Bagwell, John C.

English

University of Kentucky

Kentucky Law JournalVolume 20 | Issue 2 Article 71932The Criminal Jurisdiction of Equity--Purpresturesand Other Public Nuisances Affecting Health andSafetyJohn C. BagwellFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Criminal Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationBagwell, John C. (1932) "The Criminal Jurisdiction of Equity--Purprestures and Other Public Nuisances Affecting Health and Safety,"Kentucky Law Journal: Vol. 20 : Iss. 2 , Article 7.Available at: https://uknowledge.uky.edu/klj/vol20/iss2/7THE CRIM1INAL JURISDICTION OF EQUITY-PURPRES-TURES AND OTHER PUBLIC NUISANCESAFFECTING HEALTH AND SAFETY*The function of a court of equity is not to protect the publicagainst crimes.' On the contrary, the foundation of equityjurisdiction is in the enforcement of the civil law.2 At one periodin English history, from the reign of Richard II to the end of thefiteenth century, equity played an important role in the enforce-ment of the criminal law, but this need vanished with the years.However, in view of jurisdiction to protect the person anaproperty of an individual from irreparable injury, equity willnot fail to intervene simply because the act may also 'be a crime.3In other words, equity may protect at the same time both publicand private rights.It is the purpose of this paper to examine some instanceswhere equity has gone beyond the pale of civil rights and pro-tected the public rights of the community. This involves a studyof equity intervention in purprestures and other public nui-sances affecting the health and safety of the people. A publicnuisance is a crime at common law, subject to indictment andpunishment by the state.4 This paper will, therefore, attempt toshow, in a limited group of eases, equity enforcing the criminallaw.*This is the second of a series of notes on "The Use of the Injunc-tion to Prevent Crime". The first appeared in the November, 1931,issue.The following authorities will aid in a study of this problem:Mack, Revival of Crim. Eq., 16 Harv. L. Rev. 389; Chafee, The Progressof the Law, 34 Harv. L. R. 388; Shabaz, The Historical Development oftile Power of Equity Courts to Enjoin Nuisances, 11 Marq. L. R. 32-8;Schofield, Equity Jurisdiction to Abate and Enjoin Illegal Saloons asPublic Nuisances, 8 Ill. L. R. 19; Pound, Injunction Against LiquorNuisances, 9 Har. L. R. 521; Walsh, Equitable Relief Against Nuisance,7 N. Y. U. L. R. 352, 374; Walsh, Equity, pp. 197, 201; Clark, Equity,Sees. 222 and 223; Chafee, Cases on Equitable Relief Against Torts,pp. 438-440; Pomeroy, Eq. Jurisp., sec. 1893; Durfee, Cases on Equity,p. 592; Summary Abatement of Nuisances, 2 Col. L. R. 203; 20 R. C. L.385; 69 Am. St. Rep. 271.'Attorney General v. Utica Ins. Co., 2 Johns. Ch. 370.$Mack, Revival of Criminal Eq., 16 Harv. L. Rev. 389.'Ibid, P. 392.' Clark and Marshall on Crimes, sec. 446.KENTUCKY LAw JOURNALThe problem will be divided into two parts; (1) Historicalreview of public nuisance cases; and (2) basis of equity juris-diction.(1) Historical Development of Equitable Intervention inPublic Nuisance Cases.(A) Purprestures and other public nuisancesaffecting health and safety.The first instance of an injunction against a public nuisanceappears in 1587 in Bond's Case.5 In that case a tenant wasrestrained from -building and maintaining a pigeon-house on theground that such would be a common nuisance. In the case ofBaines v. Baker,8 the plaintiff tried to get an injunction againstthe building of a smallpox hospital. Lord Hardwicke deniedthe injunction, saying if it were any kind of nuisance it waspublic, and if it were a public nuisance the action should havebeen brought on information in the name of the attorneygeneral.7 These two cases show equity intervening where awrong has been done to the public. The wrong is principallyone of menacing the health and safety of the King's subjects.In Attorney General v. Richards,s the complaint alleged thatdefendants had erected a wharf, docks, and other buildingsbetween high and low water mark in Porstmouth harbor so as toprevent the vessels from sailing or mooring there, and toendanger the harbor by preventing the current from carryingoff the mud. The information prayed for an injunction torestrain further building and an abatement of the present struc--tures. The relief was granted on the ground that "where theking claims and proves a right to the soil, where a purprestureand nuisance have been committed, he may have a decree toabate it." Here, then, is a case where equity protected theCrown and the public from unlawful obstruction of navigation.The encroachment on the Crown's soil amounts.to a purpresture,while the accompanying interference of the public rights to usethe soil amounts to a public nuisance. 95Moore, 238 No. 372.:l Amb. 158 (1752).'Some doubt has been expressed as to whether he meant an in-formation in Chancery.82 Anstr. 603 (1795).A purpresture is not necessarily a public nuisance, for to havethe latter there must be something which subjects the public to somedegree of inconvenience or annoyance. Take the case where a part ofCRIMINAL JURISDICTION OF EQUITYIn most cases a purpresture is both a purpresture and apublic nuisance. There is, in other words, some infringement ofthe public rights by virtue of the encroachment upon theproperty held by the state (or crown) for the public enjoy-ment.10In State v. Goodnight," the defendant enclosed publicschool lands for the purpose of pasturing cattle. It was allegedthat such enclosure prevented the use of the land by the peopleof the state for grazing cattle, and interfered with public travelgenerally. The, Court declared the enclosure to he both a pur-presture and a public nuisance, and subject to a mandatoryinjunction to compel the defendant to remove such structuresand refrain from erecting any more. The Court went on to saythat even though public nuisances were indictable at commonlaw, yet they were at the same time subject to an injunction.In Hibbard v. City of Chicago,'2 the plaintiff sought toenjoin the city from taking down an awning erected over a streetin the city. The Court ruled that the permission given by thecity was a mere license, revocable at any time, and that thepermanent structure on the street was a purpresture and apublic nuisance and could not be maintained.In People v. Vanderbilt,13 an injunction was asked torestrain defendant from proceeding with the erection of a pierin the New York harbor on the ground that it was an obstructionto navigation and thereby a public nuisance. The Court heldthe act a purpresture and a public nuisance, and issued aninjunction.Equity, in abating and enjoining structures on land held bythe state or crown for the public, such structures amounting topublic nuisances, has gone over into the domain of public rights.Or, in other words, equity is enforcing the criminal law. Perhapsit is better to say that equity never ceased to assert its right tothe land appropriated for a highway is enclosed, but it happens to be apart which the public never uses. Such an act would be unlawful andcould be abated and enjoined as a purpresture, but it would not be apublic nuisance. Attorney General v. Evart Booming Co., 34 Mich. 462,473. Some cases deny relief where there is a purpresture and no publicnuisance. People v. Davidson, 30 Cal. 379; People v. Monld, 55 N. Y.Sup. 453. Other cases grant relief under like circumstances. Revell v.People, 177 Ill. 468, 479; Attorney General v. Smith, 109 Wis. 532.Co mmissioners v. Long, 1 Parson's Cases 143.70 Tex. 682, 11 S. W. 119.2173 Inl. 91; 50 S. E. 256.126 N. Y. Rep. 287.KENTUCKY LAw JouRNALprotect property, even if the act also constituted a crime.1 4Chancellor Kent,' 5 commenting on Attorney General v. RBichards,says that the precedents cited there show that equity jurisdictionin public nuisance cases lay dormant for a century and a half,or from the time of Charles I until 1795. The reluctance ofequity to enjoin public nuisances shows that the court sensed aninvasion of none too safe a ground. This reluctance continuedafter 1795,16 and was as characteristic of early American judgesas it was of the English judiciary.'7The jurisdiction of equity in public nuisances is nowdefinitely settled. A state may intervene to prevent obstructionsto highways and to navigation, and to enjoin businessesinjuriously affecting the health and safety of the community.The first clear case, other than purpresture, of an injunction atthe suit of the state against a public nuisance appears inAttorney General v. H'unter.'8 The defendant was maintaininga mill pond near the city of Raleigh. The complaint allegedthat such was destructive to the health and comfort of the citi-zens of Raleigh, and asked that the defendant be restrainedfrom continuing the pond. The court declared the pond a publicnuisance and granted the injunction. Equity goes a step furtherhere to prevent a crime. Not only must the individual be pro-Itected in his right to use property held by the state for itssubjects, but his health and safety will be protected where theinjury results from a public nuisance.In Attorney General v. Steward and Taylor,'9 an injunctionwas asked to prevent defendants from building a slaughterhouse in the city, on the ground that it would be a nuisanceinjurious to the health of the citizens, and render the enjoymentof life physically uncomfortable. An injunction against thebuilding of the house was refused, since it appeared that thedefendants intended to carry on the business so as not to con-stitute a nuisance, but the defendants were enjoined frompolluting a nearby stream, as this would constitute a nuisance'1 Mack, Revival of Criminal Eq., 389, 392.uSupra, Nofe 1.'6MaVor v. Bolt, 5 Ves. 129 (1799); Atty. Gen. v. Cleaver, 18 Ves.210 (1811)."7 Kent, C., in Atty. Gen. v. Utica Ins. Co., supra, note 1; Henderson,J., Atty Gen. v. Hunter, 1 Dev. Eq. 12 (1826); Parker, C. J., CharlesRiver Bridge v. Warren Bridge, 6 Pick. 376, 398 (1828)."Supra, note 17; Durfee, Cases on Equity, p. 591.1,21 N. J. Eq. 415.CRIMINAL JURISDICTION OP EQUITYinjurious to the health of the community. Thus, equity not onlystops a crime which is already in existence, but will also preventthe commission of one.In Attorney General v. Patterson,20 an injunction wasasked to restrain the town from discharging sewage into astream to the detriment of the health and comfort of peopleliving along the stream. The Court granted the injunction. Thewrongful act constituted a public nuisance.These cases serve to illustrate the role which equity is play-ing in the protection of public health and safety. The cases aretoday so numerous until equity jurisdiction of public nuisancesaffecting the health and safety of the community is no longer aquestion of doubt.20aA review of the cases shows that equity jurisdiction is notlimited to the protection of private rights. Public rights areprotected where the infringement amounts to a public nuisance.Though equity is not a court of criminal jurisdiction, it takesover such jurisdiction in enjoining public nuisances. The nextquestion which arises is: What is the basis of jurisdiction whenequity invades the field of criminal law? Is there some propertyright to protect? Is the remedy at law inadequate? Otherquestions of like nature suggest themselves once the problem isstated.(2) Basis of Jurisdiction.(A) What is the basis of jurisdiction in purpresturecases which are at the same time public nui-sances?In the early case of Attorney General v. Richards,21 it wasargued that the wharves upon the space between the high- andlow-water mark were both a purpresture and a nuisance, theformer an encroachment upon the King's jus privatum to thesoil, and the latter an interference with the jus publicum of freenavigation. But the basis of the jurisdiction in this case isrecited in the following quotation from it: " where258 N. J. Eq. 1; 42 Atl. 749.2'aAtty. Gen. v. Jamaica Pond Aqueduct, 133 Mass. 361 (1884);.Peop7e v. White Lead Wks., 82 Mich. 471 (1890); 46 N. W. 735; Coum-bus v. Jaques, 30 G'a. 506 (1860); People v. Gold Run Ditch Mining Co.,66 Cal. 138, 155 (1884). See cases cited in footnote, p. 622, Ames, Casesin Equity Jurisdiction.a Supra, note 8.KENTUCKY LAW JOURNALthe King claims and proves a right to the soil where a purpres-ture and nuisance have been committed, he may have a decree toabate it." Chancellor Kent, in his comment on this case, referredto before 22 has this to say: ". . . the Crown establisheda right of property in the soil, and it was a question of injury toproperty, like the case of a private nuisance." So the basis ofjurisdiction in all purpresture cases seems to be the protectionof the property rights of the state or municipality in parks,streets, highways, navigable waters, etc.23 The state or city ishere protected like any other property owner. Such nuisanceswhich interfere with the use and enjoyment of public propertyare restrained in equity exactly as in private nuisances, and forsimilar reasons.24 There should be no objection to this basis ofequity jurisdiction in cases of purprestures which amount topublic nuisances. There is no doubt about the property interestto protect, and such a view cannot do violence to the well settledrule that equity has jurisdiction in such cases.(B) What is the basis of jurisdiction in cases ofpublic nuisance, other than purpresture, whichaffect the health and safety of the community ?The early cases do no more than recite the phrase "irrep-arable injury" as the basis of equity's intervention. Thehesitancy of equity to intervene in these early cases has alreadybeen pointed out. However, if the right was established at law,equity would issue an injunction to prevent "irreparable in-jury" to property or health.2 5 Plainly, this does not constitutea basis for jurisdiction, but rather a reason for granting relief.Harlan, J., in Mugler v. Kansas,26 says the ground of jurisdic-tion lies in the ability of a court of equity to give a more speedy,effectual and permanent remedy than can be had at law. Thissame view was accepted in Missouri v. Illinois27 citing the Muglercase. Here the Sanitary District of Chicago was enjoined fromdischarging sewage (under authority of the Illinois Statute)into the Mississippi River, such act being dangerous to the health-2Supra, note 1.2Walsh, Equity, p. 200.2'Walsh, Equitable Relief Against Nuisance, 7 N. Y. U. Law Rev.,352, 376.2Crowder v. Tinckler, 19 Ves. Jr. 622; Atty Gen. v. Johnson,2 Wilson Chan. 102; Chalk v. Wyatt, 3 Meriv. 688." 123 U. S. 623 at 673.21180 U. S. 108.CRIMINAL JURISDICTION OF EQUITYof the inhabitants of Missouri. In commenting on this case inKatmas v. Colarao 28 the court says: " The courtthere ruled that the mere fact that a State had no pecuniaryinterest in the controversy, would not defeat the original juris-diction of this court, which might be invoked by the State asparens patriae, trustee, guardian, or representatives of all or aconsiderable portion of its citizens. . . ." An answer to thesame effect was given in Louisiana v. TexaS, 29 where the objec-tion was made to the state not having any property rightinvolved.It is clear that nuisances which are restrained in equitybecause they injure the health and safety of the citizens (inmost cases at least) involve no property rights, and the reasonfor equitable relief is the protection of public rights.3 0 Butwhat is the basis of this jurisdiction? It is difficult in somecases to find a basis. In others, the ostensible basis is the efficacyof equity as compared with the inadequacy at law. Equity canprevent irreparable damage and multiplicity of suits.31 Butperhaps the soundest basis is to be found in the doctrine of thestate suing as parens patriae.In order to examine more closely the soundness of this doc-trine, it will be necessary to briefly review its origin. InEngland, the king as paren3 patriae, had general supervisionover infants, idiots or lunatics, and charities, which he exercisedby the keeper of his conscience, the chancellor. The jurisdiction,however, did not belong to the court of chancery, as a court ofequity, but as administering the prerogative and duties of theCrown.32 This was a personal obligation of the chancellor, anddid not belong to his ordinary jurisdiction in chancery.33 Thejurisdiction possessed by the English courts of chancery bydelegation of authority of the crown as parens patriae isexercised by the courts of the state in this country.34 The courtof chancery operated to protect the rights of those who had norightful protector. This old doctrine had its origin in the courtof chancery. In analogous cases today a court of equity can- 185 U. S. 125, 142.-176 U. S. 1.'0 Walsh, Equity, p. 201.z"Cfampbell v. Seaman, 63 N. Y. 568.12 Fontain v. Revenel, 17 How. 369, 392.1 4 Kent, Com. 508 note.'"Ins. Co. v. Bangs, 103 U. S. 435, 43S.KBNTuciY LAW JoumRALprotect its citizens annoyed by a public nuisance, where they,like the infant or beneficiary of charity, cannot protect theirown rights. The chancellor is in a sense the representative ofthe sovereign, as parens patriae, and the guardian of the people'swelfare. It is submitted that such should be sufficient basis forequity to enjoin those cases of public nuisance which affect thehealth and safety of individuals in the community.CONCLUSIONThough equity is not a court of criminal jurisdiction, itinvades this field in extending its jurisdiction to public nuisancecases. A public nuisance being a crime at common law, equityis enforcing the criminal law, but not as such.A review of the history of equity's interference in cases ofpublic nuisance shows the great hesitancy with which such caseswere taken over. This hesitancy characterized both the Englishand American courts. But today the jurisdiction of equity iswell settled. This applies alike to purpresture cases whichamount to public nuisances, and to other nuisances which affectthe health and safety of the community.The basis of equity jurisdiction in purpresture cases whichamount to public nuisances is the protection of property rights,similar to cases of private nuisances. The basis of jurisdictionin other nuisance cases, which endanger health and safety, isvariously defined. The soundest basis, it is believed, rests inthe doctrine of the state suing as parens patriae. This doctrineis as deeply entrenched in equity's past as is the principle thatequity will protect the property rights of an individualJOHN C. BAGWELL.

The Criminal Jurisdiction of Equity--Purprestures and Other Public Nuisances Affecting Health and Safety

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The Criminal Jurisdiction of Equity--Purprestures and Other Public Nuisances Affecting Health and Safety

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