*465By the Court,
WhitoN, O. J.We do not think that the reason given by the judge who decided the case in the court below for dismissing the bill, is a valid one.
It appears that an injunction had been obtained at the time of filing the bill, and that a motion had been made before the predecessor of the judge, to dissolve it on various grounds, one of which was an alleged want of equity, and that" the motion was sustained. The judge who dismissed the bill thought this was 'a decision upon the merits of the bill, which precluded him from an examination into them. In this we think he was mistaken. UTlie order dissolving the injunction was perhaps final so far as the injunction was concerned, if not appealed, irom, and could not be questioned in any of the subsequent proceedings; but we are aware of no rule in equity which requires an appellate court to acquiesce in the reasoning of the judge by which he arrives at his conclusion. The injunction having been dissolved, and no appeal having been taken from the order dissolving it, the complainants are perhaps precluded from questioning the propriety of dissolution in ttiis appeal, but they were not precluded from bringing their case to a hearing upon its merits. They might not have regarded the injunction as material, or might, in order to save time and obtain a speedy decision upon their case, have chosen to forego the benefit of an appeal.
It is no answer to say that the judge did in fact dissolve the injunction, because he was of opinion that there was no equity in the bill. It is enough that he did not so decide. Re merely decided that the injunction should be dissolved, and that decision is not necessarily an adjudication upon the merits of the bill.
This brings us to the consideration of the bill and of the case as made out by the testimony.
The first question which presents itself is, whether the bridge, to prevent the construction of" which the bill was filed, is a nuisance, independent of the question as to the authority of the the defendants to construct it. Upon this question we have no doubt. By our statute (Bev. ¿¡¡tat. chapl. 64 § 1; Sess. Laws, 1853, chapt. 72, § 2), all obstructions to the navigation of streams of the description of the one over which the bridge in question is built, are prohibited. Unless then, the city of Eaciue had authority to build the bridge, its erection was forbidden, and *466the bridge when built would be a public nuisance. The next question is, whether the bill and testimony show that the complainants have a private and special interest distinct from the public, which will be injuriously affected by the erection of the bridge. We have arrived at the conclusion that both the- bill and the testimony do show that to be the fact. The situation of their property is such that the erection of the bridge, while it would result in damage to all who have occasion to navigate the river above the bridge, would be the occasion of special damage to the complainants. Under such circumstances the authorities are clear, that an action at law can be maintained to recover damages occasioned by the erection of the nuisance or a suit in chancery to prevent its erection, if the circumstances are such as to warrant the interference of a court of chancery. Walker vs. Shepardson, 2 Wis. R. 884, and authorities there cited. Nor do we see any objection to such persons joining in’ a suit as parties complainants. As the erection of the nuisance would cause private and special damage to each of the complainants, they have a common right to prevent its erection, or to abate it after it is built. At least it is too late to raise the question of multifariousness at the hearing. See 4 Paige R. 510; Reed et al. vs. Gifford, 1 Hopkins R. 416; Murray et al. vs. Hay, 1 Barb. Ch. R. 59.
We will now proceed to discuss the question whether or not the city of Racine had authority to erect the bridge. It is not claimed on the part of the defendants, that the legislature has given any special authority to the city to erect it, but it is contended that under the authority contained in .the charter of the city, the city authorities had the power.
Assuming that a general power is given to the city authorities by the charter to erect bridges over navigable waters within its limits (which does not seem very clear), still it would not follow as a necessary consequence, that authority was given to erect the bridge in question. Such general authority would exist subject to many limitations. It would not give the city authority purposely to obstruct navigation, nor allow it so- to erect bridges as to produce that effect, where a slight change in the mode of construction' would prevent it. This general power to erect bridges must be viewed in connection with the right of the public to use the waters -for the purpose of navigation^ and must *467be exercised in suck a way as to produce the least obstruction to navigation, compatible with the convenience and accommodation of the public.
If these views are correct, it seems to us very clear that the •city had no authority to erect the bridge in question. All the testimony shows that the place where the bridge is built, is the worst that could have- been selected for such a purpose. It appears that it is built in an angle of the river, so that -it is almost impossible for vessels to pass through the draw without getting ■aground-; the course of the river being such as to require any. •craft which passes' through, to change its course materially at the moment, e.f passing, in order to-prevent: that, result;. Ihalso appears-that a few rods above or .below the place-where the ■bridge-is-erected, no such consequence would follow the erection of a suitable bridge, and' it does not appear, but that the public would be as well accommodated by abridge at either of those places, as,by the one in question, ©ranting then, that thé city of Eacine had the general power to erect bridges over Eoot River, within- the limits of the -city, we áre of opinion that-it had no authority to authorize the obstruction to navigation which this bridge occasions. If-the-legislature had conferred upon the-city the power to build a-bridge at the-place where the-•one in question is situated, the question- presented would be very different. But-as in our opinion- no such power has been conferred, we must hold that the bridge complained of is a nuisance. We must therefore reverse the decree of the court below. •