used synonymously with 'bank". 93 C.J.S. Waters § 72, p. 749. How far inland a bank extends probably depends upon the facts and circumstances of each case. We doubt that a road on a hillside nearly 500 feet high and approximately a quarter of a mile inland from the edge of the river could fairly be considered to be a 'bank' of the river. Surely, if the river water ever rose to the height and distance of this road, it would be held to have overflowed its 'bank'.
It was on the road, not the bank of the river, that defendant deposited the excavated overburden, a portion of which was caused to wash down the hillside by heavy rains and came to rest on the bank of the river. Moreover, although the piles of material on the bank are liable to be washed into the river, the proof is insufficient to find that navigation shall or may be impeded or obstructed thereby.
Even if it be found that defendant violated the second part of § 407, since there is no express provision in § 16 authorizing the issuance of a mandatory injunction to compel the removal of the piles on the bank, in our opinion, as stated above, the court is without statutory authority to issue it. Compare United States v. Wilson, supra.
Should the court exercise its equitable powers to compel defendant to remove (1) the piles on the bank and (2) the bar in the river?
We think that if the piles of material which are on the bank of the river due to the negligence of defendant (as distinguished from the excavated material intentionally deposited on the road) and the material forming the bar in the river, also caused by the negligence of the defendant, were both found to be public nuisances, a court of equity would probably possess inherent power to compel their abatement. The complaint, however, did not allege specifically that either of these deposits were public nuisances or that they were causing irreparable injury to anyone. Nevertheless, the plaintiff argues that any unauthorized deposit in the river, or on the bank of the river, which shall or may obstruct navigation, is a nuisance per se and, in view of the public interest involved, must be abated under the equitable power of the court. This argument has considerable merit, but it also invites the application of equitable principles. We think that if the piles on the bank and the bar in the river are found to be nuisances in fact rather than nuisances per se, the abatement thereof in accordance with historic equitable principles is discretionary, Hecht Co. v. Bowles, supra,
and such discretion should be exercised sparingly, reluctantly, with caution and only in extreme cases. City of Georgetown v. Alexandria Canal Co., 12 Pet. 91, 37 U.S. 91, 9 L. Ed. 1012.
It is the conclusion of the court that the piles of material resting on the bank of the river do not constitute a public nuisance, since it was not shown that navigation was likely to be obstructed or impeded thereby, but that the bar in the river does constitute a nuisance in fact.
In order to justify the abatement of the bar in the river, it must be found to cause, or likely to cause, an actual, material, substantial and serious continuing obstruction or impediment to navigation, and not merely a fanciful, trivial, technical or inconsequential one. The danger must be imminent and of pressing necessity. The mere possibility of, or fear of, future injury to navigation from the obstruction is not grounds for a mandatory injunction and equity will not interfere where the anticipated injury is doubtful or speculative; reasonable probability or even reasonable certainty of irreparable injury is required. O'Malley v. Chrysler Corporation, 7 Cir., 1947, 160 F.2d 35, 36; 43 C.J.S. Injunctions § 5, p. 411; 66 C.J.S. Nuisances § 111 et seq., p. 870; 28 Am.Jur., Injunctions, § 20, p. 213; High on Injunctions, 4th ed., Vol. I, § 2, p. 3; Pomeroy's Equity Jur., 5th ed., Vol. IV, § 1359a, p. 970.
The obstruction in the case at bar, of course, constitutes some danger to and interference with pleasure-boat traffic, which is the only type of traffic on the river above Lock 9 to the end of slack water above East Brady (see Government Exhibit 33), but it would cause no more danger to boats than the docks which are constructed on the side of the river above Lock 9. From the photographs the bar appears to be plainly visible and is connected with the land. The river authorities for over two years have not seen fit to cause a warning marker to be erected on or near it. No accident or injury has been reported during its existence. The bar does not interfere with practical navigability nor is it a material obstruction to free navigation by pleasure boats which, exclusive of the protrusion of the 50-foot bar itself from the shore, have over 900 feet of unobstructed channel in which to navigate freely. Even the operators of pleasure boats are obliged to keep a lookout and navigate carefully.
We find no evidence that the bar in the river is permanent or will cause irreparable injury. Hence the type of interest invaded by the alleged nuisance, in our opinion, is not such as to warrant the issuance of a mandatory injunction compelling the removal of the bar, and plaintiff should be remitted to its remedy at law.
Even if the piles of material on the bank of the river should be found to be a nuisance, for similar reasons a mandatory injunction to compel defendant to remove them should be refused.
Conclusions of Law
1. The court has jurisdiction of the parties and subject matter.
2. The defendant did not violate § 9 of the Rivers and Harbors Act of 1899 (33 U.S.C.A. § 401).
3. The defendant did not violate § 10 of said Act (Title 33 U.S.C.A. § 403).
4. The defendant violated the first part of § 13 of said Act (Title 33 U.S.C.A. § 407).
5. The defendant did not violate the second part of § 13 of said Act (Title 33 U.S.C.A. § 407).
6. The bar in the river and the piles of material on its bank are not within § 12 of the Rivers and Harbors Act of 1899 (Title 33 U.S.C.A. § 406) restricting statutory injunctive power to the removal of an unauthorized structure erected in violation of §§ 9, 10 and 11 of said Act (Title 33 U.S.C.A. §§ 401, 403 and 404).
7. The plaintiff is not entitled to a prohibitory injunction to restrain defendant from doing what he is not attempting and does not intend to do.
8. Under the facts and circumstances of this case, the plaintiff is not entitled to a mandatory injunction to compel defendant to remove the piles of material on the bank and the bar in the river, or either of them.
9. Judgment should be entered in favor of the defendant, M. H. Bigan, and the complaint dismissed on the merits.