against the defendants could be disregarded, and the bill treated for jurisdictional purposes, under its broad averments and prayer for general relief, as merely one to abate a nuisance by process operating in rem as distinguished from a suit to restrain the nuisance by process in personam. See Mississippi & M. R. Co. v. Ward, 2 Black, 485, 17 L. Ed. 311; Van Bergen v. Van Bergen, 2 Johns. Ch. (N. Y.) 272; Carlisle v. Cooper, 18 N. J. Eq. 241; Ramsay v. Chandler, 3 Cal. 90; Lassater v. Garrett, 4 Baxt. (Tenn.) 369; 1 Am. & Eng. Enc. of Law (2d Ed.) 64; 29 Cyc. 1209, 1252; 14 Enc. Pl. & Pr. 1146, 1147.

It is, however, unnecessary to determine this question, since even if the suit could thus be considered, in the aspect both favorable to the defendants, as an action to abate a nuisance under direct process of the court, and hence as purely a local action in rem or in the nature of a proceeding in rem this would not suffice to bring it within the provisions of section 8 of the act of 1875.

It is clear that this section does not extend either to all suits of a local nature or to all local actions in rem or in the nature of proceedings in rem, but is definitely limited to suits brought for the enforcement of certain specific rights. The suits which it includes are not described by reference to their general character, but by reference to their object. It contains no general descriptive phrase such as "suits of a local nature," used in sections 741 and 742, Rev. St. (U. S. Comp. St. 1901, p. 588), in regard to suits brought in a state having more than one judicial district, or "proceedings in rem" or other like phrase; on the contrary it definitely enumerates the suits to which it relates, namely, those brought "to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon, the title to real or personal property." In view of this specific enumeration of the suits to which it relates, and the absence of any general phrase extending its provisions to any other action, local or otherwise, its scope cannot be extended by any process of construction, there being nothing in its language upon which such extension can be based.

Where a "statute specifies certain classes of cases which may be brought against nonresidents, such specification, doubtless, operates as a restriction and limitation upon the power of the court." Roller v. Holly, 176 U. S. 398, 406, 20 Sup. Ct. 410, 413 (44 L. Ed. 520).

Second. The question then arises whether, as the complainants further contend, this suit comes within the specific provisions of section 8 of the act of 1875, as a suit brought to enforce a "claim to * * * property" of the defendants, within the meaning of this section, there being obviously no other class of suits enumerated in this section in which it can' be included.

The suit clearly does not come within this provision merely because the complainants allege in their bill that by reason of the ownership of their lands they are "possessed of a right and claim in, to, and against the lands and tenements of the defendants in the nature of an easement thereupon," this being the mere assertion of the legal conclusion which the complainants seek to draw from the fact of their ownership of the lands in Georgia; and it cannot be held to come within this provision unless, upon the facts alleged in the bill, the complainants are seeking to enforce a right which, within the meaning of

the act, may properly be termed a "claim to property" within this dis

trict.

The theory of the complainants is, that attached to all property is a claim, based upon natural right, held by those who occupy any relation with respect thereto, that it shall not be used in such way as to injure or damage such other persons; and that the duty under which the defendants' property rests creates in favor of the complainants a right to and a claim against such property, which "may be called a negative right or easement upon land based upon the maxim of sic utere tuo ut alienum non lædas" and is the basis of the present action.

There appears to be no direct adjudication upon the question whether a claim of this character may be properly considered a claim to property within the meaning of the statute. The statement in Shainwald v. Lewis (D. C.) 5 Fed. 310, 317, that by the words “legal or equitable lien or claim against real or personal property" Congress "intended to reach every case in which there should be any sort of charge upon a specific piece of property, capable of being enforced by a court of equity" which is cited in 1 Rose's Code, Fed. Pro. § 856, note C, as authority for a similar statement, was purely obiter; the only point involved in the case being that Rev. St. § 738, in which these words originally occurred, did not apply to a suit in which the plaintiff sought to subject the general property of the defendant to the payment of its debts, but only to suits to enforce some pre-existing lien or claim upon a specific piece of property. Neither is the question controlled by the definition of the word "claim" given by Mr. Justice Story in Prigg v. Pennsylvania, 16 Pet. 536, 615, 10 L. Ed. 1060, as "a demand of some matter as of right, made by one person upon another, to do or forbear to do some act or thing as a matter of duty," this definition being given in a case involving the construction of a statute providing that slaves should be delivered up "on claim of the party" to whom their service was due; the meaning of the word "claim" as used in a statute of this character in reference to the "claim of" one person upon another to do a certain thing, being manifestly different from its meaning as used in the act of 1875 in reference to the claim of one person "to" the property of another. Evidently its meaning as used in the act of 1875 in the phrase a "claim to * * * property" is much more nearly expressed by the next definition cited by Mr. Justice Story in this same opinion, as given by Lord Dyer in Stowel v. Zouch, 1 Plowd. 359, that:

"A claim is a challenge by a man of the propriety or ownership of a thing, which he has not in possession, but which is wrongfully detained from him."

*

.

On the whole, I am of the opinion that as it appears from the con cluding portion of this section that it relates entirely to suits of which property is the "subject," and as the words "claim to ** property" are evidently used in contrast to liens or incumbrances upon property and are the only words in the section under which a claim to the direct ownership of property may be included, these words relate only to claims made to the property in the nature of an assertion of ownership or proprietary interest, or other direct right or claim. to the property itself, such, for example, as the claim of ownership

of an undivided interest in the property upon which a suit for partition may be based (Greely v. Lowe, 155 U. S. 58-74, 15 Sup. Ct. 24, 39 L. Ed. 69), and do not include the assertion of a right which is not based upon an interest in the property itself, but seeks merely to enforce a restriction which the law imposes upon the owner of the property in reference to its proper use; and, therefore, that a bill to abate or restrain a nuisance is not a suit to enforce a claim to the defendants' property within the meaning of the statute.

"A nuisance is literally an annoyance and signifies in law such a use of property or such a course of conduct as * * transgresses the just restrictions upon use or conduct which the proximity of other persons or property in civilized communities imposes upon what would otherwise be rightful freedom." 21 Am. & Eng. Enc. of Law (2d Ed.) 682.

The right to have a nuisance on another's property restrained or abated is not based upon an assertion of title to such property, or of any proprietary interest therein, or right or claim to the property itself, but is, on the contrary, based solely upon the breach of a personal duty which the owner of the property owes to his neighbor in its management and use; a breach of duty which may be punished by indictment where the nuisance is of a public character, and which renders the offender personally liable in damages to the injured neighbor. And therefore the assertion by the neighbor of his right to have the nuisance restrained or abated, being based on the personal wrong and breach of duty on the part of the owner, and seeking merely to enforce the just restrictions which the law imposes upon him in the use of his property and prevent misuse, cannot, in my opinion, be regarded in any just sense as the assertion on the part of the neighbor of a claim to the property itself within the meaning of the statute.

Nor can this result be changed by reason of the fact that as a suit for the abatement of a nuisance is a local action which can only be brought in the district where the nuisance is located (Mississippi & M. R. R. Co. v. Ward, supra), in such a suit between citizens of different states, where neither of the parties reside in the district where the nuisance is located, the action not being maintainable under section 8 of the act of 1875, there is no jurisdiction in any Circuit Court of the United States except upon a waiver by the defendant of the want of jurisdiction in the particular district.

The construction and interpretation of statutes cannot extend to amendment or legislation. U. S. v. Fisk, 3 Wall. 445, 448, 18 L. Ed. 243; Petri v. Creelman Lumber Co., 199 U. S. 487, 495, 26 Sup. Ct. 133, 50 L. Ed. 281. Nor can considerations of apparent hardship justify a strained construction of the law as written. Jos. Schlitz Brewing Co. v. U. S., 181 U. S. 584, 589, 21 Sup. Ct. 740, 45 L. Ed. 1013; St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061. "The remedy," if any be required, “is in Congress." Ex parte Girard, 3 Wall. Jr. 263, 10 Fed. Cas. 436, Fed. Cas. No. 5,457.

Furthermore the complainants are not on that account remediless, since in this case, as well as in the many other controversies between citizens of different states which Congress has not deemed proper to include within the jurisdiction of the Circuit Courts of the United

States, the parties may always rely for the enforcement of their rights upon the state courts having the necessary local jurisdiction.

It results, therefore, that the motion of the Tennessee Copper Company must be granted and the bill dismissed as to it, for want of jurisdiction over the person of the defendant, but without prejudice. Macon Grocery Company v. Atlantic C. L. R. Co. (U. S. Sup. Ct., January 17, 1910) 215 U. S. 501, 30 Sup. Ct. 184, 54 L. Ed.; York County Savings Bank v. Abbot (C. C.) 139 Fed. 988.

Motion of the Ducktown Sulphur, Copper & Iron Company.

The Ducktown Sulphur, Copper & Iron Co., hereinafter called the Ducktown Company, having also entered a special appearance, moved to dismiss the complainants' bill, for want of jurisdiction and misjoinder of the parties defendant.

It is well settled, and is not disputed, that the requirement of section 1 of the Acts of 1875, as amended by the Acts of 1888, that suits in a Circuit Court based upon diverse citizenship alone shall be brought within a district in which either the plaintiff or the defendant resides, has no application to suits brought against aliens, and that if jurisdiction otherwise exists in the Circuit Court, an alien corporation may be sued in any district in which valid service may be made upon it. In re Hohorst, 150 U. S. 653, 14 Sup. Ct. 221, 37 L. Ed. 1211; Barrow Steamship Co. v. Kane, 170 U. S. 100, 18 Sup. Ct. 526, 42 L. Ed. 964. The Ducktown Company urges, however, that there is nevertheless a want of jurisdiction in this court and misjoinder of the defendants upon various grounds set forth in its motion to dismiss. None of these grounds are, however, in my opinion, well taken.

1. The fact that this bill is filed for the purpose of abating or restraining a nuisance affecting lands which lie wholly in the state of Georgia, does not require the action to be brought in the district. where the injured property lies, and thereby deprive this court of jurisdiction of the subject-matter of the suit. While an action to abate or restrain a nuisance is of a local nature and can only be maintained in a district having the proper territorial jurisdiction, the venue of such action is in the district where the nuisance itself is located. 29 Cyc. 1237; 14 Enc. Pl. & Pr. 1106, and cases cited.

In Mississippi & M. R. R. Co. v. Ward, 2 Black, 485, 495, 17 L. Ed. 311, it was held, under a bill filed by a steamboat owner in the district court of Iowa to abate a bridge across the Mississippi river constituting an obstruction to navigation, that as to so much of the bridge as lay beyond the middle of the river and outside of the district of Iowa the court "had no power over the local object inflicting the injury" and was without jurisdiction. And in Horne v. City of Buffalo, 49 Hun, 76, 1 N. Y. Supp. 801, it was held, under a statute providing that certain actions, including those for a nuisance, must be tried in the county where the cause of action, or some part thereof, arose, that a suit against a city to abate a nuisance caused by the dumping of street sweepings and other foul matter into the river in the county where the city was located, which injured residents in a village below in another county, should be tried in the county in which the dumping was done,

as being the county in which the cause of action arose. the court said:

In this case

"By the common law an action for a nuisance is regarded as local in its nature, and the venue is required to be laid in the county where the nuisance is situated."

It was also held in People v. St. Louis, 10 Ill. 352, 48 Am. Dec. 339, and Morris v. Remington, 1 Pars. Eq. Cas. (Pa.) 387, that the venue under a bill to restrain a nuisance by injunction is in the jurisdiction in which the nuisance is located; a result which would also seem to follow from the doctrine of Northern Ind. R. R. Co. v. Michigan Central R. R. Co., 15 How. 232, 242, 14 L. Ed. 674, that wherever the subject-matter of a controversy is local, no jurisdiction attaches to a Circuit Court beyond the limit of the district in which the property is situated, and no injunction can be granted affecting such property, except in cases of contract, fraud, or trust, where relief may be given by a decree in personam.

While none of these cases, except the Horne Case, presented the precise situation in the present case, where the property constituting the nuisance lies in one district and the injured property in another, the reasoning in the Ward Case that, where the court "had no power over the local object inflicting the injury," its abatement was beyond the jurisdiction of the court, shows conclusively that the test of local jurisdiction in an action to abate a nuisance is the situs of the object inflicting the injury and not that of the object injured.

The various cases which hold that an action of tort seeking merely to recover damages caused by a nuisance will lie in the jurisdiction where the injury is inflicted, although the object from which the injury proceeds is located elsewhere-there being, however, much conflict of authority even on this point, as shown by the cases collated in 14 Enc. Pl. & Pr. 1106, notes 2 and 3-clearly involve an entirely different question from that in reference to the venue of an action to abate the nuisance itself. The "power over the local object inflicting the injury," which is requisite in an action to abate the nuisance, is wholly unnecessary in an action merely to recover damages, whose result cannot in any way affect the maintenance of the nuisance itself; and the cases holding that in an action of tort for damages alone the venue should be laid where the injured object is located, may, it seems, be well sustained by analogy to the rule stated in Northern Ind. R. R. Co. v. Michigan Cent. R. R. Co., supra, that an action of trespass quare clausum fregit cannot be prosecuted where the act complained of was not done in the district.

2. The fact that, so far as the bill shows, the defendants are separate and independent concerns, conducting each its own separate affairs, does not prevent the bringing of a joint action against them, or create a misjoinder of the Ducktown Company with its codefendant. Without determining whether, in accordance with the broad statement in 2 Street's Fed. Eq. Prac. § 1344, p. 815, the defense of misjoinder of defendants can be made by motion to dismiss, as well as by demurrer, in accordance with the usual practice, I think that the sound rule established by the great weight of authority is, that, in a suit to