Nuisance - Punish & Abate
As stated in Mugler v. Kansas, 123 U.S. 623 (1887):
..."The state having authority to prohibit the manufacture and sale of intoxicating liquors for other than medical, scientific, and mechanical purposes, we do not doubt her power to declare that any place, kept and maintained for the illegal manufacture and sale of such liquors, shall be deemed a common nuisance, and be abated, and, at the same time, to provide for the indictment and trial of the offender. One is a proceeding against the property used for forbidden purposes, while the other is for the punishment of the offender."
..."'In regard to public nuisances,' Mr. Justice Story says, 'the jurisdiction of courts of equity seems to be of a very ancient date, and has been distinctly traced back to the reign of Queen Elizabeth. The jurisdiction is applicable, not only to public nuisances, strictly so called, but also to purprestures upon public rights and property. ... In case of public nuisances, properly so called, an indictment lies to abate them, and to punish the offenders. But an information also lies in equity to redress the grievance by way of injunction.' 2 Story, Eq. Jur. 921, 922.
"The ground of this jurisdiction in cases of purpresture, as well as of public nuisances, is the ability of courts of equity to give a more speedy, effectual, and permanent remedy than can be had at law. They cannot only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in progress, and, by perpetual injunction, protect the public against them in the future; whereas courts of law can only reach existing nuisances, leaving future acts to be the subject of new prosecutions or proceedings. This is a salutary jurisdiction, especially where a nuisance affects the health, morals, or safety of the community. Though not frequently exercised, the power undoubtedly exists in courts of equity thus to protect the public against injury. District Atty. v. Railroad Co., 16 Gray, 245; Attorney Ge. v. Railroad, 3 N. J. Eq. 139; Attorney Gen. V. Ice Co., 104 Mass. 244; State v. Mayor, 5 Port. (Ala.) 279, 294; Hoole v. Attorney Gen., 22 Ala. 194; Attorney Gen. v. Hunter, 1 Dev. Eq. 13; Attorney Gen. v. Forbes, 2 Mylne & C. 123, 129, 133; Attorney Gen. v. Railway Co., 1 Drew. & S. 161; Eden, Inj. 259; Kerr, Inj. (2d Ed.) 168." [Emphasis mine.]
As explained by Justice Baldwin in his assenting opinion in Proprietors of Charles River Bridge v. Proprietors of, 36 U.S. 420 (1837) 36 U.S. 420 (Pet.):
"...The king alone can prosecute for a purpresture, or an usurpation on the Jus publicum of a franchise, burdensome to the subjects generally (Harg. L. Tr. 85; 2 Johns. Ch. 283; 18 Ves. 217-19)...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.' Attorney-General v. Richards, Anstr. 616."
"...A court of equity never grants an injunction against a public nuisance, without a previous trial by jury, as it would, in effect, be tantamount to the conviction of a public offence. Harg. L. Tr. 85; 18 Ves. 217, 219; 19 Ibid. 617, 620; 2 Johns. Ch. 283."
In State of Missouri v. State of Illinois,180 U.S. 208 (1900), regarding equitable remedies in the matter of public nuisances, Justice Shiras cites Atty. Gen. v. Jamaica Pond Aqueduct Corp. 133 Mass. 361:
"...a proceeding in equity in the supreme judicial court to enjoin the defendants from lowering the water in one of the public ponds of Massachusetts. It was claimed that the necessary effect of such lowering would be to impair the rights of the people in the use of the pond for fishing, boating, and other lawful purposes, and to create and expose upon the shores of the pond a large quantity of slime, mud, and offensive vegetation, detrimental to the public health. The defendants demurred, claiming that no case was stated which came within the equity jurisdiction of the court, and questioning the power of the attorney general, on behalf of the commonwealth, to maintain the proceedings. Speaking for the court the Chief Justice said:
'The cases are numerous in which it has been held that the attorney general may maintain an information in equity to restrain a corporation exercising the right of eminent domain under a power delegated to it by the legislature, from any abuse or perversion of the powers, which may create a public nuisance or injuriously affect or endanger the public interests,'-citing many cases, and proceeding:
'The information in this case alleges, not only that the defendant is doing acts which are ultra vires, and an abuse of the power granted to it by the legislature, but also that the necessary effect of such acts will be to create a public nuisance. This brings the case within the established principle that the court has jurisdiction in equity to restrain and prevent nuisances. And when the nuisance is a public one an information by the attorney general is the appropriate remedy. . . . This information, therefore, can be sustained on the ground that the unlawful acts of the defendant will produce a nuisance by partially draining the pond and exposing its shores, thus endangering the public health.'
"And replying to the claim that resort to equity was unnecessary, the court further said:
'The defendant contends that the law furnishes a plain, adequate, and complete remedy for this nuisance by an indictment or by proceedings under the statutes for the abatement of the nuisance by the board of health. Neither of these remedies can be invoked until a part of the mischief is done, and they could not, in the nature of things, restore the pond, the land, and the underground currents to the same condition in which they are now. In other words, they could not remedy the whole mischief. The preventive force of a decree in equity, restraining the illegal acts before any mischief is done, gives clearly a more efficacious and complete remedy.'
"...We do not wish to be understood as holding that, in a case like the present one, where the injuries complained of grow out of the prosecution of a public work authorized by law, a court of equity ought to interpose by way of preliminary or interlocutory injunction, when it is denied by answer that there is any reasonable foundation for the charges contained in the bill. We are dealing with the case of a bill alleging, in explicit terms, that damage and irreparable injury will naturally and necessarily be occasioned by acts of the defendants, and where the defendants have chosen to have their rights disposed of, so far as the present hearing is concerned, upon the assertions of this bill.
"We fully agree with the contention of defendants' counsel that it is settled that an injunction to restrain a nuisance will issue only in cases where the fact of nuisance is made out upon determinate and satisfactory evidence; that if the evidence be conflicting and the injury be doubtful, that conflict and doubt will be a ground for withholding an injunction; and that, where interposition by injunction is sought, to restrain that which it is apprehended will create a nuisance of which its complainant may complain the proofs must show such a state of facts as will manifest the danger to be real and immediate..."
