1. A bridge erected over the East River, in the harbor of New
York, in accordance with authority derived from Congress and from
the Legislature of New York, is a lawful structure which cannot be
abated as a public nuisance. So far as it obstructs navigation, it
obstructs it under an authority which is empowered to permit the
obstruction.
2. It is competent for Congress, having authorized the
construction of a bridge of a given height over a navigable water,
to empower the Secretary of War to determine whether the proposed
structure will be a serious obstruction to navigation and to
authorize changes in the plan of the proposed structure.
3. When the head of an executive department is required by law
to give information on any subject to a citizen, he may ordinarily
do this through subordinate officers in his department.
4. The navigable waters of the United States include such as are
navigable in fact and which, by themselves or their connections,
form a continuous channel for commerce with foreign countries or
among the states. Over these Congress has control by virtue of the
power vested in it to regulate commerce with foreign nations and
among the several states.
5. The former cases, in which the court has considered the power
of Congress to authorize the construction of bridges over navigable
streams, referred to and considered.
Bill in equity to abate a nuisance.
On the 16th of April, 1867, the Legislature of New York passed
an act creating a corporation by the name of the New York Bridge
Company, for the purpose of constructing and
Page 109 U. S. 386
maintaining a permanent bridge over East River between the
Cities of New York and Brooklyn. Laws 1867, c. 399. The act, among
other things, authorized the corporation to acquire and hold so
much real estate as might be necessary for the site of the bridge,
and of all piers, abutments, walls, toll houses, and other
structures proper to it, and for the opening of suitable avenues of
approach, but no land under water beyond the pier lines established
by law. It declared that the bridge at the middle of the river
should not be at a less elevation than 130 feet above high tide,
and should not be so constructed as to obstruct "the free and
common navigation of the river;" that it should not obstruct any
street it might cross, but span such street by an arch or suspended
platform of suitable height to afford passage under it for all
purposes of public travel and transportation, and that no street
running on the line of the bridge should be closed without full
compensation to the owners of the property upon it, and designated
the points of the commencement and termination of the bridge.
On the 20th of February, 1869, the legislature passed an act
amending the act of incorporation, and providing for the
representation of the two Cities of New York and Brooklyn in the
board of directors of the bridge company, and directing that the
company should proceed without delay to construct the bridge,
authorizing it, for that purpose, to use and occupy so much of the
lands under the water of the river, not exceeding a front on either
side of 250 feet, nor extending beyond the pier lines, as might be
necessary for the construction of the towers of the bridge.
By the Act of March 3d, 1869, 15 Stat. 336, c. 139, Congress
authorized this work, and declared that when completed it should
be
"A lawful structure and post road for the conveyance of the
mails of the United States,
provided that the said bridge
shall be so constructed and built as not to obstruct, impair, or
injuriously modify the navigation of the river, and in order to
secure a compliance with this conditions, the company, previous to
commencing the construction of the bridge, shall submit to the
Secretary
Page 109 U. S. 387
of War a plan of the bridge, with a detailed map of the river at
the proposed site of the bridge and for the distance of a mile
above and below the site, exhibiting the depths and currents at all
points of the same, together with all other information touching
said bridge and river as may be deemed requisite by the Secretary
of War to determine whether the said bridge, when built, will
conform to the prescribed conditions of the act not to obstruct,
impair, or injuriously modify the navigation of the river."
"SEC. 2. And be it further enacted that the Secretary of War is
hereby authorized and directed, upon receiving said plan and map
and other information, and upon being satisfied that a bridge built
on such plan, and at said locality, will conform to the prescribed
conditions of this act not to obstruct, impair, or injuriously
modify the navigation of said river, to notify the said company
that he approves the same, and upon receiving such notification the
said company may proceed to the erection of said bridge, conforming
strictly to the approved plan and location. But until the Secretary
of War approve the plan and location of said bridge and notify said
company of the same in writing, the bridge shall not be built or
commenced, and should any change be made in the plan of the bridge
during the progress of the work thereon, such change shall be
subject likewise to the approval of the Secretary of War."
The company complied with the provisions requiring them to
submit plans to the Secretary of War. A commission, consisting of
three officers of the engineer corps, was appointed by the
Secretary of War to examine these plans. Their report was submitted
to the chief of the corps, who thereupon addressed the following
letter to the Secretary of War:
"OFFICE OF THE CHIEF ENGINEER"
"WASHINGTON, D.C., May 31, 1869"
"SIR: The report, with accompanying papers, of the commission
constituted by Special Order No. 73, from the Adjutant General's
office to examine and report upon the bridge proposed to be built
between the Cities of New York and Brooklyn is herewith
respectfully submitted to the Secretary of War."
"After an examination of them and a careful consideration of the
subject, the conclusion at which I have arrived is that the
Page 109 U. S. 388
proposed bridge, if built subject to the conditions recommended
by the commission, with the prescribed height in the middle of one
hundred and thirty feet above mean high water of spring tides, will
conform to the requirements of the act of Congress 'not to
obstruct, impair, or injuriously modify the navigation of the
river,' and I recommend to the Secretary of War approval of the
same. The phrase in the act of Congress 'not to obstruct, impair,
or injuriously modify the navigation of the river' was prepared by
myself, and with reference to the meaning attached to those words
by the best authorities, and they were, I believe, used in the act
with that understanding of them. I would further recommend that the
bridge company be furnished with a copy of the report of the
commission."
"Very respectfully, your obedient servant."
"A. A. HUMPHREYS"
"
Brigadier General and Chief of Engineers"
"Hon. JOHN A. RAWLINS"
"
Secretary of War"
The Secretary of War returned this letter and the accompanying
papers to the chief of engineers with this endorsement thereon:
"WAR DEPARTMENT, June 19, 1869"
"Respectfully returned to the chief of engineers, whose views
and recommendations, as well as those of the commission herein
referred to, are concurred in and approved, provided that the
height of the centre of the main span of the bridge shall not be
less than 135 feet in the clear at mean high water of the spring
tides, and provided further that the structure shall conform in all
other respects to the conditions recommended by the
commission."
"The chief of engineers will furnish the bridge company with a
copy of the act establishing the bridge, a copy of the report of
the commission and of this report, and will notify the company that
the plan and location of the bridge are approved subject to the
conditions herein imposed."
"(Signed) JNO. A. RAWLINS"
"WAR DEP., June 19, 1869
Secretary of War"
Thereupon the chief of engineers addressed the following letter
to the president of the bridge company:
Page 109 U. S. 389
"OFFICE OF THE CHIEF OF ENGINEERS"
"WASHINGTON D.C., June 21, 1869"
"HON. HENRY C. MURPHY"
"
President New York Bridge Company, Brooklyn, N.Y."
"SIR : I am directed by the Secretary of War to inform the New
York Bridge Company that he approves the plan and location of the
East River Bridge as reported by the company to the commission
instituted by orders from the War Department, provided the bridge
conform to the following conditions,
viz.: "
"First. That the centre of the main span shall under no
conditions of temperature or load be less than one hundred and
thirty-five feet in the clear above mean high water of spring
tides, as established by the United States Coast Survey."
"Second. That the dimensions and coefficients of stability of
the various parts of the structure shall not be reduced below those
represented in the papers submitted to the commission by the
company or its agents."
"Third. That no portion of the grillage or enrockments of the
pier or tower foundations above the natural riverbed shall project
beyond the pier lines as established by the laws of the State of
New York."
"Fourth. That no guys or stays shall ever be attached to the
main span of the bridge, which shall hang below the bottom chords
thereof."
"These considerations must be strictly adhered to in building
the bridge."
"I am also instructed by the Secretary of War to furnish the
bridge company copies of the act of Congress establishing the
bridge, of the report of the commission, and of the report of the
chief of engineers, all of which are enclosed herewith."
"Very respectfully, your obedient servant,"
"A. A. HUMPHREYS"
"
Brig. Gen. and Chief of Engineers"
The bridge was built in substantial compliance with these
requirements, and the requirements of the Legislature of New York
in the several acts relating to the bridge have all been
substantially complied with, and the bridge has been completed and
is now in public use.
The appellant is a lessee of warehouses on the East River
Page 109 U. S. 390
above the bridge. After the building of the bridge was far
advanced and over $6,000,000 had been expended upon it, but before
completion, he began this suit in the court below, on behalf of
himself and others similarly situated, setting forth that the
projected bridge would seriously impair and obstruct the navigation
of the East River and praying to have it adjudged to be a public
nuisance, built without lawful authority, and the defendants in the
suit enjoined from completing and maintaining it. Judgment being
given against him in the court below, this appeal was taken.
Page 109 U. S. 392
MR. JUSTICE FIELD delivered the opinion of the Court.
This suit was commenced in May, 1876, to restrain the erection
of the suspension bridge then under construction over East River in
the State of New York between the cities of New York and Brooklyn
at the height of 135 feet above the river at high water mark, which
was the proposed elevation of the structure. As the bridge has
since been completed, if the plaintiff can make good his contention
and establish that when he filed his bill, he was entitled to the
relief prayed, he may claim that the bridge shall be raised to a
greater elevation or be entirely abated. He is the lessee of
certain warehouses on the banks of the river above the point of the
proposed crossing of the bridge, and he states that he brings the
suit on behalf of himself and of all others similarly situated. No
one, however, has united with him in its prosecution. He stands
alone as complainant, and alleges that the bridge, if erected as
projected and intended at the height designated, would be built
without lawful power and authority; that it would be a nuisance and
obstruct, impair, and injuriously modify the navigation of the
river, and might seriously and prejudicially affect the commerce of
the port of New York; that merchant vessels from the New England
states and British provinces and from ports south of New York and
vessels engaged in foreign commerce pass and repass on the river
the intended location of the bridge; that the masts of a large
proportion of these vessels exceed 135 feet in height; and that the
expense to them of striking parts of their masts in passing under
the bridge, if built as proposed, with the detention and additional
towage rendered necessary, would be so great as to destroy his
warehouse business and be a private and irreparable injury to him,
for which an action at law would afford no adequate redress. He
accordingly prays an adjudication of the court upon the character
and effect of the proposed bridge in conformity with these
allegations and an injunction restraining the further prosecution
of the work of building it at the height of 135 feet above mean
high water, or at any other height that would obstruct, impair, or
injuriously modify the navigation of the river.
The court below did not find in the allegations of a
possible
Page 109 U. S. 393
loss to the plaintiff in his warehouse business, or in the
proofs offered to sustain them, sufficient ground to restrain the
completion of the work. It dismissed his complaint as being without
substantial merit.
We approve of its action and decree. The erection of the bridge
at the elevation proposed was authorized by the action of both the
state and federal governments. It would therefore, when completed,
be a lawful structure. If, as now completed, it obstructs in any
respect the navigation of the river, it does so merely to an extent
permitted by the only authorities which could act upon the subject.
And the injury then apprehended and alleged by the plaintiff, and
now sustained, is only such as is common to all persons engaged in
commerce on the river and doing business on its banks, and
therefore not the subject of judicial cognizance. These conclusions
will clearly appear by a reference to the legislation under which
the work was commenced and prosecuted.
[The learned justice then reviewed the facts which are above set
forth, and continued:]
It is contended by the plaintiff with much earnestness that the
approval of the Secretary of War of the plan and location of the
bridge was not conclusive as to its character and effect upon the
navigation of the river, and that it was still open to him to show
that, if constructed as proposed, it would be an obstruction to
such navigation as fully as though such approval had not been had.
It is argued that Congress could not give any such effect to the
action of the Secretary, it being judicial in its character. There
is in this position a misapprehension of the purport of the act. By
submitting the matter to the Secretary, Congress did not abdicate
any of its authority to determine what should or should not be
deemed an obstruction to the navigation of the river. It simply
declared that, upon a certain fact's being established, the bridge
should be deemed a lawful structure, and employed the Secretary of
War as an agent to ascertain that fact. Having power to regulate
commerce with foreign nations and among the several States, and
navigation being a branch of that commerce, it has the control of
all navigable waters between the states or connecting
Page 109 U. S. 394
with the ocean, so as to preserve and protect their free
navigation. Its power, therefore, to determine what shall not be
deemed, so far as that commerce is concerned, an obstruction, is
necessarily paramount and conclusive. It may in direct terms
declare absolutely, or on conditions, that a bridge of a particular
height shall not be deemed such an obstruction, and, in the latter
case, make its declaration take effect when those conditions are
complied with. The act in question, in requiring the approval of
the Secretary before the construction of the bridge was permitted,
was not essentially different from a great mass of legislation
directing certain measures to be taken upon the happening of
particular contingencies or the ascertainment of particular
information. The execution of a vast number of measures authorized
by Congress and carried out under the direction of heads of
departments would be defeated if such were not the ease. The
efficiency of an act as a declaration of legislative will must, of
course, come from Congress, but the ascertainment of the
contingency upon which the act shall take effect may be left to
such agencies as it may designate.
South Carolina v.
Georgia, 93 U. S. 13.
It is also objected that the notice given by the chief engineer
to the company was not a compliance with the requirement that
notification should be given by the Secretary, but there is no
force in the objection. When a secretary of the government is
required to give information on any subject, he may act, and
generally does act, through officers under him. He is not expected
to make over his own signature all the communications required from
the department of which he is the head. It would be impracticable
for him to do so. The official communication is deemed made by him
when it is made under his sanction and direction.
The bridge, being constructed in accordance with the legislation
of both the state and federal governments, must be deemed a lawful
structure. It cannot, after such legislation, be treated as a
public nuisance, and however much it may interfere with the public
right of navigation in the East River and thereby affect the
profits or business of private persons it cannot on that ground be
the subject of complaint before the
Page 109 U. S. 395
courts. The plaintiff is not deprived of his property nor of the
enjoyment of it, nor does he from that cause suffer any damage
different in character from the rest of the public. He alleges that
his business of a warehousekeeper on the banks of the river above
the bridge will be in some degree lessened by the delay attending
the passage under it of vessels with high masts. The inconvenience
and possible loss of business from this cause are not different
from that which others on the banks of the river above the bridge
may suffer. Every public improvement, whilst adding to the
convenience of the people at large, affects more or less
injuriously the interests of some. A new channel of commerce
opened, turning trade into it from other courses, may affect the
business and interests of persons who live on the old routes. A new
mode of transportation may render of little value old conveyances.
Every railway in a new country interferes with the business of
stage coaches and side-sway taverns, and it would not be more
absurd for their owners to complain of and object to its
construction than for parties on the banks of the East River to
complain of and object to the improvement which connects the two
great cities on the harbor of New York.
Several cases have been before this Court relating to bridges
over navigable waters of the United States in which questions were
raised as to the authority by which the bridges could be
constructed, the extent to which they could be permitted to
obstruct the free navigation of the waters, and the right of
private parties to interfere with their construction or
continuance. In these cases, all the questions presented in the
case at bar have been considered and determined, and what we
hereafter say in this opinion will be little more than a
condensation of what was there declared. The power vested in
Congress to regulate commerce with foreign nations and among the
several states includes the control of the navigable waters of the
United States so far as may be necessary to insure their free
navigation, and by "navigable waters of the United States" are
meant such as are navigable in fact, and which by themselves or
their connection with other waters form a continuous channel for
commerce with foreign countries or among the States.
The
Page 109 U. S. 396
Daniel Ball, 10 Wall. 557. East River is such a
navigable water. It enters the harbor of New York and connects it
with Long Island Sound. Whatever, therefore, may be necessary to
preserve or improve its navigation the general government may
direct, and to that end it can determine what shall and what shall
not be deemed an interference with or an obstruction to such
navigation.
In the
Wheeling Bridge Case, a bridge erected over the
Ohio River at Wheeling under an act of the Legislature of Virginia
which prevented the passage of steamboats with high chimneys was
judged to be an unlawful structure, and the Court ordered that it
should be raised so as to afford a free passage to the steamers or
that some other plan should be adopted by a day designated which
would relieve the navigation from the obstruction, or that the
bridge should be abated. Congress thereupon interfered and declared
the bridge, as it was built at its existing elevation, to be a
lawful structure. The Court then held that the objection to the
bridge as an obstruction to the navigation of the river was
removed; that although it might still be an obstruction in fact, it
was not so in contemplation of law, and the decree of the Court for
the abatement of the bridge could not be enforced. "There was no
longer," said the Court,
"any interference with the enjoyment of the public right
inconsistent with the law, no more than there would be where the
plaintiff himself had consented to it after the rendition of the
decree."
For its interference with the public use of the stream no
individual could complain, as the power which could control and
regulate that use had made the structure creating the interference
a lawful one. 18 How.
59 U. S.
430.
The case of
Gilman v.
Philadelphia, 3 Wall. 713, is much stronger than
the
Wheeling Bridge Case, and is conclusive against the
pretensions of the plaintiff. It there appeared that a bridge was
about to be built over the Schuylkill River at Chestnut Street in
the City of Philadelphia under the authority of an act of the
Legislature of Pennsylvania, when a party owning valuable coal
wharves just above Chestnut Street filed a bill to prevent its
erection, alleging, as in the present case, that it would be an
unlawful obstruction to the navigation of the
Page 109 U. S. 397
river and a public nuisance, inflicting upon him special damage,
and claiming that he was entitled to be protected by an injunction
to restrain the progress of the work, and to a decree of abatement
should it be completed. The river was tidewater and navigable to
the wharves of the plaintiff by vessels drawing from 18 to 20 feet
of water, and for years commerce to them had been carried on in all
kinds of vessels. The bridge was to be only 30 feet high and
without draws, and, of course, would cut off all ascent above it of
vessels carrying masts. The city justified its intended action
under the act of the legislature, setting up that the bridge was a
necessity for public convenience to a large population residing on
both sides of the stream. The court below dismissed the bill, and
this Court affirmed its decree, holding that as the river was
wholly within her limits, the state could authorize the
construction of a bridge until Congress should by appropriate
legislation interfere and assume control of the subject. In giving
its opinion, the Court observed that it should not be forgotten
that bridges which are connecting parts of turnpikes, streets, and
railroads are means of commercial transportation as well as
navigable waters, and that the commerce over them may be greater
than on the water; that it was for the municipal power to determine
which should be preferred and how far either should be made
subservient to the other, and that this power could be exercised by
the state until Congress interfered and took control of the matter.
All the considerations which governed the decision of that case
operate with equal, if not greater, force in the present case. In
that case, different parts of a city separated by a navigable water
were connected by a bridge; in this case, two cities thus separated
are united. In that case, the obstruction was complete and
permanent to all vessels having masts; in this case, the
obstruction does not exist except to a limited mass of vessels
having high masts, and to them it is little more than a temporary
inconvenience. In that case, there was no approval of the structure
by Congress except such as may be inferred from its silence; in
this case, there is its direct authorization of the bridge after a
careful consideration of its effect upon navigation by a commission
of distinguished engineers. In that
Page 109 U. S. 398
case, the bridge was held to be a lawful structure against all
private parties, the federal government alone having the right to
object to the obstruction to the navigation of the river which it
might cause and to remove it; in this case, that government does
not object, but approves and sanctions the structure, and the
public benefit from it far outweighs any inconvenience arising from
its interference with the navigation of the stream.
The recent case of
Escanaba Company v. Chicago,
107 U. S. 678,
follows the decision in
Gilman v. Philadelphia, and is
equally pointed and decisive.
In the light of these cases (and others of the same purport
might be cited) the claim of the plaintiff that the construction of
the great work which was to connect, and which has since connected,
the Cities of New York and Brooklyn should have been suspended
appears to be wholly without merit.
The decree of the court below dismissing his bill is
affirmed.
