Page:Harvard Law Review Volume 9.djvu/552

524 524 HARVARD LAW REVIEW. low water mark, and for the abatement of those already erected. It was alleged and argued that the erections were both a purpres- ture and a nuisance, the former as an encoachment upon the King's jus privatum to the soil between high and low water mark, and the latter as an interference with iQ jus publiaim of free naviga- tion.^ It was conceded that, regarding the wharves as purpres- tures, the defendants could justify under a royal grant of the soil, but not if they were a nuisance. The jus publicum, though vested in the Crown, is inalienable, and held solely for the benefit of the pub- lic, for whom the King is bound to preserve it unimpaired.^ But the jurisdiction of the court to enjoin or abate the structure as a nuisance was vigorously disputed. Piggott & Richards, for the defendants, say, at page 613: — "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 suite in equity to remedy any other public mischiefs, as to prohibit rope-dancing, plays, etc., or to abate a nuisance or purpresture on the highway. That is exactly like the present case, and is every day prose- cuted in the ordinary criminal courts. Questions of nuisance are par- ticularly improper to be discussed in equity, because the remedy at law is complete." The court granted a decree abating the structure ostensibly as a purpresture, but as no inquiry was had to determine wh-ether it were not more profitable for the King to have it remain subject to a rent, the decision can be better supported upon the theory of nuisance. In a similar case in 1819,^ an application was made to restrain the erection of an embankment as a nuisance to the pub- lic rights in the Thames. Lord Eldon did not doubt his jurisdic- tion, and granted a temporary injunction pending the trial of an indictment. In 1853, in Attorney General v. The Sheffield Gas Consumers' Company,* the Court of Appeal held that the tearing up of the pavements in a town for the purpose of laying gas-pipes, though ^ For a discussion of these two rights, see Hale, De Jure Maris, p. 12; De Portibus Maris, pp. 81, 83, 88, 89. 2 Compare, Hale, De Portibus Maris, p. Z"].
 * Attorney General v. Johnson, 2 Wils. Ch. 87.
 * 3 DeG. M. & G. 304.