
    Gold et als. vs. Carter.
    Every erection in a stream declared navigable by law, which injures the navigation of such stream, is a nuisance; and no amount of collateral benefit resulting from such erection to the local community can divest it of such character.
    Trespass on the case in the Circuit Court of Smith county by Moore, Thomas, and Gold, against Carter. The declaration averred that the Cumberland river ran through the county of Smith; that it was a common and public highway for all citizens of the State to pass and repass with all kinds of boats at their pleasure; that the defendant had erected in the said river a floating mill, which greatly impeded its navigation; that the plaintiffs were passing down said river, navigating a flat-bottomed boat, loaded with corn which belonged to them, and that said boat was by the force of the current driven against the mill, and so shattered by the collision, that it with the load sunk, and was lost to the plaintiffs.
    There was a plea of not guilty to this declaration, and an issue thereupon was submitted to a jury by the presiding judge (Turner,) at the March term, 1848.
    It appeared in evidence that the legislature passed a law empowering the County Court of Smith county to grant to any person or persons the privilege of placing any abutment, or abutments, upon either bank of Cumberland river, for the purpose of erecting any mill under such rules, regulations, and restrictions as the court might think proper; provided the erection of any such abutment or mill shall not, in any wise, obstruct the navigation of such stream; that Carter petitioned the County Court to grant him the privilege to erect such mill; that the County Court appointed commissioners, who reported that a mill could be erected at the place designed by Carter, without obstructing the navigation of the river; that Carter thereupon erected a floating mill, the abutment and timbers of which extended some forty feet into the river. It further appeared that plaintiffs were the owners of a flat-bottomed boat, loaded with corn, which, under the control of skilful boatmen, was floating down the river, and was carried by the force of the, current against the structure, and was thereby shattered, só that it sunk to the bottom of the river in a few minutes, and was lost to the owners.
    There was much testimony in regard to the injury done to the navigation of the stream, the preponderance of which was, that it was serious, and rendered the navigation of the river dangerous in low water.
    It appeared also that the mill was decidedly beneficial to the inhabitants, who resided within its vicinity, and the source almost exclusively from which they obtained their supplies of ground grain during a considerable portion of the year.
    The judge charged the jury as follows: “ This is an action brought by the plaintiff to recover damages for an alleged loss of a flat-boat and, cargo, in descending the Cumberland river. It is alleged by the plaintiffs that in descending the river their boat came in contact with a mill erected in said river, which they allege was placed there by defendant. Defendant, on his part, admits that he erected the mill, under an order of the County Court of Smith, and in pursuance of law, and that the erection of the mill was rightful; and that the question, whether he is liable in damages cannot now arise inasmuch as he acted by virtue oí the authority of the County Court. The court states to you of the 'jury, that if it should turn out from the testimony in the cause, that the erection of the mill amounted to a nuisance, then the plaintiffs would •not be concluded by any order or action of the County Court] but that the defendant would be liable to the plaintiffs for the value of the boat and cargo, provided that certain other things concur and exist, which the court will explain to you. A nuisance is any hurt, damage inconvenience, or annoyance. You will, then, determine whether the mill erected in the river is any annoyance, hurt, or inconvenience to the navigation of the river. If it is, and no countervailing benefits result to the public from the erection and use of the mill, then such obstruction would be a nuisance, but if the erection of the mill does not injure the navigation of the river, then it does not amount to a nuisance, and because the public would not be thereby injured or inconvenienced; and so, if the public advantage from the erection and use of the mill overbalanced any slight inconvenience that may be occasioned by the erection of the mill, then it would be no nuisance. A great deal of testimdny has been introduced in relation to channels, and the proper channel to be run by flat-boats. The law appropriates the whole of the river to the purposes of navigation, and it does not make any difference in what part of the river the obstruction is placed, (to be sure, an obstruction placed immediately in the channel of the river, would be a nuisance of a more aggravated character than if placed in some part or point where boats less frequently run,) provided, it is in some point or part of the river where boats and other water craft may be obstructed thereby. Then it follows that a nuisance may be created' by obstructing other parts of the river as well as the channel. Then, gentlemen, the court will leave it to you to say, from the facts in the case, whether the erection of the mill by Carter, the defendant, is an obstruction of the navigation of the river. Is .it any annoyance or obstruction to the navigation of the river? and if such obstruction arid annoyance do exist, you will then say whether there was such public benefit and advantage resulting from the use of the mill, as to countervail the obstruction and annoyance. It is no nuisance, where the countervailing benefits to the public from the use of the mill, are greater than the obstruction was injurious. These issues are for you to determine from the testimony. If you should determine from the testimony that the erection of the mill in the river is not a nuisance, then the plaintiffs would have no right to recover. But, if you should determine that it is a nuisance, then the plaintiffs would be entitled to recover, ■ provided they have shown from the testimony in the cause that, in descending the river, they, their agents, or servants, used such ordinary care and attention as an ordinarily prudent man would use in the management of his own business. Common prudence and care would be sufficient; and the same degree of care would be sufficient in the selection of the bo at, oars, and other apparatus: and steersmen of that description and kind that an ordinarily prudent man would be willing to entrust his goods to, would be sufficient. Neither the boat, the hands, nor the oars, are required to be of the first class. It is enough if they are ordinarily good, and such as are commonly used for the freighting and shipping of produce. If you shall be of opinion that the plaintiffs are entitled to recover, then you will give them such damages as they may have shown you they have sustained. The measure of damage is what the produce lost was worth at the place where the wreck happened, or at the nearest market thereto.”
    There was a verdict and judgment rendered for the defendant, from which the plaintiffs appealed.
    
      
      Meigs, for the plaintiffs.
    The defendant rested his defence upon two grounds:
    1. He was authorized by the County Court of Smith, under' the act of 1837-8, ch. 213, to erect the mill, against which the plaintiff’s boat was wrecked.
    1. To this we answer, that the act does not authorize the construction of a floating mill on pirogues, or keels, anchored in the stream, or cabled to the bank, and projecting into the stream, so as, in anywise, to obstruct the navigation.
    II. But if it did, the law is not constitutional, because it affects to empower the County Court of Smith to grant a privilege which cannot be granted by any other County Court through whose county the Cumberland river flows.
    And because it assumes the control of a highway that •does not belong exclusively to Tennessee, but which has been declared to be forever common and free by paramount law. See ordinance of 1789, sec. 4, art. 4; Deed of Cession by North Carolina to the United States, condition 4.
    2. The second ground of the defence was, that this mill was no nuisance, although it impeded the navigation, because the inconvenience suffered by. the navigating public from the mill was overbalanced or neutralized by the convenience of the mill to the milling public.
    And the Circuit Court admitted this defence by stating the law of Tennessee to be as follows:
    If a mill erected in a navigable river is an annoyance, hurt, or inconvenience to the navigation, and no countervailing benefit results to the public from the erection and use of the mill, — then it would be a nuisance. But, if the public advantage from the erection and use of the mill overbalances any slight inconvenience that may be occasioned by the erection of the mill, — then it would be no nuisance.
    This charge was based upon the supposed authority of Pilcher vs. Hart, 1 Hum., 524-58(5. But we answer, that it is doing violence to that case to c.ite it as authority for the judge’s charge in this case; because, in that case, the alleged nuisance was justified, on the ground that it was a convenience to the navigating public, greatly overbalancing any inconvenience it might offer to the same public.
    And, in this view, the case is consistent with the following cases: Commonwealth vs. Wright, 3 Am. Jurist, 185; Rex vs. Grosvener, 2 Stark. 511,‘in 3 Eng. Com. L. R., 453: The King vs. Ward, 4 Adol. & Ellis 384, in 31 Eng. Com. L. R., 92 ; Commonwealth vs. Fleming, Lewis’Criminal Law, 533-5; — which establish this rule, that no erection or work can be placed in a navigable river- below low water mark, which impairs its navigation, except such erection or work as may be found by a jury to offer to the navigating public advantages in navigation countervailing the disadvantages of such work or erection to the navigation.
    Which rule exactly coincides with what is laid down by the Roman law upon the point, in the Digest, 43,12, where the Prmtor’s Interdict and the commentary upon it are given.
    The Interdict prohibits any work or erection in a public river, or on its banks, whereby it may be or become deteriorated for anchorage or navigation.
    The commentary says that, by public river is meant only such rivers as are navigable; that every work or erection in such river or on its banks is not prohibited, but only those that deteriorate it for' anchorage or navigation ; which takes place whenever the use of the stream is impaired, — or is partially or altogether taken away. And this may happen when the stream is lessened by diverting the water into another channel; or when it is widened, so that the water by being diffused becomes shallow; or where it is narrowed, so as to become rapid; or where any other thing is done, which incommodes the navigation, renders it more difficult, or, in a word, impedes it.
    Caruthers, for the defendant.
    Exception is taken to the charge of the circuit judge on this point. He said that the jury might look to the public benefit of the mill to the neighborhood, and if the same was sufficiently great to counterbalance the inconvenience to navigators, then it was no nuisance. I insist that this is the law.
    The case of Rex vs. Russell, 6 Barn. & Cress., 586, 13 Com. L. R., 254, seéms to me to settle the question fully. There the decision is put upon the ground expressly that the abridgment of the right of passage conferred a benefit upon the public by making coal cheaper and of a better quality. The benefit need not be confined to navigators, or the navigating interest, as it is argued it must be by the other side, but even the reduction of the price of coal to the people of London, in the case referred to, was determined to be a sufficient defence to the charge of nuisance. Now, I am not able to distinguish that case from the one now before the court; the principle must be the same.
    It is not every slight obstruction of the navigation that amounts to a nuisance. Here there was room enough left for boats to pass, with anything like good management. As a proof of it, thousands had passed safely before on this and the other side of the island. But, even if this were a nuisance, the plaintiff could not recover if the injury could have been avoided by ordinary skill and prudence, or if it were occasioned by want of skill or neglect. Bacon Ab., title Nuisance.
    The use of a public stream is not for the right of passage only, but for many other purposes. These may narrow the rights of passage to those parts which may not be requisite for greater and more beneficial purposes. 13 Com. L. R., 266.
    It is no objection to the application of this principle that the obstruction confers a private benefit on an individual, provided the public benefit also results as a consequence. This last saves the erection from the character of a nuisance. Ib.
    
    The principles above contended for as being established in the case of the King vs. Russell and others, .in 13 Com. L. R., are fully sustained, and the principles adopted in the case of Hart vs. Pilcher, 1 Hump., 530.
    In this case, in the absence of all. other grounds of defence, the defendant could safely rely upon the action and authority of the County Court of Smith, under the act of the Legislature.
    
      Guild, for the plaintiffs.
    The defendant, Carter, placed his mill, resting on a large pirogue, in the main channel of the Cumberland. The current ran directly under the mill. This was a material obstruction of the navigation of the river, a nuisance ; and the boat of the plaintiff, having been forced by the current against the structure, and thereby sunk, the defendant, it is insisted, is responsible for the value of the boat and cargo.
    The circuit judge certainly erred,' when he charged the jury, that they may look to the evidence showing a neighborhood advantage unconnected with the navigation, of the river, to counterbalance the hinderance or disadvantage the mill was to the navigation of the river; and if those advantages were greater than the disadvantages, the mill was no nuisance, and the owner consequently not liable for damages. The case of Pilcher vs. Hart, 1 Hum. 524, does not go to this extent. The opinion of the court in that case had reference to advantages resulting directly to the navigation of the stream, and which were detailed in the replication, which alleges that the wharf boat (the alleged obstruction,) was of great use and benefit to the navigation of the Mississippi, by furnishing the means of landing and loading and unloading steam-boats and other water-craft, at Memphis. The court says in that case, 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. The court of course had reference to the countervailing benefits existing-in the case under consideration, which were confined to- or intimately connected with the navigation of the Mississippi. They refer to the case of King vs. Russell, decided in 1827. The advantages existing in that case,, resulted from the greater convenience in loading and unloading the ships from the staiths, resting in geers on the river Tyne, and consequently connected with the navigation of that river. Holroyd, J., in giving his opinion in that case, refers to the former mode of loading ships with coal by keels, which was an obstruction to the navigation and says: “that the evidence on the part oí the defendants was to show that the mode of loading the ships by the geers in question was less an obstruction to the navigation, and was more beneficial to the public, and therefore was not subject to indictment.” Baily, J., after referring to the advantages, likewise refers to the coal being less damaged by this mode of loading, and the market price at the point to which it was taken, being increased. Well, that is an advantage not so intimately connected with the navigation as the advantages of loading and unloading the ships — but certainly connected with the navigation of the river, as it would increase the demand for and consumption of the coal, and consequently increase the navigation of the river Tyne, and promote the interest . of those navigating it. This case is reviewed by the same court in the year 1836, in the case of King vs. Ward, and Denman, C. J., says: “ that that case shows that the advantages gained ought to be closely connected with the inconvenience resulting, or rather with that which would have been air inconvenience, if it was not absorbed in the superior advantage;” and he very ■properly says: “ that if the violation of rights, which belong to any part of the public, is to be vindicated, by the benefit which may arise- to another part of the public elsewhere, we are introducing enquiries of a most vague and unsatisfactory nature, and entering into speculations upon which no jury can be expected properly to decide,” 4 A. and E., 384. No case can be found in the books .sustaining the Circuit Judge’s charge in this case. The case of Russell does not go to that extent, and that case is overruled by Ward’s case.
    Upon principle, the advantages resulting must be ■connected with the inconvenience caused in order to coun-terbalanee it — t.o do which, those advantages must promote rather than retard the navigation. For the right of one portion of the community cannot be abridged or destroyed in order that a distinct and disconnected portion of the community may, in other respects, be benefited. If this doctrine shall prevail, a fixed constitutional right to navigate the Cumberland may be taken from one portion of the citizens of the United States; provided a greater portion of other citizens may be greatly benefited in other respects. A dam may be erected across the Cumberland, and greatly obstruct or destroy the navigation. This dam may present a great water power to manufacturers, may develope the resources and greatly promote the wealth and power of the community — disconnected ■with the navigation of the river. Yet, if a jury shall believe that it is better for the community to possess the water power and manufactures, than the navigation, the erection is no nuisance, and this constitutional right is thus thwarted by these collateral advantages disconnected with the navigation of the river. This cannot be the law. The defendant’s mill, in dry seasons, when other streams were low, ground much corn and wheat for the neighbors. Is it this kind of advantage to the community that is to justify this serious obstruction of the navigation of the Cumberland? If it is then we destroy the navigation of this valuable stream. The river will become studded with these floating mills. The flat-bottomed boats, bearing the corn, tobacco, and produce of the country, ■ very unmanageable, will come in collision with them at every island or dangerous place in the river. If they shall be wrecked, and cargo lost, as will frequently be the case; if the injured party appeal to the law, he must commence his action where the defendant resides — where he is to be found — a jury is to be selected from the neighborhood of the mills, and interested in those mills. It will be no difficult matter to satisfy them that the advantages resulting to themselves and the local community of which they form a part, greatly counterbalance the inconvenience resulting to those at a distance, engaged in the navigation of the stream. The great and paramount interest of the country, the exportation of its bulky produce to foreign and domestic markets will be retarded, endangered, and destroyed; the administration of the law will be placed, not on a steady, permanent, and fixed basis, on which all can repose with safety, but on a fluctuating and arbitrary balance of advantages and disadvantages; by which one portion of the State is sacrificed for the benefit of another — and the question of constitutional right, will rest for its vindication on the arbitrary discretion of prejudiced and interested jurors.
    He contended that such could not be the law; that it was not sustained by either reason or authority, and that the plaintiffs were entitled to a. new trial.
   McKinney, J.

delivered the opinion of the court.

In respect to the true application and extent of the principle upon which this case was placed, by the Circuit Judge, in his instructions to the jury, viz, the principle of compensation for nuisance, as it is denominated, in .some of the cases, there is, in the books, at least an apparent disagreement.

The case of the King vs. Ward, 4 Adol. and Ellis’ Rep., 384, (31 Eng. Com. Law Rep., 92) is relied upon, with other cases, of. similar import, to maintain the proposition, that every structure or erection in a river declared navigable by law, not of a character to improve or facilitate the navigation, is, in law, a nuisance, and that collateral benefits resulting to the public, or to a different part of the public, from such erection, will not divest it of the character of a nuisance; that the countervailing benefit, sufficient for that purpose, must be to the public, or that portion of it engaged in the navigation of the stream; or, in other words, that the public have been more benefited than injured in the ordinary and legitimate uses of fhe stream. See also 9 Wend., 571; 1 Dallas’ Rep., 150.

On the other hand, the case of the King vs. Russell, 6 Barn. & Cress., 566, (13 Eng. Com. Law Rep., 254) is supposed to be an authority to support the doctrine, that an abridgement of the right of navigation, or passage, may be justified, if the erection be productive of a greater public benefit: or, even, if the benefit conferred upon a different part of the public, be greater, in degree, than the injury done to that part engaged in navigation.

This case does not require that we should attempt to reconcile the cases upon this subject: neither does it require that we should lay down what might be deemed the correct principle in such cases, did our views altogether coincide upon that point.

For all the purposes of the present case, it is sufficient to hold, as we all do, that, whatever may be the correct principle, it manifestly has no sort of application to the facts of this case, and was wholly misapplied by his Honor, the Circuit Judge; It is clear, that no amount of benefit conferred upon an indefinite number of private individuals, or upon a local community, can be admitted to countervail the public injury, and inconvenience resulting from the obstruction of a navigable river.

The Circuit Court, therefore, erred in admitting evidence of the supposed public benefit, as it is called, derived from the use of the defendant’s floating mill; and, also, in submitting it to the jury to determine whether such benefit, countervailed the injury to the public, occasioned by the obstruction of the navigation.

Upon this ground, the judgment will be reversed, and the case be remanded for a new trial.  