flattery, importunity, solicitation, or suasion of the husband, was the purpose of the act. And it was intended that, on the privy examination, it should be made manifest to the officer taking it, that it was of her own volition, unmoved by the influence of the husband, she signed and assented to the alienation. The certificate of the examination indorsed on the alienation, it was intended, should manifest clearly, not only that the wife was acting from her own volition, but should negative the influence of the husband in producing the determination."

HEALTH. A provision in a city charter that the health department shall have power to regulate dwelling-houses, there being no clause about general welfare or general police powers, extends only to health in the sense of freedom from disease, and does not justify a requirement that outside walls shall be of a given thickness. Hubbard v. Paterson, 45 N. J. 310. The court said: "The contention is that the power to regulate and control the mode of constructing buildings, when given for the preservation and promotion of health, justifies such regulations as respect sanitary conditions and appliances alone, and not such as respect the thickness of the walls a matter which, it is insisted, can produce no effect on the health of the city. If the word 'health' is to be understood as expressing merely the absence of disease, the contention is effective. But the word has a broader meaning. According to the lexicographers, health is 'soundness of body; freedom from disease, sickness or pain.'- Worcester; 'freedom from pain or sickness; the most perfect state of animal life.'- Bouvier. It is said to be derived from an Anglo-Saxon word, of which we yet retain a trace in the word 'hale,' and which may be rendered whole' or 'sound.' If this meaning be attributed to the word in this act, the powers given to preserve and promote health would naturally include not only such as would tend to prevent the origin or development of disease and its dispersion by contagion or infection, but also such as would tend to prevent the occurrence of bodily injuries or accidents. The word would then include the idea of safety as well as health in its ordinary and colloquial signification. In the charters of some municipal corporations such powers are expressly given for the preservation of the health and safety of citizens. But I am unable to conclude that we ought to attribute to the word 'health,' as used in this title, the broad meaning above referred to, which, though a correct, is not its usual meaning. When we find that the Legislature, by these sections, established a department of health and conferred powers for the preservation and promotion of health, the natural inference is that the department is charged with the execution of such sanitary measures as tend to prevent or diminish disease. Such are the ordinary functions of boards of health in cities or other municipal corporations in this State. There ought to be found in this act language clearly evincing that other functions are intended to be conferred on this department in Paterson before we should be justified in reaching such a conclusion,"

Mr. Yeaman, upon taking the chair, after some prefatory remarks about law reform and the objects of the society to be organized, said:

The utility and the practicability of codification have both been established in the history of legislation and jurisprudence. As a new proposition, we might shrink from it as being a dangerous venture, or a task beyond our power. Such fears are now the mere timidity of a well-meaning conservatism. We have historical examples of its success and of its benefits. Opponents say, that a system of law must be left malleable and expansive; that science and civilization advance and change and create new rights, new exigencies; that law must be left to adapt itself to new facts and new circumstances; and that Codes are castiron systems which cannot do this.

In the light of the past, this objection is of no weight. And then it assumes what is not true. No friend or advocate of codification ever contended that a Code once made, the world will stand still. The most they claim is to simplify past confusion, clear up existing doubt, condense and crystallize the fruits of past labor, establish a mile-stone, in legislation and jurisprudence and then go forward-when necessary. Then shall we always be codifying, or amending existing Codes? Whenever necessary. But what is the demand, the necessity, the benefit of codification?

Suppose practicing lawyers-to say nothing of the layman, who is legally presumed to know the law, and has a right to know it, but as matter of fact does not know it and can't know it as it now exists, suppose lawyers had to consult statutes, reports, and text books, without indexes. An index though not an incipient Code, is at least a sign post. But we are not satisfied with these; we have our digests-digests of statutes and digests of decisions. Every digest is only an imperfect Code. They are not always reliable in

telling us what the law is, but very useful in helping

us to find the fountains of the law. And what do we sometimes find, when we have gone to the fountain heads? Two streams springing from the same source and running in opposite directions, or two streams springing from different sources and trying to run straight across each other, causing conflict and confusion-muddy eddies in the law. To say nothing of the vast multiplication of reports, so numerous that no lawyer is able to own them, and if able, has not room enough for them either in his house or his office, nor in both combined, if there were no other reason for a Code it would be demanded and justified by the necessity of reconciling where we can, and where we cannot, of selecting the better reason, and declaring which is law.

There is probably not a State in this Union, as old as the youngest man present, that has not its one, or two, or three volumes of "Revised Statutes "-every revision of statutory law is a codification. If one can be or ought to be codified, why cannot and why ought not the other? If practice or civil procedure, if the penal law and penal procedure may be codified, why may not the body of the civil law?

I remember the time as a law student-not as a practitioner, for the Code reached my native State just as I was admitted to the bar; but I remember the time when a young lawyer (or for that matter, an old one) would walk into the court-house in pride and confidence, and go out in confusion and defeat, because he had called it assumpsit instead of covenant, or trespass instead of "on the case," or called it a bill when it ought to have been a declaration, and so on without

end. A few great lawyers in this State said that was not right. They were opposed and ridiculed, but they fought for the Code of Procedure and had it adopted, and now we can try controversies on their merits, to the wholesome neglect of the legal metaphysician's special pleading.

How is it that Rome has governed half the civilized world by her beneficent civil law for a thousand years and more, after she has ceased to govern the same fair regions with her arms? The Code of Justinian, a Code of laws, and not merely of procedure, made that possible. And yet we are to be told that we cannot do what the Roman lawyers did. For one I do not believe in the degeneracy of the human race; I do not believe that learning, industry and capacity for labor have diminished.

One objector will say: It is all right to have digests -your incipient or imperfect Codes-to have Revised Statutes; they can be made with scissors and paste (whoever thinks that let him try it), and all right to simplify procedure, mere practice; but the law, the body of the law, that is a different thing; that is so vast, so ramified, so intricate, so delicate, so important as the standard and safe-guard of rights, don't tamper with that. The argument is the other way. Its vastness, its importance, its complication, its delicacy, are just the reasons why the law needs codification and would be benefited by it. If it cannot be done, that is our fault, and not the fault of the system of codification. And we are told that the Civil Code, as now proposed, has not been well done. That would probably be assumed by its opponents; but if it really had not been well done, then so much the greater reason would there be for the existence of this society, though we may not concede the particular defects so far alleged against it. We advocate its adoption while aiding to perfect it.

MALICIOUS ACT GIVING NO RIGHT OF ACTION.

MAINE SUPREME JUDICIAL COURT, MAY 29, 1883.

HEYWOOD V. TILLSON.

An employer has a right to refuse to employ or to retain in his service any person renting certain specified premises, and the owner of such premises has no cause of action against him for the exercise of such right, though such refusal was through malice or ill will to such owner.

ACTION on the case and also in trover. The opinion

states the facts.

A. P. Gould, for plaintiff.

D. N. Mortland, for defendant.

APPLETON, C. J. This is an action on the case. The plaintiff in his writ alleges that on December 19, 1875, he was seised of a dwelling-house on Hurricane Island of great value, yielding an annual rent of one hundred dollars which he would be receiving, were it not for the wrongful act of the defendant, and ought to receive from one Charles H. Sanborn and other tenants; that he leased the dwelling house and premises to said Sanborn for the term of one year, which sum said Sanborn was willing to pay; that the defendant was the occupant and owner of said Hurricane Island, and engaged in quarrying, cutting and working granite, and shipping the same to market; that there was no opportunity to lease any building, except to those in the defendant's employ; yet the defendant knowing this and to deprive the plaintiff of the rents and profits arising therefrom, did on December 29, 1875, order and direct the said Sanborn to pay him only twenty dollars a year, instead of ninety-six dol.

lars, and threatened to discharge said Sanborn if he did not comply with his order; by means whereof the plaintiff received but one dollar and sixty-seven cents per month, instead of eight dollars; that afterward on on August 1, 1876, said Tillson ordered and directed said Sanborn to leave said dwelling-house and refused to allow him to remain therein, and threatened to discharge him from his employment, unless he should leave said dwelling-house; and that the said Tillson threatened to discharge any and all persons from his employment, and expel them from the island, who should occupy said premises and become tenants of the plaintiff, by means of which orders, threats, and directions, the said Sanborn was induced to and did leave the premises, and refused to pay for the use of the same, and to occupy the same, whereby the plaintiff has been unable to rent, lease, or sell said dwelling-house, and has lost all benefit from the

same.

The second count is in trover for the conversion of the plaintiff's dwelling-house.

The evidence in support of the plaintiff's claim comes entirely from him, and witnesses called by him.

The defendant is the owner of Hurricane Island, has extensive quarries there, doing a large business, having important contracts with the government, and six hundred men in his employ.

The plaintiff went into the defendant's employ as a stone cutter in 1873, and purchased the house referred to in the declaration, in the fall of 1874, for two hundred and fifty dollars, and was discharged in October, 1875. He testified that he "made no attempt to injure General Tillson, previous to his (my) discharge; " that he " had been taking notes in regard to the management of the job," and was "going to keep the notes in case the job was ever investigated," that he "furnished information to the newspapers in regard to the management of the government works; wrote articles in the Boston Herald and the Rockland Opinion; that when the latter paper was indicted for a libel growing out of the articles, he was here two weeks in procuring witnesses for the publisher; that he said he considered the [defendant a damned scoundrel, that he so testified, on the trial of the indictment, and that he "so considers him now."

The house was built on defendant's land by verbal permission of his clerk.

Such is the relation of the parties.

The plaintiff claims to recover in trover, but he testifies that General Tillson told him, that he would not interfere with making a disposition of the property," "that he has never directly assumed to him (me) any control over that house," "that he wanted me to dispose of my property there and go off the island; he said he should not interfere with my disposing of it," "that any man that rented my house should not work for him." Here is no conversion of the property. The plaintiff might live there. might sell or lease his estate. He had full control of his property, leaving the defendant at liberty in fixing the terms and conditions on which he would employ those laboring for him. Whatever they might do, here is no conversion of the house of the plaintiff.

He

The first ground of complaint in the second count in the declaration is, that he "had leased the said dwelling house and premises to the said Charles H. Sanborn for the term of one year from the said day hereinbefore specified (December 29, 1875), for the sum of eight dollars per month, which sum the said Charles H. Sanborn was then and there ready and willing to pay." "Yet the said defendant, well knowing the premises, * did on the said December 29, A. D. 1875, order and direct the said Charles H. Sanborn

* *

to pay the plaintiff only twenty dollars a year, instead of the ninety-six dollars per year, and threatened to discharge said Sanborn from his employment if he did not comply with such order; by means whereof the said Sanborn was prevented from payment to the plaintiff any more than one dollar and sixty-seven cents, instead of eight dollars per month."

The plaintiff's evidence disproves every material allegation as there set forth, and the above is the most tangible ground of complaint to be found in the whole declaration.

The house was not leased for the year. It was personal property. The plaintiff was not seised of it. Sanborn testifies that the plaintiff rented the house to him "for eight dollars a month, so long as he (I) saw fit to occupy it," that he went into the house in October, 1875, and left in August, 1876, and that the amount he "paid Heywood was in the neighborhood of eighty dollars." The plaintiff nowhere alleges that he did not receive the rent as stipulated from Sanborn. The only evidence of ordering out is, what is testified to by Sanborn; that "he said he did not wish to injure me (Sanborn), but the man that lived in Heywood's house could not work for him." But this constitutes no ordering. It was what he had a right to say. It did not interfere with letting to others.

As the house was rented to Sanborn by the month, as long as he saw fit to occupy it," the contract was terminable at the option of Sanborn. He could ter minate it when and for what reason he saw fit. The plaintiff could not complain of its termination, no matter how unreasonable it might be. He had no contract with Sanborn that he should remain. He might remain or not. In Hutchins v. Hutchins, 7 Hill, 104, the defendants, after a will was made devising certain real estate to A., conspired to induce the testator to revoke it, and effected their object by means of false and fraudulent representations. Held, that A. could not maintain an action, as the revocation of the will merely deprived him of an expected gratuity, without interfering with any of his rights. So here no rights were interfered with. There was no obligation on the tenant to remain. None on the landlord to permit him to remain. All there is, the tenant did not renew his contract. Why he did not is no concern of the landlord. The tenancy was at will. The exercise of that will was the exercise of a perfect right. The motive which induced that exercise can be no ground of complaint, whether it was the chance of bettering his condition, to gratify a whim of his own or the ill will of another. The landlord cannot complain that a tenant declines to renew his lease. If Sanborn violated any contract, he is liable to the plaintiff in damages.

Besides an employer has a vital interest in the welfare of his men. He has a right to see that they are not plundered. It was a perfectly proper motive for the defendant to interpose to prevent an extortionate rent, as that of one hundred dollars a year for a shanty costing but two hundred and fifty dollars. His own interest and his interest in the success of his employees, without the imputation of any thing sinister on his part, afford good and sufficient reasons for his intervention.

The question raised is, whether the defendant is liable in damages to a landlord for a tenant's leaving, or for one or many declining to become or not becoming tenants, in consequence of his threats that he would employ no one who should become such landlord's tenants, or being his tenants should continue to remain such.

The defendant was doing a large business, having five or six hundred men in his employ. It was of the utmost importance to his success that his employees should be of good habits, friendly to his enterprise

and interested in his prosperity. As between the employer and the employee, each may fix the terms and conditions on which the one will employ and the other be employed. "It is well settled," observes Shaw, C. J., in Commonwealth v. Hunt, 4 Met. 133, " every free man, whether skilled laborer, mechanic, farmer, or domestic servant, may work or not work, work or refuse to work, with any company or individual at his own option, except so far as he is bound by contract." The employer has equal and reciprocal rights to fix the terms and conditions upon which alone he will contract for employment. He is restricted to no color or race. The conditions upon which he insists may be silly or absurd. If acceded to they are binding on the employee. Whether wise or not, if legal it is no coucern of others. In Carew v. Rutherford, 106 Mass. 14, Chapman, C. J., uses this language: "Every man has a right to determine what branch of business he will pursue, and to make his contracts with whom he

pleases and on what terms he can. ** *He may refuse to deal with any men or class of men. And it is no crime for any number of persons, without an unlawful object in view to associate themselves together and agree that they will not work for or deal with certain men or classes of men, or work under a certain price or without certain conditions." The employer has the same right of imposing conditions and limitations as those he may employ.

The workmen may agree that they will not work for an employer, "who should after notice, employ a journeyman, who habitually used it" (liquor), Commonwealth v. Hunt. A laborer would not be liable to a journeyman who lost employment by reason of such agreement, and the refusal of the employer any longer to hire him. So the master may equally impose as a condition, that his servants shall not board at a house where liquors are kept for sale, and the seller cannot maintain an action against him for the loss of profits on liquors he might have sold his boarders had they remained with him. He may impose as a condition of employment, that certain associates and associations shall be avoided. Good habits are not all that is desirable. An interest in the success of an enterprise is required. The master may impose as a condition of employment, that he shall not associate with one who is inimical to him-who is seeking to injure him— who is acting as a spy upon his proceedings, and who is libelling him in the newspapers.

So the employer, as he may by contract stipulate with his men where they shall not board, may equally determine where and of whom they may rent the houses they may occupy, and where they may not. The house may be in an unhealthy part of the city, or a disreputable neighborhood. But whatever the reason, good, bad, or indifferent, no one has a right to complain.

The owner has no cause of complaint when one says he will not occupy his house, nor when another says he will refrain from doing an act it it be occupied. The defendant was under no obligation-owed no duty to the plaintiff that he should permit his men to occupy his house, any more than to a boarding-house keeper that he should permit his men to board with him. The idea of a boarding-house keeper suing a man because he declines or refuses to employ his boarders, or the owner of a house, because he will not employ his tenants, is utterly at variance with the right of individuals to make their own contracts. landlord has no right of action against an employer of men, because he refuses to employ his tenants or boarders. Nor are his rights enlarged because the reason of such refusal is, that they are his tenants or boarders.

A

Neither is the employer liable if having the tenants or boarders of a landlord in his employ he discharges

them from his service because they choose to remain such tenants or boarders, having the right by his contract with them to terminate their services. If he has not that right he may be liable to those so discharged. If he has, no one else has any right to complain, because an employer having a right to discharge a servant does discharge him. The contract is between the master and servant, and the master is not obliged to retain his servant in his employ in such case, and no one else can bring a suit against him because he does not.

The defendant has broken no contract. He has made none with the plaintiff. If the plaintiff has none with any one, no contract is broken. If there be one, and the tenant has broken it, preferring to continue in the defeudant's service, the tenant is liable for such breach. He is the one by whom the contract is broken. He is the principal in its breach. The defendant has done nothing.

It must be remembered that the interference complained of is not with the general rights of the plaintiff. The threat is not general. It is only as to his employees. The plaintiff may rent to all the rest of humanity. The defendant owes no duty to the plaintiff. He has done him no wrong by declining to employ his tenants, unless he was under some legal obligation to employ them, and was guilty of some wrong in not employing them. This very action is brought upon the assumption that the defendant was in some way under an obligation to employ the plaintiff's tenants; that he was guilty of a dereliction of duty, of a violation of the plaintiff's right in not employing his tenauts, or in threatening not to employ such as should become or were his tenants.

If the defendant had advised a tenant to leave, because the house was in a disorderly neighborhood or too distant from the place of labor,and he had left, it will not be pretended that an action could have been maintained. If he advises and urges him to leave, but fails, however malicious his motive, his malice affords no ground of action. If he procures him to leave without notice he is not responsible. There is no cause of action against him. But if the act, not actionable in itself, but accompanied by a bad motive, affords a ground of action, then it follows, that if an act be in itself lawful, a bad motive becomes the basis of a suit; that is, a man is sued for his motives, irrespective of his conduct.

The defendant had an absolute right to employ or not to employ a tenant of the plaintiff, and no action could be maintained against him if he chose not to do it.

Threatening not to employ such tenant affords no ground of action on the part of the landlord. A threat to commit an injury is "not an actionable private wrong." Cooley on Torts, 29. It is only the promise of doing something which in the future may be injurious. It may never be carried into effect. It cannot be foreknown that it will be.

The belief on the part of the defendant that the plaintiff had injured and would injure him existing, that from ill will thus arising he said he would neither employ nor retain in his employ a tenant of the plaintiff, affords no ground of action. Having a right to make that a rule of action, he is not liable for so doing, still less for merely threatening.

The act legal, he cannot be sued for mere ill will or personal animosity, especially when he has cause. "The exercise by one man of a legal right cannot be a legal wrong to another." Cooley on Torts, 685. In Stevenson v. Newnham, 76 E. C. L. 281, it was held that an act which did not amount to a legal injury could not be actionable because done with a bad intent. The insertion of the word maliciously when the act complained of is not unlawful per se, will not make a

*

"Ma

count good which would be bad without it. Cotterell v. Jones, 73 E. C. L. 713. Evidence that an act legal in its character was done wantonly and with intent to injure was held inadmissible in Benjamin v. Wheeler, 8 Gray, 409. In Randall v. Hazelton, 12 Allen, 415, Colt, J., says, "damages can never be recovered where they result from a lawful act of the defendant." The law will not inquire into the motives of the party exercising such right however unfriendly or selfish. "It is generally held that no action will lie against one for acts done upon his own laud in the exercise of his rights of ownership, whatever the motive, if they merely deprive another of advantage or cause a loss to him, without violating any legal right; that is," remarks Wells, J., in Walker v. Cronan, 107 Mass. 564, "the motive in such case is immaterial. Frazier v. Brown, 12 Ohio St. 294; Chatfield v. Wilson, 28 Vt. 49; Mahan v. Brown, 13 Wend. 261; Delhi v. Youmans, 50 Barb. 316." A similar decision was made, Wheatley v. Baugh, 25 Penn. St. 528. If a wrongful act would suffice, one would think that fraudulent representations by which one was prevented from securing his debt by an attachment would suffice, but it was held otherwise in Bradley v. Fuller, 118 Mass. 239. licious motives make a bad act worse; but," observes Black, J., in Jenkins v. Fowler, 24 Penn. 308, "they cannot make that wrong, which in its own essence is lawful, * * any transaction which would be lawful and proper if the parties are friends, cannot be made the foundation of an action merely because they happened to be enemies. As long as a man keeps himself within the law, by doing no act which violates it, we must leave his motives to Him who searches the heart." In Fowler v. Jenkins, 28 Penn. 176, the preceding case is cited with approval, Woodward, J., remarking that, "even a malicious exercise of this right would give the plaintiff no cause of action." In Glendon I. Co. v. Uhler, 75 Penn. St. 437, the same doctrine was re-affirmed. In Phelps v. Nowlen, 72 N. Y. 45, Miller, J., says "that the maxim sic utere tuo ut non alienum lædas, applies only to cases when the act complained of violates some right, and an act legal in itself, violating no right, cannot be made actionable upon the ground of the motive which induced it." "But motives," say the court in Pickard v. Collins, 23 Barb. 444, "in doing an act which violates no legal right of another, cannot make that act a ground of action." In South Royalton Bank v. Suffolk Bank, 27 Vt. 505, it was decided that an act, lawful and right in itself, is not actionable on account of its being performed from an improper or bad motive. "Motive alone," remarks Bennet, J., "is not enough to render the defendants liable for doing those acts which they had a right to do." This doctrine was re-affirmed in Chatfield v. Wilson, 28 Vt. 49. There is nothing conflicting with these decisions to be found in Harwood v. Jones, 32 id. 724. In Hunt v. Simonds, 19 Mo. 583, it is held that an action does not lie for conspiring to do a lawful act, however malicious the motive, for the very obvious reason that the act was lawful. These views are fully sustained in the text books. Cooley on Torts, 688; Smith v. Bowler, 2 Disney (Ohio), 153; Kiff v. Youmans, 86 N. Y. 324,

In most of the cases where reference is had to the motive as malicious, it will be found that the act done was wrongful, as in Bowen v. Hull, 20 Am. Law Reg. 578, where a contract was broken. The breaking the contract was an unlawful act and the inducing it was held to make the person liable-as in the case of enticing a servant from his master, but if there be no contract, one is not liable for inducing a person to leave, though the master wished to further employ him. Boston Glass Manufactury v. Binney, 4 Pick. 425. In other cases, malice is shown to enhance damages. But if the act be legal, one is not liable for doing it. If

doing it from a bad motive, he be made liable, then his liability arises from his motive and not from his act. A different rule would encourage litigation. "Malice," observes Miller, J., in Phelps v. Nowlen, might be easily inferred from idle and loose declarations, and a wide door be opened by such evidence, to deprive an owner of what the law regards as well defined rights." This same act under the same circumstances would be a wrong, if done with intent to injure by one man, and if done by another without such intent, would be regarded as fitting and proper. A tort implies a wrongful act done. But mutual ill will between parties antagonistic to each affords no basis for mutual suits for such ill will.

"So in refer

gress passed an act to establish a bridge across the river named, which declared that a bridge constructed as provided by the statute of New York referred to should be a lawful structure provided it should not obstruct, impair or injuriously modify the navigation of the river, and directed the secretary of war to examine and determine if it did so. Subsequently the secretary of war approved of a bridge which should not be less than 135 feet above high tide. A bridge not less than 135 feet above high tide was constructed. Held, that the structure was a lawful structure, and that a property owner along the river, though injured in his property or business thereby, was not entitled to an injunction restraining the erection or maintenance of the structure.

J., in Randall v. Hazelton, 12 Allen, 415, "that it must be a loss brought upon the party complaining by a violation of some legal right, or it will be considered as merely damum absque injuria." But a refusal to hire or to continue to retain one in his employ because he boards with one inimical to the employer, does not give a right of action for such refusal, unless there is some rule of law restricting the employer in the terms and conditions of his employment.

To entitle a plaintiff to recover, there must be a wrong done. "No one is a wrong-doer but he who does what the law does not allow." He who does what the law allows cannot be a wrong-doer whatever his motive. "So no one is guilty of a fraud, because he exerts his rights." The motive which may induce such exertion is immaterial.

So far as relates to the case of Sanborn, who was a tenant by the month, the stipulated rent was fully paid, and the tenant left as he had a right to do. He left because defendant would not employ one of the plaintiff's tenants. The defendant had a right to impose that condition. The tenant had a right to his preference.

As to the rest of the world, except the defendant's employees, there was full liberty of sale or rent. As to these, there was liberty, if they chose to risk the chance of employment. The defendant threatened. He might cease to threat. He might never carry his threats in execution. He might never intend to. There is no proof that a single one of his employees was influenced by his threats-wanted to hire plaintiff's house, or would have hired it; or hiring it would have remained; or remaining, how long any tenant would have remained.

There is no proof of any wrong done-of any legal damage-or of any facts for or on account of which any damages could be assessed-unless threatening to do what a man has a perfect right to do, will constitute a sufficient foundation for an action. If any wrong was done, it was by the tenant in leaving; and if he has broken any contract, or violated any rights of the plaintiff, he alone is responsible for his misfeas

ance.

Barrows and Peters, JJ., delivered concurring opinions.

Plaintiff nonsuit.

BROOKLYN BRIDGE A LAWFUL STRUCTURE.

SUPREME COURT OF THE UNITED STATES. NOVEMBER 26, 1883.

MILLER V. MAYOR OF NEW YORK.

In 1867 the Legislature of New York authorized the construction of a bridge across the East river, a navigable stream, at an elevation of 130 feet above high tide, with a provision that it should not be so constructed as to obstruct the free and common navigation of the river. In 1869 Con

aldermen and commonalty of the city of New York, the city of Brooklyn and others. Appeal from the Circuit Court of the United States for the Southern District of New York. The opinion states the

case.

FIELD, J. This suit was commenced in May, 1876, to restrain the erection of the suspension bridge then under construction, over East river, in the State of New York, between the cities of New York and Brooklyn, at the height of 135 feet above the river at high-water mark, which was the proposed elevation of the structure. As the bridge has since been completed, if the plaintiff can make good his contention, and establish that when he filed his bill he was entitled to the relief prayed, he may claim that the bridge shall be raised to a greater elevation or be entirely abated. He is the lessee of certain warehouses on the banks of the river above the point of the proposed crossing of the bridge, and he states that he brings the suit on behalf of himself and of all others similarly situated. No one however has united with him in its prosecution. He stands alone as complainant and alleges that the bridge, if erected as projected and intended to the height designated, would be built without lawful power and authority; that it would be a nuisance, and obstruct, impair and injuriously modify the navigation of the river, and might seriously and prejudicially affect the commerce of the port of New York; that merchant vessels from the New England States and British Provinces, and from ports south of New York, and vessels engaged in foreign commerce, pass and repass on the river, the intended location of the bridge; that the masts of a large proportion of these vessels exceed 135 feet in height; and that the expense to them of striking parts of their masts in passing under the bridge, if built as proposed, with the detention and additional towage rendered necessary, would be so great as to destroy his warehouse business and be a private and irreparable injury to him, for which an action at law would afford no adequate redress. He accordingly prays an adjudication of the court upon the character and effect of the proposed bridge in conformity with these allegations, and an injunction restraining the further prosecution of the work of building it at the height of 135 feet above mean high water, or at any other height that would obstruct, impair or injuriously modify the navigation of the river.

The court below did not find in the allegations of a possible loss to the plaintiff in his warehouse business, or in the proofs offered to sustain them, sufficient ground to restrain the completion of the work. It dismissed his complaint as being without substantial merit.

We approve of its action and decree. The erection of the bridge at the elevation proposed was authorized by the action of both the State and Federal governments. It would therefore when completed be a lawful structure. If as now completed, it obstructs in any respect the navigation of the river, it does so merely