
    George R. Babcock, Appellant, v. The City of Buffalo et al., Respondents.
    (Argued March 25, 1874;
    decided April 7, 1874.)
    A power given to a municipal body to abate nuisances in any manner it may deem expedient, is not an unrestricted power; such means only are intended as are necessary for the public good. The abatement must be limited by its necessity; and no wanton or unnecessary injury to the property or rights of individuals must be committed.*
    * This proposition is laid down and elaborately discussed in the opinion of Sheldon, J., in the court below.
    Defendant’s common council, having such power, resolved that a slip or canal, which was a public highway, was unwholesome by reason of stagnant water and filth therein; and for the purpose of abating the alleged nuisance determined to fill up the same, and proceeded so to do. It appeared that the alleged nuisance had been caused by the failure of the corporation to exercise the power conferred upon it by its charter to preserve the canals and slips in the city by preventing the casting therein of obstructions and filth, and to remove obstructions therefrom; that it was not necessary, for the purpose of .abating the nuisance, to fill up the canal, but that the obstructions could have been removed at a small expense ; and that the filling up was a serious injury to plaintiff’s property. Held, that the filling up of the canal was not a proper exorcise of the power to abate nuisances, and that plaintiff was entitled to enjoin defendants from so doing.
    Appeal from judgment of the General Term of the Superior Court of the city of Buffalo, reversing a judgment in favor of defendants entered upon the decision of the court upon' trial without a jury, and giving judgment absolute for plaintiff.
    This action was brought to restrain defendants from filling up a portion of a canal in the city of Buffalo, known as Prime slip.
    The facts, as found by the court, were substantially as follows:
    In 1826, the owners of a tract of land lying between the Erie canal and the Buffalo river, laid out and excavated through that tract a canal known as Prime slip, of the same depth and width as the Erie canal, and connecting its waters with those of Buffalo harbor. That, shortly thereafter, the said owners conveyed all the lands bounding on said slip to various parties, describing the lands as bounding thereon, and. dedicated it to the use of the public. The plaintiff became seized in fee of one of said lots. The slip was afterward, in 1844, deepened, at the expense of the adjoining owners, and was recognized as a public highway by the city of Buffalo, for many years; and under its direction bridges had been built in the two streets which crossed the slip, the expenses of which had been defrayed by assessments levied chiefly upon the property situated thereon. Since their erection, the portion of the slip between the two bridges had not been as valuable for commercial purposes, and had become unnavigable on account of debris and obstructions thrown therein, which rendered it to some extent unwholesome; but that portion of said slip which was in front of plaintiff’s lot was as valuable as ever for commercial purposes, excepting when temporarily obstructed, and was of great value to the plaintiff and constituted one-third of the value of his lot. For many years this slip was in constant use during the season of navigation as a canal; and while kept at its proper depth, and before it became obstructed, was a valuable and useful highway to the public and the owners of property thereon. The waters of the slip, in consequence of the constant rise and fall of the same, occasioned by the flow of water through it between Buffalo creek and the Erie canal, were never, before they were obstructed as stated, in any degree unwholesome or a public or private nuisance. The obstructions could have been removed and the slip north of the bridge restored to its navigable condition and the alleged nuisance abated, at an expense less than the expense of filling the slip, and without any injurious consequences to the public health. In the westerly half of the slip, in front of plaintiff’s lot, the obstruction could have been removed at an expense not exceeding §100. The city of Buffalo had power by its charter to preserve the cana s and slips in the city, and to prevent the casting or depositing therein of any earth, ashes or heavy substances, or filth, or logs or other floating matter, and to prevent and remove all obstructions therein.
    The provision of the charter of the city of Buffalo and the ordinances under and by virtue of which the defendants sought to justify are, substantially, as follows:
    The charter empowered the common council to abate all nuisances of every description which are or may become injurious to the public health, in any manner that they may deem expedient, and from time to time to do all acts, make all regulations and pass all ordinances which they shall deem necessary or expedient for the preservation of health and the suppression of disease in the city, and to direct the filling up, draining and regulating any grounds, yards or cellars which shall be unwholesome, and cause the abatement of any nuisance produced by stagnant or unwholesome water, either by removing the same or by connecting the same with any neighboring stream or other body of water, so that the same shall be no longer stagnant or unwholesome, etc.
    The ordinance passed in pursuance of the above powers provided that the board of health should have power to abate all nuisances of every description which are or may be injurious to the public health, in any way or manner they may deem expedient.
    It appeared that in July, 1865, the board of health and the committee of the common council on sanitary measures, took some action in reference to the slip in question, and the council, in September thereafter, resolved that the slip was unwholesome, by reason of stagnant water and filth therein, and ordered that the owners of the grounds fronting the same should cause the nuisance to be abated either by filling or dredging; and if not done as prescribed, then it should be dredged or filled at the expense of the city, on account of the owners. That the owners neither dredged nor filled the slip, and thereupon the sanitary committee determined to fill the same; and the street commissioner, under the direction of the common council, contracted the work, and the contractors had entered upon the work.
    
      The court found, upon these facts, that defendants had the right and authority to fill up the slip, and directed a dismissal of the complaint. The General Term reversed that decision and the defendants appeal to this court.
    
      Frank R. Perkins for the appellant.
    The action of the common council, based upon the recommendations of the board of health in abating the nuisance, was within their authority. (Charter, City of Buffalo, of 1853, tit. 9, § 11; 3 Blk. Com., 5, Chitty’s Note; 2 Bouvier’s Institutes, 577, 578; Vanderbilt v. Adams, 7 Cow., 349; Stuyvesant v. Mayor of N. Y., id., 588; 12 Pick. [Mass.], 184; British C. P. Co. v. Meredith, 4 T. R., 433; Tanner v. Trustees of Albion, 5 Hill, 121; Van Wormer v. Mayor, etc., of Albany, 15 Wend., 264; Brick Presb. Church v. Mayor of N. Y., 5 Cow., 538 ; Lansing v. Smith, 8 id., 146; City of Rochester v. Collins, 12 Barb., 559 ; Neil v. Schultz, 33 How., 7.)
    
      E. C. Sprague for the respondents.
    Defendants’ proceedings to fill up the canal were unlawful, because the sanitary committee, and not the common council itself, determined * ** 4 whether it should be dredged or filled. (Thomson v. Schermerhorn, 9 Barb., 152; 2 Seld., 92; Carroll v. Farmers' L. and T. Co., 5 Barb., 613, 649; Baker v. City of Boston, 12 Pick., 193.) The filling up of the canal and its destruction was a taking of private property for an alleged public use, and was unconstitutional. (Const. U. S., 5th amendment; Const, of State of N. Y., art. 1, § 6 ; Yates v. Milwaukee, 10 Wall., 497; Eaton v. B. C. and M. R. R. Co., 51 N. H., 504; Pumpelly v. Green Bay Co., 13 Wall., 166 ; Wyndhammer v. People, 3 Kern., 386, 387, 392, et seq., 396, 398, 401, 433, 439; Rogers v. Barker, 31 Barb., 447; State v. Jersey City, 5 Dutch. [N. J.], 570; Green v. Canaan, 29 Conn., 157; In re Campbell, 41 N. H., 197; Bissell v. N. Y. C. R. R. Co., 23 N. Y., 64, and cases cited; Rolden v. Coldspring, 21 id., 474; McManus v. Butler, 51 Barb., 436; Fonda v. Borsi, 2 Keyes, 48; 3 Kent, 448,449; People
    
    
      v. Suprs. Otsego Co., 51 N. Y., 401.) It was defendants’ duty to remove the obstructions from the canal. (People v. Suprs. of Otsego Co., 51 N. Y., 401; Mayor, etc., of N. Y. v. Furze, 3 Hill, 612; Hutson v. Mayor of N. Y., 5 Seld., 163 ; Grant on Corp., 80 Law Lib., marg. pages 284, 502.) The court will not permit the abatement of a nuisance by the creation of others. (Rex v. Ward, 4 Adol. & El., 384; Rex v. Tindall, 6 id., 143; Rex v. Beits, 16 Q. B., 1022; Phear on Eights of Water, 98 Law Lib., note to page 46; St. John v. City of N. Y., 3 Bos., 483; State v. Jersey City, 5 Dutch. [N. J.], 570.) The power to abate a nuisance must be reasonably exercised. (Hudson v. Thorne, 7 Paige, 261; Colchester v. Brook, 53 E. C. L., 339; Duries v. Petty, 69 id., 275; Wash, on Easements, 583 ; French v. Kirkland, 1 Paige, 117 ; State v. Newark, 4 Dutch. [N. J.], 529 ; Kann v. Baltimore, 15 Md., 240.) The maxim salus populi suprema lex cannot be invoked to protect the defendants. (Peoples v. Corp. of Albany, 11 Wend., 544; Boom v. City of Utica, 2 Barb., 104; Rogers v. Barker, 31 id., 447; Clark v. City of Syracuse, 13 id., 32.) Plaintiff is entitled to the remedy prayed for in his complaint. (People v. Vanderbilt, 28 N. Y., 396; People v. Sturtevant, 2 Seld., 263; Albany R. Co. v. Brownell, 24 N. Y., 345; Griffin v. Marquasdt, 17 id., 28; Lewis v. Mott, 36 id., 395.)
   Rapallo, J.

It being established by the findings of the court at Special Term that it was not necessary for the purpose of abating the alleged nuisance, to fill up the portion of the canal north of Canal street bridge; that such filling up was a serious and unnecessary injury to the plaintiff’s property; that the nuisance liad been caused by the failure of the corporation defendant to exercise the powers conferred upon it by its charter, to preserve the canals and slips in the city by preventing the casting into them of obstructions or filth, and to remove obstructions therefrom, and keep them in navigable condition; and that the obstructions in the canal, north of Canal street, could have been removed at a small expense; we think that the filling up of the canal was not a proper exercise of the power to abate nuisances; and that the conclusions that the defendants had the right to fill up that portion of the canal, and that the plaintiff was not entitled to enjoin them for doing so, and that his complaint should be dismissed, were erroneous, and that the judgment thereon was properly reversed by the court at General Term.

The reasons for this reversal, and the law of the case, are so fully set forth and discussed in the opinion of Sheldon, J., at General Term, that we deem it superfluous to say more than that, after a careful examination, we concur in his conclusions upon the branch of the case to which we have referred.

As no point is made on the part of the appellants with respect to the form of the judgment being an absolute reversal instead of ordering a new trial, the judgment of the General Term should be affirmed, with costs.

All concur.

Judgment affirmed.  