presture. Glanville, 1. 9, c. 11; Spelm. Gloss. Purpresture. Where the jus publicum is violated, it is a nuisance; and it frequently happens, as in the present case, that a nuisance in a port is accompanied with a purpresture, or encroachment on the soil of the Crown.

All nuisances may be abated by the mere act of any individual; but, in the case of the Crown, the more proper and decorous mode of proceeding is by information in a court of justice for ascertaining the right. This may be done by information in equity as well as at law; and the nuisance may be decreed to be abated.

In the case of a purpresture, the same mode of proceeding has been held proper. In case of a decree for the Crown, an inquiry is directed whether it be most beneficial for the Crown to abate the purpresture, or to suffer the erections to remain and be arrented. Where the purpresture is also a nuisance, the Crown has not this election; for it cannot sanction a nuisance.

In the case of the Attorney-General v. Philpot, in this court, 8 Charles I., the information stated the Crown to be seised of the river Thames where navigable and an arm of the sea for the use of the ships resorting there; and that the Crown was also seised of the soil between high and low water-mark; that the defendants had lately encroached upon the soil of the king, and had thereby stopped the course of the river, and rendered it less convenient for shipping and for their mooring in the pool. The information therefore prayed that the encroachment might be declared a purpresture, and be abated as such. The defendants set up a defence that they had the leave of the High Admiral, and that their encroachment was no damage to the shipping. The court declared that purprestures on navigable rivers ought to be abated. They accordingly directed a commission to inquire whether the fact complained of was a purpresture. The commissioners returned that it was, and the encroachment was abated.1

So in the case of City of Bristol v. Morgan, cited in Lord Hale's treatise De Portibus Maris, p. 81. The bill stated the benefit of navigable rivers for commerce, and the right to have all purprestures therein abated. It was proved that the defendants had erected houses on the banks of the Avon, so as to streighten the river, and to incommode the passage to and from the shipping to the shore: that these houses also intercepted the commerce to the town, and tended to defraud the revenue. The encroachments were ordered to be abated, on the ground of the damage to the city; but were never destroyed, some composition having probably been entered into. A similar case is there cited to have been determined between the town of Newcastle and Johnson relative to the right of towage on the river Tyne.

1 For a discussion of these early cases and of Hale, see Stuart A. Moore, History of the Foreshore (1888), c. xiii; W. R. Tillinghast, Tide-Flowed Lands and Riparian Rights in the United States," 18 Harv. L. Rev. 341 (1905); F. R. Coudert, Certainty and Justice (1914), 213; J. B. Thompson, “Title to Land under Navigable Waters in New York," 21 Colum. L. Rev. 680 (1921).

In Churchman v. Tunstal, Hardr. 162, the plaintiff sued by bill as tenant of an ancient ferry under the Crown, to suppress a new ferry set up in the neighborhood, to the damage of his ancient ferry, and to obtain an injunction against renewing it. The court there dismissed the bill, as seeking to establish a monopoly; but another bill being afterwards filed for the same matter, the court on 7th April, 14 Ch. II. (Lord Hale presiding in it), decreed that the new ferry should be suppressed, and that the defendants should not have liberty to use any ferry-boat to the annoyance of the plaintiff's ancient ferry. See the Minute Book, 1662, p. 181.

So in the anonymous case, 3 Atk. 750, where it was moved to issue an injunction against building a small-pox hospital in Cold Bath Fields, Lord Hardwicke lays it down that, in the case of a public nuisance, an information by the attorney-general is the proper remedy. He was then sitting in equity, and must be understood to mean an information in a court of equity. Besides, he refused the injunction in that case upon the want of merits, not from any doubt of his jurisdiction. .

Piggott and Richards, for the defendant. . . . As to the question of nuisance, that is a matter completely foreign to the jurisdiction. of a court of equity. It is a breach of the general police of the kingdom, and as such is considered as a crime, and to be prosecuted in the criminal courts. But a court of equity cannot hold cognizance of any criminal matter. It never was attempted to prosecute a suit in equity, to remedy any other public mischiefs to prohibit rope dancing, plays, &c. or to abate a nuisance or purpresture on the highway. That is exactly like the present case, and is every day prosecuted in the ordinary criminal courts. Questions of nuisance are particularly improper to be discussed in equity, because the remedy at law is complete.

as

It is true, that in the precedents cited, such informations have been allowed in the case of purprestures; but these were in the time of Ch. I. when trial by jury was not so firmly established as it now is. Besides those were, in part at least, suits as to a civil right, and therefore gave a color to the jurisdiction. Lord Hale expressly declares, (p. 85) that the question of nuisance is a question of fact, and not of law: that is, that it ought to be decided by a jury, not by the court. . . .

MACDONALD, Chief Baron, this day delivered the opinion of the court (after stating the case), to this effect.

It is clear that the right to the soil between high and low watermark is prima facie in the Crown. Then the onus of proving an adverse title is thrown upon the defendants. .

But it is argued that the prayer of the bill being to abate the erections as a nuisance, the court can only consider that question, as alone supporting the relief prayed; and it is contended that this court cannot give such a decree, or at least not without the inter

vention of a jury, the question of nuisance being, as laid down by Lord Hale, a question of fact and not of law. That may be, where the question is of nuisance only, and the evidence doubtful. But the cases cited, and those which Lord Hale has given us, in the treatise De Portibus Maris, clearly prove that where the king claims and proves a right to the soil where a purpresture and nuisance have been committed, he may have a decree to abate it. The case of the river Thames and the Bristol and the Newcastle cases, cited by Lord Hale, are all authorities for this proposition. The case in Hardr. 162 was at first determined otherwise; but the reporter doubts its authority, as it was afterwards overturned. It is objected that these cases were in the time of Ch. I.; but it must be remembered that Lord Hale determined some of them, and approved the rest. Supported by such authority, we do not hesitate to declare that the soil is the property of the Crown; and of course, to decree, that these buildings be abated.1

1 The principal case is discussed by Moore, c. xix; Coudert, 216; P. er rel. Teschemacher v. Davidson, 30 Cal. 379, 389 (1866). On the jus privatum of states in the United States see Tiffany v. Oyster Bay, 234 N. Y. 15 (1922); the American authorities cited in the preceding footnote; 1 Lewis, Em. Dom. (3d ed.), § 94 ff.; G. S. Parsons, " Public and Private Rights in the Foreshore," 21 Colum. L. Rev. 706 (1922); 30 Harv. L. Rev. 171; 34 Harv. L. Rev. 396; 71 U. Pa. L. Rev. 157; 30 Yale L. J. 58. Among the numerous cases on the rights of the United States in tide-flowed lands are Scranton v. Wheeler, 179 U. S. 141 (1900); Lewis Blue Point Oyster Co. v. Briggs, 229 U. S. 82 (1913); U. S. v. Chandler-Dunbar, 229 U. S. 53 (1913).

Purprestures. 20 R. C. L. 385; 69 Am. St. Rep. 271.

Sawyer, J., Woodruff v. North Bloomfield, 18 Fed. 753, 785 (Cal., 1884): "There are two senses in which the rights of the state are to be considered, one proprietary, and the other governmental: proprietary, as where the state owns an absolute fee in the land in the same manner and sense, with the same rights and powers, as an individual owns his land; and governmental, as where the title is held in trust for the use of the public, such as highways, navigable streams, etc. The former is alienable, the latter inalienable."

Where there was a purpresture and no public nuisance, relief was denied in P. ex rel. Teschemacher v. Davidson, 30 Cal. 379, 389 (1866); P. v. Mould, 37 App. Div. 35 (1899). Relief was granted in Revell v. P., 177 Ill. 468, 479 (1899); A. G. v. ex rel. Askew v. Smith, 109 Wis. 532, 541 (1901). See A. G. v. U. K. Elec. Tel., 30 Beav. 287 (1861); Clark, Equity, § 222.

In U. S. v. Luce, 141 Fed. 385 (Del., 1905), an injunction was sought against a factory manufacturing oil and fertilizers from fish, which caused odors, noise, flies, and pollution, annoying to the inmates of a government quarantine station.

Public Nuisances: The jurisdiction of equity is now definitely settled, that injunctions may be issued at the suit of the state to restrain the creation or continuance of obstructions of highways and of navigation, and businesses injuriously affecting the health, safety, or physical comfort of the community. 32 C. J. 271, 279; Ames, 617n., 622n. Interesting cases are P. v. Gold Run Ditch Mining Co., 66 Cal. 138, 155 (1884); Columbus v. Jaques, 30 Ga. 506 (1860); Atty. Gen. v. Jamaica Pond Aqueduct, 133 Mass. 361 (1882); P. v. White Lead Wks., 82 Mich. 471, 480 (1890).

CHAP. V]

ATTORNEY-GENERAL V. WILLIAMS

Phiquison incormation by all sind to

prevent & from building higher thon ordinance al Cawo. Billsims patt pedd has -no ust a action. Held: Attainly qual has t Las the Lower or st. action bure; because the sidinavce & was th fublic an dasmete

over Londs Locing thi square and the alt gial brotect the prople and their it's where in not really

ATTORNEY-GENERAL v. WILLIAMS once were but it is treatic ava

SUPREME JUDICIAL COURT, MASSACHUSETTS,

[174 Massachusetts Reports, 476.]

i public muisance by equity and 1899ormation to the proper praceeing to pecamit encroachmen an a pubfleusement. KNOWLTON, J. This is an information by the Attorney-General to prevent the erection and maintenance of that portion of a building on Copley Square, in the city of Boston, which is above the limit of height prescribed by St. 1898, c. 452. Section 1 of this statute is as follows: "Any building now being built or hereafter to be built, rebuilt, or altered in the city of Boston upon any land. abutting on St. James Avenue between Clarendon Street and Dartmouth Street, or upon land at the corner of Dartmouth Street and Huntington Avenue, now occupied by the Pierce building, so called, or upon land abutting on Dartmouth Street now occupied by the Boston Public Library building, or upon land at the corner of Dartmouth Street and Boylston Street now occupied by the New Old South Church building, may be completed, built, rebuilt, or altered to the height of ninety feet and no more; and upon any land or lands abutting on Boylston Street between Dartmouth Street and Clarendon Street may be completed, built, rebuilt, or altered to the height of one hundred feet and no more; provided, however, that there may be erected on any building above the limits hereinbefore prescribed, such steeples, towers, domes, sculptured ornaments, and chimneys as the board of park commissioners of said city may approve." Section 2 repeals St. 1896, c. 313, and St. 1897, c. 379, so far as they limit the height of buildings erected along the line of streets, parkways, or boulevards bordering on public parks. Section 3 provides for the payment of damages to any person owning or having an interest in an uncompleted building begun before the fourteenth day of January, 1898, which is affected by the act, and section 4 provides for compensation to all persons sustaining damages to their property by reason of the limitation of the height of buildings prescribed by the act. The case is reported upon the information, demurrer, pleas, and certain facts found at the hearing on the pleas..

It is contended by the defendants that the Attorney-General cannot maintain a suit in equity to enforce this statute. His right depends upon the construction put upon the statute. We hold that the statute gives rights in the nature of an easement over lands facing Copley Square, which easement is annexed to the square for the benefit of the public, for whose use and enjoyment Copley Square was laid out; and that these rights are similar in their nature to rights in highways, in great ponds, and in the

1 Only so much of the opinion is given as relates to the question of equity jurisdiction. The court decided that St. 1898, c. 452, was constitutional under the eminent domain power, and, semble, under the police power; but see on the latter point Holmes, J., in Parker v. C., 178 Mass. 199, 205 (1901); Hudson v. McCarter, 209 U. S. 349, 355 (1908).

navigable waters of the Commonwealth. For a deprivation of such public rights, an individual, unless he has suffered damages different in kind from those to the public generally, cannot maintain an action.1 The Attorney-General, as a public officer, represents the public, and may bring all proper suits to protect their rights. The wrong alleged in the present case, if permitted, would work a permanent injury to the public, depriving them of that which the statute gives them. It is a purpresture which, while not in a strict and narrow sense a public nuisance, is in the nature of a public nuisance, is sometimes called a public nuisance, and in equity is to be dealt with as a public nuisance.2 . . . In regard to the enforcement of rights given to the public and to other landowners in lands reserved for their use by the Commonwealth, see [citations]. In England it is held that "the Attorney-General has a right to represent the public, either in equity or by prosecution at law, in cases where the public interests are exposed to danger or mischief." . . . In Attorney-General v. Jamaica Pond Aqueduct, 133 Mass. 361, 364, it was said in reference to a great pond that, where an aqueduct corporation proceeds to draw off water to such an extent" as to injure or endanger the rights of the public therein, an information in equity would furnish the only adequate means of asserting and protecting the rights of the government and of the public." The case of Attorney-General v. Abbott, 154 Mass. 323, under facts very similar to those of the present case, sustains the right of the Attorney-General to maintain an information in equity for the protection of public rights in land dedicated to the use of the public as a park. . . . We are of opinion that the Attorney-General is the proper party, and that an information in equity is the proper form of proceeding for the enforcement of public rights against encroachments like those threatened in the present case. . .

In the opinion of a majority of the court the entry must be,

1 See infra, 454n.

Demurrer and pleas overruled.3

2 Numerous citations are omitted here and subsequently. 3 Accord, Atty. Gen. v. Abbott, 154 Mass. 232 (1892).

See Wilbur Larremore, "Public Aesthetics," 20 Harv. L. Rev. 35 (1906). The author's suggestion, 45, that glaring electric light displays might be a nuisance is supported by Shelburne v. Crossan, 122 Atl. 749 (N. J. Ch., 1923); 10 Va. L. Rev. 400. Examples of the attainment of aesthetic results by indirect means are Fifth Ave. Coach Co. v. N. Y., 194 N. Y. 19 (1909), noted in 21 Harv. L. Rev. 445; Sullivan Adv. Co. v. N. Y., 61 Misc. 425 (1908). Building lines for aesthetic purposes, 34 Harv. L. Rev. 419. Bill-boards offensive to the eye, Churchill v. Rafferty, 32 Phil. 580, 600 (1915); 29 Harv. L. Rev. 860. Condemnation for scenic highway, Rindge v. Los Angeles, 262 U. S. 700 (1923). Constitutionality of Zoning Ordinances, Alfred Bettman, 37 Harv. L. Rev. 834 (1924); H. L. McBain, 36 Pol. Sci. Q. 617 (1921); 19 A. L. R. 1395; 20 Colum. L. Rev. 219, 591; 24 ib. 640; 37 Harv. L. Rev. 390; 18 Mich. L. Rev. 523; 20 ib. 455; 4 Minn. L. Rev. 540; 72 U. Pa. L. Rev. 421; 8 Va. L. Rev. 208; 29 Yale L. J. 936; 32 ib. 833.