New Orleans, M. & T. Ry. Co. v. Mississippi
112 U.S. 12 (1884)

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U.S. Supreme Court

New Orleans, M. & T. Ry. Co. v. Mississippi, 112 U.S. 12 (1884)

New Orleans, Mobile & Texas Railway Company v. Mississippi

Argued October 15, 1884

Decided October 27, 1884

112 U.S. 12

I

N ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

Syllabus

The Act of February 7, 1867, of the Legislature of Mississippi (Laws of 1867, 332), and the Act of August 19, 1868, of the Legislature of Louisiana (Acts of La. 1868, No. 28, p. 32), and the Act of Congress of March 2, 1868 (15 Stat. 38), relating to the construction and maintaining of bridges over navigable waters on the route of a railroad between Mobile and New Orleans, when taken together so far as the last two may be considered in this case, do not release the plaintiff in error from the obligation imposed upon it by the said act of the Legislature of Mississippi to maintain a drawbridge with a space of sixty feet for the passage of vessels, across the channel of Pearl River, in its main channel, constituting the dividing line between Mississippi and Louisiana.

This was a petition for mandamus by the Attorney General of the Mississippi on behalf of the state, brought in the courts of that state, and removed to the Circuit Court of

Page 112 U. S. 13

the United States for the Southern District thereof, to compel the plaintiff in error, as defendant below, to remove a bridge alleged to have been constructed by it without a draw across Pearl River, and in lieu thereof to construct and maintain a bridge which should have, in the central part of the channel, a drawbridge, which when open should give a space of sixty feet for the passage of vessels. A demurrer was interposed by a defendant below, and an answer filed, without prejudice, to the demurrer. The contentions between the parties are stated in the opinion of the Court. Each party in its contentions referred to the following statutes, which are also referred to in the opinion of the Court.

I. The following clauses in an act of the Legislature of Mississippi, approved February 7, 1867, relating to plaintiff in error, are referred to in the opinion:

"And it is also provided that said company is authorized and empowered to construct and maintain its said railroad over and across any of the waters of this state on the line of the same by bridges, provided, however, that in the central portion of the channel of the Pearl River, of the Bay of St. Louis, of the Bay of Biloxi, and of the East Pascagoula River, and in each of them, said company shall construct and maintain a drawbridge, which, when open, shall give a clear space for the passage of vessels, of not less than sixty feet in width, and said company, after the construction of the said drawbridges, shall at all times thereafter, provide that said drawbridges shall be opened for the passage of any and all vessels seeking to pass through the same without unnecessary delay, provided, however, that in case the company shall locate the line of their road across the channel of the Rigolet at a point south of or below the principal entrance of Pearl River into the Rigolet, then the said company shall not be required to construct a drawbridge across any bayou leading into Pearl River, or across any small pass or mouth of said river. It is also provided that such part of this section as relates to Pearl River, if the line of the road shall be located across the said river at a point where it constitutes the boundary line between the State of Mississippi and the State of Louisiana, shall not take effect until the State of Louisiana has consented to and authorized the

Page 112 U. S. 14

same, or said company has built such a bridge across said Pearl River, for its said railroad, as shall be in accordance with this section, and also with any authority or power granted to said company by the said states of Louisiana in the premises, and such drawbridge may be built in the center of the channel of said Pearl River, or in that portion of the same within the Territory of the State of Louisiana or of this state, as most convenient for public use."

Laws Miss. 1867, pp. 332, 335-336.

II. Also the following clauses in an Act of the Legislature of Louisiana, approved August 19, 1868, in reference to the same company:

"And it is also provided that said company is authorized and empowered to construct and maintain its said railroad over and across the waters of the State of Louisiana, known as the Pass Chef Menteur, Little Rigolet, Great Rigolet, or that part of Lake Pontchartrain east of the west line of Point aux Herbs, and the West Pearl River, and other streams and bayous between Lake Pontchartrain and Pearl River, and Pearl River, by bridges, provided however that in the channel of that part of Lake Pontchartrain hereinbefore named there shall be constructed and maintained by said company a drawbridge which, when open, shall give a clear space for the passage of vessels of not less than one hundred feet in width, and in the channel of the Pearl River the said company shall construct and maintain a drawbridge, which, when open, shall give clear space for the passage of vessels of not less than sixty feet in width, except in case the company shall locate their road across the Great Rigolet at a point south of (or below) the principal entrance of Pearl River into the Great Rigolet, when the company shall only be required to construct one drawbridge, which shall be in the channel of the Great Rigolet, as hereinbefore named, and said company, after the construction of the said drawbridges or drawbridge, shall at all times thereafter, provide that said drawbridges or drawbridge shall be opened for the passage of any and all vessels through the same without unnecessary delay. It is also provided that said part of this section as relates to Pearl River, if the line of the road shall be located across the said river at a point where it constitutes

Page 112 U. S. 15

the boundary line between the State of Louisiana and the State of Mississippi, shall not take effect until the State of Mississippi has consented to and authorized the same, or said company has built such a bridge across said Pearl River for its said railroad as shall be in accordance with this section, and also with any authority or power granted to said company by the State of Mississippi in the premises, and such drawbridge may be built in the center of the channel of said Pearl River, or in that portion of the same within the Territory of the State of Mississippi, or of this state, as most convenient for public use."

Acts of La. 1868, No. 28, p. 32.

III. The following clause of the Act of Congress of March 2, 1868:

"That the New Orleans, Mobile & Chattanooga Railroad Company is hereby authorized and empowered to construct, build and maintain bridges over and across the navigable waters of the United States on the route of said railroad between New Orleans and Mobile for the use of said company, the passage of its trains of cars, passengers, and mail and merchandise thereon. And said Railroad Company, and its bridges aforesaid, when constructed, completed and in use in accordance with this act and the laws of the several states through whose territory the same shall pass, shall be deemed, recognized and known as lawful structures and post roads, and are hereby declared as such. Provided, however, that the said company, in the construction of its bridges over and across the waters known as the Pascagoula River, the Bay of Biloxi, and the Bay of St. Louis, and of not less than one hundred feet in the channel of the Great Rigolet, and the said company shall at all times open the said drawbridges and shall provide reasonable and necessary facilities for the passage of all vessels requiring the same except during and for ten minutes prior to and after the time of the passage of the mail and passenger trains of said company."

15 Stat. 38.

Page 112 U. S. 16

The circuit court overruled the demurrer of the defendant below and sustained the demurrer of the plaintiff below and gave judgment accordingly. This writ of error was sued out to review that judgment.

MR. JUSTICE HARLAN delivered the opinion of the Court.

This case has been heretofore in this Court upon a question of jurisdiction, and is reported as Railroad Co. v. Mississippi,102 U. S. 135. The Supreme Court of Mississippi, in accordance with our decision, reversed the judgment of the inferior state court, with directions to set aside all orders made subsequent to the presentation of the company's petition and bond for the removal of the cause, and to proceed no further. The case was thereafter tried in the circuit court of the United States. The object of the suit is, by mandamus, to compel the railroad company, whose line extends from Mobile to New Orleans, to construct and maintain in the channel of Pearl River, where that stream is crossed by the company's road, on the line between Mississippi and Louisiana, a drawbridge, which, when open, will give a clear space of not less than 60 feet in width for the passage of vessels. It would seem from the uncontroverted allegations of the petition that the bridge originally constructed by the company across Pearl River had no draw, although the channel at that point, according to the

Page 112 U. S. 17

coast chart, has about forty-five feet depth of water, and the river is nearly three hundred yards in width. But, in the answer filed in the circuit court, it was averred, and the demurrer to it admitted, that there was at that time, a draw which gave a clear space for the passage of vessels of thirty-four to thirty-six feet in width.

By the final judgment, a peremptory mandamus was awarded requiring the company to remove the present bridge, and in lieu thereof construct and maintain one giving a clear space of not less than sixty feet in width. It is provided in the judgment that such drawbridge may be built "either in the center of the channel of Pearl River, or in that portion of the same within the Territory of the State of Louisiana," or of Mississippi, as "may be most convenient for public use."

The controlling question is whether the railroad company is under any legal obligation to construct and maintain a drawbridge of the kind specified in the judgment of the circuit court.

The company was incorporated by an Act of the General Assembly of Alabama, approved November 24, 1866, with authority to construct a railroad from the City of Mobile to any point on the line between Alabama and Mississippi, and also, in continuation thereof, a railroad through Mississippi and Louisiana, with such rights, privileges, and franchises as might be granted to the corporation by the latter states. Laws of Ala. 1866-1867, p. 6. Its existence as a corporation was recognized and approved by an act of the Legislature of Mississippi, approved February 7, 1867, by which it was permitted to have, exercise, and enjoy, within that state, the rights, powers, privileges, and franchises granted to it by the State of Alabama, subject to the conditions, provisions, and restrictions presented in said act, and by the general laws of Mississippi. By the same act the company was authorized to construct and maintain a railroad from any point on the line between Mississippi and Louisiana, thence toward and to any point on the line between Mississippi and Alabama, and extend the same, as contemplated in its act of incorporation, from the western boundary of the state to New Orleans, and from its eastern

Page 112 U. S. 18

boundary to Mobile. It was given a right of way across any waters, watercourses, rivers, bay, inlets, streets, highways, turnpikes, or canals within Mississippi, subject, however, to the condition that

"the said company shall preserve any watercourse, street, highway, turnpike, or canal which its said railroad may so pass upon, along, intersect, touch, or cross, so as not to impair its usefulness to the public unnecessarily, or, if temporarily impaired in and during the construction of said railroad, the said company shall restore the same to its former state, or to such state that its usefulness and convenience to the public shall not be unnecessarily or materially impaired or injured."

But that part of the act which has special reference to the issues in this case, and upon the construction and effect of which depend the rights of the parties, is given in the statement preceding this opinion.

It will be observed that reference is made to "the central portion of the channel of the Pearl River," and also to the "principal entrance of Pearl River into the Rigolet." It was not disputed in argument that two distinct localities are here described. Pearl River is about 375 miles in length. It rises in the center of Mississippi, and is navigable by small craft, in good stages of water, as far as Jackson, the capital of the state. Running southwardly, it empties by one of its mouths into Lake Borgne, and by other mouths into the Rigolet -- commonly called the Great Rigolet. The main or eastern branch of the Pearl, emptying into Lake Borgne, constitutes, for about one hundred miles above its mouth to the 31

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