Sivut kuvina

Opinion of the Court.

Sunnyside, 91 U. S. 208, 214; The Illinois, 103 U. S. 298, 299; The Nevada, 106 U. S. 154, 159.

The Noordland was in fault for not starting her engines ahead at once after stopping in mid-river. There was no necessity for her to back further across the river. It is found as a fact that, after stopping her engines and signalling that she would go ahead, she did not go ahead, but waited two minutes longer before putting her engines at half speed ahead, and two minutes more, and until after she had continued to encroach upon the Servia's course before putting her engines at full speed ahead. That negligence was assigned by the District Court as the cause of the collision; and the Circuit Court finds that the Noordland was in fault for not taking timely measures to stop her sternway after she had reached mid-river.

The exceptions on the part of the Noordland to the refusal of the Circuit Court to find the proposed conclusions of law are untenable, because those conclusions of law were based on the findings of fact proposed on the part of the Noordland, which the Circuit Court correctly refused to adopt. The court substantially found as requested by the first and second additional findings of fact proposed on the part of the Noordland. The Noordland was at no time before the collision on a definite course, as contemplated by the statute and rules of navigation ; and on the facts found she cannot claim that she had the right of way as against the Servia. The statutory steering and sailing rules before referred to have little application to a vessel backing out of a slip before taking her course, but the case is rather one of “ special circumstances,” under Rule or Article 24, requiring each vessel to watch, and be guided by, the movements of the other. A finding that the Servia had the Noordland on the starboard side, and that, therefore, the Noordland had the right of way, and the Servia was in fault for not keeping out of the way, would be immaterial, in view of the other facts affirmatively found. The Noordland was bound to conform to her usage in the river; she knew that usage, and the Servia also knew it. Only the inexcusable delay of the Noordland in observing her own

Statement of the Case.

practice, which she indicated she intended to follow, brought about the collision.

The Servia maintained her position close to the New York shore; she proceeded slowly ; she observed the Noordland closely; she stopped her engines when at a safe distance to enable the Noordland to check her own sternway; and she reversed her engines when the sternway of the Noordland indicated risk of collision. She was thwarted in her manæuvres by the faults committed by the Noordland. It was not incumbent upon the Servia to take any other pre

utions than she did ; and she did nothing to bring on the risk of collision.

The other exceptions taken on the part of the Noordland are either immaterial or have been sufficiently remarked upon.

Decree affirmed.







No. 158. Submitted March 22, 1893. – Decided April 24, 1893.

A railroad corporation cannot, by the general principles of equity jurispru

dence, or by the provisions of the Code of Washington Territory, maintain a suit for an injunction, as for a nuisance, against the keepers of saloons near the line of its road, at which its workmen buy intoxicating liquors and get so drunk as to be unfit for work.

This was an action, in the nature of a bill in equity to restrain a nuisance, commenced December 17, 1887, in a court of Kittitass County in the Territory of Washington, by the Northern Pacific Railroad Company against the three county commissioners of that county, twenty-one persons constituting ten partnerships, and twenty-eight other persons, by a complaint alleging as follows:

Statement of the Case.

That the plaintiff was a corporation created by an act of Congress of July 2, 1864, to construct a railroad from Lake Superior to Puget Sound, and was constructing its railroad and a tunnel through and over the Cascade Mountains and at the village of Tunnel City, and had there four thousand employés engaged in constructing its road; and such construction made it necessary to use high explosives, such as dynamite, and machinery run by electricity, steam and compressed air, which required sober, skilled labor.

That the defendants, except the county commissioners, at and near Tunnel City, and along the line of the railroad so being constructed by the plaintiff, "for several months last past, have been running retail drinking and lager-beer saloons, and selling spirituous, malt and fermented liquors to the said employés of said plaintiff; and that the said sales of said liquors to said employés have frequently and continuously caused drunkenness of said employés; and that the said drunkenness incapacitated the said employés, so that they were not able to perform the labor assigned to them, and the labor they were expected to do and for which they were employed; and that the said drunkenness increased the risk and danger incident to the necessary use of the said explosives and machinery, and increased the danger to the employés employed in constructing the road as aforesaid, and to the officers and agents of said plaintiff, and has caused and is causing many of said employés to quit their said employment on account thereof."

That “during the four months last past the said railroad company has employed and transported, in and upon said work at and near Tunnel City, in Kittitass County, about eight thousand men, at an average expense of ten dollars for each man ; that about four thousand of said men so employed, for the reason aforesaid, quit and left the work of said plaintiff”; and that the plaintiff, by reason of such sales of liquors to its employés, had been prevented from obtaining and retaining enough employés to complete its road as far as Tacoma during the present year, and would be obliged to continue the work during the coming winter, and at an increased expense of more than $100,000.

Statement of the Case.

That said saloons have been so conducted, and drunkenness and gambling permitted and carried on to such an extent, that they, the said saloons, have been for months and are now public nuisances, and also a private nuisance in so far as the said plaintiff is concerned ; that the superintendents, officers and families thereof are seriously discommoded, discomfited, injured and annoyed by said nuisance; and that said lives of the officers, agents and employés have been endangered, and the said property of the said plaintiff has been diminished and injured in value, in consequence of said sales of liquors and drunkenness caused thereby; and that the said plaintiff, by said saloons and the sale of intoxicating liquors therein to said employés, and said drunkenness and said gambling, has sustained great and irreparable injury.”

That“ said saloons and the said beer halls have been and are now running, and selling at retail said intoxicating liquors as aforesaid to employés of the plaintiff and others, without a license, and without any right or authority so to do.”

That “said saloons during the past have, and will in the future, unless enjoined, continuously and constantly continue to sell said intoxicating liquors to said employés, and constantly and continually permit said drunkenness, and maintain said gambling houses and said public and said private nuisances, to the great injury, danger, discomfiture and annoyance of the said plaintiff and the said plaintiff's employés and the said property of plaintiff.”

That the saloons aforesaid were on unsurveyed lands, owned one half by the plaintiff and the other half by the United States, and were run and maintained under licenses issued by the county commissioners without right or authority ; that the other defendants intended to apply, and were now fraudulently applying, to the county commissioners for licenses to sell intoxicating liquors at retail, without filing the consent of the owners of the lands, as required by law; that the county commissioners, knowing this, intended to grant such licenses; and that “the granting of said licenses will greatly complicate said matters, and injure and damage said plaintiff, and will deprive plaintiff to a great extent, if not absolutely, of any

Argument for Appellants.

remedy against said defendants, and cause the plaintiff great and irreparable damage.”

That the defendants were insolvent and unable to respond in damages; that the plaintiff had no adequate remedy at law; and that the granting of an injunction would avoid a great multiplicity of suits.

Wherefore the plaintiff prayed for an injunction to restrain the county commissioners from granting to the other defendants licenses to retail spirituous, malt and fermented liquors, and to restrain the other defendants from selling such liquors at retail, and from running and maintaining the saloons and nuisances aforesaid, and for general relief.

The defendants demurred to the complaint, as not stating facts sufficient to constitute a cause of action. The demurrer was sustained, and judgment rendered for the defendant. The plaintiff appealed to the Supreme Court of the Territory, which affirmed the judgment. 3 Wash. Ter. 452. The plaintiff thereupon, on March 7, 1889, appealed to this court.

Mr. James McNaught, Mr. A. H. Garland and Mr. II. J. May for appellant.

The allegations in the bill bring the cause within the definition of nuisance, both at common law and under the Code of Washington Territory. These nuisances are shown to be continuous. It is admitted that the appellees are insolvent. All this affords good reason for an appeal to a court of equity.

These nuisances were both public and private in their character, inasmuch as they were an annoyance to, and an interference with, both private and public rights and interests. Code Wash. Ter., SS 1235, 1243, 1247; Meyer v. State, 12 Vroom, (41 N. J. Law,) 6. See also c. 50 of this Code, which regulates the proceedings in civil actions for damages, and other remedies. From these provisions it will be seen that it recognizes nuisances both as defined by the common law and by the statute. The statutory remedies were cumulative, but were like those given by the common law and in equity.

The particular nuisances complained of were the result of

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