Attorney General ex rel. Muskegon Booming Co. v. Evart Booming Co.
| Decision Date | 10 October 1876 |
| Court | Michigan Supreme Court |
| Parties | The Attorney General on the relation of the Muskegon Booming Company v. The Evart Booming Company. [*] |
Heard June 14, 1876 [Syllabus Material] [Syllabus Material] [Syllabus Material]
Appeal in Chancery from Osceola Circuit.
Decree affirmed, with costs against the relator.
Andrew J. Smith, Attorney General, and Hughes, O'Brien & Smiley, for informant and complainant, argued that the jurisdiction of courts of equity in cases of purpresture and nuisance, though not very frequently exercised, is undisputed: Waterman's Eden on Inj. ch. 11, p. 259; Attorney General v. Cohoes, 6 Paige 133; High on Inj., § 519; 2 Story Eq., § 924; Angell on W. C, § 565; Attorney General v. Forbes, 2 M. & C., 123; that in cases of public nuisances an information will lie in equity to stop the mischief and restrain the continuance of it: Mayor, etc., v. Balt., 5 Ves. 129; Attorney General v. Nichol, 16 Ves. 342; that the Muskegon river is a public highway: Moore v. Sanborn, 2 Mich. 519; Lorman v. Benson, 8 Mich. 18; Thunder Bay River Booming Co. v. Speechly, 31 Mich. 363; that at common law any encroachment upon a public stream was a purpresture, and an obstruction upon a public river is a nuisance, and may be dealt with as such: Weld v. Hornby, 7 East, 195; O'Fallon v. Daggot, 4 Mo. 343; Hunt v. Mayor, 3 Paige 213; Mohawk Bridge Co. v. U. & S. R. R. Co., 6 Paige 554; that the right of the public in a highway extends to every part of it: Rex v. Russell, 6 East, 527; Rex v. Morris, 1 B. & A., 441; Shaw v. Crawford, 10 Johns. 256; Hart v. Mayor, etc., 9 Wend. 571; Reg. v. Randall, 41 Eng. C. L., 272; that in cases of public nuisances the suit should be by the attorney general, or at all events he should be a party to it, unless the individual injury is distinct from that which is done the public at large, in which case alone have the persons injured a special right entitling them to recover: Attorney General v. Johnson, 1 Wils. Ch., 87; Bains v. Baker, Amb, 158; Attorney General v. Claaver, 18 Ves. 211; Spencer v. L. B. R. R. Co., 18 Sim. 103; Sampson v. Smith, Ib., 272; Attorney General v. May, 5 Cush. 236; People v. Vanderbilt, 28 N. Y., 396; S. C., 38 Barb. 282; Davis v. Mayor, 4 Kern. 526; People v. St. Louis, 5 Gilm. 351; 38 Cal. 564; Milhan v. Sharp, 17 Barb. 445; Clark v. Saybrook, 21 Conn. 313, and cases cited above; see also 2 Lans. 396; that when the relator has an interest in the matter his personal complaint may be joined by that of the government and the two together constitute an information and bill: Story Eq. Pl., § 8, note 5; that the statute authorizing the organization of boom companies does not give them any right to destroy navigation, injure property or otherwise create any nuisance: Comp. L. 1871, § 2788; Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308; that the attorney general has authority to file a bill to restrain by injunction any corporation from assuming or exercising any franchise, liberty or privilege, or transacting any business not authorized by its charter: Comp. L. 1871, § 6560.
W. L. Webber, for respondent, argued that the bill or information, whichever it may be found to be, does not state a case of equitable cognizance; that the attorney general has no authority to intervene in a case of this character; that the constitution (Art. 8, § 1) provides for his election and that he shall perform such duties as may be prescribed by law, thereby excluding all duties not expressly prescribed, and the statutes define his duties: Comp. L. 1871, §§ 255-7, 5718, and ch. 225; but no where is authority given him, or the duty imposed on him, to file an information on a state of facts like those here set out; that where a suit in equity is instituted on behalf of the government or of those who partake of its prerogative or whose rights are under its peculiar protection, the matter of complaint is set out by way of information, and where no other interest is involved, the proceeding is purely by way of information: Story Eq. Pl., § 8; and as to the proper powers and duties of the relator and of the attorney general, see 26 Mich. 444; that in this case there is no feature which justifies the interference of the attorney general: it is no where alleged that the respondent has constructed its booms without legal right, but the burden of the complaint is, that in the exercise of its legal rights, respondent does not use such diligence as it ought, and that the manner in which it uses its structure, legally erected for a legal purpose, is objectionable; and this is not a matter calling for the exercise of equity jurisdiction, but the remedy is by mandamus, or if not of public interest, then by an action at law for damages.
The respondent has the same right to maintain its boom at Evart that the relator has to maintain its boom at the mouth of the river, both being organized under the same statute; and the state is not interested in the want of diligence charged upon respondent in the exercise of its franchises, nor in an accounting as to the number of dollars that will make good the damages which the relator has sustained; and it is indispensable that the pleading state a case within the proper jurisdiction of a court of equity: Story Eq. Pl., § 10; and failing of this the error is fatal in every stage of the case, and cannot be waived or cured by consent.
The attorney general and the relator have no interest here in common; the former has no interest in the accounting, and the latter none in the exercise of the preventive powers of the court in behalf of the public; an information in equity in cases of purpresture is for the purpose of obtaining the preventive powers of the court by way of injunction, to afford a more speedy remedy than that by way of indictment, and the remedy by mandamus on behalf of the public, or of individuals whose rights are invaded, is a more speedy and effectual one than that by bill in equity.
It does not appear from the pleading that the relator has any interest beyond the running season of 1875; nor is it alleged that it contracted to run the logs of whose detention it complains at any specified time, and if it is to have compensation according to the labor bestowed, the damage from delays or increased expense is one that will fall, not on relator but on the log owners, and it does not appear that they complain; nor does it appear that respondent has interposed any permanent obstruction to the stream, and a boom company cannot be operated without encroaching upon the stream somewhat, and the right given by statute to operate these companies must be construed so as to have some value; where a large quantity of logs are floating down it is impossible to assort them and select out such as are to stop at the boom except by stopping the whole drive; and while this must necessarily to some extent delay the passage of logs down the stream, it is but an inconvenience incident to that mode of navigation, and gives no right of action so long as the stoppage is not unreasonable.
The bill alleges no injury to any person except the relator; it does not anywhere assert that any other person is interested in navigating said stream, or has sustained any injury.
If we are to judge of this instrument, not from its formal commencement, nor by the name endorsed upon it, we must call it a bill filed by the Muskegon Booming Company to enjoin the respondent from the exercise of any franchises whatever under the act above mentioned.
The prayer for an injunction in behalf of "your orator," if granted, would absolutely prevent the respondent from exercising any franchise whatever, and would make necessary the removal of all booms from the river. The question in fact is, whether the Muskegon Booming Company has an exclusive right to the navigation of the Muskegon river, or whether other people, who are interested at other points upon the river above the mouth, have not the same right that the relator exercises and claims for itself, and whether a court of equity will decree such exclusive right to the relator and enjoin all others from having any beneficial use of the navigation of said stream.
The pleading of the attorney general in this case is somewhat anomalous, and we deem it important to a proper presentation of our views that a very full statement of its substance should be given.
It begins by saying that, "Informing showeth unto your honorable court, Andrew J. Smith, attorney general of the state of Michigan, by and upon the relation of the Muskegon Booming Company," that it is the business of said company to run, raft and boom logs in and upon the Muskegon river, which is a stream navigable for running, rafting driving and floating logs, lumber and timber, and for a part of the distance navigable for steamboats, in which business it has been engaged for eight years or more, and is engaged the present season, that is to say, the spring and summer of 1875; that during the spring of the present season said company took possession of the logs and drive on said river, by and with the consent and at the request of the owners of logs therein and thereon, and by and with such consent has been running such logs; that there is a large quantity of logs so taken possession of and driven, to-wit: about two hundred million feet, and that by taking possession thereof they have entered into contracts with the owners to run, drive and raft the same to points below on the river where they are to be manufactured;
That by law said company has a lien on the logs for the payment for its services in running, driving and rafting, and also in booming the same, and that the owners of the logs cut and placed them in the river for the purpose of...
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State v. Korrer
...to or inconsistent with that to which it was dedicated." It was said by Cooley, C. J., by way of illustration, in Attorney General v. Evart Booming Co. 34 Mich. 462, 473: "A highway usually includes within its limits more than is ever made use of for public purposes; but, as it is set apart......
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State v. Korrer
...to or inconsistent with that to which it was dedicated.’ It was said by Cooley, C. J., by way of illustration, in Attorney General v. Evart Booming Co., 34 Mich. 462, 473: ‘A highway usually includes within its limits more than is ever made use of for public purposes; but, as it is set apar......
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State v. Korrer
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