THE MARTHA DAVIS.
The claim of E. H. White is a maritime lien under the facts as found, and will be paid in its order as above stated. A decree will be drawn and entered in accordance with this opin· ion. It is so ordered and adjudged.
THE MARTHA DAVIS. (District Court, N. B. California. May 15, 1899.) No. 1,571.
COLLISION-CONTRIBUTORY NEGLIGENCE-ANCHORED VESSEl"
A vessel cannot be held guilty of negligence contributing to a collisIon because her machinery was disconnected and her sails taken down while at anchor, for the purpose of making repairs, when she was properly anchored in a safe berth, where she remained; the collision being caused by the drifting against her in the night of another vessel, which was insecurely anchored.
An admiralty suit by the United States against the bark Martha Davis to recover damages for collision. H. S. Foote, U. S. Atty., and Samuel Knight, Asst. U. S. Atty. Page, McCutchen & Eells, for claimant. DE HAVEN, District Judge. This is a ·libel filed by the United States to recover damages sustained by the United States steamship Patterson in a collision which the libel alleges was caused by the negligence of the master and crew of the bark Martha Davis. It appears from the evidence that on March 9, 1898, the Pattereon was lying at a safe anchorage in the ba;y of San Francisco, undergoing repairs her engin-es, which had been taken apart, and were still in that condition, and therefore at the time entirely useless as a means for propelling the steamer, but she was otherwise in seaworthy condition, and was properly manned and equipped. On the evening of the day named, the bark Ma.rtha Davis came into the port of San Francisco, and, dropping a single anchor, anchored at a distance of between two and three hundred yards from the Patterson, and further from the wharves than the latter. At that time there was only a light breeze blowing, and the one anchor used by the Martha Davis was' sufficient to hold her. The Patterson also, at this time, had but one anchor out. About midnight the wind commenced blowing a strong gale from the north, and the master of the Patterson soon ascertained that the one anchor already outWaB not holding his -vessel, and another was let go, but not until after the Patterson had drifted some distance further away from the Martha Davis, and nearer to the wharves. When the second anchor was dropped, the Patterson was so close to the schooner IVY,also lying at anchor, that she was soon compelled to take in five fathoms of her anchor chain, in order to avoid a collision with that schooner. Between the hours of 4 and 5 o'clock on the morning of March 10th,the Martha Davis and the Patterson came into collision. There is a direct conflict in the evidence as to whether this COllision was caused by the drifting of the Patterson into the berth of .the Martha Davis,
94 FEDERAL RlllPORTER.
or 'lthe'thei'\the Martha Davis dragged her' I1nchor, and drifted onto the Patterson, in the berth of the latter. It wouldsel'Ve no useful purpoSe' to' state at length :the testimony of the different witnesses relating to this disputed question It is sufficient to- say that the testimony ha.s all been carefully considered, and my conclusion is that the great preponderance' of the evidence is in favor of the eontention of the libelant upon, this point. The Ivy did not her position during the night, and the admitted fact that the collision to show that, after ca.sting occurred near this vessel tends her second anchor, the Patterson ceased to drift, and that the Martha Davis must have dragged her anchor in the direction of the Patter son; .otherwise" she could not have ,come into collision with the latter in the vicinity of the Ivy. 'rhe conclusion tllat the collision occurred in the berth of the Patterson, and not in that of the Martha Davis, is further strengthened by a consideration of the direction of the wind and the relative positions of the vessels' as they lay at anchor. I thinl;:, also, the evidence establishes the fact that tile master of the Davis was guilty of negligence in not letting go a second anchor. By so doing, it is reasonably certain thecoIlision would 'have been avoided, and 'it is clear, from the. evidence, that there was ample time tQ have done this after the bark began to drift, and before her collision with the Patterson; but, in any event, the strength of the gale, which commenced some three or four hours .before the collision, was such as ought to have: suggested to the master of the Martha Davis that it was not at all eertain that one anchor would be sufficient to hold his vessel, and that,as a matter of ordinary prudence,he should let go a second for the purpose of properly guarding against the danger of drifting into collision with other vesli:elS. It is contended upon the part of the claimant that the was guilty of contributory negligence in being at anchor in a helpless condition, with engines disconnected and sails taken down. I do not think this contention can be sustained. '.The Patterson was properly anchored in a safe berth, and the fact that her engines and sails were not at the time in a condition for immediate use cannot be attributed to her all afault. Her master was not bound to antici· pate that there would be negligence onthe part Of the Martha Davis or o.ther vessels at anchor in the harbor, and was therefore not reo quired toha,\1e the engines and sails of his steamer in condition for immediate use, in order .to avoid any·!,collision which might result from such. negligence. It is lastly urged by the claimant that the Patterson was, in view .of her Qwn.helpless condition, guilty ·Qf contributory negligence in not signaling for the alIsistance of a tugboat. The answer to this is that it was Iilot known OD the Patttu'son, that the Martha Davis was not secnrelyanchored,and, although we bad sheering during the night, it was not apparent, untilshoriIy before the collision, that Elhe wasllrifting onto tlle Patterson, IIlld it was then too late to have obtained assistance frQnl,any ofthetugllin the harbor. The libelant is entitled to a decree for the of the damages sustained by the Patterson. and the case w,ilI be refC'l'r .dto United States Commissiorl;er Man,ley, to ascertain and report the :amount of such dmnageli.
CARMICHAEL V. CITY OF TEXARKANA,
OARMICHAEL et ux. v. CITY OF TEXARKANA, ARK., et al. (Circuit Court, W. D. Arkansas. Ma;r 8, 1899.)
NUISANCES CREATED BY CITY-LIABn.rry OF INDIVIDUALS FOR DA"MAGES.
Individual residents of a city, who, .in compliance with law, have connec,ted their premises with a sewer system constructed by the city, and deposited sewage therein, cannot be held liable for damages for the discharge ofsueh sewage by the operation of the sewer system on or near the premises of a complainant, thereby creating a nuisance.
SAME-SurT FOR ABATE"MENT-PARTIES.
Nor are such residents proper parties to a suit against the cltJ' for the abatement of the nuisance. A bill against a city to abate a nuisance created by its sewer system, In which certain residents of the city as individuals are joined as defendants, but who, as such, have no legal interest in the suit. is multifarious.
MUNICIPAL COHPOHATIONS-LIABILITY FOil CREATION OF NUISANCE.
A municipal corporation, though authorized by statute to construct sewers, has no right to so construct its system as to discharge sewage on the lands of an individual, or in such place that it flo,vs on his lands, and pollutes a watercourse thereon, or otherwise creates a nuisance by which he suffers damage. A court of equity has jurisdiction of a suit by an individual to abate a nuisance caused by the construction by a city of its sewer system so as to discharge its contents on the complainant's lands, or near his residence, thereby invading his private rights, and causing him special injury. In a suit in equity to abate a nuisance and to recover damages caused thereby, such damages only as are proved to have been sustained up to the time of the decree are recoverable.
EQUITY .JURISDICTION-8UIT TO ABATE NnsANcE
NUISANCE-DAMAGES ,RECOVEUABLE IN SrlT FOR ABAn;MENT.
This is a suit in equity ag.linst a city and others for the abatement of a nuisance alleged to have been created by the discharge of sewage from the sewer system of the city on the premises of complainants, and to recover damages caused to complainants thereby. Heard on demurrers to bill.
The bill In this case alleges, in substance: That the plaintiffs are husband and wife, and citizens and residents of Bowie county, in the state of Texas. That the city of Texarkana, Ark., is a municipal corporation, duly incorporated under the laws of Arkansas, situate in )filler county, state of Arkansas, with J. 'V. Mullins as Its mayor. That the Water Company of Texarkana, Ark., Is duly Incorporated and operated under and by virtue of the laws of the state of Arkansas, with R. A. )funson its superintendent and agent, and has Its general office in Miller county, state of Arkansas; that F. W. Mullins, F. J. Ahern, R. J. O'Dwyer. Q. O. 'rumer, .Joe Hnekins, Sr., 'V. J. Burhman. J. 'V. Harris, and R. A. Munson are citizens of Miller county, state of Arkansas. That on July 1, 1888, the plaintiffs owned in their own right, in fee simple, and were in the possession and enjoyment of, a good homestead, consisting of 45 acres of land, situate in Bowie county, state of Texas, on the line of the state of Arkansas and state of Texas, said homestead consisting of block S, of 40 acres, and block P, of 5 acres, of the Jacob Carsen headright survey, according to the map of the Texas & Pacific Railway Company of Texarkana. That between July 1, 1888, and .Tnly 1, 1896, they made permanent and valuable improvements on their said homestead. consisting of dwelling houses, outhouses, barns, gardens, 01'<,hards, vineJ"ards, and by clearing, fencing, and putting in a high state of cultivation nearly all of their said homestead, which was of great value, from which homestead the.v for eight years received and enjoyed the greatest comforts, pleasures, support, and maintenance, without hindrance. That there is 94 F.-36