Page:Federal Reporter, 1st Series, Volume 6.djvu/236

 22e FSDEBAL BEFOBTKR. �consequences will follow the erection of the structure com- plained of. Such facts mast be stated as will enable the court- to say and determine -whether the allegation is well founded. Adama v, Michael, 38 Md. 123 �It is very clear that a public navigable stream must remain free and unobstructed, and that no private individual has the right to place any permanent structure within the navigable channel. Atlee v. The Pkt. Co. 21 Wall. 389 ; StaU of Penn- tylvania v. Wheeling Bridge Co, 13 How. 518. �If the respondent proceeds to construct the runway as proposed, it does so at its own risk, and must understand that, when the same is completed, if it proves to be an obstruction to the free navigation of the Mississippi river, or a special injury to the rights of others, it may be condemned and removed as a nuisance. But it is not every structure in the channel of a river that will be held to be subject to abate- ment as a nuisance. In the Wheeling Bridge Case, supra, a bridge acrosB the Ohio river, constructed without authority from congress, though held to be a nuisance as originally constructed, was allowed by the supreme court to remain, upon the condition that there should be constructed a suita- ble and practicable draw, so as to afford reasonable facilities for the pa,ssage of vessels. �My conclusion in this case is that an injunction cannot be granted upon the allegations of the bill, and that the demurrer thereto must be sustained. The right to proceed against the respondent for erecting a nuisance within the navigable channel of the river will remain to any person or persons having a right to institute such proceedings, in the event that the structure, when completed, shall prove to be a nuisance. ��� �