do not consider the question whether the float was or was not a common nuisance to be so necessarily involved in the case as it is presented to us, as to require the solution of it. Nor do I intend to express an opinion whether the common council has the jurisdiction it claims over the basin, and much less do I concede to it the legislative power which it has assumed in the ordinance.

On the question being put, Shall this decree be reversed, two of the members of the court voted in the affirmative, and twentyone in the negative.

Whereupon the decree of the chancellor was affirmed.

INJUNCTION AGAINST TRESPASS.—This subject is discussed at length in Jerome v. Ross, 11 Am. Dec. 484, and in the note thereto; see, also, Poindexter v. Henderson, 12 Id. 550; Coalter v. Hunter, 15 Id. 726; Duvall v. Waters, 18 Id. 350. The doctrine above laid down, that an injunction will be issued in cases of trespass only to prevent irreparable mischief, is referred to with approval in Drake v. Hudson etc. R. R. Co., 7 Barb. 559; Cure v. Crawford, 5 How. Pr. 294; Sixth Avenue R. R. Co. v. Kerr, 28 Id. 383.

POWER OF MUNICIPAL CORPORATIONS TO ABATE NUISANCES, and to declare what is a nuisance. See the note to Milne v. Davidson, 16 Am. Dec. 196. See, also, Baltimore v. Hughes, 19 Id. 243; 20 Id. 260; and Baker v. Boston, 22 Id.

421. The doctrine of the principal case on this subject is approved in Clark v. Mayor etc. of Syracuse, 13 Barb. 40; Ilickok v. Trustees of Plattsburg, 15 Id. 435; Rogers v. Bark, 31 Id. 455; Lewis v. Dodge, 17 How. Pr. 237. The case is referred to also as an authority, with respect to the powers of municipal corporations generally, in Ilettenbach v. New York etc. R. R. Co., 18 Hun, 131, and People v. Special Sessions, 7 Id. 215; and with respect to the extent of the jurisdiction of the common council of Albany, in Corning v. Greene, 23 Barb. 54.

REMEDY OF PERSON AGGRIEVED BY PUBLIC NUISANCE.-As to the right of action of one who suffers special and peculiar damage from a public nuisance, see Mills v. Hall, ante, 160, and note. The foregoing decision is cited as an authority, with respect to the right of a person aggrieved by a public nuisance, to abate it, in Wetmore v. Tracy, 14 Wend. 256; Coe v. Schultz, 2 Abb. Pr. N. S. 195, and Strickland v. Woolworth, 3 N. Y. Sup. Ct. (Thomp. & C.) 287.

NUISANCES IN PUBLIC HIGHWAYS AND RIVERS.-As to what constitutes a nuisance, with respect to a public highway or river, and the right to abate the same, the principal case is recognized as authority in People v. Vanderbilt, 38 Barb. 287; 25 How. Pr. 140; 26 N. Y. 295; 28 Id. 397; Delaware etc. Co. v. Lawrence, 2 Hun, 180; People v. Horton, 5 Id. 520; Moore v. Jackson, 2 Abb. N. C. 212; Trenor v. Jackson, 15 Abb. Pr. N. S. 126; S. C., 46 How. Pr. 400; Hoeft v. Seaman, Id. 400; Conklin v. Phoenix Mills, 62 Barb. 309. As to the abatement of nuisances generally, it is cited also in Moody v. Board of Supervisors, 46 Id. 665.

The case of Hart v. Mayor etc. of Albany is referred to, as illustrating the principles applicable to the construction of statutes which are for the public benefit, in Gillespie v. Winberg, 4 Daly, 325, and Woodman v. Kilbourn etc. Co., 1 Biss. 554; S. C., 1 Abb. U. S. 167.

JACKSON EX DEM. FITZ SIMMONS v. FITZ SIMMONS.

[10 WENDELL, 9.]

ALIEN HAS NO HERITABLE BLOOD, BY THE COMMON LAW, and can not receive or transmit lands by descent, nor can one inherit who is obliged to trace his descent through an alien.

COMMON LAW RULE PREVAILED IN NEW YORK until 1830, the statute of 11 and 12 Wm. III., c. 6, enabling persons to inherit through alien ancestors not having been adopted here until then.

NATURALIZED SON OF AN ALIEN FATHER could not inherit from a naturalized brother of the father who died intestate before 1830, though the father died before the intestate.

FIFTH CANON OF THE STATUTE OF 1786 did not enable the children of an alien father to inherit from a brother of the father, where the latter died before the brother.

ERROR from the supreme court in an action of ejectment, in which the judgment below was for the defendant. The case is stated in the opinions of the chancellor and Mr. Senator Allen.

A. Van Vechten, for the plaintiff in error.