
    Pilcher vs. Hart.
    It would seem that though a man may not wilfully destroy the property of another, although it may he a nuisance, yet he should not be held to so strict an accountability for its unintentional destruction as would be visited upon him for a like destruction of properly in the lawful use and possession of its owner.
    The question as to whether any permanent erection in a navigable stream is a nuisance is a'question of fact for a jury to determine, and would not be a nuisance if the general and public advantages arising from said erection greatly exceeded any slight inconvenience therefrom.
    The fact that the defendant pro.eured his supplies from a wharf-boat previous, to his destruction of it would raise no presumption that he had assented to its unlawful location and erection; and even his assent to the erection of .a nuisance would not take away his right afterwards to abate it if he thought proper.
    Where the jury were called upon to determine whether a wharf-boat permanently erected and fastened in a navigable stream was a nuisance or not, and the court below having charged the jury that the fact that the defendant, vyho had destroyed the wharf-boat as a nuisance, having procured his supplies therefrom previously, could not allege it to be a nuisance and destroy it as such: Held, that although the court should think that the evidence fully authorized the verdict, yet the court could not support it without becoming judges o,f the fact, and shpuld therefore reverse.
    Where there are spverq.1 distinct facts stated in a.special replication to a plea which do not constitute distinct answers to the plea, yet all tend to make ont the defence set up: Held, that the alleging of such facts do not make the replication demurrable for duplicity.
    If there are any facts stated in the replication which do not tend to that point, and are not distinct answers to the plea, they should be disregarded.
    William W. Hart and Royal G. Hart, partners in trade, instituted an action of trespass on the case in the circuit court of Shelby county on the 28th March, 1837, against Mason Pilcher, the captain of the steam-boat Wm. L. Robeson, engaged in the. navigation of the. Mississippi river. The plain tifia were the owners of a wharf-boat permanently, attached to the banks of said river, at the public landing at the town of Memphis. This wharf-boat was engaged in furnishing supplies of provisions, groceries and the like to steam-boats and others, was one hundred and fifty feet Jong and twenty-four feet wide, and its value estimated at from two to four thousand dollar's, and the stores on board at the time of its destruction, hereafter mentioned, at from one thousand to two thousand dollars. The -wharf-boat seemed . to be regarded by the witnesses who testified in this case as furnishing great conveniences to those engaged in the river trade and as presenting but slight obstruction to the navigation of the river. It appeared that Pilcher had been in the habit'of procuring his supplies of provisions from this wharf-boat ns he passed the town of Memphis.
    In the month of December, 1836, the steam-boat Wm. L. Robeson, in landing at the public landing place at Memphis, ran with great violence against the wharf-boat, and sunk it with its stores. There is in-the record a-mass of conflicting testimony with regard to the management of the boat by captain Pilcher at the time of the landing, and upon the situation and condition of the wharf-boat at the same time, which is not necessary to be set forth, and which was submitted to a jury of Shelby county and resulted in a verdiet of four thousand dollars damages for'the plaintiffs.
    The defendant moved the court for a new.trial, which was overruled, and judgment rendered for the plaintiffs on the verdict. The defendant appealed in error to this court.
    The state of the pleadings and the charge of Bárry, presiding judge, are so fully set forth in the opinion of the court as to supersede the necessity of any further statement of them.
    
      Leath, for Pilcher.
    This is a question of right between a boat, used for purposes of navigation in the Mississippi river, andjone denominated a wharf-boat, which is not used for navigation. The plaintiff in this court was, at the time of the sinking of the defendants’ wharf-boat, a common carrier for the public on the waters of the Mississippi river, he being the commander of the steam-boat Wm. L. Robeson, and engaged in navigating the Mississippi river. He was then in the performance of a lawful act, it being an inherent right of all the citizens of Tennessee to use the waters of the Mississippi river for purposes of navigation, Art. 1, sec. 29, Constitution of Tennessee. This important section of the constitution secures to Pilcher the right not only to navigate the Mississippi, river, but to have a free navigation of the same. It is laid down in many authorities, but more partic- • ularly in Abbott-on Shipping, that free navigation means or implies the use not only of the waters of a stream or river but also the use of the banks of the same. The plaintiff in error, then, as the commander of the Wm. L. Robeson, being a steam-boat used for the legitimate purposes of .navigation on the Mississippi river, had a right to the free use of the waters of said river that he might navigate her free of obstructions, and also a right to the free use of both banks of the same that he might land his boat any where or at any point he desired, provided he did not interfere with the rights of those who were equally entitled to the same privilege with himself, being actually like him engaged in navigating the Mississippi river. Had the Harts, as wharf-boatmen, as just a right to use that portion of the waters of said river which their boat occupied, and as just a right to the use of that portion of the bank against which he lay, as the master of the steam-boat Wm. L. Robeson had! The defendants’ wharf-boat was not used for purposes of navigation, the only legitimate use for boats on any navigable stream. It was permanently attached to the shore or bank by cables and timber spars, and that too in a public landing, being in the port of Memphis. It was to all intents and purposes a dwelling house or water domicil, though from the fact that it floated it was called a boat, and because it lay at a wharf it was called a wharf-boat, a mixed term not to be found in any law dictionary or vocabulary, and by which no vessel used for navigation is designated.
    The one party, then, in this court, claims to have been using-a constitutional right at the time the accident occurred, and the other has no such claim, but appeals to the corporate authority of Memphis for his rights and privileges. The Mississippi river being a great public highway (I Hawk. PI. of the Cr. 296,) which the citizens of the United States had a right freely to navigate, was not the wharf-boat or dwelling-house of the defendants a nuisance? A wagoner occupying one side of a public street in the city of Exeter before his warehouse in loading and unloading his wagon, so that both carriages and foot passengers were incommoded by his cumbrous goods lying in the way, was held to be rightly convicted of a common nuisance, although there was room for - carriages and passengers left on the other side of the street. 1 Hawk. PL Cr. 701-3-11: 6 E. R. 427. Was it sufficient for the plaintiff below that he left room for the steam-boat Wm. L. Robeson to pass down or up the river without running against his dwelling? I answer no. It was immaterial to the master, of the Robeson whether the Mississippi river at Memphis is one or a thousand miles wide. His object was not solely to pass down or up without stopping. We know he could have done so without injury to himself or the plaintiffs’ dwelling. Had he passed on without stopping or had he gone over on the other side, to the Arkansas shore, he would not have effected his object, which was to land in the port of Memphis. Had he not a right to do so? Most undoubtedly. Can any portion, however small, of the bank or shore in that port, be permanently used or monopolized by any craft or boat of any description whatever to the entire and perpetual exclusion of navigating vessels? If so, the persons who navigate that great highway have not a right to the free use of all its banks and waters. Had not the plaintiff in this court a right to say to the defendant, “Sir, I want to land my boat in the port of Memphis: I have a right to land at the safest and best point of landing in said port. You are occupying that point or portion of the bank at which it is most convenient for me to land. You have no exclusive right to it. You are not using this highway for purposes of navigation as I am; and if you do not give place I shall land my boat against you, and you, being a trespasser and acting in your own wrong, must take the consequences.” Will this court look at the consequences of establishing a contrary principle? The Mississippi river is already a great public highway, as much so as the streets of our cities. There are perhaps at this moment more than a thousand vessels, of different descriptions, navigating the mighty “Father of Waters.” But the time will come when its free navigation, embracing the free use of its banks, as well as current, will be vastly more important than at present. The great Mississippi Yalley is still in its infancy. If wharf-boatmen, then, are to be put upon an equality with the nav- - igators of the Mississippi, and are not to be viewed as trespassers, acting in their own wrong, and obliged to take the consequences of their hazardous situations, will not every person, wishing to engage in the river trade and to avoid the heavy expense of purchasing lots or land and the trouble of erecting business houses thereon, as well as to get clear of taxes to the State, gradually from time to time abandon their business houses on land and slide into the Mississippi river, and thus, in the course of the next century, block up each bank of that great highway? And if one foot or one inch of the banks of the Mississippi may be thus appropriated by individuals to their own private gain, I can see no reason why the whole of its banks may not be so occupied to the entire exclusion of those who have right to the free use of the same.
    Again: upon the principle that wharf-boats are not nuisances, but are upon an equal footing with steam-boats, the result will be that they will occupy all the good and best landings on the Mississippi, and steamboats* seeing that they are to be held liable for negligence, even of the slightest degree, in landing against them, will refuse to land where they are, and will be thus driven to land at inferior and unsafe landings as best they can. The court below, then, erred in not charging the jury that the plaintiffs’ wharf-boat was a nuisance, inasmuch as it obstructed the free navigation of that part of the Mississippi river embraced in the port of Memphis, and that the replication of a license from the corporation of Memphis 'could avail the plaintiff nothing, as the corporation had no authority to establish a nuisance. The court further erred, as the plaintiff in error insists, in charging the jury that the master of the Wm. L. Robeson acquiesced, by trading with the wharf-boat, in the existence of a nuisance, if the wharf-boat was one, and that having so acquiesced he was. precluded from complaining of her as a nuisance. This is not the language, but the idea of the charge of the judge below. No law can be found to sustain this position.
    For the above errors the demurrer to the plaintiffs’ replication should have been sustained below as well as for the following special causes: first, the replication of the plaintiff below is double and multifarious; secondly, it is uncertain, and thirdly, it is argumentative. 1 Ch. on PI. 260,637, 687: 10 Johnson’s Rep. 289, 400, Rogers vs. Bark: 20 Johns-Rep. 405: 1 East, 217: 10 East, 73.
    
      W. T. Brown, for Hart.
    1. The action of trespass on the case is the proper remedy in this case. The injury resulted from negligence. Williams vs. Holland,.Eng. Com. Rep. vol.25, p. 261: -3 East, 593: 5 Esp. 18: 5 T. R. 648: 1 Esp., 55: 1 Barn, and Ores. 145: 2 Dowl. and R. 256: 3 Camp. 188: 4 Barn, and Ores. 226: 6 Dowl. and R. 275: 5 Car. and P. 375, 407: 10 Bing. 112.-
    2. To maintain the action it is necessary to show that defendant in landing his boat did not use the care and diligence of an ordinarily prudent man, in consequence of which plaintiffs sustained the damage. 1 Esp. R. 535: 2 Stark. Ev. 208: 2 Kent, 600-J: 5 Yerg. 82: 6 Johns. Rep.
    3. In this case the proof is clear that there was gross negligence. Even if it were contradictory, unless the evidence preponderated greatly against the verdict, this court, in conformity to their own decisions, will not disturb the verdict.
    4. But it is insisted that the wharf-boat, lying upon the waters of the Mississippi river, and fastened securely to the river bank under the circumstances described by the witnesses, was a nuisance, and the defendant had a right to abate it.
    A nuisance means annoyance, hurt, inconvenience or damage. 3 Black. 216: 4 Blank. 167. A nuisance to a navigable river is any erection, to wit: a wharf, if it materially injure the passage for boats, or if the wharf.impair the public easement in the stream. 3 Kent, 432: 4 Black. 167. The question whether the wharf-boat did injure the passage or impair the public easement in the river, is altogether a question of fact. 3 Kent, 430: 3 Black. 219: 13 Eng. C. L. Rep. 254: Angel on Tide Waters, 132, 144. All the evidence proves the wharf-boat to have been a great public convenience; therefore, this defence of nuisance must wholly fail, But it is insisted there is error in that part of the opinion where the court charged the jury that if the defendant expressly - or by implication assented to the establishment of the wharf-boat at the place where it lay, he could not defend himself from the consequences of having negligently destroyed it, together with the goods and property on board/by now asserting it to be a nuisance. Whatever it might be, so far as ' the public were concerned, the using the boat as a place of landing and procuring supplies, &c. would raise a presumption of his assent.
    In this charge there is no error. 2 Chit. Black. 5: 2 Salk. R. 458. If there was error in the charge the court would not reverse for the reason that the evidence expressly disproves a nuisance and establishes the fact that the wharf-boat was a great public convenience. The court having charged upon a state of facts which had no existence in the case, even if there was error, this court would not reverse. This point was not raised in the case or thought of by any person except the judge. There is no complaint that the damages are excessive, provided the plaintiffs have shown a cause of action.
    The demurrer to the replication was properly overruled. I Chitty’s PI. 541, 609, 611, 612, 536, 520, 519: 3 Ohittv, 554.
   Green, J.

delivered the opinion of the court.

This is an action of trespass on the case brought by the defendants against the plaintiff in error. The declaration alleges that the plaintiffs below were in possession and the owners of a certain vessel called a wharf-boat, of great value, lying in the Mississippi river at the public landing near the town of Memphis, and that the defendant, then and there being possessed of the steam-boat Wm. L. Robeson, and having said boat under his care and management, took such bad care of his said steam-boat that through his carelessness, mismanagement and misdirection of said steam-boat, she ran foul of and with great violence struck against plaintiffs’ said wharf-boat, whereby she was broke and totally wrecked, and thereby goods, wares and merchandize to a great value were wholly lost, to their damage eight thousand dollars. To fhisdeclar. ation there was a plea of “not guilty” and issue. The cause was tried and a verdict for the plaintiffs was found, which-was set aside and a new trial awarded. The defendant then, by leave of the court, pleaded two additional pleas, which state in substance that the wharf-boat mentioned in the declaration was not built for the purpose of navigating the Mississippi river, but was stationary and used as a dwelling-house and store-house, wherein to retail steam-boat stores, spirits, provisions and merchandize to all 'persons wishing to buy; that the said boat at the time mentioned in the declaration, and for a long time before, had been confined to the east bank of the Mississippi river, opposite the town of Memphis, for the purpose aforesaid; that the bank where said boat was confined had been dedicated by the proprietors and owners of the land to the public as a public landing; that said wharf-boat was of the length of one hundred feet and of the breadth of thirty feet, and was kept confined to said landing by cables and spars permanently for the purpose aforesaid, by means whereof the citizens aforesaid could not pass and repass and navigate with their vessels in and along that side of the river and common highway as they were before used to do, and still of right ought to do, without danger, to the great damage and common nuisance of all citizens navigating said river. And the injury to the said wharf-boat was sustained by reason of its position so unlawfully in the stream, and by reason that the Wm. L. Robeson, without the orders and against the will of the defendant, in attempting to round to to effect a landing above said wharf-boat, was driven up against the plaintiffs’ wharf-boat without any intention of the defendant to injure the said boat of the plaintiffs, and in the exercise of his lawful right to navigate said stream.

To these pleas the plaintiffs replied that said wharf-boat was erected by the license and permission of the corporate authorities of the town of Memphis, and was kept as a wharf-boat for the landing and convenience of loading and unloading steam-boats and other water craft passing up and down, the river; that a bar had formed by the gradual accumulation of alluvial soil on the east side of said river in front of the town of Memphis, extending from the mouth of Wolt river, above said town, to a point below said landing, where said wharf-boat was erected and situate, which obstructed and prevented steam-boats and other large water craft from landing with safety or convenience; that said wharf-boat was fastened and permanently seeured to the bank, and anchored in the edge of the water of said river; was a fine wharf and landing for steam-boats and other craft navigating said river, without which steam-boats could not make a convenient landing at the point where said wharf-boat was fastened; that said wharf-boat did not in the least degree injure the navigation of said river, or obstruct the free passage of steam-boats and other water craft; that said wharf-boat extended no further in the river than to the deep water, or than it ought to go for public convenience, and that the river at that point is one mile wide. The plaintiffs say the defendant, without the cause mentioned in his said pleas, but negligently in landing the Wm. L. Robeson, did commit the injury complained of against him, &c.

To this replication the defendant demurred, and for causes assigned the following: First, that the replication is double; second, it is uncertain; and third, that it is argumentative and contains no traverse to the pleas.

The demurrer was overruled and the cause was tried before a jury, who rendered a verdict for the plaintiffs of four thousand dollars. A motion was made for a new trial and overruled, and an appeal in error prosecuted to this court.

It is insisted by the defendant’s counsel that the plaintiffs’ wharf-boat which was destroyed was a nuisance, and that the defendant was not bound to take the same care to prevent his boat from running foul of and destroying it that he would have been required to take' to prevent a like destruction of other water craft lawfully in the river.

This question is made in the defendant’s second and’third pleas, and had issue been taken on them there would have been some difficulty in its decision. There is, so far as we are advised, an entire absence of authority upon the point, but upon principle it would seem that though a man may pot willfully destroy the property of another, although it be a nuisance, yet he should not be held to so strict an accountability for its unintentional destruction as would be visited upon him for a like destruction of property in the lawful use and possession of its owner. But the replication of the plaintiffs avoids this issue and alleges that his wharf-boat was not a nuisance; because although it was in the Mississippi river, yet it did not obstruct the navigation thereof, but on the contrary was of great use and benefit to said navigation by furnishing the means of landing and loading and unloading steam-boats and other water craft at Memphis, when, by reason of a sand bar at said landing, steam-boats could not conveniently land.

The question is thus raised whether the plaintiffs’ wharf-boat was a nuisance or not. A nuisance is any annoyance, hurt, inconvenience or damage. 3 Bl. Com. 216: 4B1. Com. 167. The erection of a wharf-boat would often become a nuisance if it were not for the countervailing benefits afforded by it; for if it essentially impair the public easement in a stream it is a nuisance. 3 Kent’s Com. 332. But whether the erection of a wharf-boat be a nuisance or not, is a question of fact which must be left to the jury. 3 Kent, 430: The King vs. Russell, 6 Barn, and Cress. 566: 13 E. C. L. R. 254. For if the navigation be not impeded by such erection it can be no injury to the public, and therefore would not be a nuisance. So if the public advantage greatly overbalance any slight inconvenience that may be produced, it is no nuisance. Ang. on Tide Water, 129, et seq. 13 Eng. Common Law Rep. 254. In the case of The King vs. Russell (L. Barn. and Cress. 566,) it appeared the defendants were the owners and occupiers of a coal mine at Wall’s End, on the north side of the river Tyne. For the purpose of shipping their coals they had caused to be erected two staiths. These erections consist of piles (technically called geers) driven into the bed of the river, on the top of which a platform or rail-way is" laid. The coal wagons pass along this rail-way, aná at the end are lowered by means of a machine called a drop, into the hold of the vessel. The coal is there deposited and the wagons raised up again by the 'machine and placed on the rail-way. One of these staiths extended nearly one hundred and fifty feet and the other one hundred and thirty feet from high water mark into the river, and each of them extended a few feet beyond low water mark. The drops when let down extended forty feet further, and ships when taking in their cargoes were, obliged to lie at that distance from the staiths; but the drops when drawn up did not occasion any obstruction to the navigation. When ships are not laden at staiths the coal is first taken on board of small craft called keels, and cast by hand from the keels into the ships. When ships are laden in this manner they generally have a keel lying at each side, and they occupy a greater space in the river than when laden by means of the staiths and drops, and their cargoes cannot be put on board in less than double the time. The expense of shipping coal in this manner is greater and the coal is in worse condition than when shipped by means of the staiths. It was proved that the staiths indicted occasioned, at particular times of tide, a considerable obstruction to small craft navigating against the stream, and for some time before and after high water occupied a considerable space which would otherwise be navigable by large vessels; but if there were no staiths the number of keels used on the Tyne would be greatly increased, and the river would be very much crowded with them.

Holroyd, J. said: “Ships must lie, if not at the staiths, in /the channel of the river with their loading keels. So in other trades the ships lie at the wharfs or elsewhere in the river or port to load and unload, and their obstruction to others is lor is not, as well as the erection of the wharf itself, a nuisance to the navigation, in like manner as the staiths or geers themselves, in the coal trade, are or are not nuisances according to circumstances. Whether they are so or not is dependent upon circumstances, and it is therefore, according to Lord Hale, a question of fact for the jury.” As the jury had found that these staiths were no nuisance a new trial was refused.

This case is much stronger than the one now before the court. The staiths were erected for the private benefit of the owner, and actually obstructed to some extent the navigation of the river, but they were of great public benefit and therefore were no nuisance.

In this case the replication alleges that the navigation of the river is not obstructed, and that although the wharf-boat was erected for the private benefit of the owners, yet the public advantage was greatly promoted. When a great public benefit results from the abridgment of the right of passage, the great public benefit mates that abridgment no nuisance. It was therefore a question for the jury to say from the facts of the case, first, whether there was any abridgment of the right of navigating the Mississippi river by the erection of this wharf-boat; and if there was such abridgment, whether there was such public benefit as to constitute that .abridgment no nuisance. We think the evidence supports the replication, and had the charge of the court been unexceptionable would have justified the jury in finding the verdict they have rendered in the cause. But we think his honor misdirected the jury in that part of the charge in which he says that “if the defendant expressly or by implication assented to the establishment of the boat at the place where it lay, he could not defend himself from the consequences of having negligently destroyed it together with the goods and property on board, by now asserting it to be a nuisance, whatever it might be so far as the public was concerned. His using the boat as a place of landing and procuring supplies, &c. would raise a' presumption of his assent.”

*We do not think that the assent of the defendant to the erection of a nuisance in the river would take away his right to abate it afterwards if he thought proper. And it was certainly going too far to say that his landing at and procuring supplies from this wharf-boat raised a presumption that he had assented to its unlawful erection. But it is said this charge was uncalled for, and that the evidence would have authorized the verdict if it had not been given, and therefore the court should not reverse the judgment. This is not the character of cases for the application of the principle here contended for. In this case the question of nuisance or no nuisance is an inquiry for the jury. They must find from the proof what is the fact. But we cannot know - whether they considered or acted on the evidence in relation to that question; certainly upon the charge above quoted they would have been authorized to find the same verdict by finding the fact that the defendant had “landed at this boat and procured supplies.” It may be, therefore, that the jury were misled by the charge of the court, and that they did not consider the evidence in reference to the true issue; and this was most probably the case*, as it would have shortened and greatly simplified their investigation. Although, therefore, we think the evidence would have justified the verdict, still we cannot support it without ourselves becoming judges of the fact.

As to the special causes of demurrer to the replication, it may be observed that there is no duplicity in it. For although there are several distinct facts stated, yet they do not constitute distinct- answers to the pleas, but all tend to show that although the boat was in the river as stated in the pleas, yet it was there under such circumstances as showed it to be no nuisance. But if there are any facts that do not tend to that point, (such as the corporation license, &c.) they are not answers to the pleas, and therefore are to be disregarded. We think the replication is well pleaded, and that the demurrer was properly overruled. I Chitty, 556-7, 501-2.

Let the judgment be reversed and the cause remanded for another trial.  