The State of Pennsylvania, having constructed lines of canal and
railroad and other means of travel and transportation which would
be injured in their revenues by the obstruction in the River Ohio
created by a bridge at Wheeling, has a sufficiently direct interest
to sustain an application to this Court, in the exercise of
original
Page 54 U. S. 519
jurisdiction, for an injunction to remove the obstruction. The
remedy at law would be incomplete.
It is admitted that the federal courts have no jurisdiction of
common law offenses, and that there is no abstract pervading
principle of the common law of the Union under which this Court can
take jurisdiction, and that the case under consideration is subject
to the same rules of action as if the suit had been commenced in
the Circuit Court for the District of Virginia.
But chancery jurisdiction is conferred on the courts of the
United States by the Constitution, under certain limitations, and
under these limitations the usages of the High Court of Chancery in
England, which have been adopted as rules by this Court, furnish
the chancery law which is exercised in all the states, and even in
those where no state chancery system exists.
Under this system, where relief can be given by the English
chancery, similar relief may be given by the courts of the
Union.
An indictment against a bridge as a nuisance by the United
States could not be sustained, but a proceeding against it on the
ground of a private and irreparable injury may be sustained at the
instance of an individual or a corporation either in the federal or
state courts.
In case of nuisance, if the obstruction be unlawful and the
injury irreparable, by a suit at common law, the injured party may
claim the extraordinary protection of a court of chancery.
The Ohio is a navigable stream, subject to the commercial power
of Congress, which has been exercised over it, and if the act of
Virginia authorized the structure of the bridge so as to obstruct
navigation, it would afford no justification to the bridge
company.
Congress has sanctioned the compact made between Virginia and
Kentucky,
viz.,
"That the use and navigation of the River Ohio, so far as the
Territory of Virginia or Kentucky is concerned, shall be free and
common to the citizens of the United States."
This compact is obligatory, and can be carried out by this
Court.
Where there is a private injury from a public nuisance, a court
of equity will interfere by injunction.
In this case, the bridge is a nuisance. This is shown by
measuring the height of the bridge, and of the water, and of the
chimneys of the boats. The report of the commissioner, appointed by
this Court to ascertain these facts, is equivalent to the verdict
of a jury.
The report of the commissioner adverted to and commented upon,
the extent of injury sustained by the boats explained, and the
importance shown of maintaining the navigation of the river.
If a structure be declared to be a nuisance, there is no room
for a calculation and comparison between the injuries and benefits
which it produces.
Therefore, unless there be an elevation of the lowest parts of
the bridge for three hundred feet over the channel of the river --
not less than one hundred and eleven feet from the low water mark,
the flooring of the bridge descending from the termini of the
elevation at the rate of four feet in the hundred -- or some other
plan shall be adopted which shall relieve the navigation from
obstruction, on or before the first of February next -- the bridge
must be abated.
In consequence of the intimation above alluded to,
viz.
"that some other plan might be adopted" than elevating the bridge,
the Court, at the request of the counsel for the Bridge Company,
referred the matter to an engineer. After receiving his report, the
Court decided as follows:
The Bridge Company may, upon its own responsibility, try whether
the western channel can be improved and made passable by means of a
draw, so as to afford a safe and unobstructed navigation for the
largest class of boats, having chimneys eighty feet high, when they
cannot pass under the suspension bridge. This is to be done, if at
all, before the first Monday of February next, on which day the
plaintiff may move the Court on the subject of the decree.
This was a case upon the equity side of this Court, in the
exercise of original jurisdiction.
It is noticed in
50 U. S. 9 How.
647, and again in
52 U. S. 11 How.
528.
In 9 Howard, a statement is given of the contents of the
bill
Page 54 U. S. 520
and answer, and of the proceedings in the case, up to the time
of its reference to a commissioner, for the purpose of taking
further proofs upon the points therein stated. The reader is
referred to that volume for these proceedings.
In that report it is mentioned that a notice of the arguments of
counsel was deferred until the final decision of the case.
That final decision having taken place at this term, it is
proper now to note as briefly as possible the grounds assumed by
the respective counsel.
Page 54 U. S. 557
MR. JUSTICE McLEAN delivered the opinion of the Court.
This bill was filed in the clerk's office of this Court in July,
1849. It charged that the defendants, under color of an act of the
Legislature of Virginia, but in direct violation of its terms, were
engaged in the construction of a bridge across the Ohio River at
Wheeling which would obstruct its navigation to and from the ports
of Pennsylvania by steamboats and other craft which navigate the
same. That the State of Pennsylvania owns certain valuable public
works, canals, and railways, constructed at great expense as
channels of commerce for the transportation of passengers and
goods, from which a large revenue, as tolls, was received by the
state. That these works terminate on the Ohio River, and were
constructed with direct reference to its free navigation; the goods
and passengers transported on these lines were conveyed in
steamboats, on the Ohio River, and the Wheeling Bridge would so
obstruct the navigation of that river, as to cut off and direct
trade and business from the public works of Pennsylvania, impair
and diminish the tolls and revenue of the state and render its
improvements useless. The bill prayed an injunction against the
erection of the bridge, as a public nuisance, and for general
relief.
In August, 1849, a supplemental bill was filed stating that
after notice, the defendants continued to prosecute their work and
were engaged in stretching iron cables across the channel of the
river which would obstruct its navigation, and it prayed that these
cables might be abated.
At the December term of this Court, 1849, another supplemental
bill was filed, representing that defendants had completed the
erection of the bridge, and that it had obstructed the passage of
steamboats carrying freight and passengers to and from the ports of
Pennsylvania; that it also hindered the passage of steamships and
seagoing vessels, which were accustomed to be constructed at the
ports of Pennsylvania, and would injure and destroy the trade and
business of ship and boat building, which was carried on by the
citizens of Pittsburgh, and it prayed an abatement of the bridge as
a public nuisance, and for general relief.
In their answers, the defendants allege the exclusive
sovereignty
Page 54 U. S. 558
of Virginia over the Ohio River, and set forth the act
authorizing the erection of the bridge. And they object to the
application for an injunction and the relief prayed for, that the
persons injured might have remedy in the courts of Virginia; that
the State of Pennsylvania had no corporate capacity to institute
this suit in the supreme court to vindicate the rights of her
citizens; that the state is only a nominal party, whose name was,
without proper authority, used by individuals; that the bridge is a
connecting link of a great public highway, as important as the
navigation of the Ohio River; that Pennsylvania had set the example
of authorizing bridges across the Ohio; that certain engineers of
the United States had recommended a wire suspension bridge at
Wheeling, and gave as their opinion that "by an elevation of ninety
feet, every imaginable danger of obstructing the navigation would
be avoided;" that certain reports of committees in Congress
recognized the necessity of a bridge at Wheeling and recommended an
appropriation for that purpose; that the headway for steamers left
by the bridge is amply sufficient, forty-seven feet above the
water, for all useful purposes, and if sufficient draft cannot be
had at that height, blowers might be added; that chimneys might
have hinges on them, so as to be lowered without much
inconvenience; that the bridge will not be an appreciable
inconvenience to the average class of boats; that the bridge will
not diminish or destroy trade between Pittsburgh and other ports,
or do irreparable injury to the citizens of Pennsylvania.
The answer admits that the State of Pennsylvania has expended
large sums of money in the construction of public improvements,
terminating at Pittsburgh and Beaver; that a great amount of
freight and a large number of passengers do pass over said works,
and that a large amount of toll to the state is derived therefrom;
that the navigation of the Ohio River is important to the works
above referred to, and that the value thereof would be affected
injuriously if from any cause the passage of steamboats from the
City of Pittsburgh downwards were obstructed or impeded. But they
deny that their bridge or the cables will have any such effect, or
that it can in truth be called a nuisance.
To the actual obstruction occasioned by the bridge, as charged
in the second supplemental bill, they set up an amendatory and
explanatory act of the Virginia legislature, passed 11 January,
1850, declaring the height of ninety feet at the eastern abutment,
ninety-three and a half feet at the highest point, and sixty-two
feet at the western abutment, above the low water level of the Ohio
River, to be of lawful height, and in conformity with the intent
and meaning of the 19th section of the charter.
Page 54 U. S. 559
At December term, 1849, the question of jurisdiction was argued
on both sides, and it was sustained by the entry of an order of
reference to the Hon. R. H. Walworth, as special commissioner to
take testimony and report:
1. Whether the bridge is or is not an obstruction of the free
navigation of the Ohio River by vessels propelled by steam or sails
engaged or which may be engaged in the commerce or navigation of
said river.
2. If an obstruction be made to appear, what change or
alteration in the construction and existing condition of the said
bridge, if any, can be made, consistent with the continuance of the
same across said river, that will remove the obstruction to the
free navigation.
At the ensuing term, near its close, the commissioner made his
report, together with the report of the engineer employed, and the
evidence taken before him, deciding,
1. That the bridge is not an obstruction to the free navigation
of the Ohio by any vessels propelled by sails.
2. That the bridge is an obstruction of the free navigation of
the Ohio by vessels propelled by steam.
3. That the change or alteration which can and should be made in
the construction and existing condition of the bridge is, to raise
the cables and flooring in such manner as to give a level headway,
at least three hundred feet wide, over a convenient part of the
channel, of not less than one hundred and twenty feet above the
level of zero on the Wheeling water gauge.
To this report several exceptions were taken, by the counsel on
both sides.
As this is the exercise of original jurisdiction by this Court,
on the ground that the State of Pennsylvania is a party, it is
important to ascertain whether such a case is made out as to
entitle the state to assume this attitude. In the second section of
the third article of the Constitution, it is declared that the
Supreme Court shall have original jurisdiction in a case where a
state shall be a party.
In this case the State of Pennsylvania is not a party in virtue
of its sovereignty. It does not come here to protect the rights of
its citizens. The sovereign powers of a state are adequate to the
protection of its own citizens, and no other jurisdiction can be
exercised over them, or in their behalf, except in a few specified
cases. Nor can the state prosecute this suit on the ground of any
remote or contingent interest in itself. It assumes and claims, not
an abstract right, but a direct interest in the controversy, and
that the power of this Court, can redress its wrongs and save it
from irreparable injury. If such a case be made out, the
jurisdiction may be sustained.
Page 54 U. S. 560
When a state enters into a co-partnership or becomes a
stockholder in a bank or other corporation, its sovereignty is not
involved in the business, but it stands and is treated as other
stockholders or partners. And so in the present case, the rights
asserted and relief prayed, are considered as in no respect
different from those of an individual. From the dignity of the
state, the Constitution gives to it the right to bring an original
suit in this Court. And this is the only privilege, if the right be
established, which the State of Pennsylvania can claim in the
present case.
It is objected in the first place that there is no evidence that
the State of Pennsylvania has consented to the prosecution of this
suit in its own name.
This would seem to be answered by the fact that the proceedings
were instituted by the attorney general of the state. He is its
legal representative, and the court cannot presume, without proof,
against his authority. In January, 1850, the following declaration
passed unanimously by both branches of the Pennsylvania
Legislature:
"Whereas the navigation of the River Ohio has been and is now
obstructed by bridges erected across its channel between Zane's
Island and the main Virginia and Ohio shores, so that steamboats
and other watercrafts hitherto accustomed to navigate said river,
are hindered in their passage to and from the port of Pittsburgh,
and other ports in the State of Pennsylvania, and the trade and
commerce, and business of this Commonwealth interrupted, the
revenue of her public works diminished and impaired, and
steamboats, owned and navigated by citizens of this state, bound to
and from her ports, are subjected to labor, expense, and delay,
with hazard to life and property, by reason whereof the said
bridges are a common and public nuisance, injurious to the State of
Pennsylvania and her citizens, therefore be it resolved
&c."
"2. That the proceedings, in behalf of said state, instituted by
her attorney general in the Supreme Court of the United States, and
now pending therein against the Wheeling & Belmont Bridge
Company to abate the nuisance occasioned by their bridge lately
erected across the Ohio, be prosecuted to final judgment, decree,
and execution, for abatement of said nuisance."
On a question of dispute boundary between two states, although
the inquiry of the court is limited to the establishment of a
common line, yet the exercise of sovereign authority, over more or
less territory, may depend upon the decision. This gives great
dignity and importance to such a controversy, and renders necessary
a broader view, than on a question as to the mere right of
property. But in the present case, the State of
Page 54 U. S. 561
Pennsylvania claims nothing connected with the exercise of its
sovereignty. It asks from the court a protection of its property,
on the same ground and to the same extent as a corporation or
individual may ask it. And it becomes an important question whether
such facts are shown, as to require the extraordinary interposition
of this Court.
Relief in this form is given, as it cannot be given adequately
in any other. The injury complained of, in the language of the
books, must be irreparable by a suit at law for damages. It is
matter of history as well as in proof that Pennsylvania, for many
years past, has been engaged in making extensive improvements by
canals, railroads, and turnpikes, many of them extending from
Eastern Pennsylvania to Pittsburgh, by which the transportation of
goods and passengers is greatly facilitated, and that a large
portion of the goods and passengers thus transported are conveyed
to and from Pittsburgh on the Ohio River.
On 18 December, 1789, an act was passed by Virginia, consenting
to the erection of the State of Kentucky put of its territory, on
certain conditions, among which are the following:
"That the use and navigation of the River Ohio, so far as the
territory of the proposed state, or the territory that shall remain
within the limits of this Commonwealth lies thereon, shall be free
and common to the citizens of the United States."
Virg.Revised Code, 1819, p. 19. To this act the assent of
Congress was given. 1 Stat. 189.
That the Ohio River is navigable is a historical fact, which all
courts may recognize. For many years the commerce upon it has been
regulated by Congress under the commercial power by establishing
ports, requiring vessels which navigate it to take out licenses,
and to observe certain rules for the safety of their passengers and
cargoes. Appropriations by Congress have been frequently made, to
remove obstructions to navigation from its channel.
It appears that Pennsylvania has constructed a combined line of
canal and railroad from Pittsburgh and Alleghany Cities to the City
of Philadelphia, a distance of about four hundred miles, at an
expense of about sixteen millions of dollars, all of which are
owned by the state. There is also a railroad from Pittsburgh to
Harrisburg which will soon be completed at an expense of some eight
or ten millions of dollars. There is also a slack water navigation
from Pittsburgh to Brownsville, and up the Yaughegany to West
Newton, and there are other lines of communication between
Pittsburgh and the East which are owned in whole or in part by the
state, and from which it derives revenue.
And the witnesses generally say that any obstruction on the Ohio
River to the free passage of steamboats must affect injuriously
Page 54 U. S. 562
the revenue from the above public works, as it would divert the
transportation of goods and passengers from the lines to and from
Pittsburgh, to the northern lines through New York. Whilst the
witnesses differ as to the amount of such an injury, they generally
agree in saying, that any serious obstruction on the Ohio would
diminish the trade and lessen the revenue of the state. The value
of the goods to and from Pittsburgh, transported on the above lines
of communication, is estimated at from forty to fifty millions
annually. And it is shown that the commerce on the Ohio, to and
from Pittsburgh, amounts to about the same sum.
If the bridge be such an obstruction to the navigation of the
Ohio as to change, to any considerable extent, the line of
transportation through Pennsylvania to the northern route through
New York, or to a more southern route, an injury is done to the
State of Pennsylvania, as the principal proprietor of the lines of
communication, by canal and railroad, from Philadelphia to
Pittsburgh. And this injury is of a character for which an action
at law could afford no adequate redress. It is of daily occurrence,
and would require numerous if not daily prosecutions for the wrong
done, and from the nature of that wrong, the compensation could not
be measured or ascertained with any degree of precision. The effect
would be, if not to reduce the tolls on these lines of
transportation, to prevent their increase with the increasing
business of the country.
If the obstruction complained of be an injury, it would be
difficult to state a stronger case for the extraordinary
interposition of a court of chancery. In no case could a remedy be
more hopeless by an action at common law. The structure complained
of its permanent, and so are the public works sought to be
protected. The injury, if there be one, is as permanent as the work
from which it proceeds, and as are the works affected by it. And
whatever injury there may now be, will become greater in proportion
to the increase of population and the commercial developments of
the country. And in a country like this, where there would seem to
be no limit to its progress, the injury complained of would be far
greater in its effects than under less prosperous
circumstances.
As we are now considering the obstruction of the bridge, not as
to the relief prayed for, but as to the form of the remedy adopted
by the complainant, we are brought to the conclusion, as before
announced by this Court to the parties, that there is made out a
prima facie case for the exercise of jurisdiction. The
witnesses who testify to the obstruction are numerous, and the
weight of their testimony is not impaired by the impeachment of
their credit, or a denial of the facts stated by them.
Page 54 U. S. 563
But it is objected, if not as a matter going to the
jurisdiction, as fatal to any further action in the case, that
there are no statutory provisions to guide the court, either by the
State of Virginia or by Congress. It is said that there is no
common law of the Union on which the procedure can be founded; that
the common law of Virginia is subject to its legislative action,
and that the bridge having been constructed under its authority, it
can in no sense be considered a nuisance. That whatever shall be
done within the limits of a state, is subject to its laws, written
or unwritten, unless it be a violation of the Constitution or of
some act of Congress.
It is admitted that the federal courts have no jurisdiction of
common law offenses, and that there is no abstract pervading
principle of the common law of the Union under which we can take
jurisdiction. And it is admitted that the case under consideration
is subject to the same rules of action as if the suit had been
commenced in the Circuit Court for the District of Virginia.
In the second section of the Third Article of the Constitution
it is declared,
"The judicial power shall extend to all cases, in law and
equity, arising under this Constitution, the laws of the United
States, and treaties made, or which shall be made under their
authority."
Chancery jurisdiction is conferred on the courts of the United
States with the limitation
"that suits in equity shall not be sustained in either of the
courts of the United States, in any case where plain, adequate, and
complete remedy may be had at law."
The rules of the High Court of Chancery of England have been
adopted by the courts of the United States. And there is no other
limitation to the exercise of a chancery jurisdiction by these
courts, except the value of the matter in controversy, the
residence or character of the parties, or a claim which arises
under a law of the United States, and which has been decided
against in a state court.
In exercising this jurisdiction, the courts of the Union are not
limited by the chancery system adopted by any state, and they
exercise their functions in a state where no court of chancery has
been established. The usages of the High Court of Chancery in
England, whenever the jurisdiction is exercised, govern the
proceedings. This may be said to be the common law of chancery, and
since the organization of the government, it has been observed.
In
Robinson v.
Campbell, 3 Wheat. 222, it is said,
"The Court therefore think that to effectuate the purposes of
the legislature, the remedies in the courts of the United States
are to be, at common law or in equity, not according to the
practice
Page 54 U. S. 564
of state courts, but according to the principles of common law
and equity, as distinguished and defined in that country from which
we derive our knowledge of those principles."
This principle is not controverted by what is laid down in the
case of
Wheaton & Donaldson v.
Peters, 8 Pet. 658. In that case, the court
say,
"It is clear there can be no common law of the United States.
The federal government is composed of twenty-four sovereign and
independent states, each of which may have its local usages,
customs, and common law. There is no principle which pervades the
Union, and has the authority of law, that is not embodied in the
Constitution or laws of the Union. The common law could be made a
part of our federal system only by legislative adoption. When,
therefore, a common law right is asserted, we must look to the
state in which the controversy originated."
The inquiry, in that case, was, whether a copyright existed by
common law in the State of Pennsylvania. But in the case above
cited from 3 Wheaton, the court spoke of the remedy. By the Act of
Congress of 1828, proceedings at law in the courts of the United
States are required to conform to the modes of proceeding in the
state courts, but there is no such provision in regard to courts of
chancery.
Under this system, where relief can be given by the English
chancery, similar relief may be given by the courts of the
Union.
An indictment at common law could not be sustained in the
federal courts by the United States, against the bridge as a
nuisance, as no such procedure has been authorized by Congress. But
a proceeding on the ground of a private and an irreparable injury
may be sustained against it by an individual or a corporation. Such
a proceeding is common to the federal courts, and also the courts
of the state. The injury makes the obstruction a private nuisance
to the injured party, and the doctrine of nuisance applies to the
case where the jurisdiction is made out, the same as in a public
prosecution. If the obstruction be unlawful and the injury
irreparable by a suit at common law, the injured party may claim
the extraordinary protection of a court of chancery.
Such a proceeding is as common and as free from difficulty as an
ordinary injunction bill, against a proceeding at law, or to stay
waste or trespass. The powers of a court of chancery are as well
adapted, and as effectual for relief in the case of a private
nuisance, as in either of the cases named. And in regard to the
exercise of these powers, it is of no importance whether the
eastern channel, over which the bridge is thrown, is wholly within
the limits of the State of Virginia. The Ohio being a
Page 54 U. S. 565
navigable stream, subject to the commercial power of Congress,
and over which that power has been exerted; it the river be within
the State of Virginia, the commerce upon it, which extends to other
states, is not within its jurisdiction; consequently, if the act of
Virginia authorized the structure of the bridge so as to obstruct
navigation, it could afford no justification to the Bridge
Company.
The act of Virginia under which the bridge was built with
scrupulous care guarded the rights of navigation. In the 19th
section, it is declared
"That if the said bridge shall be so constructed as to injure
the navigation of the said river, the said bridge shall be treated
as a public nuisance, and shall be liable to abatement upon the
same principles and in the same manner that other public nuisances
are."
And in the Act of 19 March, 1847, to revive the first act, it is
declared in the 14th section
"That if the bridge shall be so erected as to obstruct the
navigation of the Ohio River in the usual manner by such steamboats
and other crafts as are now commonly accustomed to navigate the
same when the river shall be as high as the highest floods
hereinbefore known, then unless upon such obstruction's being found
to exist, such obstruction shall be immediately removed or
remedied, the said last-mentioned bridge may be treated as a public
nuisance and abated accordingly."
This is a full recognition of the public right on this great
highway, and the grant to the Bridge Company was made subject to
that right.
It is objected that there is no act of Congress prohibiting
obstructions on the Ohio River, and that until there shall be such
a regulation, a state, in the construction of bridges, has a right
to exercise its own discretion on the subject.
Congress has not declared in terms that a state, by the
construction of bridges or otherwise, shall not obstruct the
navigation of the Ohio, but they have regulated navigation upon it,
as before remarked, by licensing vessels, establishing ports of
entry, imposing duties upon masters and other officers of boats,
and inflicting severe penalties for neglect of those duties, by
which damage to life or property has resulted. And they have
expressly sanctioned the compact made by Virginia with Kentucky at
the time of its admission into the Union
"That the use and navigation of the River Ohio, so far as the
territory of the proposed state or the territory that shall remain
within the limits of this Commonwealth lies thereon, shall be free
and common to the citizens of the United States."
Now an obstructed navigation cannot be said to be free. It was,
no doubt, in view of this compact that in the charter for the
bridge it was required to be so elevated as not, at the greatest
height of the
Page 54 U. S. 566
water, to obstruct navigation. Any individual may abate a public
nuisance. 5 Bac.Ab. 797; 2 Roll. Ab. 144, 145; 9 Co. 54; Hawk.P.C.
75, sec. 12.
This compact, by the sanction of Congress, has become a law of
the Union. What further legislation can be desired for judicial
action? In the case of
Green v. Biddle,
8 Wheat. 1, this Court held that a law of the State of Kentucky,
which was in violation of this compact between Virginia and
Kentucky, was void, and they say this Court has authority to
declare a state law unconstitutional, upon the ground of its
impairing the obligation of a compact between different states of
the Union.
The case of
Wilson v. Blackbird Creek
Marsh Company, 2 Pet. 250, is different in
principle from the case before us. A dam was built over a creek to
drain a marsh, required by the unhealthiness it produced. It was a
small creek, made navigable by the flowing of the tide. The Chief
Justice said it was a matter of doubt whether the small creeks,
which the tide makes navigable a short distance, are within the
general commercial regulation, and that in such cases of doubt, it
would be better for the court to follow the lead of Congress.
Congress have led in regulating commerce on the Ohio, which brings
the case within the rule above laid down. The facts of the two
cases, therefore, instead of being alike, are altogether
different.
No state law can hinder or obstruct the free use of a license
granted under an act of Congress. Nor can any state violate the
compact, sanctioned as it had been, by obstructing the navigation
of the river. More than this is not necessary to give a civil
remedy for an injury done by an obstruction. Congress might punish
such an act criminally, but until they shall so provide, an
indictment will not lie in the courts of the United States for an
obstruction which is a public nuisance. But a public nuisance is
also a private nuisance, where a special and an irremediable
mischief is done to an individual.
In the case of
City of Georgetown v.
Alexandria Co., 12 Pet. 98, this Court said
"The court of equity also, pursuing the analogy of the law that
a party may maintain a private action for special damages, even in
case of a public nuisance, will now take jurisdiction in case of a
public nuisance, at the instance of a private person, where he is
in imminent danger of suffering a special injury, for which, under
the circumstances of the case, the law would not afford an adequate
remedy."
Where no special damage is alleged, an individual could not
prosecute in his own name for a public nuisance. This doctrine is
laid down in
Conning v. Lowerre, 6 Johns.Ch.
Page 54 U. S. 567
439. In that case the injunction was granted, and the chancellor
said,
"That here was a special grievance to the plaintiffs, affecting
the enjoyment of their property and the value of it. The
obstruction was not only a common or public nuisance, but worked a
special injury to the plaintiffs."
Chancellor Kent in the 3d volume of his Commentaries 411,
says,
"The common law, while it acknowledged and protected the right
of the owners of the adjacent lands to the soil and water of the
river, rendered that right subordinate to the public convenience,
and all erections and impediments made by the owners, to the
obstruction of the free use of the river as a highway for boats and
rafts are deemed nuisances."
In
Sampson v. Smith, 8 Simons 272, it was held that
injury to the plaintiff's trade was sufficient to give jurisdiction
against a public nuisance, and that it was not necessary to use, in
such a prosecution, the name of the attorney general. And this was
on a bill for the discontinuance of works already erected.
It is said, "the question of nuisance or not must, in cases of
doubt, be tried by a jury." 2 Story's Eq. 202. In this respect the
question is similar to an application for the protection of a
patent. Where the right has been long enjoyed or is clear of doubt,
chancery will interfere without a trial at law. Mr. Justice Story
says,
id., 203,
"A court of equity will not only interfere upon the information
of the attorney general, but also upon the application of private
parties, directly affected by the nuisance, whereas at law in many
cases the remedy is or may be solely through the instrumentality of
the attorney general."
In the same volume, p. 204, it is said,
"In regard to private nuisances the interference of courts of
equity, by way of injunction, is undoubtedly founded upon the
ground of restraining irreparable mischief, or of suppressing
oppressive and interminable litigation, or of preventing
multiplicity of suits."
Mit.Eq.Pl. by Jeremy, 144, 145; Eden on Injunctions, ch. 11,
231, 238.
"The must be such an injury as from its nature is not
susceptible of being adequately compensated by damages at law or
such as from its continuance or permanent mischief must occasion a
constantly recurring grievance, which cannot otherwise be prevented
than by an injunction. . . . Formerly, indeed, courts of equity
were extremely reluctant to interfere at all, even in regard to
repeated trespasses. But now there is not the slightest hesitation
if the acts done or threatened to be done to the property would be
ruinous or irreparable."
2 Story's Eq. 207.
In
Ripon v. Hobart, 3 Mylne & Keen 169, Lord
Brougham says,
"If the thing sought to be prohibited is in itself a nuisance,
the court will interfere to stay irreparable mischief without
Page 54 U. S. 568
waiting for the result of a trial, and will, according to the
circumstances, direct an issue or allow an action,"
&c. Lord Eldon, in the case of
Attorney General v.
Cleaver, 18 Ves. 218, appeared to think that there was no
instance of an injunction to restrain a nuisance without trial. But
in this he was clearly wrong.
The fact that the bridge constitutes a nuisance is ascertained
by measurement. The height of the bridge, of the water, and of the
chimneys of steamboats are the principal facts to be ascertained.
If the obstruction exists, it is a nuisance. To ascertain this a
jury is not necessary. It is shown in the report by a mathematical
demonstration. And the other matters connected with the case as to
the benefit of high chimneys, lowering of them in passing under the
bridge, and shortening chimneys are matters of science and
experience, better ascertained by a report than by a verdict. And
the same may be said of the statistics which are in the case.
The object of the suit was not the recovery of damages, but to
enjoin the defendants from building the bridge which would injure
the plaintiff. If the bridge be a material obstruction to the
navigation of the Ohio, it is not denied that the plaintiff would
be injured. The ground of defense taken and maintained is that the
bridge is not a material obstruction to commerce on the river. On
this point there is no doubt. A jury in such a case could give no
aid to the court nor security to the parties. Having had notice of
an application for an injunction before the defendants had thrown
any obstruction over the river, they cannot claim that their
position is strengthened by the completion of the bridge.
But it is said the bridge constitutes no serious obstruction to
the navigation of the Ohio, that only seven steamboats, of two
hundred and thirty which ply upon the river as high as Pittsburgh,
are obstructed, and that arises from the height of their chimneys,
which might be lowered at a small expense in passing under the
bridge; that by the introduction of blowers, the chimneys might be
shortened without lessening the speed of the boats; that the goods
and passengers which are conveyed on the public lines of
communication between Pittsburgh and Philadelphia could be as well
conveyed on boats of lower chimneys, and consequently the state, as
proprietor of those lines, if at all injured, is injured so
inconsiderably as not to lay the foundation of this procedure; that
none of the packets or the other boats on the river are owned by
the State of Pennsylvania.
That the bridge constitutes an obstruction is shown by the
report of the commissioner, the answer of defendants, the proof in
the case, and by the admission in the argument of the counsel for
the defendants. The report of the commissioner is considered,
Page 54 U. S. 569
as to the fact of the obstruction and the extent of it, of the
same force as a verdict of a jury. The report, having been the
result of a most arduous and scientific investigation of the facts,
is entitled to the full weight of a verdict. 2 Railway Cases 330.
The fact of obstruction was a plain and practical question, but it
was connected with other matters involving questions of science
which were to be settled on the opinion of experts, and a report
being fairly made, the court will generally assume it as a basis of
action unless it shall be shown to have been made under improper
influences or through a mistake of facts. 1 Railway Cases 576;
Shelford on Railways 430.
In his report, the commissioner says:
"The boats running in that line and passing the site of the
present suspension bridge in 1849, previous to the time when the
first cables were thrown across the eastern branch of the Ohio at
Wheeling, were the
Clipper, No. 2; the
Hibernia,
No. 2; the
Brilliant, the
Messenger, No. 2; the
Isaac Newton, the
New England No. 2, and the
Monongahela."
"The
Clipper, No. 2, came out in March, 1846, was 215
feet long, and had chimneys 64 feet high. The
Hibernia,
No. 2, came out in 1847. She was 225 feet long, and her chimneys
were 72 1/2 feet high from the water. The
Brilliant came
out in February, 1848, was 227 feet long, and had chimneys 71 feet
high. The
Messenger No. 2 came out in the winter or spring
of 1849, was 242 feet long, and has chimneys 76 1/3 feet high. The
Isaac Newton was 182 feet long and had chimneys only 63
1/2 feet high. The
New England No. 2 was 222 feet long,
and her chimneys were 65 2/3 feet high. 'The dimensions and height
of the chimneys of the
Monongahela,' the commissioner
says, 'I have not been able to ascertain from the evidence.'"
"There were also two other regular packets running past Wheeling
in the spring and summer of 1849, previous to the erection of the
bridge, the two
Telegraphs running as regular packets
between Pittsburgh and Louisville. The chimneys of the
Telegraph, No. 1 were 80 feet high, and those of the other
Telegraph were 79 feet 9 inches high."
"Not more than two or three of these nine packets had their
chimneys prepared for lowering at the close of the navigation in
the Summer of 1849. And of the five largest, only one of them could
have gotten under the bridge on a twenty-foot stage of water with
the chimneys standing, and that one, the
Brilliant, could
not have gotten under when the water was more than twenty-one feet
upon the Wheeling Bar. And neither of the two
Telegraphs
could have gotten under the bridge at a thirteen feet stage of the
water with their chimneys standing. "
Page 54 U. S. 570
"If the bridge," says the commissioner,
"had been erected in 1847, therefore, and those nine packets had
then been running, two of them could not have gotten under the
bridge for nearly three months, when the water was thirteen feet
and over; two of them would have been unable to get under for
thirty-three days, when the water on the bar was twenty feet and
over; another, the
Brilliant, from nineteen to twenty-five
days, when the water was twenty-nine feet and over, and the other
four as much as ten days, when the water was twenty-nine feet and
over -- unless they had lowered or cut off their chimneys."
"The passage of three of the Pittsburgh and Cincinnati packets
which were running on the Ohio before the erection of the bridge
had been actually stopped or obstructed by such bridge previous to
the order of reference in this cause: the
Messenger No. 2,
the
Hibernia No. 2, and the
Brilliant."
"The first of these boats arrived at the bridge on 10 November,
1849, on her downward passage, upon a twenty feet stage of water,
and had to cut off her chimneys before she could pass the bridge.
She was detained there about seven hours, but I believe she did not
lose her trip or passengers. She was subsequently detained at the
bridge seven hours, and was obliged to cut off her chimneys a
second time."
"On 11 November, 1849, the
Hibernia No. 2 reached the
bridge on her upward trip. They attempted to get her under the
bridge by sinking her deeper in the water with coal ballast. But in
attempting to pass the bridge, the top of one of her chimneys
caught upon a projection from the underside of one of the flooring
timbers and injured the chimney so that it had to be taken down and
repaired. The boat was detained thirty-two hours at Wheeling on
that occasion, and was obliged to hire another boat to take her
passengers on to Pittsburgh except such of them as preferred to
cross the mountains by the way of Cumberland."
"On the 18th of the same month, the passage of the
Hibernia
No. 2 was again obstructed by the bridge on her downward
passage, by which she lost an entire trip. Finding she could not
get under the bridge in time to save her trip, she transferred her
freight and passengers to another boat and returned to Pittsburgh.
And the passage of the same boat was again obstructed by the bridge
in coming up the river last spring. On that occasion she arrived at
Wheeling between nine and ten o'clock in the morning, and finding
she could not get under the bridge, she gave up the trip and landed
her passengers, who proceeded east by way of Cumberland."
"The
Brilliant was obstructed by the bridge on her
passage
Page 54 U. S. 571
up on 18 December, 1849, and had to wait until her chimneys
could be cut off to enable her to pass under the bridge. The
chimneys were cut off at great risk to the lives of those who were
engaged in the operation, and the boat passed under the bridge and
proceeded to Pittsburgh after a detention of four or five
hours."
"In the Winter and spring subsequent to the erection of the
bridge, the
Buckeye State, the
Keystone State,
and the
Cincinnati, three new packets, were brought into
the Pittsburgh and Cincinnati lines in the places of the
New
England No. 2, the
Isaac Newton, and the
Monongahela. They were all of much larger dimensions, and
had much taller chimneys than the old boats for which they were
substituted, and their chimneys were hinged and rigged for
lowering."
The chimneys of the
Buckeye State were 74 feet 8 inches
high, those of the
Keystone 77 feet 5 inches, and those of
the
Cincinnati 84 feet 7 inches.
"Two accidents have occurred to those new boats in passing under
the bridge since they came out. The
Keystone State, on her
downward passage the 4th of March last, in attempting to pass under
the apex of the bridge upon a thirteen and a quarter feet stage of
water, could not get near enough to the Wheeling shore to pass
under the apex of the bridge. And in attempting to drop down about
twenty feet further west, one of the chimneys struck the bridge and
tore away all the guys or fastenings of both chimneys except one
guy rod, broke the westerly chimney in two, block off the hinge
from the other chimney, and tore up some portions of the hurricane
deck to which the guy rod were fastened. And if the remaining guy
rod had given way, both chimneys, weighing together about four
tons, would have fallen down."
A somewhat similar accident, it seems from the report, occurred
to the Cincinnati in October, 1850.
On the practicability and safety of lowering the chimneys, a
great number of witnesses were examined. And the commissioner says,
although there was great conflict in the testimony as respects the
danger to the limbs and lives of the passengers in the operation,
yet, he says, when the facts sworn to are examined, there is a
decided preponderance against the safety of lowering the chimneys.
And he remarks
"The very elevated as well as large chimneys used upon the
Cincinnati and Pittsburgh packets and other boats of that class
cannot certainly with any facility or safety be lowered by hinges
at the tops. They are therefore obliged to lower them at the
hurricane deck by means of a derrick. The weight of the parts of
the two chimneys which must be let down upon those large boats is
estimated by the witnesses to be from three to four tons. This
Page 54 U. S. 572
enormous weight hanging over the cabin, or rather over the
berths of passengers, in process of lowering would probably prove
disastrous in the extreme if by any accident the chimneys should
come down by the run, which is very likely to occur from the
carelessness or stupidity of the green hands that the owners and
officers of Western boats are so often obliged to employ."
And if to the difficulties stated in the report there be added
the darkness of the night, a snow storm, or the falling rain
congealing on the roof of the boat and covering it with ice, and a
high wind, which generally is experienced in a storm, it would be
impracticable, while the boat was proceeding at the rate of ten or
twelve miles an hour, to lower the chimneys, and this must be done
or the boat must land. During this operation, the pilot, on whom
the safety of the boat and the lives of the passengers in a great
degree depend, must, from his position, be in imminent danger.
The expense of lowering the chimneys, if practicable and safe,
would constitute no inconsiderable item. The time lost in raising
and lowering chimneys is variously estimated by the witnesses at
from one to three hours. Take the minimum of such estimate, and,
according to the calculation of Colonel Long, the expense of the
boat amounts to $8.33 per hour. Each packet will have to lower its
chimneys every time it passes under the bridge, which will be,
ordinarily, sixty times a season, amounting to the sum of $499.80,
a charge on each packet. To this may be added the apparatus for
lowering the chimneys, estimated at $400, which, with its repairs,
may be estimated at $100 per annum during the life of the boat,
which averages five years. And it is in proof that stationary
chimneys will last five years, but if subject to be lowered, they
will only last half that time. The cost of chimneys for a boat is
stated at $1,000, which may be considered as an increased expense
to each boat of $200 per annum. These sums, added together, make a
total of $799.80, which sum, multiplied by seven, the number of the
packets, make the sum of $5,598.60 which the owners of these
packets must necessarily pay as an annual tax by reason of the
obstruction of the bridge if they run their boats and lower their
chimneys.
But it is contended that the difficulty of passing under the
bridge may be obviated by shortening the height of the chimneys
without lessening materially the speed of the boat.
That high chimneys increase the speed of the boat is proved in
the case practically and scientifically.
Professors Renwick, Byrne, and Locke say that by a law of
nature, the force or velocity of a draft depends upon the
height
Page 54 U. S. 573
of the chimney, the force and velocity being measured by the
difference in the weight between the column of air within the
chimney and an outside column of equal height and diameter, so that
a reduction of the height of the chimney involves a diminution of
that force with which nature supplies air to combine with fuel for
combustion, and by consequence there follows a diminution of heat
developed in the furnace, of steam generated in the boiler, and of
power by which the wheel is moved and the boat propelled.
The commissioner, in his report, says "the deduction of science
also shows that the draft is increased by elongating the chimneys."
In this question, economy of fuel is not the object to be attained,
but the greatest practicable speed consistent with safety. And this
is attained where there is no defect in the furnace by the
combustion of the largest amount of fuel. Forty-three bushels of
bituminous coal are consumed per hour by each of the Pittsburgh
packets.
The commissioner says
"In relation to the question whether chimneys as high as those
now in use upon the Pittsburgh and Cincinnati packets and some of
the larger boats on the Ohio are necessary for obtaining the
maximum of speed desirable in the navigation of the river there is
a diversity of opinion among the witnesses, especially among those
who are not acquainted with the scientific principles of
chimney-draft in reference to the combustion of fuel for the
generation of steam. But I think there is a great preponderance of
the testimony even of that class of witnesses in favor of the
necessity of very high chimneys upon the large Ohio
steamboats."
And he further remarks:
"Rejecting the deductions of science on the subject, the
teachings of experience show that as boats upon the Ohio have been
gradually improved in their dimensions from time to time and the
height of their chimneys increased, they have been enabled to run
with greater speed, to the evident advantage of commerce and of
travel upon the rivers. And the fact that several different
projects for procuring artificial draft, such as blowers as an
available substitute for the draft of tall chimneys, have been
tried upon the Western waters and have failed and been abandoned is
very strong evidence in favor of the necessity of natural draft for
the combustion of wood and bituminous coal upon the steamboats
navigating the Ohio."
There is no better evidence of utility than the progress made in
the structure of steamboats and of the machinery by which they are
propelled. Men who are engaged in navigation learn by experience,
and adopt that which will be most conducive to their own
interests.
Page 54 U. S. 574
It appears from the statement of Scowden, an engineer, that the
chimneys of the first boat, called the
Cincinnati, were 84
feet high from the surface of the water when light, and about 74
feet high from the center of the flues. Her chimneys were shortened
8 feet, and it diminished her speed up stream from a mile to a mile
and a half per hour. Captain Hazlep states that adding 8 feet to
the chimney of the
Telegraph in 1849 increased her speed
about half a mile an hour upstream. And by Captain Duval that the
Clipper's chimney being cut off 8 feet in order to pass
the Wheeling Bridge reduced her speed about three hours between
Cincinnati and Pittsburgh. And it may be fairly inferred that a
reduction of 20 feet would reduce the speed between Cincinnati and
Pittsburgh about four hours.
According to this estimate, the cost of the boat per hour being,
as above stated, $8.33, if there should be an average loss of four
hours in each trip, it would amount of $33.32. This sum multiplied
by sixty, the average number of trips each season, would amount to
the sum of $1,999.20, and this being multiplied by seven, the
number of the packets, would make the sum of $13,994.40, an annual
loss by the owners of the packets, by reducing the height of their
chimneys so as to pass under the bridge at the different stages of
the water.
But it is said these seven packets are the only boats obstructed
by the bridge of the two hundred and thirty which ply upon the Ohio
and run to Pittsburgh.
The transportation of goods and passengers by these packets will
show their relative importance as instruments of commerce between
Cincinnati and Pittsburgh. From the evidence it appears that they
convey about one-half of the goods in value and three-fourths of
the passengers between those cities. Taking the
Keystone
State as a criterion, each packet transports annually thirty
thousand nine hundred and sixty tons of freight and twelve thousand
passengers. The line was established in 1844, and it appears from
the proof that since that time it has transported between the above
cities nearly a million of passengers.
It is in proof that the life of these packets averages five
years, when their places in the line must be supplied by new boats.
If to their original cost of construction there be added the
expense of running them for five years, adding nothing for repairs
or accidents, a total sum will be expended of $1,680,000. This
amount of capital is appropriated every five years in running this
line of packets. The structure of the bridge cost less than one
eighth of that sum.
The speed of these boats, their excellent accommodations, and
their general good management recommend them to the public, as is
shown by the large amount of goods and passengers
Page 54 U. S. 575
they convey. And any change in their structure or in the
production of the propelling power which shall impede their
progress would not only impose upon their proprietors a most
onerous tax, but it would greatly lessen their profits by reducing
the amount of freight and passengers. And no part of the amount
would probably pass to other boats on the river, but to the
northern or southern lines, where greater expedition is given.
In the report of the commissioner, a statement is made of the
stages of water at Wheeling for twelve years, beginning on the 10th
of March, 1838, and ending on the 9th of the same month, 1850.
The highest part of the bridge, by actual measurement from the
ground, is 91.31 feet. This elevation is only at a single point two
hundred and eighty-four feet from the face of the eastern abutment.
From the apex it deflects east and west, being at the distance of
forty feet westward only 89.48 feet above the ground, and at the
same distance east only 89.77 feet above the ground. The chimneys
on the seven packets require a space of about thirty feet in width
to pass under the bridge within the eighty feet allowed, and the
depth of water and a sufficient headway must be deducted to show
the height of the bridge for the passage of boats. The headway
required, as appears from the report of the engineer, should be,
between the tops of the chimneys and the lowest parts of the
bridge, from two to three feet. This would reduce the space, say
two feet and a half, to 87.27 feet.
In the twelve years above stated, the water was at the stage of
twenty-one feet and over two hundred and nineteen days;
consequently no boat whose chimneys were 66 1/2 feet high could
have passed under the bridge. Twenty-one feet of water are
substituted for twenty feet in the table reported, that statement
allowing a foot of water below the measurement. The water in the
above period was twenty-six feet and over eighty-three days, during
which time no boat could have passed under the bridge whose
chimneys were 62 feet high. The water was twenty-eight feet and
over fifty-five days during the twelve years, which would have
prevented a boat from passing under the bridge whose chimneys were
60 feet high. Within the same period, the water was sixteen feet
and over five hundred and thirty-four days; consequently, boats
whose chimneys were 72 feet high during that whole time could not
have passed under the bridge.
In his report, the commissioner says
"The bridge is nine hundred and eighty feet between the bases of
the two abutments. At the highest point of the bridge, for the
distance of about fifty-six feet in width, there is a clear headway
for the
Page 54 U. S. 576
passage of steamboats with their chimneys standing, of 91 feet
above extreme law water. But this space of fifty-six feet in width
is not over any part of the river at extreme low water. The water
upon the Wheeling Bar must be about four feet deep to bring the
easterly edge of the stream under the western extremity of the
fifty-six feet. And it must be more than fifteen feet deep upon the
bar to enable a steamboat drawing five feet to avail itself of the
ninety-one feet headway above low water mark for the whole width of
fifty-six feet."
"It follows from this statement of facts that a steamboat,
drawing five feet of water and whose chimneys are 79 1/2 feet high
or over, can never pass under the apex of the bridge at any stage
of the water without lowing her chimneys."
From the data referred to, the defendants' counsel contend that
in a few years, at most, there will be a concentration of railroads
at Wheeling and at other places on the Ohio connecting the Eastern
with the Western country which, from their speed and safety, must
take from the river the passengers and a considerable portion of
the freight now transported in steamboats. That these roads,
crossing the Ohio River, will reach the commercial ports of the
interior and diffuse a larger amount of commerce than that which is
now transported on the Ohio. And it is intimated that the Wheeling
Bridge may be used by the railroad cars; but it is clearly proved
that the bridge is not calculated for such a transportation.
However numerous these roads may be, there can be no doubt that,
like similar roads in other parts of the country, their cars will
be loaded with freight and passengers. But it may not follow that
the Ohio and our other rivers will be deserted or their business
reduced. We have an extent of river coast, counting both shores,
exceeding twenty-five thousand miles, through countries the most
fertile on the globe. This is a greater distance than the combined
railways of the world. That our railroads, as avenues of commerce,
may develop our resources in a greater degree than is now
anticipated must be the desire of everyone. But the great
thoroughfares, provided by a beneficent Providence, should neither
be neglected nor abandoned. They will still remain the great
arteries of commerce.
Past experience teaches us that however the facilities of
commerce may be multiplied, her tracks will be filled with
productions which enrich the country and add to the comforts and
enjoyments of its rapidly increasing population. The rewards of
labor will give an irresistible impulse to enterprise which must
secure to our country a prosperity unequaled in history. Our
internal commerce is more than three times as great as our foreign,
and the increased lines of intercourse will cause both
Page 54 U. S. 577
rapidly to advance. The protection of the river commerce is by
no means hostile to any other. The multiplication of commercial
facilities will in the same proportion increase the articles of
trade.
If viaducts must be thrown over the Ohio for the contemplated
railroads and bridges for the accommodation of the numerous and
rising cities upon the banks of the river, it is of the highest
importance that they should not be so built as materially to
obstruct its commerce. If the obstructions which have been
demonstrated to result from the Wheeling Bridge are to be
multiplied as these crossways are needed, our beautiful rivers will
in a great measure be abandoned. An experience of forty years shows
how much may be done in the structure of steamboats, in the
improvement of their machinery, and the propelling power, to
increase the speed and the comfort of that mode of transportation
under a continued reduction of expense. But if the limit of
advance, in this respect, has already been passed; and a retrograde
movement is necessary, by rejecting the improvements recommended by
ingenuity and experience, we close our eyes to one great source of
our prosperity. What would the West now have been if steam had not
been introduced upon our rivers and their navigation had not
remained free? Without an outlet for the products of a prolific
soil and the instruments of mechanical ingenuity, the country could
have made but little advance.
It is said that the interest of commerce requires navigable
waters to be crossed, and that in such a case the inquiry should be
whether the benefit conferred upon commerce by the cross route is
not greater than the injury done. In the case of
King v.
Morris, 1 Barn. & Adol. 441, it was held that the injury
cannot be balanced against the benefits secured. And in the case of
King v. Ward, 4 Ad. & El. 384, it was held, where the
jury found that an embankment complained of was a nuisance, but
that the inconvenience was counterbalanced by the public benefit
arising from the alteration it amounted to a verdict of guilty.
If the obstruction be slight, as a draw in a bridge which would
be safe and convenient for the passage of vessels, it would not be
regarded as a nuisance where proper attention is given to raise the
draw on the approach of vessels. Of this character is the complaint
of the plaintiff against the bridge that it obstructs sea vessels
built at Pittsburgh. Sails cannot be used to advantage on the Ohio
or the Mississippi, consequently there can be no necessity of
raising the masts until it becomes necessary to hoist the sails.
Such vessels float down the river or are towed by steam
vessels.
Page 54 U. S. 578
It is true the injury done to the State of Pennsylvania may seem
to be small when compared to the magnitude of this subject. It
applies to all our rivers, and affects annually a transportation of
many millions of passengers, and a commerce worth not less than six
hundred millions of dollars. It would be as unwise as it is
unlawful to fetter in any respect this vast commerce.
In all the charters granted for the construction of bridges over
navigable waters, it is believed all the states, not excepting
Virginia, have provided that their navigation should not be
obstructed.
The Bridge Company had legal notice of the institution of the
suit and of the application for an injunction to stay their
proceedings before their cables were thrown across the river. This
should have induced them to suspend for a time their great work,
alike creditable to the enterprise of their citizens and the genius
and science of the engineer who planned the bridge and
superintended its construction. It is a matter of regret that by
the prosecution and completion of the bridge they have incurred a
high responsibility.
For the reasons and facts stated, we think that the bridge
obstructs the navigation of the Ohio, and that the State of
Pennsylvania has been and will be injured in her public works in
such manner as not only to authorize the bringing of this suit but
to entitle her to the relief prayed.
Believing from the estimates in the case that the obstruction to
the navigation of the river may be removed by elevating the bridge
at an expense which, when added to the original cost, will leave a
reasonable profit to the stockholders on the entire capital
expended, we have endeavored to ascertain the lowest point of
elevation which will secure this object. And on a full view of the
evidence we are brought to the conclusion that an elevation of the
lowest parts of the bridge for three hundred feet over the channel
of the river, not less than one hundred and eleven feet from the
low water mark, will be sufficient -- the flooring of the bridge
descending from the termini of the elevation, at the rate of four
feet in the hundred; this will give a level headway for boats of
three hundred feet in width, and will enable those whose chimneys
are eighty feet high to pass under the bridge when the water is
thirty feet deep from the ground, leaving the tops of the chimneys
two feet below the lowest parts of the bridge. If this or some
other plan shall not be adopted which shall relieve the navigation
from obstruction, on or before the 1st day of February next, the
bridge must be abated.
We do not deem it necessary to provide against the floods, which
seldom occur, and which, when at the highest, overwhelm the lower
parts of our cities and towns on the banks of the
Page 54 U. S. 579
Ohio and necessarily suspend for a short time business upon the
river.
MR. CHIEF JUSTICE TANEY dissenting.
As this is a case of much importance to the parties and the
public and I do not concur in the judgment of the Court, it is my
duty to express my opinion. I shall do so as briefly as I can.
The first question to be decided is whether this bridge is a
public nuisance or not which this Court has a right to abate. The
State of Pennsylvania, it is true, complains of an interruption to
her canals, in which, in her character as a state, she has a
proprietary interest analogous to that of an individual owner. She
seeks redress for this injury. But she proceeds upon the ground
that the bridge is a public nuisance from which the state receives
a particular injury to its property beyond that which the public in
general sustain. And the foundation of her claim, as stated in the
bill, is that the bridge is an unlawful obstruction to the
navigation of a public river, and therefore a public nuisance. The
immense mass of testimony, contained in this record is directed
almost altogether to that point. In order, therefore to maintain
the bill, it is incumbent upon the state to show that this bridge
is a public nuisance. And if it is a public nuisance it must be
because it is a violation of some law which this Court has a right
to administer.
In examining this question, it must be borne in mind that
although the suit is brought in this Court, the law of the case and
the rights of the parties are the same as if it had been brought in
the Circuit Court of Virginia, in which the bridge is situated.
Pennsylvania, as a state, has the right to sue in this Court. But a
suit here merely changes the forum, and does not change the law of
the case or the rights of the parties. And if, in the circuit court
of the United States sitting in Virginia this bridge could not be
adjudged a nuisance and abated as such, neither can it be done in
this Court. The state in this controversy has the same rights as an
individual, and nothing more. And the Court is bound to administer
to the state here the same law that would be administered to an
individual suitor suing for a like cause in a circuit court of the
United States sitting in the state where the bridge is erected.
Assuming, then, that it does obstruct a public navigable river
and would at common law be a public nuisance, I proceed to inquire
whether this Court is authorized to declare it to be such and order
it to be abated.
The Ohio being a public navigable stream, Congress has
undoubtedly the power to regulate commerce upon it. It
Page 54 U. S. 580
has the right to prohibit obstructions to its navigation, to
declare any such obstruction a public nuisance, to direct the mode
of proceeding in the courts of the United States to remove it, and
to punish anyone who may erect or maintain it, or it may declare
what degree or description of obstruction shall be a public
nuisance -- as for example the height of a bridge over the river or
the distance to which a wharf may be extended into its navigable
waters.
But this power has not been exercised. There is no law of the
United States declaring an obstruction in the Ohio or any other
navigable river to be a public nuisance and directing it to be
abated as such. Nor is there any act of Congress regulating the
height of bridges over the river. We can derive no jurisdiction,
therefore, upon this subject from any law of the United States, and
if we exercise it, we must derive our authority from some other
source.
But we cannot derive it from the common law. For it has been
settled since the beginning of this government that the courts of
the United States as such have no common law jurisdiction, civil or
criminal, unless conferred upon them by act of Congress. It is true
that the courts of the United States, when sitting in a state,
administer the common law where it has been adopted by the state.
But it is administered as the law of the state, under the authority
and direction of the act of Congress, which makes the laws of the
state the rule of decision in a court of the United States when
sitting in the state, provided such laws are not contrary to the
Constitution, laws, or treaties, of the United States. We cannot,
under the rule of decision thus prescribed, adjudge this bridge to
be a nuisance, although it may obstruct the navigation of the
river, unless it is a nuisance by the common law, as adopted in
Virginia and modified by its statutes. But this bridge was built
under the authority of a statute of the state. The structure in its
present form has been sanctioned by the legislature. It is
therefore no offense against the laws of the state; and a circuit
court of the United States sitting in the state and governed by its
laws, when not in conflict with the Constitution or laws of the
United States or treaties, could not order it to be abated as a
public nuisance, and this Court has no higher power over this
subject, either at law or in equity nor any other rule to guide it
than a circuit court sitting in Virginia. And as the bridge is not
a nuisance by the laws of that state and there is no act of
Congress making the obstruction of a public river an offense
against the United States, and we have no common law to which the
court may resort for jurisdiction, I do not understand by what law,
or under what authority, this Court can adjudge it to be a public
nuisance and proceed to
Page 54 U. S. 581
abate it, either upon a proceeding in chancery or by a process
at law.
If it is a public nuisance, it is an offense either against the
United States or the State of Virginia, for which the persons who
erected or who continue it are liable to be indicted. For we need
go no further than Blackstone's Commentaries, 4 Bl.Com. 167, for
proof that the unauthorized obstruction of a navigable river is an
offense and may be punished in a criminal proceeding by indictment.
Can the parties who built or continue this bridge be indicted for
it as an offense against the public? This appears to me to be the
true test. We are inquiring whether there is any law which the
court has the power to administer under which this bridge may be
adjudged a public nuisance or purpresture? If there is, then the
persons who erected it may be punished in a criminal
proceeding.
For if it is a public nuisance or purpresture, it is an offense
against the sovereignty whose laws have been violated. Could they
be indicted for an offense against the United States? This will
hardly be contended for, as common law offenses cannot be punished
in its courts unless they are declared offenses by act of Congress.
And as we have no such act of Congress, it is clear that an
indictment charging the obstruction as an offense against the
United States, could not be maintained. It is equally clear that an
indictment charging it as an offense against the state could not be
supported, for the law of the state sanctions its construction. It
may be asked in reply to this view of the subject is this great
river then liable to be obstructed by bridges whenever the states
through whose territories it passes choose to authorize them, and
are the inhabitants above the obstructions to be shut out from its
navigation and without redress? The argument
ab
inconvenienti would be entitled to great consideration if
there was any foundation for it, although it would not alter the
law. But this opinion leads to no such result. For I have already
said that Congress has the power to declare the obstruction of a
navigable stream an offense against the United States and to
authorize the courts of the United States to abate it as a
nuisance, and any law of a state to the contrary would be
unconstitutional and void.
If, therefore, there be an evil, it may easily be corrected by
the legislative authority of the general government. But if
Congress has not thought proper or does not think proper to
exercise this power, and public mischief has arisen or may arise
from it, it does not follow that the judicial power of the United
States may step in and supply what the legislative authority has
omitted to perform. It does not by any means follow that the
judicial power may declare an obstruction in or over a navigable
stream
Page 54 U. S. 582
an offense against the United States before the legislative
power has forbidden it and conferred authority upon the courts to
punish or remove it.
Undoubtedly this Court has original jurisdiction when a state is
a party. But it cannot exercise that jurisdiction without some law
prescribing the mode of proceeding, the rule of decision, and the
evidence by which the right in dispute is to be tried. The
unskillful and careless manner in which a steamboat is navigated
may impede the passage of other vessels and sometimes endanger
their safety, yet if Pennsylvania sued here for any injury arising
from this cause, we could exercise no jurisdiction and give no
redress unless there was some law to guide us. And when a case of
this kind is not embraced in any law of the United States, we
always resort to the established usages of navigation on the river
and the laws of the state in whose jurisdiction the injury was
sustained.
The cases in which the Court has taken jurisdiction in questions
of boundary between states stand on different ground. The original
jurisdiction was conferred by the Constitution. The evidence upon
which the right in controversy must be decided depended upon the
laws and usages of nations in disputes of that kind. Congress had
no power over the subject. It could neither give nor take away the
right of either party, nor prescribe the evidence by which it was
to be tried. All that Congress was required to do or could do was
to authorize the Court to issue the proper process to bring the
parties before it and to conduct the proceedings to final judgment.
This was admitted on all hands to be necessary before the Court
could exercise the jurisdiction which the Constitution had
conferred. And in the case of
New Jersey v. New
York, 5 Pet. 287,
30 U. S. 288,
it was held that the acts of 1789 and 1792 had clothed the Court
with the necessary power.
The rule as to navigable waters is this: every independent
nation has the exclusive jurisdiction over the navigable waters
lying within its territorial limits. It has the right to regulate
commerce upon them and to determine what bridges may be built over
them or piers or wharves extended into them. And an erection
authorized by the legislature cannot be a nuisance, public or
private. This was the situation of the old states prior to the
adoption of the Constitution. Each was then an independent
sovereign state. But by the Constitution of the United States they
surrendered to the general government the power to regulate
commerce. And thus, while they retain their absolute territorial
jurisdiction over their navigable waters in all other respects,
Congress may forbid the erection of any structure in a navigable
stream which it deems an obstruction to commerce,
Page 54 U. S. 583
and may declare it a nuisance and direct it to be removed. But
all the original authority of the state over the river remains
subject to that limitation. For otherwise, until Congress thought
proper to legislate, navigation on the river would be under no
control. Boats might be run down with impunity and obstructions of
every kind erected in or over it, which the state could not prevent
or punish.
The bridge in question is entirely within the territory of
Virginia. Prior to the adoption of the Constitution of the United
States, she had an unquestionable right to authorize its erection.
She still possesses the same control over the river, subject to the
power of Congress so far as concerns the regulation of commerce.
The United States and Virginia are the only sovereignties which can
exercise any power over the river where the bridge is erected.
Virginia has authorized it, and Congress has acquiesced in it.
Congress has made no regulation declaring such a structure unlawful
or authorizing any judicial proceeding against it. If Congress, to
whom the power is granted to regulate commerce, has acquiesced, how
can the Court, to whom the power is not granted, undertake to
regulate it and declare this bridge an unlawful obstruction and the
law of Virginia unconstitutional and void? With all my respect for
my brethren, I think it is an error, and I had almost said a grave
one.
If it should be said that the compact between Virginia and
Kentucky makes the river free independently of the Constitution,
the answer is obvious. The compact does not deprive Virginia of the
power to regulate the police of the river or to authorize bridges
or piers or other structures in it. Such a compact between states
has always been construed to mean nothing more than that the river
shall be as free to the citizens or subjects for which the other
party contracts as it is to the citizens or subjects of the state
in which it is situated. But if this compact or any compact should
be construed to prohibit the erection of the bridge, the proceeding
should be to enforce the observance of the compact. If erected in
violation of a compact, it is still not a nuisance, because there
is no law prohibiting it. It would be a breach of contract by the
state, and the remedy in a very different mode of proceeding.
This compact between Virginia and Kentucky in relation to the
navigation of the Ohio was one of the articles of agreement under
which Virginia consented that Kentucky should become a separate
state. Kentucky could not become a separate state without the
consent of Congress. But the act of Congress which gave that assent
makes no reference whatever to the terms of the agreement between
the states. It does not make the United States a party to them, nor
guarantee their execution.
Page 54 U. S. 584
It simply declares its consent that the District of Kentucky
should, on the 1st of June, 1792, become a state, according to its
actual boundaries on 18 December, 1789. The act of Congress is in 1
Stat. 189, and contains no allusion whatever, direct or indirect,
to the navigation of the Ohio. It leaves the compact as it was --
that is, a compact between the two states, and nothing more, and to
be enforced by a proceeding upon it. Nor is there any difference in
the rights of navigation between the rivers and bays of the
Atlantic states and those of the West. The old and the new states
in this respect stand upon an equal footing. It was so decided in
this Court in the case of
Pollard v.
Hagan, 3 How. 212, and that decision has been
sanctioned in subsequent cases, to which it is not now necessary to
refer.
The complainant, however, insists that the law of the United
States for enrolling and licensing coasting vessels gives to the
vessel so enrolled and licensed the right to navigate the river
free from obstructions, that this law therefore by necessary
implication forbids the erection of the bridge which obstructs the
navigation, and consequently defines the rights of the parties. And
if a vessel is obstructed, the law is violated and the injured
party entitled to his remedy and to have the obstruction removed.
The case of
Gibbons v. Ogden is relied on to support this
proposition.
This brings up the question whether the law of Virginia
sanctioning the erection of this bridge is or is not repugnant to
the Constitution or laws of the United States. Is it repugnant to
the clause of the Constitution which gives Congress the power to
regulate commerce or to any law passed under it? If it is not, then
the structure complained of, being within the territory of the
state and authorized by its legislature, cannot be a public
nuisance or a private nuisance in the eye of the law. Nor has
anyone a right to complain of it as an unlawful obstruction in his
way, nor to maintain a suit at law or in equity for any
inconvenience or loss he may sustain from it. Assuming that we may
exercise jurisdiction on the ground that the complainant claims a
right under the above-mentioned act of Congress, neither the point
nor the principles decided in
Gibbons v. Ogden have, in my
judgment, any application to the case before us. In that case, the
Legislature of New York passed a law granting to certain persons
the exclusive privilege of navigating all the waters within the
jurisdiction of that state with boats moved by fire or steam, and
authorizing the chancellor of the state to restrain by injunction
any person whatever from navigating these waters with boats of that
description. The complainant claimed under the grantees of the
monopoly, and sought
Page 54 U. S. 585
by his bill to restrain the respondents from navigating the
waters embraced in it. And this Court held, and correctly held,
that the law of the state was unconstitutional; that a vessel
enrolled and licensed for the coasting trade under an act of
Congress had a right to navigate any of the navigable waters of the
United States, and that no state had a right to forbid it.
There was no question in that case as to the authority of a
court of the United States to declare an obstruction in a river
which a state had authorized to be a public nuisance, and treat it
as an offense against the United States. The waters in question
were navigable and free from impediments of that description, and
the boats of the parties who claimed the exclusive privilege were
daily passing over them. The only question in the case was whether
all vessels enrolled and licensed by Congress had not the right to
pass over the same waters as freely as the vessels of the
monopolists. The Court said they had; that they had an equal right
with the complainant to use the navigable waters of New York. But
the Court did not say that an obstruction placed in the water which
renders navigation inconvenient or hazardous is a violation of the
act for licensing and enrolling coasting vessels, or in conflict
with it; nor did it say that this act of Congress confers on the
Court the power to adjudge it a nuisance and order it to be abated.
There was no such question before the Court. It was not in the
case, nor was the attention of the Court in any way called to it by
the argument.
Now in this case, Virginia has passed no law giving exclusive
privileges to navigate the Ohio River through her territory. If the
bridge is an obstruction, her own citizens, engaged in the
navigation of the Ohio, are equally disabled from passing as the
citizens of any other state. The question, therefore, on which this
case must turn did not arise in
Gibbons v. Ogden. But it
did arise, and was expressly decided in the case of
Wilson v. Blackbird Creek
Marsh Company, 2 Pet. 245. It was the point in the
case. A dam across a navigable creek had been authorized by the
Legislature of Delaware, as this bridge has been authorized by the
Legislature of Virginia. It stopped a navigable creek, and, as the
Court said, must be supposed to abridge the rights of those who
were accustomed to use it. So this bridge is supposed to impede the
navigation of the Ohio, and abridge the rights of those accustomed
to use it. Yet in the case referred to, the Court said that as
Congress, in the execution of its power to regulate commerce, had
passed no law to control state legislation over these small
navigable creeks, the law of Delaware was not repugnant to the
Constitution, not being in conflict with any law of Congress. It
will be remembered
Page 54 U. S. 586
that the act of Congress for enrolling and licensing vessels,
under which
Gibbons v. Ogden was decided, was still in
force, but was regarded by the Court as inapplicable to the
obstruction occasioned by the dam. The result of these two cases is
this: the act of Congress gives to vessels enrolled and licensed
under it the right to navigate the public waters wherever they find
them navigable, and any state law prohibiting it is
unconstitutional and void. And upon this ground the judgment of the
state court of New York, which had decided otherwise, was reversed.
But this act of Congress has no application to an obstruction
created by a dam across the navigable water, and without further
legislation by Congress, the law of Delaware, which authorized the
dam, was constitutional and valid. And upon that ground, the
judgment of the state court of Delaware which sanctioned the
obstruction was affirmed. I can see no difference in principle
between the last-mentioned case and the case at bar. There has been
no further legislation by Congress on that subject since that case
was decided. And as the principle is the same, the decision should
be the same, and the case of
Wilson v. Blackbird Creek Marsh
Company should in my opinion govern this.
It can hardly be supposed, that the circumstance that a port of
entry is established on the Ohio River above the bridge
distinguishes this case from the one referred to. The right which
the act of Congress gives to vessels enrolled and licensed for the
coasting trade is certainly not confined to the navigation between
ports of entry. They have the right to enter any navigable creek or
river which may suit their convenience or the business and
employment in which they are engaged. And any state law which
forbids them to do so or attempts to confine the right to
particular persons is unconstitutional. Any vessel enrolled and
licensed had a right to proceed up Blackbird Creek as far as she
found navigable water, and her right was as perfect as if a port of
entry had been established at the head of navigation. Nor can the
size of the creek, or the small number of vessels that used it as
compared with the Ohio, make any difference between the cases. It
was the right that was in question, and that right was the same
whether the navigable water was narrow or wide, or used only by a
single vessel or frequented by hundreds.
The case of
Wilson v. Blackbird Creek Marsh Company is
entitled to the more weight because it was decided after the case
of
Gibbons v. Ogden, which appears by the report to have
been recalled to the attention of the Court and relied upon in the
argument, and the opinion in the last case was delivered by the
same learned judge who delivered the elaborate opinion
Page 54 U. S. 587
in the former one. It shows that he and the learned Court in
which he presided did not consider the principles on which
Gibbons v. Ogden was decided applicable to a case where an
obstruction was placed in a navigable water, impeding generally the
passage of vessels, and were of opinion that the courts of the
United States had no jurisdiction which would authorize them to
remove or abate it or treat it as unlawful without further
legislation by Congress. I think it more safe to follow their own
construction of their own opinion in
Gibbons v. Ogden than
to look for a new one.
Indeed, apart from any decisions on the subject, I cannot
perceive how the mere grant of power to the legislative department
of the government to regulate commerce can give to the judicial
branch the power to declare what shall and what shall not be
regarded as an unlawful obstruction -- how high a bridge must be
above the stream and how far a wharf may be extended into the water
-- when we have no regulation of Congress to guide us. Nor do I see
how we can order a bridge or a wharf to be removed unless it is in
violation of some law which we are authorized to administer. In
taking jurisdiction, as the law now stands, we must exercise a
broad and undefinable discretion without any certain and safe rule
to guide us. And such a discretion, when men of science differ,
when we are to consider the amount and value of trade and the
number of travelers on and across the stream, the interests of
communities and states sometimes supposed to be conflicting, and
the proper height and form of steamboat chimneys, such a discretion
appears to me much more appropriately to belong to the legislature
than to the judiciary.
Besides, I think there is an insuperable objection to this
proceeding in equity even if this bridge should be regarded as a
nuisance, public or private. And it appears to me to be settled law
in England as well as in this country that chancery will not
interfere by injunction where the evidence is conflicting and the
injury doubtful. I do not speak of informations in chancery where
the attorney general is a party, for this is not a proceeding of
that kind. But I speak of cases between individual parties, like
the present one. And the rule above stated, when there is a
conflict of testimony, will be found in 2 Story's Com. page 201 to
207, where the subject is fully examined and the cases which have
been decided referred to. And a case where there is more conflict
in the testimony of men of high character and undoubted skill and
knowledge could hardly be imagined than is presented in the record
before us, nor a case where the injury is more doubtful. For after
the experience of two years we see how small the loss has been
compared with the immense
Page 54 U. S. 588
trade and the multitude of steamboats which during that time
have passed under it.
Neither can the jurisdiction of a court of chancery be supported
upon the ground that the injury is immediate and irreparable or
that any serious embarrassments lie in the way of an action at law.
The injury, after two years' experience, has not been found serious
enough to lessen the navigation and commerce of the river. On the
contrary, they have been continually increasing since this bridge
was built. And if it be an injury for which the party is entitled
to a remedy, he has a plain and adequate remedy at law, and
therefore, upon general principles of equity and more especially
under the express provisions of the act of 1789, he has no right to
come into chancery for relief. And if an action at law were brought
by the state in the circuit court of the United States sitting in
Virginia, the proceeding at law would be as free from embarrassment
and difficulty as any action at law for any injury for which the
law gives a remedy. And there is no reason to suppose that the
respondents are not able to answer to any amount of damage which,
upon the evidence in this case, the State of Pennsylvania might
recover against them.
If it should be said that, as the Legislature of Virginia has
sanctioned the erection of this bridge, prejudices in favor of it
might be supposed to influence the jury, the answer is obvious. The
law would be decided by the circuit court, subject to the revision
and control of this Court, and we are bound to presume that a jury
in a circuit court of the United States would do equal justice
between citizens of their own state and another state or its
citizens. The Constitution and laws so presume. And certainly this
Court would never act upon any apprehension that justice would not
be done by a jury in any state when summoned and empanelled
according to the laws of the United States. And still less could it
be induced to assume extraordinary and unusual powers from fears or
suspicions of that kind.
But Pennsylvania has the right to sue in this Court or in the
circuit court, at her election. She has the same right to sue here
in an action at law as she has to file her bill in equity. And in
an action at law brought here by
Georgia v.
Brailsford, 3 Dall. 1, the case was tried by a jury
in the same manner as if the suit had been brought in the circuit
court. And the jury, brought here to try this case, would be
altogether free from suspicion of bias or prejudice.
It may be said that such a proceeding here would embarrass and
retard the business of this Court and would be expensive and
onerous to the complainant, as the witnesses must be
Page 54 U. S. 589
brought from a distance and detained here for a considerable
time. This is true. But if the state sues in this Court, instead of
the circuit court, it does so by its own choice. And if the remedy
at law in the forum selected is embarrassing and expensive, it has
no right to complain of what is the necessary consequence of its
own act, nor to go into equity to avoid difficulties at law which
arise from the nature of the forum to which the state voluntarily
resorts, and certainly no inconvenience to the court could alter
the law nor give it equity jurisdiction where the law has denied
it. In the language of the act of Congress, Pennsylvania has in
this case a plain and adequate remedy at law, and has no right,
therefore, to come to the equity jurisdiction of the Court until
her legal right has been established.
Indeed, this case, in my view of it, pushes the jurisdiction of
chancery further than has heretofore been done in England or in
this country.
The bridge has been erected and completed without any previous
injunction to restrain the respondents from proceeding in the work.
It is charged to be a public nuisance. But Pennsylvania has no
right to proceed against it solely on that account. She proceeds,
and is entitled to proceed, only for the private and particular
injury to her property which this public nuisance has occasioned.
If the Court order it to be demolished, it is not to protect the
public or any portion of the community who may be supposed to be
injured by it. For the government, which represents the public and
is charged with its interests, is not before the Court and has not
complained of this structure nor sought to have it removed.
Pennsylvania is the only party asking for relief, and her damage,
as proved in the record, is a trivial loss of some few dollars in
tolls and the mere possibility of an annual future loss to some
small amount, concerning which the testimony is vague and
inconclusive and at best but conjectural. She has no concern with
the obstruction to boats with high chimneys, nor with the amount of
trade from Pittsburgh or any other place, further than such
evidence tends to show the bridge to be a public nuisance. The
owners of steamboats and the persons engaged in commerce are not
parties to this suit, and the State of Pennsylvania has no right to
prosecute for them. She must not only show that boats with high
chimneys are more profitable to the owners and better for commerce
than those with lower ones, but she must also show that the
necessity of reducing them will lessen the profits of her canals. I
see no proof in the record by any means sufficient to establish
that fact. And we are called upon to demolish a structure which
cost more than $200,000 to save the State of
Page 54 U. S. 590
Pennsylvania from this speculative, questionable, and, at most,
inconsiderable loss. It seems to me that if the power and
jurisdiction of this Court were clear and supported by precedents,
yet this Court, upon settled principles of equity jurisprudence,
would refuse to destroy property of so much value, and which the
public, by its proper officer, does not charge to be a nuisance,
merely to guard against the possibility of an inconsiderable loss
by the state. It is precisely one of those cases in which the Court
would at all events require the party to establish his right at law
before he comes into equity, or to make the attorney general a
party, and give the public an opportunity of being heard where its
interest is so deeply involved.
I do not doubt the power of the court of chancery to abate a
public nuisance upon an information in chancery to which the
attorney general is a party. But even in a case of that kind, there
must be danger of irreparable mischief before the tardiness of the
law can reach it. This is the doctrine of this Court in the case of
Georgetown v. Alexandria
Canal Company, 12 Pet. 98. But such a case is not
now before us. The attorney general is not a party. Pennsylvania
sues as an individual for a private right. And in a case of this
description, I am not aware of any case entitled to be regarded as
an authority in this Court where chancery ever interfered by
injunction except by way of prevention -- that is, to stay the
contemplated structure until it could be decided, in a proceeding
to which the public was a party, whether it was a public nuisance
or not. We must be careful not to confound cases of public nuisance
with merely private ones. For in the former, the public have an
interest to abate it if a nuisance and to protect it if it is not,
and therefore have a right to be heard, whether the trial be in
equity or at law.
This was evidently the opinion of this Court in the case of
Georgetown v. Alexandria Canal Company and of Lord Eldon
in the case of
Crowder v. Tinkler, 19 Ves. 616, therein
cited with approbation. In the last-mentioned case, where the court
interfered for prevention, and not to abate a structure already
completed, the chancellor placed the injunction upon the ground
that the nuisance about to be erected would be attended with
extreme probability of irreparable injury to the property of the
plaintiffs, including also danger to their existence. And that this
was clearly established in that case before he awarded the
injunction. Such is the rule upon this subject which has been
sanctioned by this Court. Certainly no one of the material
circumstances which existed in
Crowder v. Tinkler can be
found in this. And if the principles decided here in the case of
Georgetown v. Alexandria Canal Company
Page 54 U. S. 591
are recognized as the law of this Court, I can see no foundation
for the injunction in the case before us. For it not only has none
of the circumstances in it upon which the injunction was granted in
Crowder v. Tinkler, but in that case, strongly as it
appealed to the preventive power of the court of chancery, the
court merely suspended the erection until the question of public
nuisance or not could be tried by a jury upon an indictment. It did
not grant a perpetual injunction, and still less did it order what
had already been constructed to be abated or removed.
So far, I have considered the case upon the assumption that the
bridge, upon common law principles, might, upon the evidence, be
determined to be a nuisance. And admitting that to be the case, I
think for the reasons above stated that in the absence of any
legislation upon the subject by Congress, this proceeding cannot be
maintained. I shall therefore very briefly express my opinion on
the evidence.
I am by no means prepared to say that this bridge would be a
public nuisance even at common law. The evidence of the degree in
which it obstructs navigation is exceedingly voluminous, and it is
impossible to go fully into an examination of its comparative
weight in a manner that would do justice to the subject without
making this opinion itself a volume. It is sufficient to say that
in all questions of this kind, the general convenience and interest
of the public in the travel and trade across the river, as well as
on its waters, must be taken into consideration. For whether it is
a public nuisance or not depends upon whether it is or is not
injurious to the public. The cases in the state courts and in the
circuit courts of the United States referred to in the argument,
which I shall not stop here to examine, in my opinion maintain this
doctrine. And upon principle, independently of adjudications, it
cannot be otherwise. A structure which promotes the convenience of
the public cannot be a nuisance to it. And the public, whose
interests are to be looked to in this case, is not the public of
any particular town or district of country, or state or states, but
the great public of the whole Union. Taking this view of the
question, and looking to the testimony as set forth in the record,
and more especially to that unerring test, experience, which the
lapse of time has afforded, I am convinced that the detriment and
inconvenience to the commerce and travel on the river is small and
occasional only, while the advantages which the public derives from
the passage over are great and constant. And if the courts of the
United States had common law jurisdiction, and the question was
legally before us to determine whether this bridge was a public
nuisance or not, I am of opinion that it is not. and that
Page 54 U. S. 592
the advantages which the great body of the people of the United
States reap from it outweigh the disadvantages and inconvenience
sustained by the commerce and navigation of the river.
Moreover, the jurisdiction exercised in this case is new and
without precedent in this Court. Bridges have been erected over
many navigable rivers, and built so near the water that vessels can
pass only through a draw. Such bridges are unquestionably
obstructions, and impede navigation. For where the vessels are
propelled by sails and the wind is unfavorable, they are often
detained not only for hours, but for days. The courts of the United
States have never exercised jurisdiction over any of these
obstructions, nor declared them to be nuisances. I should be
unwilling, in a case like this, to exercise this high and delicate
power without precedents to support me in analogous cases. The
demolition of this bridge would occasion a heavy loss to the
parties and much inconvenience to a large portion of the community.
The United States is not a party to this proceeding, and the
particular injury sustained by the complainant is exceedingly
small. And it is solely for the protection of her small, remote,
contingent, and speculative interest in tolls that this bridge is
pulled down. For it must be remembered that although we see in the
testimony that injuries are alleged to have been suffered by
others, yet the State of Pennsylvania is the only party to this
proceeding, the only one who appears in this Court as complainant,
and her particular loss is the only ground on which jurisdiction is
claimed and the only injury which the Court is called on to redress
or has a right to consider in this proceeding.
The testimony, too, is conflicting -- men of eminence and skill,
and well qualified to speak on the subject, differing widely in
their testimony. And I am the more unwilling to assume this
questionable jurisdiction because the legislative department of the
general government has undoubted power over the whole subject, and
may regulate the height of bridges over the Ohio and of the
chimneys of steamboats when passing under them, and may, while it
guards the rights of navigation in the stream, at the same time
protect the rights of passage and travel over it. That department
of the government has better means, too, of obtaining information
than the narrow scope of judicial proceedings can afford. It may
adopt regulations by which courts of justice may be guided in an
inquiry like this with some degree of certainty, instead of leaving
them to the undefined discretion which must now be exercised in
every case that may be brought before us, without being able to lay
down any certain rule by which this discretion may be limited. It
is too near the confines of legislation, and I think the Court
ought not to assume it.
Page 54 U. S. 593
Entertaining this opinion, I must, with all the respect I feel
for the judgment of my brethren, with whom it is my misfortune to
differ, enter my dissent.
MR. JUSTICE DANIEL dissenting.
In entering upon the consideration of the case before us, the
mind is at once impressed with the belief that there never has been
-- that there perhaps never can be -- brought before this tribunal
for its decision a case of higher importance or of deeper interest
than the present. The subjects which it presses upon our
examination -- nay, upon which the judgment of this Court has been
demanded and has inevitably determined -- are nothing less
than:
1st. The jurisdiction or authority of this Court, under one of
the heads of original jurisdiction, enumerated in the
Constitution.
2d. The correct interpretation of the power of commercial
regulation vested in the federal government, either exerted simply
as such by that government or as affecting the power of internal
improvement in the states.
3d. The policy or influence of particular regulations with
respect to commerce as these may tend to restrict it within
circumscribed channels or to promote its general activity and
diffusion by facilities operating a reasonable and just equality of
right, of competition, and advantage to all.
4th. The character of the proceeding complained of as a
nuisance, the regularity of the proposed mode of redress, and the
right of the complainant to claim the interference asked for in any
mode.
The magnitude of these topics would seem in some degree to
excuse, in treating them, the hazard of prolixity, and at any rate,
lying as they do in the direct path to the proper survey of this
case, they cannot with propriety be overstepped without pausing
upon their examination.
When at a former period this cause was before this Court, the
several topics just enumerated were cursorily adverted to by me as
necessarily involved in its adjudication, and the course then
adopted by the Court was formally objected to because that course
seemed a premature and foregone conclusion upon facts and legal
positions entering essentially into the nature of the controversy
-- facts and legal positions not then maturely examined and
ascertained, as the order of the Court at that time made
necessarily implies, and which could not, according to established
precedent and the highest adjudications, be properly investigated
in the mode proposed. The subsequent proceedings upon the order of
the Court at the January term, 1850, have
Page 54 U. S. 594
greatly strengthened the objections assigned by me on that
occasion. These proceedings have, at an almost incalculable expense
to the parties, brought hither an immense mass of matter, much of
which on the one hand is not within the inquiries directed by the
Court, whilst on the other inquiries strictly pertinent seem to
have been wholly excluded. It has placed before us a long and very
learned report, to be sure, in part upon subjects entirely
dehors the order of the Court and in other aspects of the
same report -- I speak it with all respect for the highly
intelligent and respectable author of that report, palpably
opposed, in my opinion, to the rational and just preponderance of
the facts stated by the witnesses -- a report, in fine, which
leaves in all its weight and force, the mischief of withdrawing the
trial of the question of nuisance from its proper forum, in which
the witnesses could have been confronted and cross-examined, and
imposes upon the Court the task of passing upon the credibility of
those whom they have never heard nor seen. Even in matters of minor
concernment, I have always been unwilling, whenever the credibility
of witnesses was to be tested, to interpose between such persons
and the scrutiny of a jury, awakened, as it is sure to be, by the
vigilance of the advocate; where the essential rights and interests
of great communities are at stake, I never will do so unless
constrained by irresistible authority.
Recurring now to the first head of inquiry, I contend that the
complainant can have no standing here, on the ground that this
Court cannot, as is shown both upon the face of the pleadings and
upon the proofs, take jurisdiction of this cause. If this Court can
take cognizance of the cause before us, it must be in virtue of the
2d section of the 3d Article of the Constitution, which declares
that
"In all cases affecting ambassadors, other public ministers and
consuls, and those in which a state shall be a party, the Supreme
Court shall have original jurisdiction."
There is no other provision of the Constitution under which
original cognizance of this cause by the Supreme Court can be
assumed. Now to arrive at the just interpretation of this clause of
the Constitution, as fixing that position or interest of the state
as a party, which alone creates original jurisdiction in the
Supreme Court, it is necessary to settle the import of the word
"party" as connected with legal or equitable proceedings. By all
correct legal intendment, this term "party" is applicable only to
persons sustaining a direct or real interest or right in any
pending litigation -- an interest or right immediately affected or
bound by the issues such litigation involves. This term cannot be
extended to persons who may be arbitrarily and irregularly named in
proceedings either at law or in equity, the very description of
whose relation to the case shall evince a total absence of legal or
equitable
Page 54 U. S. 595
claims upon the subject of litigation; a total absence, too, of
reciprocal duty or obligation with reference to those whose
property and whose possession and enjoyment of that property are
sought to be affected.
Whilst courts of justice therefore will enforce the conventing
of all whose interest can properly be adjudged, they will repel and
even rebuke attempts to assail, or even to canvass, the rights and
interests of others by those who in effect concede the want of a
legal or equitable title in themselves. Courts of justice take no
cognizance of imperfect rights, or such as may be termed merely
moral or incidental, as distinguishable from legal or equitable,
even when the existence of the former may be clearly shown. In this
controversy, the State of Pennsylvania, admitted to have no
property in or title to the River Ohio within the limits of
Virginia and no property in or title to the steamboats which ply
upon that river, is confessedly made use of as a mean, under the
shelter of her name, of redressing grievances which, if they ever
had existence, are injuries to her citizens and to individuals, and
the proper and efficient remedy for which is to be found at the
suit of those citizens in the courts of the state or of the United
States. The alleged right of Pennsylvania to sue in this case for a
diminution of profits from her canals and other works of internal
improvement within her own territory, and many miles remote from
the Wheeling Bridge, had it not been cast into shade by a still
greater extravagance disclosed by the record, her right of ship
navigation with top-gallant royals all standing, might have
awakened some surprise; but even this tamer and less lofty
pretension should fail of the end it has been designed to effect,
for it cannot be pretended, and is not even intimated in the
pleadings in this cause, that those canals and other public works
have been obstructed or rendered in any respect less fitted for
transportation, or in any way impaired by the erection of the
Wheeling Bridge beyond her territory and within that of a separate
and independent state. And if the mere rivalry of works of internal
improvement in other states, by holding out the temptation of
greater dispatch, greater safety, or any other inducement to
preference for those works over the Pennsylvania canals, be a wrong
and a ground for jurisdiction here, the argument and the rule
sought to be deduced therefrom should operate equally. The State of
Virginia, which is constructing a railroad from the seaboard to the
Ohio River at Point Pleasant, much farther down that river than
either Pittsburgh or Wheeling and at the cost of the longest tunnel
in the world, piercing the base of the Blue Ridge Mountain, should
have the right by original suit in this Court against the canal
companies of Pennsylvania, or against that state herself, to
recover compensation for diverting any portion of the
Page 54 U. S. 596
commerce which might seek the ocean by this shortest transit to
the mouths of her canals on the Ohio, or to the City of Pittsburgh,
and on the like principle, the State of Pennsylvania has a just
cause of action against the Baltimore & Ohio Railroad, for
intercepting at Wheeling the commerce which might otherwise be
constrained to seek the City of Pittsburgh.
The State of Pennsylvania cannot be a party to this suit on the
grounds stated in the bills filed in her name, for the reason,
still more cogent than any yet assigned,
viz., that to
permit this, would be to render the clause in the Constitution
relied on in her behalf utterly useless and even ridiculous, would
destroy every restriction untended by the enumeration of instances
of original jurisdiction, and would confound this clause with
another provision of the Constitution designed to cover cases
precisely like the one now before the court. If in all instances in
which the citizens of one state have cause of action against a
citizen or a corporation of a different state, the action can be
prosecuted in the name of the state in which the claimant resides,
although no peculiar or legal right or cause of action can be shown
in such state sustaining the character of a private suitor, then
the restriction as to cases of original jurisdiction is entirely
abolished; the defending party, too, must be entitled to the same
right of substitution, and all suits between citizens of different
states might by this process be transformed into suits between
states or suits to which states are parties -- cases of original
jurisdiction in this Court. That provision of the Constitution
designed to embrace controversies between citizens of different
states is thus annulled, and the jurisdiction of the district and
circuit courts transferred, as falling within its original
cognizance, to the Supreme Court. Such, to my apprehension, appears
to be the inevitable result of asserting what are essentially and
clearly private rights or interests in the name of a state, or the
prosecution of remote, contingent, and imperfect interests not
amounting to property, though claimed on behalf of a state. I
conclude therefore that to constitute a state a party in that sense
which brings her within the meaning of the Constitution, and indeed
within the import of the term party to a cause by all correct legal
intendment, there must be averred and proved on her behalf a
certain and direct interest, or an injury, or a right of property
-- a perfect right -- a right which a court of justice can define,
adjudge, and enforce, and that on the part of the State of
Pennsylvania no such right having been averred even, much less
established in proof, nothing is shown which can maintain the
jurisdiction of this Court in this cause.
The shadowy pretext of an interest or injury, from the nature of
things not susceptible of calculation or estimate, can never be
the
Page 54 U. S. 597
foundation of a right, legal or equitable. And indeed, so far as
any light can be reflected by facts on this pretended or incidental
interest of Pennsylvania resulting from any supposed effect upon
the tolls on her canals, an actual increase, instead of a
diminution, of those tolls since the erection of the Wheeling
Bridge is proved.
Passing from this subject of jurisdiction, and supposing it for
the present to be vested here, I proceed to examine the pretensions
of the complainant as being deducible from and as guaranteed by the
power delegated to Congress to regulate commerce between the
several states. The existence of that power in its fullest extent
and for every purpose for which it has been delegated to Congress
need not be questioned in order to expose and to repel the
pretensions advanced for the complainant. On the contrary, the
assertion of that power in its greatest latitude, so far as it was
ever contemplated by those who gave it or so far as it can be
exercised for useful purposes, carries with it necessarily, the
condemnation of those pretensions. The power to regulate commerce
was given to the federal government, whose functions and objects
were designed to be general and coextensive with the entire
confederacy because its duties embrace the equal rights and
interests of all the members of the confederacy, and as a means of
the widest diffusion of commercial facilities and intercourse
within the powers vested by the Constitution. It cannot be
rationally concluded that by a provision palpably intended to
protect commerce from unequal or invidious restrictions the power
was given to Congress to advance so far towards restriction or
monopoly as to limit commerce to particular channels, thereby
crippling or wholly preventing its diffusion and activity, and by
the same process conferring upon particular points or sections of
the country arbitrary and unjust advantages, and riveting upon all
those portions affected by such a procedure loss and even ruin.
Admitting, then, that Congress had made any regulation affecting
the subjects of this controversy, and it will hereafter be shown
that they have not done so; admitting, moreover, that their acts or
regulations might fall within the broad language of the power
vested by the Constitution, it remains still a just and fair
inquiry whether those acts which are arbitrary or oppressive which
defeat the great ends for which the power, thus perverted, may have
been within the legitimate scope of the powers alleged in excuse
for their performance. In other words, whether Congress, as a
regulation of commerce, would be justifiable in breaking down works
of internal improvement within the states, though calculated in
their character and tendencies for the diffusion of commerce, and
by such destruction limit commerce to particular local points
or
Page 54 U. S. 598
interests. Common sense and common justice would promptly answer
in the negative, and would decide that a rational and proper --
nay, the only rational and proper -- exercise of the regulating
power in Congress demands the promotion and protection of such
modes and facilities of commercial intercourse, so far as Congress
have this power, as will insure equality to all and the widest
diffusion of commercial advantage. Surely, then, in the absence of
all action on the part of Congress, this Court should imply no
policy or design in that body to fetter or cripple great interests
which they are charged with the power and duty to protect. But
Congress has enacted no regulation whatever in relation to the
subject of this controversy; it has not said that bridges should
nowhere be erected over the River Ohio, or, if erected, what should
be their elevation above the water; neither has it declared, upon
scientific calculations or upon experiments, or on any data, what
shall be the height of the chimneys of steamboats on that river,
nor to what degrees, either from their own calculations of
improvement in speed or from fancy or local rivalry, the owners or
masters of steamboats on that river may elongate the chimneys of
those steamboats. Upon all these matters Congress has thus far been
perfectly silent.
Admitting, then, that the State of Pennsylvania can be regularly
before us in the character of a party in interest, this controversy
presents to us, in truth, simply a comparison between the will and
the acts of the parties thereto and an appeal to this Court, in the
absence of all action by Congress -- by some rule which it must
deduce from the common law of nuisance, to decide upon the
comparative merits or demerits of the parties -- to decide whether
the benefits produced by the Wheeling Bridge to the surrounding
country, and by its connection with extended lines of travel and
commerce, can save it from the character of a nuisance. Or whether
its interference in certain stages of water with the chimneys of
seven steamboats owned by private individuals, the height of whose
chimneys is a subject of much contrariety of opinion both amongst
scientific men and practical builders and captains of steamboats,
can so constitute it a public nuisance and a cause of such direct
injury to the legal rights and interests of Pennsylvania as to
justify its abatement by this Court. In the absence of all action
by Congress in relation to this matter, in the only legitimate mode
in which Congress could affect it,
viz., by commercial
regulation or by some express statutory declaration, the act of one
of these parties in the prosecution of their interests must claim
intrinsically equal authority with the acts of the other, except so
far as they may have some common arbiter by whom both may be
controlled. In this case, that arbiter would seem to be either the
local sovereignty,
Page 54 U. S. 599
the State of Virginia, within whose territory the alleged
nuisance is situated, or the United States, through some enactment
for the regulation of commerce; but neither of these authorities is
invoked in this controversy.
We have here a suit in the name of Pennsylvania, occupying the
position of every private suitor, asking the action of this Court
upon general common law jurisdiction over the subject of nuisances,
which jurisdiction the courts of the United States do not possess.
Nor is it enough to draw within our cognizance the subject of this
cause to affirm merely the competency of Congress to legislate upon
it, and to refer its decision, if they choose, to the federal
courts. I ask upon what foundation the courts of the United States,
limited and circumscribed as they are by the Constitution and by
the laws which have created them and defined their jurisdiction,
can, upon any speculations of public policy, assume to themselves
the authority and functions of the legislative department of the
government, alone clothed with those functions by the Constitution
and laws, and undertake of their mere will to supply the omissions
of that department? Is it either in the language or theory of the
Constitution, that this Court shall exercise such an auxiliary --
or rather guardian and paramount -- authority? Cannot the
legislative department of the government be entrusted with the
fulfillment of its peculiar duties? Such an act as this Court has
been called upon to perform -- such an act as it has just announced
as its own -- is in my opinion virtually an act of legislation, or,
in stricter propriety -- I say it not in an offensive sense -- an
act of usurpation.
To rest our authority to adjudicate this matter on the naked
proposition just stated would be to reject the doctrine by this
Court heretofore most expressly ruled. The case of
Wilson v.
Blackbird Marsh Creek Company, 2 Pet. 245, seems to
be conclusive upon this point. This case presented an instance of
an absolute obstruction by a dam of a watercourse navigable by
vessels of considerable size, and in which the tide ebbed and
flowed. The person who undertook to destroy or injure the dam
constructed across this navigable water was the master of a vessel
regularly licensed and enrolled according to the navigation laws of
the United States, and being sued for a trespass committed in
breaking or injuring the dam, he pleaded in justification of his
act the character of the navigable water as a public and common
highway for all the citizens of the particular state and of the
United States to sail, pass, and repass over, through and upon at
all times of the year at their own free will and pleasure. Upon
comparing this case with the one before us, it is impossible not to
perceive that in many of their capital features they are strikingly
similar -- may indeed be regarded as identical. In the
Page 54 U. S. 600
former case as in this, the watercourse said to be obstructed
was a navigable water; in that case as in this, the
locus in
quo was within the jurisdiction of a state, and the alleged
obstruction, in each instance, an act of state legislation in
exercising the power of internal improvement; in each instance the
right of passage to the extent and in the manner claimed, freely
and at will
usque ad coelum, was in virtue solely of
license and enrollment according to the navigation laws of the
United States. Now what said this Court upon the aforegoing state
of the pleadings and evidence? "If Congress," said it,
"had passed any act which bore upon the case -- any act in
execution of the power to regulate commerce the object of which was
to control state legislation over those small navigable creeks into
which the tide flows and which abound throughout the lower country
of the middle and southern states -- we should feel not much
difficulty in saying that a state law coming in conflict with such
act would be void. But Congress has passed no such act. The
repugnancy of the state law to the Constitution is placed entirely
on its repugnancy to the power to regulate commerce with foreign
nations and among the several states -- a power which has not been
so exercised as to affect the question. We do not think that the
act empowering the Blackbird Marsh Creek Company to place a dam
across the creek can, under the circumstances of the case, be
repugnant to the power to regulate commerce in its dormant state,
or as being in conflict with any law passed on the subject."
This decision at once puts to flight the pretext for
interference here to protect and enforce the duties and functions
of Congress, and equally exposes the fallacy that the grant of a
coasting license, of a mere certificate of the domicile of the
vessel bearing it, of evidence
prima facie, of her
capacity or tonnage, or of her exemption from suspicion of
smuggling or piracy, is a regulation of commerce over every inch of
the waters over which, in her various excursions, she may pass.
Just as cogent and tenable is the argument -- if "argument" it
deserves to be called -- which affirms that the establishment of
Pittsburgh as a port of entry -- its mere designation as a point at
which merchandise may be landed subject to the revenue laws of the
United States -- is a positive declaration by Congress prescribing
the modes of the transportation of such merchandise thither and
defining what shall be held to be an interference with such
transportation. Equally or rather more unsound and untrue is the
position that, by the same designation of Pittsburgh, Congress has
declared that vessels propelled by wind or steam -- vessels of the
greatest capacity, carrying masts or chimneys of illimitable height
-- shall navigate a river whose ordinary regimen, to adopt a term
in this record, scarcely affords a channel broad or deep
Page 54 U. S. 601
enough for the tacking of a shallop, and for long periods of a
few inches only in depth.
This attempt from the mere designation of a port of entry to
bring home to Congress the absurdities the argument implies would
ascribe to them a practical wisdom much upon a parallel with that
of the despot who attempted to confine the Hellespont in fetters,
or of him who forbade the approach to him of the ocean tide. But
Congress has in truth enacted nothing in relation to the particular
subject in issue in this controversy, and we have seen, in the
explicit declaration of this Court in the case from 2 Peters, that
not only must there be some positive enactment by Congress, but an
enactment "the object of which was to control state legislation
over those navigable creeks into which the tide flows." But again,
it has been asserted in justification of the power claimed by the
majority of the Court that Congress, by adopting the Act of the
Virginia Legislature of December 18, 1789, authorizing the erection
of Kentucky into a state, has fully regulated the navigation of the
Ohio River. And how is this position sustained by fact? By the 7th
section of her act of 1789, Virginia declares that, so far as her
own territory and that of the proposed state shall extend upon the
Ohio, the navigation of that river shall be free for all the
citizens of the United States. Congress, by an Act passed February
4, 1791, containing two sections only,
vide 1 Stat. 189,
consents by the 1st section to the proffer of Virginia of the
creation of the new state, and by the 2d section declares that on
the 1st day of June following, the new state, by the name of
Kentucky, shall be admitted a member of the Union. These two
sections comprise the entire action of Congress from which the
position that has been asserted by the majority of the court is
deduced. Let us try the integrity of this position by reducing it
to the form of a syllogism. The major of that syllogism will
consist of the fact that Virginia, by her law of 1789, has agreed
that she and the newly proposed state will permit the navigation of
the Ohio within their respective limits to all citizens of the
United States. Its minor is this -- that Congress have assented to
the permission so declared; the conclusion attempted to be deduced
is, ergo, Congress by that assent has completely regulated the
navigation of the Ohio, and by inevitable implication ordained that
bridges shall never be thrown across that river except in absolute
subordination to the interests or the will of the owners of
steamboats upon that river. This may possibly be logic --
irrefragable logic -- and the failure to comprehend its consistency
may arise from the infirmity of my own perceptions; but I cannot
help suspecting that an acumen far surpassing any to which I will
lay claim would be puzzled to reconcile this process
Page 54 U. S. 602
with the laws of induction as prescribed by Watts, by Duncan, or
by Kaims.
The next inquiry naturally arising in this case -- an inquiry
inseparably connected with the alleged obstruction by the Wheeling
Bridge as constituting it a nuisance or otherwise, an inquiry equal
in magnitude of interest with any other involved -- relates to the
policy and effects of commercial regulations as these may tend
either to the restriction of commerce within particular channels or
to supplying auxiliaries for its prosecution, or for the promotion
of its activity and diffusion by increased facilities, operating a
just equality of right and competition and advantage to all. And
here it may be premised that throughout the discussion of this
cause, a reigning fallacy has been assumed and urged upon the Court
-- a fallacy which, if successful, may subserve the grasping
pretensions of the plaintiff, but which, by an enlightened view of
this case, must be condemned as destructive to the extended
commercial prosperity of the country. The error assumed as the
basis of the plaintiff's pretensions is this -- that commerce can
be prosecuted with advantage to the country only by the channels of
rivers, and in all the country intersected by the western rivers,
only through the agency of steamboats, and hence is attempted the
deduction in favor of the paramount privileges of steamboats and
the right claimed for this species of commercial vehicles for
exemption from any limit upon the interests or the fancies of those
who may own or manage them. It has been a curious and somewhat
amusing incident in the argument of this cause that whenever any
restraint upon the management of steamboats on the Ohio was
intimated as necessary for the protection of other essential
rights, both public and private, the fixed reply of the advocate in
opposition has been that commerce demands these peculiar privileges
in the owners and masters of steamboats. An obvious and stricter
propriety of argument would have suggested for that reply the
following language: steamboat proprietors, local monopoly, and the
peculiar views of interest, real or imaginary, of the plaintiff
supply the true origin and character of the pretensions here urged;
commerce, enlightened, extended, fair, equal, prosperous, and
beneficial, condemns all such pretensions; she demands that
freedom, fairness, competition, and equality, which are the true
and only true causes of her prosperity, and which the equalizing
power vested by the Constitution was designed to insure.
Commerce, in its infancy, is of necessity chiefly confined to
the channels of watercourses. Weakness, poverty, or the absence of
art or science are unable, in the earlier stages of society, to
supply more eligible or efficient modes for its prosecution or to
overcome the difficulties attendant on transportation off the
Page 54 U. S. 603
water. Hence we see the rude essays of commerce commencing with
the raft, the canoe, or the bateau; but as wealth and population,
science and art advance, we trace her operations to the magnificent
ship or steamboat, each adapted to its proper theater. Does not
this very progress and the advantages which are their concomitants
glaringly expose the folly and injustice of all attempts at the
restriction of commerce to particular localities or to particular
interests or means of circulation? Are her operations to be
confined to a passage up and down the channels of watercourses,
impracticable for navigation for protracted periods and whose
capacity is always dependent on the contributions of the clouds,
aviditas coeli aut nimius imber? Would not such a narrow
policy be a proclamation to commerce, inhibiting her advancement,
and to the hundreds of thousands situated without her permitted
track, that the wealth, the luxuries, and comforts of civilization
and improvement, if to be enjoyed by them at all, are to be
obtained only at far greater expense and labor and in an inferior
degree than they are enjoyed by more favored classes? These
positions are strikingly illustrated by the experience of our own
times, and indeed of a very brief space. Thus, notwithstanding the
high improvement in navigation by steam and by sails which seems to
have carried it to its greatest perfection, we see the railroad in
situations where no deficiency of water and no artificial or
natural obstruction to vessels exist or are complained of,
stretching its parallel course with the track of the vessel, tying
together, as it were, in close contiguity, and connecting, in habit
and sympathy and interest, remote sections of our extended country
which, for any aid that the navigation on our rivers could afford,
must ever remain morally and physically remote.
The obvious superiority of the railroad from its unequaled
speed, its greater safety, its exemption from dependence upon wind
or on depth of water, but above all, its power of linking together
the distant and extended regions interposed between the rivers of
the country -- spaces which navigation never can approach -- must
give it a decided preference, in many respects, to every other
commercial facility and cause it to penetrate, longitudinally and
latitudinally,
longe et late, the entire surface of the
country, unless arrested in its progress by the fiat of this Court,
for once let it be proclaimed that the rivers of this country shall
under no circumstances of advantage to the country be spanned by
bridges at the trivial inconvenience and cost of adapting to their
elevation the chimneys of a few steamboats, even if the height of
those chimneys had been clearly shown to be necessary, or certainly
advantageous, a problem nowhere solved in this record; let this, I
say, be proclaimed, and the effect above mentioned is
Page 54 U. S. 604
at once accomplished; the rapidly increasing and beneficial
system of railroad communication is broken up and a system of
narrow local monopoly and inequality sustained. Whether these
things shall now be done -- whether, for these purposes, the
citizens of this country shall be restrained in their social and
business relations, and so restrained under the abused and
perverted name of commerce -- are the questions which this Court
have been called on to decide and which, in my view, they have
affirmatively ruled. They are questions too grave, too pregnant
with vital consequences, to have been decided upon the speculations
of any one man living.
It was with the view, doubtless, of giving plausibility to the
conclusion of the commissioner or to the strange idea sought to be
enforced in the argument for the complainant that commerce
signified only a passage up and down the Ohio that so large a
portion of the commissioner's report is taken up in treating in
learned phrase of the dynamic and static capabilities of the
Wheeling Bridge, or, translated into plain English, the capability
of that bridge to sustain heavy bodies in motion and at rest. It
does not seem very easy to reconcile this part of the report with
the order appointing the commissioner and prescribing his duties.
That order directed the commissioner to ascertain and report
whether the Wheeling Bridge was, in his opinion, an obstruction to
commerce upon the Ohio, and in the event that he should so regard
it, to suggest any alterations by which such obstruction might be
remedied. The dynamic or static capabilities of the bridge,
introduced to our notice with some parade of learning, whether it
could support any weight, either in motion or at rest, were
subjects altogether
dehors the order of this Court and
without the warrant and powers of the commissioner. And this
difficulty is in no degree lessened by the fact, disclosed in the
record, that whilst the commissioner wandered beyond his commission
to pronounce upon the capabilities of the bridge for railroad
transit, he rejected all the evidence tendered by the defendants to
prove the usefulness and importance of the bridge either to the
local population or as a public and commercial facility. This
irregularity in the commissioner is of no small significance, as it
betrays a bias on his part, however honest, which led him to throw
the weight of his opinion against the usefulness of the bridge -- a
fact entering essentially into its character as being a nuisance or
otherwise, and to withhold from this Court evidence by which the
value of his opinion might have been tested with precision. This
same irregularity should have had its effect in warning this Court
to scrutinize the opinions of the commissioner on matters falling
regularly within the scope of his commission. The evidence
received
Page 54 U. S. 605
and that rejected on this particular point were perhaps both
inadmissible under the terms of the order of this Court, but surely
it should have been either wholly admitted or rejected on both
sides.
And this brings me to last branch of inquiry which I have
proposed to treat -- namely the character of the erection
complained of, the regularity of the mode of redress proposed, and
the right of the complainant to claim the interference asked for in
any mode.
First, then, can the Wheeling Bridge, according to any correct
acceptation of the term, be regarded as a nuisance? This inquiry is
answered by the solution of another, which is simply this: is that
bridge injurious to the rights and interests of the public or of
individuals beyond the benefits that its erection confers on both?
Common sense and consistency assure us that to pronounce that to be
a wrong and an injury which is in reality beneficial involves a
plain absurdity, and the language of legal definition fully
sustains this conclusion of common sense, for according to such
definition, there must be the hurt, the
nocumentum, the
commune nocumentum, the injury to the public right, to
constitute it a public nuisance, for admitting the fact of injury
by any act, still, if in its origin, character, and extent it is
essentially private, it may be trespass or some other form of
injury, but not the public offense of nuisance. This position
implies no denial of the right to show a private injury resulting
from a public nuisance; it insists only upon the necessity of
showing, where special or private injury is alleged as flowing from
a nuisance, that nuisance in reality exists. This forces back upon
us the inquiries into the nature of the offense of nuisance, and
when ascertained, against what public authority it has been
committed.
I have said that upon the plainest principles of common sense,
no act in reference to the public by which a public benefit is
conferred can be denominated a nuisance, and I insist that the
rules and conclusions of the law are in accordance with this
proposition. These are forcibly stated in the case of
King v.
Russell, 6 Barn. & Cress, particularly by Bayley, J.,
beginning at page 593 of the volume. That was the case of an
indictment for a nuisance by the erection in the River Tyne of a
peculiar wharf or staging called giers or staiths for the purpose
of loading coal on board ships in the Newcastle trade. The
questions before the King's Bench arose upon the charge of Bayley,
J., who tried the case at
nisi prius, where his charge
concluded in the following terms:
"Thus, gentlemen, I apprehend I have pointed out to you the true
ground on which your verdict is to be founded. If you think this
that is the wharf or staith is placed not on a reasonable part of
the river, that it does an unnecessary damage to
Page 54 U. S. 606
the navigation, or that this is not of any public benefit, or
that the public benefit resulting from it is not equal to the
public inconvenience arising from it, then you will find a verdict
for the Crown; if on these points you are of a different opinion,
then for the defendants."
This charge of Sir John Bayley was sustained in bank. The
reasoning in support of that charge by that able judge is given
more at length than can be conveniently inserted here, but it
presents a commentary upon this question so lucid, so entirely
conclusive, that I cannot forbear to extract a portion of it, as
illustrating much better than I have power to do the doctrines for
which I contend. "I submitted," says Sir John Bayley, page 594,
"to the consideration of the jury that if by means of these
staiths an article of great public use found its way to the public
at a lower price and in a better state than it otherwise would, I
thought these were circumstances of public benefit, and points they
might take into their consideration upon that head; and upon the
best attention that I have been able to give the subject, I am
bound to say I continue of that opinion. The right of the public
upon the waters of a port or navigable river is not confined to the
purposes of passage; trade and commerce are the chief objects, and
the right of passage is chiefly subservient thereto. Unless there
are facilities for loading and unloading of shipping and landing,
much of the public benefit of a port is lost. In the infancy of a
port, when it is first applied to the purposes of trade and
commerce, unless the water by the shore be deep, the articles must
be shipped in shallow water from the shore and landed in shallow
water on the shore. Breakage and pilferage and waste, besides the
expense of boating, are some of the concomitants of such a mode. As
trade advances, the inconvenience and mischief of this mode are
superseded by the erection of wharves and quays, and what is
perhaps an improved species of loading wharf -- a staith. But upon
what principle can the erection of a wharf or staith be supported?
It narrows the right of passage. It occupies a space where boats
before had navigated. It turns part of the waterway into solid
ground; but it advances some of the purposes of a port, its trade
and commerce. Is there any other legal principle upon which they
can be allowed? Make an erection for pleasure, for whim, for
caprice, and if it interfere in the least degree with the public
right of passage, it is a nuisance. Erect it for the purposes of
trade and commerce, and keep it applied to the purposes of trade
and commerce, and subject to the guards with which this case was
presented to the jury, the interests of commerce give it
protection, and it is a justifiable erection, and not a
nuisance."
In accordance with this doctrine, has the law been propounded by
the supreme court of New York, in the case of
People
v.
Page 54 U. S. 607
Rensselaer & Saratoga Railroad Company, reported in
15 Wend. 113. That was a prosecution against the company for
placing abutments and piers in the bed of the Hudson River and
erecting a bridge across it, being a public navigable river. In
delivering the opinion of the court, the law of the case is thus
stated by Savage, Chief Justice, 132-133 of the volume above
mentioned.
"I think I may safely say that the power exists somewhere to
erect bridges over waters which are navigable if the wants of
society require them, provided such bridges do not essentially
injure the navigation of the waters they cross. Such power
certainly did exist in the state legislatures before the delegation
of power to the federal government by the federal Constitution. It
is not pretended that such a power has been delegated to the
general government or is conveyed under the power to regulate
commerce and navigation; it remains, then, in the state
legislatures or it exists nowhere. It does exist, because it has
not been surrendered any further than such surrender may be
qualifiedly implied -- that is, the power to erect bridges over
navigable streams must be so far surrendered as may be necessary
for a free navigation upon those streams. By a free navigation must
not be understood a navigation free from such partial obstacles and
impediments as the best interests of society may render
necessary."
In conformity with the doctrines above quoted and in support of
the views here contended for, I might confidently appeal to the
language of the judge by whom the decision of this Court has just
been announced, on another occasion most explicitly and
emphatically declared. Thus, in the case of
Palmer v.
Commissioners of Cayuga County, which was an application for
an injunction to prevent the construction of a drawbridge over the
Cayuga River upon the ground that it would obstruct the navigation
of the river, that judge, in refusing the application, announces
the following, as I conceive, unanswerable conclusions:
"A toll charged for the improvement of the navigation would not
be a tax for the use of the river in its natural state, but for the
increased commercial facilities. A drawbridge across a navigable
water is not an obstruction. As this would not be a work connected
with the navigation of the river, no toll, it is supposed, could be
charged for the passage of boats. But the obstruction would be only
momentary, to raise the draw, and as such a work may be very
important in the general intercourse of the community, no doubt is
entertained as to the power of the state to make the bridge. It is
one of those general powers possessed by a state for the public
convenience, and may be exercised, provided it does not infringe
upon the federal powers."
These positions require no comment
Page 54 U. S. 608
from me; they commend themselves by their obvious propriety and
reasonableness. I would simply remark in connection with these
positions and as warranted by them, that any obstruction by the
Wheeling Bridge is, of course, contingent and not certain; that
even were it certain, under the present elevation of the bridge,
this difficulty might be prevented at a comparatively small expense
and inconvenience by lowering, when necessary, the chimneys of a
few steamboats for the purpose of safe and speedy passage; that
this operation, like the raising of a draw, would be only
momentary, and as, to use the language of the judge, the Wheeling
Bridge "may be a work of great importance in a general intercourse,
no doubt is entertained as to the power of the state to make the
bridge." It will be admitted, I presume, that the Ohio can claim no
higher privileges than those appertaining to other navigable
rivers.
It follows, then, from these adjudications not less than from
the principles of common sense that the conclusion nuisance or no
nuisance is dependent solely upon the character of the act
complained of as being noxious or beneficial to the public, and
that the ascertainment of that character, where it is doubtful upon
the circumstances or where it is positively denied, is regularly an
investigation of fact to be made and settled, except under
circumstances of peculiar urgency, by the established proceeding of
the common law in relation to all questions of fact, a trial by
jury. This is the doctrine of Lord Hale in reference to this very
subject of obstructions in navigable waters, as quoted from his
Treatise
De Portubus, where it is said by that venerable
judge, "the case of building into the water where ships or vessels
might formerly have ridden, whether it be nuisance or not nuisance,
is a question of fact." I will not here deny, nor is it necessary
in any view to deny, that a court of equity will prevent by
injunction the creation of a private injury in the nature of a
nuisance or the continuation of such an injury in a case proper for
its jurisdiction. Thus, where an individual or private person is
about to perform an act or has performed an act which is palpably
and notoriously in its character a nuisance, from which private and
irreparable injury will ensue to others or has accrued to others
and will continue, a court of equity, upon the admitted or
notorious character of the act from which the private injury is
shown to proceed and from the irreparable character of that injury,
will interpose by injunction to relieve the party injured. Such is
the principle ruled by Lord Eldon in the case of
Attorney
General v. Cleaver, 18 Vesey 211, which was upon an
information by private persons for private injury, though in the
name of the attorney general, and by the same judge in the case of
Crowder v. Tinkler, in
Page 54 U. S. 609
19 Vesey 616. Such also I understand to be the rule laid down by
this Court in the case of
Georgetown v. Alexandria Canal
Company. These cases all proceed upon the grounds of the
ascertained character of the act complained of on the one hand, and
of the private and irreparable nature of the injury shown, on the
other. This is as far, it is believed, as the courts of equity have
ever proceeded. They have never said that where the act complained
of was dubious in its character as being a nuisance or otherwise,
and where that fact was a matter of contestation, they would assume
jurisdiction
a priori, or without sending the question of
nuisance to be tried at law, but have ruled the reverse of this,
and in the cases just quoted from Vesey, Lord Eldon declared that
he would not decide those cases until the equivocal or contested
fact was settled at law.
Again it is ruled in the cases above quoted and in many others
which might be adduced that although the courts of equity will, in
order to prevent irreparable private injury, interpose by way of
injunction, that where the abatement of a public nuisance is the
purpose in view, as that is an offense against the government, the
attorney general must be a party to any proceeding for such a
purpose. In this case, the act complained of, if a nuisance, is a
public nuisance, and is so denominated upon the record and by the
decision of the majority. Its character, however, as a nuisance in
any sense is denied, and much testimony has been taken by both
parties upon this contested question. The interests of
Pennsylvania, which stands here in the relation of a private
suitor, and the alleged injury to her private interests, are the
sole foundation on which she has sought here the abatement of what
she has asserted to be a public nuisance. And without the
participation of any representative of the sovereignty either of
the state or the federal government, without the agency of the
attorney general of the state or of the United States, without the
reference to a jury of any of the contested facts of this case,
this Court, in the professed exercise of original equity
jurisdiction, upon affidavits and upon the opinion of a single
individual who has been by this Court constituted the arbiter of
all questions of public policy, of law, of science, and of art, and
of the competency and credibility of all the testimony in the case,
have decided upon the act complained of with reference to its
influence upon the rights and powers both of the United States and
of the local sovereignty, upon the rights and interests of the
complainant in the matter in controversy, and upon the extent of
the injury, if any, done to those interests. They have, upon the
same grounds and in the like absence of the legal representative of
either the state or federal sovereignty, directed a great public
work, disapproved by neither of
Page 54 U. S. 610
those sovereignties and by one of them expressly authorized and
approved to be in effect demolished.
I do not deem it necessary, if it were practicable, to examine
here in detail the cumbrous mass of statement and speculation
heaped together on this record. Such a task is not requisite in
order to test the accuracy of the decision pronounced in this case
or to sustain the objections to which that decision is believed to
be palpably obnoxious; both these objects appear to me to be
attained by regarding the character of the case as described by the
plaintiff herself and the nature and manner of the proceeding
adopted by the court as a remedy for the case so presented. I will
give succinctly, however, the results to which in my view the Court
should have been led by the facts of the case, and to which an
industrious examination, at least, of the testimony has conducted
my mind. Before this, however, I must be permitted to point out a
striking inconsistency between the alleged ground of jurisdiction
in this cause, as set forth in the pleadings, and the conclusion to
which the Court has been carried, and the reasons it has assigned
for its conclusion.
It will be remembered that the ground of jurisdiction insisted
upon in this case is the injury alleged to have been done to the
State of Pennsylvania as a private suitor -- her peculiar interest
alone, and none other -- for none other could give jurisdiction to
this Court under the Constitution; yet nothing is more obvious than
that the whole argument of the Court is founded upon the injury
inflicted by the bridge upon the owners of certain steam packets
and upon the trade of Pittsburgh. Calculations are gone into at
length to show what number of passengers and what amount of freight
are carried by these particular packets, how much they would lose
by being deprived of this business or by being subjected to the
inconvenience and cost of lowering their chimneys, and how much the
business of Pittsburgh would be injured by the obstruction
complained of. Thus, the true character of this cause is betrayed
in the very argument and conclusions of the Court. The name and
alleged interests of Pennsylvania as a private suitor are used to
draw to this Court jurisdiction of this cause, but no sooner is
that jurisdiction allowed in the name of Pennsylvania than she and
any peculiar or corporate interests she was said to possess are at
once lost sight of and those of the steamboat owners and the local
interests of Pittsburgh alone are enforced.
The results, above alluded to, are as follows:
1st. That the conflicting opinions of those who have been called
as men of science to testify in this cause establish nothing
conclusively, much less ascertain the theory contended for, that
for purposes
Page 54 U. S. 611
of economy, of rapid combustion of fuel, or for the generation
and escape of steam, an extraordinary height of chimney is
necessary, but leave it doubtful whether the elongation of chimneys
beyond a certain altitude is not calculated to retard the escape of
heated air and smoke and also to cause inconvenience and danger to
the boats that carry them.
2d. That amongst the practical men, consisting of those who have
experience in constructing boats and boilers and other steamboat
machinery and also in commanding steamboats on the western rivers
and elsewhere, the preponderance, for several reasons mentioned by
them, is against the extraordinary height of chimneys.
3d. That the cost incident to such a construction of chimneys,
supposing this great altitude to be advantageous, as to admit of
their being lowered, and the delay and hazard of lowering them, are
subjects of minor import, have been greatly exaggerated in the
statements of some of the witnesses, and should not be weighed in
competition with an important public improvement, itself a valuable
and necessary commercial facility, and cannot convert such a work
into a public nuisance or in any correct sense an obstruction to
navigation.
4th. That the commissioner erred in yielding to speculation and
theory, rather than to practical knowledge and experience, and to
the statements of witnesses, in some instances, whose local
position was calculated, though it may have been honestly and
unconsciously, to influence their feelings and their judgments.
With regard to the right of the plaintiff to ask the abatement of
the Wheeling Bridge as a nuisance by any mode of proceeding, I will
here add another remark, which has in some degree been anticipated
in preceding views in this opinion, and it is this:
A nuisance, to exist at all, and emphatically a public nuisance,
must be an offense against the public, or more properly against the
government or sovereignty within whose jurisdiction it is
committed. In the case before us, that sovereignty and that
jurisdiction reside either in the Commonwealth of Virginia or in
the federal government. If in the former, she has expressly
sanctioned the act complained of; consequently, no nuisance has
been committed with respect to her. If the sovereignty and
jurisdiction be in the United States, it is a limited and delegated
sovereignty, to be exerted in the modes and to the extent which the
delegating power has prescribed. There can be no other in the
government of the United States -- none resulting from the
principles of the common law, as inherent in an original and
perfect sovereignty. There then can be no nuisance with respect to
the United States except what Congress shall, in the exercise of
some constitutional power, declare to be such, and Congress has not
declared an act like that here complained of to be a
Page 54 U. S. 612
nuisance.
Upon the whole case, then, believing that Pennsylvania cannot
maintain this suit as a party by any just interpretation of the 2d
section of the 3d
article of the Constitution, vesting this Court with original
jurisdiction; believing that the power which the majority of the
Court has assumed cannot in this case be correctly derived to them
from the competency of Congress to regulate commerce between the
several states; believing that the question of nuisance or no
nuisance is intrinsically a question of fact which, when contested,
ought to be tried at law upon the circumstances of each case, and
that, before the ascertainment of that fact, a court of equity
cannot take cognizance either for enjoining or abating an act
alleged, but not proven, to be nuisance; seeing that the
Commonwealth of Virginia, within whose territory and jurisdiction
the Wheeling Bridge has been erected, has authorized and approved
the erection of that bridge, and the United States, under the
pretext of whose authority this suit has been instituted, has by no
act forbidden its erection, and does not now claim to have it
abated; my opinion, upon the best lights I have been able to bring
to this case, is that the bill of the complainant should be
dismissed. From these convictions and from the sense I entertain of
the almost incalculable importance of the decision of the majority
of the Court in this case, I find myself constrained solemnly to
dissent from that decision.
Motion for another Reference
On the above opinion's being pronounced and the two dissenting
opinions, Mr. Johnson, of counsel for defendants, suggested to the
Court that the engineer of the bridge had informed him that the
obstruction to the navigation of the Ohio might be avoided by
making a draw in the suspension bridge or in some other manner far
less expensive to the Bridge Company and equally convenient to the
public than by elevating the bridge as required in the opinion.
On this suggestion, the Court observed that as it was desirous
of having the obstruction removed in a manner that shall be most
convenient and least expensive to the Bridge Company, it requested
the counsel to file in writing his suggestions and give notice to
the other side, that both parties may be heard in regard to
them.
In pursuance of the above suggestion from the Court, the counsel
for the Bridge Company filed their suggestions in writing, and an
argument took place. Afterwards, MR. JUSTICE McLEAN delivered the
following opinion of the Court.
Page 54 U. S. 613
MR. JUSTICE McLEAN.
"
Order of Reference"
In pursuance of the intimation of the Court, the counsel for the
defendants filed, in writing, five plans for the removal of the
obstruction to navigation occasioned by the bridge.
1. To elevate it, as required by the opinion of the Court.
2. To remove the wooden bridge over the western channel of the
river.
3. To remove the flooring of the suspension bridge, so that the
tallest chimneys may pass under the cables.
4. To construct a draw in the wooden bridge over the western
channel.
5. To make a draw in the suspension bridge.
It is objected by the complainant's counsel that after a case
has been argued upon the evidence and the opinion of the Court
pronounced, it is not within any known rules of chancery proceeding
to hear additional evidence with the view of modifying in any
respect the decree. That some of the plans now proposed were not
embraced by the pleadings or evidence in the case, and that the
effect must be to open the case for additional evidence and a new
argument.
The bill alleged the bridge to be an obstruction to the
navigation of the Ohio, and prayed that it might be abated as a
nuisance. The answer denied that it was an obstruction to
navigation.
The commissioner was directed to inquire
"if an obstruction be made to appear, what change or alteration
in the construction and existing condition of the said bridge, if
any, can be made, consistent with the continuance of the same
across said river, that will remove the obstruction to the free
navigation."
In the opinion of the Court, the bridge is an obstruction to the
navigation of the river, and it held that an elevation of it one
hundred and eleven feet from low water mark, the width of three
hundred feet across the channel of the river, would remove the
obstruction. Except the elevation of the bridge, no mode was
proposed by the commissioner for the removal of the obstruction.
His instructions limited him to a "change or alteration in the
bridge" which should effectuate that object. Several of the plans
now proposed were not within the scope of his inquiry, and of
course were not embraced by his report.
In giving relief, the Court is not bound to abate the nuisance
as prayed for in the bill nor to adopt the report of the
commissioner if the obstruction can be removed and the public right
maintained with less expense to the bridge company. This is a
matter within the judgment of the Court, and does not necessarily
constitute a part of the pleadings.
Page 54 U. S. 614
It is suggested that the elevation of the bridge, as required in
the opinion of the Court, must result in its abatement, as the
stockholders have not the pecuniary means of elevating it. Whatever
may be the consequences to the stockholders, a great public right
cannot be made subservient to their interests. Subject to that
right, the Court will regard and protect their interests.
The second plan, which proposed to remove the bridge over the
western channel of the river, we shall refer to the engineer who
acted under the commissioner and who is familiar with all the
facts, and having his surveys before him can give promptly to the
Court the information they desire.
To remove the flooring of the bridge, as proposed in the third
plan, leaving the cables in their present position, seems to have
no other practical result than the sale of the cables.
The third and fourth plans propose to construct a draw for the
passage of boats, in the suspension or the western bridge.
Draws are common in bridges across arms of the sea where the
tide ebbs and flows, for the passage of sea vessels, and also in
bridges over rivers with a sluggish current, but we entertain great
doubts whether a draw in either of the bridges, as proposed, can be
constructed so as to afford "a convenient and safe passage" for the
steamboats that ply upon the Ohio. Some of them are about two
hundred and fifty feet long and from fifty to sixty feet in width.
The current in the Ohio at high water is from five to six miles an
hour. A steamboat, to be under the command of the helm, must have a
pressure of steam which, with the current, would give it a
considerable velocity in passing the draw, and any deviation from
the direct line by the wind, the eddies and currents of the river,
in high water, might throw the boat against the bridge on either
side. This might be fatal to the boat and to the lives of its
passengers, and the danger would be greatly increased by attempting
to pass the draw at night, especially when the weather is
unfavorable to navigation.
Jonathan Knight, an engineer called by the defendants before the
commissioner, said
"my opinion is decidedly it would be better to pass under the
bridge by lowering chimneys than to have a draw; that it would be
less dangerous and take less time."
And he further states, "where there is a draw, the space is
necessarily contracted, and it might strike on the one side or the
other, or the wind might be adverse."
The report of the commissioner contains a report of Charles
Ellet, "on a railway suspension bridge across the Connecticut River
at Middletown," in which he says, "the flooring of the bridge is to
be placed one hundred and forty feet above the river, and the
navigation left entirely unobstructed." And he recommends "a high
level to avoid . . . the injury to the public consequent
Page 54 U. S. 615
on delays at the draw." In the same report he observes,
"No party would now be so idle as to ask to place a drawbridge
across the Ohio or Mississippi; no law could be obtained for such
an obstruction, and nothing is hazarded by the assertion that such
a nuisance would be immediately overthrown if placed there under
the color of any law. The bridges that are established on those
streams must be placed high enough to clear the steamboats, and
must leave the channel open."
We shall direct the decree drawn up in pursuance of the opinion
of the Court, which affords to the stockholders of the bridge the
alternative of elevating it, and thereby removing the obstruction
to the navigation of the river, to be filed but not recorded until
the engineer or the commissioner shall report upon the second,
third, fourth, and fifth plans proposed by defendants' counsel.
Notwithstanding the above intimations in regard to a draw, we are
desirous of having the report of a practical and scientific
engineer on that subject, as well as in relation to the other
plans.
It is therefore ordered that the clerk of this Court transmit to
William J. McAlpine, Esquire, a copy of this opinion, with a
request that he make a report to this Court on or before the second
Monday of May next --
1st. Whether a draw can be constructed in the suspension bridge,
that shall afford a safe and convenient passage for the largest
class of steamboats which ply to Pittsburgh having chimneys eighty
feet high at a depth of water thirty feet from the ground, and if
such a draw be practicable, that he give a particular description
in what manner and of what dimensions it must be constructed.
2d. Whether such a draw may be constructed in the wooden bridge
over the western channel of the river.
3d. Whether the removal of the western bridge will open an
unobstructed channel for the packets which now pass Wheeling having
chimneys eighty feet high at all times when they shall not be able
to pass under the suspension bridge.
4th. Whether the removal of the flooring of the bridge, as
proposed, will enable packets to pass having chimneys eighty feet
high.
In obedience to this order of the Court, Mr. McAlpine filed the
following report.
"To the honorable ROGER B. TANEY, CHIEF JUSTICE, JOHN McLEAN,
JAMES M. WAYNE, JOHN CATRON, JOHN McKINLEY, PETER V. DANIEL, SAMUEL
NELSON, ROBERT C. GRIER, and BENJAMIN R. CURTIS, ASSOCIATE JUSTICE
of the Supreme Court of the United States."
"In pursuance of the order of the Supreme Court of the
United
Page 54 U. S. 616
States dated the first day of March, 1852, a copy of which has
been furnished by the clerk of the said court, dated the third day
of March, 1852, I, William J. McAlpine, do make the following
report on the several matters directed in the said order, as
follows: "
"1st. Whether a draw can be constructed in the suspension bridge
that shall afford a safe and convenient passage for the largest
class of steamboats which ply to Pittsburgh having chimneys eighty
feet high at a depth of water thirty feet from the ground, and if
such a draw be practicable, that he give a particular description
in what manner and of what dimensions it must be constructed."
"2d. Whether such a draw may be constructed in the wooden bridge
over the western channel of the river."
"3d. Whether the removal of the western bridge will open an
unobstructed channel for the packets which now pass Wheeling having
chimneys eighty feet high at all times when they shall not be able
to pass under the suspension bridge."
"4th. Whether the removal of the flooring of the bridge, as
proposed, will enable packets to pass having chimneys eighty feet
high."
"The largest class of steamboats which ply to Pittsburgh are the
daily packets, which are from fifty-four to fifty-eight feet in
width and from two hundred and fifteen to two hundred and
sixty-four feet in length."
"In a direct channel with a moderate current, and in favorable
weather a draw of one hundred feet in width would, with skillful
navigation, be sufficient for the safe and convenient passage of
such vessels."
"In the high stages of water in the Ohio River at Wheeling, the
velocity of the current is from five to six miles an hour. A
steamboat, in passing down the river, must have an additional
velocity to keep her under the command of the helm, so that she
must pass the draw with a velocity of from eight to ten miles per
hour, and this speed would be less than the ordinary velocity of
the vessel in other parts of the river."
"In stormy weather, with the wind blowing across the current of
the river, it would be difficult for a steamboat of the size above
stated to pass without considerably more allowance than would be
provided for in a draw of one hundred feet in width."
"At such times, the danger of passing the draw at night would be
much increased, and it would be necessary to maintain lights on
each side of the draw to guide the pilots in the proper direction
to pass it."
"Under the ordinary circumstances of high water, a draw of at
least one hundred and fifty feet in width would be necessary,
Page 54 U. S. 617
and one of two hundred feet in width to pass at night with
safety."
"In dark stormy nights and with a rapid current in the river,
the hazard of a passage would be so great that vessels would
probably be laid by rather than risk the dangers of the passage of
a draw of less than three hundred feet in width."
"From the accompanying drawing of the present suspension bridge
at Wheeling it will be seen that a draw cannot be placed in the
eastern end of the bridge which will give a clear passageway
beneath the cables for steamboats having chimneys eighty feet high
at a depth of water thirty feet above the ground of one hundred
feet in width."
"At the western end of the bridge, adjoining the western
abutment, a draw may be placed which will give a passage for such
vessels in a thirty feet stage of water of nearly one hundred feet
in width: "
"In reply, therefore, to the first question of the Court, I have
to state that a draw of sufficient width for the safe and
convenient passage of steamboats of the dimensions stated cannot be
constructed in the present bridge."
"In a five feet stage of water, such a vessel would have a space
of ninety-six feet in width, adjoining the eastern shore, to pass
beneath the flooring of the present bridge, and in a six feet stage
a width of one hundred and twelve feet."
"At any stage of water higher than six feet, the width of
passage would be reduced in consequence of the steep inclination of
the eastern bank of the river."
"In a five-feet stage of water, vessels drawing four feet would
strike the bed of the river on the western shore at a point eight
hundred and eighty feet from the face of the eastern abutment."
"A steamboat with a chimney eighty feet high would, allowing two
feet for clearance on a five feet stage of water in extremely warm
weather, clear the cable at a point six hundred and seventy-one
feet from the face of the eastern abutment, which leaves a clear
passageway of two hundred and nine feet in width."
"In a six-feet stage of water, the vessel would strike the bed
of the river at nine hundred feet, and the chimney would clear at
six hundred and eighty-five feet, which leaves a clear passage of
two hundred and fifteen feet in width."
"In a seven-feet stage of water, the vessel would strike the bed
at nine hundred and eighteen feet and the chimney would clear at
six hundred and ninety-seven feet, leaving a passageway of two
hundred and twenty-one feet in width."
"In an eight feet stage of water, the vessel would strike the
bed
Page 54 U. S. 618
of the river at nine hundred and twenty-two feet and the chimney
would clear at seven hundred and nine feet, leaving a passage of
two hundred and thirteen feet."
"In a nine feet stage of water, the vessel would strike the bed
of the river at nine hundred and twenty-six feet, and the chimney
would clear at seven hundred and nineteen feet, leaving a passage
of two hundred and seven feet."
"In a ten feet stage of water, the vessel would strike the bed
of the river at nine hundred and thirty feet, and the chimney would
clear at seven hundred and twenty-nine feet, leaving a passage of
two hundred and one feet."
"In an eleven feet stage of water, the vessel would strike the
bed of the river at nine hundred and thirty-four feet, and the
chimney would clear at seven hundred and thirty-nine feet, leaving
a passage of one hundred and ninety-five feet."
"In a twelve feet stage of water, the vessel would strike the
bed of the river at nine hundred and thirty-eight feet, and the
chimney would clear at seven hundred and forty-nine feet, leaving a
passage of one hundred and eighty-nine feet."
"In a thirteen feet stage of water, the vessel would strike the
bed of the river at nine hundred and forty-two feet, and the
chimney would clear at seven hundred and fifty-nine feet, leaving a
passage of one hundred and eighty-three feet."
"From the accompanying chart, it will be seen that the shoal
which makes into the river from the west shore above the bridge
would render it difficult for a vessel to enter the draw on a six
feet stage of water unless its eastern end were located at least
three hundred feet from the western abutment, and then the
passageway under the bridge, clear of the bottom of the river and
cable, would be two hundred and fifteen feet in width."
"It is necessary that the draw should be arranged for this stage
of water, because a vessel could not then pass under the flooring
of the eastern end of the bridge with a sufficient width of clear
space."
"For each foot that the water rises, the passageway is thrown
about ten feet to the west and its width is diminished about six
feet."
"In an eighteen-feet stage of water, the chimney would clear the
cables at a point seven hundred and eighty-three feet from the face
of the eastern abutment, which would leave a clear space of one
hundred and ninety-three feet in width."
"In a thirty feet stage, the chimney would clear at eight
hundred and sixty-six feet, leaving a space of one hundred and ten
feet."
"The draw would therefore require to be made at least three
hundred feet long from the face of the western abutment to
Page 54 U. S. 619
allow the passage of steamboats of the dimensions stated in the
several stages of water from six to thirty feet in depth."
"It is in my opinion impracticable to construct so large a draw
in a suspension bridge, because from its flexible character and the
constant change of position of its cables which would be caused by
the movement of a mass of so great weight as the draw, it would not
admit of the adaptation of machinery for its movement."
"A draw of this length might be constructed in the Wheeling
Suspension Bridge by erecting a pier in the river at the eastern
end of the draw and carrying the cables over the top of it in the
manner suggested by Colonel Long in his testimony before the
commissioner, and suspending the draw from a strong permanent
bridge, elevated on the top of the new pier and abutment of the
present bridge, similar to the tubular bridges recently constructed
across the Conway and Menai straits in Great Britain. The cost of
constructing such a draw and of the necessary alterations of the
bridge would exceed the cost of elevating it to the height stated
in the order of the Court."
"The inconvenience of the approach to a draw placed in this
position, and the uncertainty of its successful operation and
maintenance under all circumstances of weather, exposed to winds
and with its machinery liable to be deranged by frost or by the
accidental encounter with passing vessels, render the utility of
the plan, in my opinion, so doubtful that any further detail of its
arrangement is deemed unnecessary."
"A draw can be constructed in the wooden bridge over the western
channel of the river which will, under ordinary circumstances,
offer a safe and convenient passage for the largest class of
steamboats which ply to Pittsburgh. This bridge consists of three
spans, each of two hundred feet in length. A drawing is herewith
sent which exhibits a plan of a draw placed in the center span of
the bridge which opens a clear space of two hundred feet."
"The plan of this draw is similar to one which has been
constructed on the London & Brighton railroad, which has a
single draw, moving in one direction, of sixty-six feet in
length."
"The plan proposed for the Wheeling Bridge is in two parts,
opening in the center and moving back on the floor of the present
bridge. Each draw will open one hundred feet, being thirty-four
feet more than the single draw above mentioned and making the whole
opening two hundred feet, equal to the space between the center
piers."
"The plan proposed will require the removal of the roof and the
center trusses of the end spans of the present bridge to allow the
draws to move back on the floors. The draws to be
Page 54 U. S. 620
timber; truss frames, each two hundred feet long, the ends
supported by timber suspenders from the top of a well braced center
frame; the land ends of the draws to be loaded sufficiently to
balance the projecting portion of the same. When the draws are
closed, the ends are to be secured together with iron pins passing
through iron straps, and the land ends fastened to the end spans of
the permanent bridge in a similar manner. When the bridge is thus
closed and secured, it will form a perfect suspension bridge of two
hundred feet span."
"The draws will be moved on wheels moving on iron rails laid on
the floor of the end spans, which will require to be strengthened
by additional timbers. The trusses should also be strengthened with
arch ribs and timbers to support the additional weight of the
draws."
"The draws to be moved by gearing placed in the piers, working
into a rack on the underside of the drawbridge frame, the gearings
moved by a capstan placed on the side of the bridge over the piers.
The capstan may be worked by man or horse power."
"The floor of the draw will be two and a half feet above the
floor of the permanent bridge, which may be overcome by a light
platform attached to the end of the draw that would move with the
draw when opening or closing."
"The cost of removing the center span of the permanent bridge,
strengthening the side or end spans, and constructing the
drawbridge is estimated at thirty-three thousand and twenty-three
dollars and sixth cents, $33,023.60"
"It is proper that I should state that there would be some
difficulty experienced in the opening of this or any other
practicable draw during very strong gales of wind, and at such
times some delays would unavoidably occur in the passage of
vessels."
"The present bridge over the western channel would not admit of
the construction of a draw of more than two hundred feet in width
without the expenditure of a sum nearly as great as that required
for the construction of a new bridge."
"A draw of three hundred feet in width may be constructed either
in the present bridge or in a new bridge over the western channel
in the same manner as before stated at the western end of the
suspension bridge."
"The expense of the construction of such a draw would exceed the
cost of elevating the suspension bridge to the height stated in the
order of the Court, and there would be the same difficulties in
operating and maintaining it as have been before stated."
"In my opinion, no draw can be constructed in either of the
bridges at Wheeling which would produce no delay and present
Page 54 U. S. 621
no obstruction to the safe and convenient passage at all times
of the largest class of steamboats which navigate the Ohio River at
Wheeling."
"In reply to the third question of the Court, I have to state
that the removal of the western bridge will open an unobstructed
channel for the packets which now pass Wheeling when the water is
six feet deep on the Wheeling bar."
"It has been previously stated that steamboats with chimneys
eighty feet high will have a passageway under the flooring of the
suspension bridge of ninety-six feet in width in a five-feet stage
of water and of one hundred and twelve feet in a six-feet
stage."
"By removing the obstructions in the western channel which are
now caused by a bar at the north end of Zane's Island, an
unobstructed channel can be obtained for such vessels at all times
when they cannot pass under the suspension bridge."
"A chart is herewith sent which exhibits the obstructions of the
western channel."
"In reply to the fourth question of the Court, it is proper to
state that from the preceding report it will be seen that the
removal of the flooring of the suspension bridge will enable
packets to pass under the cables having chimneys eighty feet high,
the clear width of the passage being, as before stated, from one
hundred ten to two hundred and twenty-one feet in width, depending
upon the stage of water in the river."
"The naked cables would afford no guide to direct the passage of
vessels to the point at which the chimneys would clear the cables
on the one side and not strike the bottom of the river on the other
side."
"It would be necessary to suspend lights on the cables during
the night to indicate the passage."
"In high stages of the water and during the night, the passage
of vessels of the size stated would be attended with difficulty and
danger in consequence of the narrowness of the space and of its
being out of the main channel of the river."
"Respectfully submitted,"
"WILLIAM J. McALPINE"
"Albany, May 8, 1852."
This report was made the subject of another argument in
consequence of exceptions to it being filed by Mr. Campbell the
Attorney General of Pennsylvania, and Mr. Stanton, also of counsel
for the complainant. The report of the case has already been
extended to such an unusual length that the reporter cannot find
room to notice the arguments of the respective counsel upon the
exceptions.
Page 54 U. S. 622
MR. JUSTICE McLEAN delivered the opinion of the Court.
The plans lately proposed through defendant's counsel to obviate
the obstructions to the navigation of the Ohio River by reason of
the Wheeling Bridge, complained of by the plaintiff, having been
referred to William J. McAlpine, Esquire, civil engineer, he
reports:
That a draw cannot be made in the suspension bridge which shall
afford a safe and convenient passage for the largest class of
steamboats which ply from Pittsburgh having chimneys eighty feet
high on a depth of water thirty feet from the ground. And he
reports that a draw can be constructed in the wooden bridge over
the western channel of the river which will, under ordinary
circumstances, offer a safe and convenient passage for such
boats.
That bridge, he states, consists of three spans, each of two
hundred feet in length, and he proposes that the draw shall be
place in the center span of the bridge, which will open a clear
space of two hundred feet. He also reports, in answer to the third
question of the Court,
"that the removal of the Western Bridge will open an obstructed
channel for the packets which now pass Wheeling, when the water is
six feet deep on the Wheeling bar."
On this report the parties have been heard.
The counsel for the defendants complain that no notice was given
to them of the late action of the engineer. A notice was
unnecessary. The proposed plans were submitted by the defendants,
and they were referred to the engineer, who acted under the
commissioner and who, having made the surveys and reports, was in
possession of all the evidence necessary to give the required
information to the court. He had only to look into his own work for
the data to make the additional report in regard to both bridges
and the two channels of the river over which they have been
constructed. His opinion as to a draw and the other matters
referred to him were strictly within the line of his profession. No
act done under the late reference was open for investigation by
proof or subject to be influenced by argument. The presence of the
parties by their counsel was neither necessary nor desirable, and
notice to the defendant was not, therefore, required to be
given.
By the reference, the Court did not intend to make the opinion
of the engineer the immediate basis of a final decree. It was
desirous of ascertaining all the facts which could have a bearing
in the decision of the case. It was fully impressed with its high
importance to the public and to the defendants. And, whilst a high
sense of duty required it to maintain the public right, it was
solicitous, as expressed in its former opinion, to do so with the
least possible expense to the defendants.
Page 54 U. S. 623
In its former opinion, nothing was said from which an inference
could be drawn that the right of crossing the Ohio River by bridges
was incompatible with its navigation. Had this bridge been
constructed, in the language of its charter, so
"as not to obstruct the navigation of the Ohio in the usual
manner by steamboats and other crafts as are now commonly
accustomed to navigate the same when the river shall be as high as
the highest floods hereinbefore known,"
this suit could never have been instituted. The charter was
granted in 1847, long after the great floods in 1832 and in
subsequent years.
The right of navigating the Ohio River or any other river in our
country does not necessarily conflict with the right of bridging
it. But these rights can only be maintained when they are so
exercised as not to be incompatible with each other. It is in their
improper exercise, and not in their nature, that any
incompatibility exists.
We can derive but little instruction on this subject from
European experience and practice. The rivers on that continent are
generally diminutive and of no very great length. They do not
compare with the great rivers of the West. The bridges on the Rhine
are numerous, and most if not all of them have draws through which
boats are continually passing. But their boats are small, with low
and light chimneys, and some if not many of the bridges rest upon
the surface of the water. A boat of two hundred and ninety-five
feet in length, as the
Pittsburgh, it is believed, is not
to be found engaged in inland river navigation in Europe.
The report now before us, in its outlines, is not objected to by
the defendants. On the contrary, they ask the Court to sanction it,
leaving open its details. In their former opinion, after stating
the elevation which must be given to the suspension bridge to
remove the obstruction, the Court said
"if this or some other plan shall not be adopted which shall
relieve the navigation from obstruction on or before the first day
of February next, the bridge must be abated."
It was supposed that some plan might be suggested to remove the
obstruction at less expense than the elevation or abatement of the
bridge. The Court had before it only the general plan for relief
reported by the commissioner. Under such circumstances, it felt
itself bound to receive and refer the propositions submitted by the
defendants' counsel. The affirmative action on these propositions
belong to the defendants, and also the eventual responsibility.
The Court thinks that the report of the engineer, in its general
aspect, without examining its details, affords such probability of
success as to entitle the defendants to the proposed
experiment.
Page 54 U. S. 624
We look to the desired results, and not to the practicability
and efficiency of the plan. Of these the defendants must judge.
They have the means of ascertaining with the utmost accuracy
whether a channel can be opened in the western branch of the river
so as to afford a safe and an unobstructed navigation for the
largest class of boats having chimneys eighty feet high when they
cannot pass under the suspension bridge. This is the object
desired, and anything short of this would not be satisfactory.
When the subject of a draw was first suggested to the Court, it
was intimated that no draw was known which exceeded seventy feet in
width, but it was supposed that one of eighty feet might be
constructed. And the Court then said
"we entertain great doubts whether a draw in either of the
bridges, as proposed, can be constructed so as to afford a
convenient passage for the steamboats that ply upon the Ohio
River."
A draw of two hundred feet in the clear is now proposed, and one
less than that would not answer the public demand.
The Court will not now examine whether there be not in the
western channel other obstructions than the bridge. If such
obstruction exist of whatsoever nature, they must be known to the
defendants and must be removed.
With these general remarks, the Court will leave the defendants
free in the matter to act as their own judgments shall dictate.
The elevation of the bridge in pursuance of the report of the
commissioner was ordered by the Court as the best mode of removing
the obstruction suggested by the evidence. The abatement of the
nuisance was the most direct and ordinary mode for giving relief in
such cases. The alternative of elevating the bridge was adopted,
from considerations connected with the interests of the defendants
and the accommodation of the public. The same views have influenced
us in relation to the proposition now before us. We do not sanction
them further than to leave them to the defendants to work out and
secure, if they shall think proper, the required results as stated
in this opinion. The inconsiderable delay of two or three minutes
in passing the draw and running the increased distance of the
western channel does not constitute a material objection. From the
statement made, the increase of time would be less than is
ordinarily consumed in the landing or receiving a passenger at the
shore.
The objection that the navigation of the eastern channel of the
river has been improved by the government and that the plaintiff
has a right to its unobstructed use is admitted to have much
force.
Page 54 U. S. 625
In the multitudinous concerns of commerce, we must view things
practically, and cannot deal in abstractions. It is not always in
the discretion of a court to measure justice by doing or requiring
to be done the exact thing which would seem to be most appropriate.
Cases may arise in which great interests are involved that may have
had their origin in wrongful acts, yet connected with circumstances
which render it extremely difficult, if not impracticable, to do
the thing or cause it to be done which is most fit and proper. In
such cases, as in the law of mechanics, equivalents are of
necessity substituted. And if the thing done be all that justice
can require, it may suffice. Such is not infrequently the necessary
action of a court of chancery.
If the western channel of the river shall be made to afford an
equally safe and unobstructed passage for boats as the eastern
channel before the structure of the suspension bridge, excepting
the mere passage of the draw and the increased distance, no
appreciable injury is done to commerce.
The Court will direct the decree which has been filed, and which
required the bridge to be elevated as therein specified, on or
before the first day of February next to be recorded, and that it
shall stand as the order of this Court unless before that time the
western channel of the river shall be made by the defendants to
afford an unobstructed passage to boats of the largest class which
ply to Pittsburgh agreeably to this opinion, and leave is given to
either party to move the Court in relation to this matter on the
first Monday of February next.
The costs of this suit are ordered to be paid by the
defendants.
Decree
This cause having been heard in February last, and the opinion
of the Court pronounced, on the suggestions of the defendants'
counsel, a reference on certain points was made to William J.
McAlpine, whose report having been made and arguments heard from
the counsel on both sides at the adjourned term in May, 1852, the
cause stands for a final decree on the original bill, the
amendments thereto, the answers of respondents, and replications to
said answers, and on the profits in the cause, together with the
report of the commissioner appointed by this Court to examine the
premises, and on the exceptions to said report, when it appeared
that the respondents, in the year 1849, had erected a suspension
bridge supported by iron wire cables across that portion of the
River Ohio lying between the City of Wheeling and Zane's Island by
virtue of a charter granted by the Commonwealth of Virginia, the
span of said bridge being over one thousand feet long, and it also
appeared that across the
Page 54 U. S. 626
other channel of the river west of Zane's Island there is a
truss bridge so constructed as altogether to prevent the passage of
steamboats through that channel, which bridge is owned and
maintained by the defendants. And it further appeared that the
suspension bridge over the channel of the river east of the island
is so near the flow of the water in its ordinary stages as
seriously to hinder and obstruct the largest class of steamboats
from passing and repassing under said bridge in going to and
returning from the port of Pittsburgh, in the State of
Pennsylvania; that large and expensive public improvements made by,
and the property of, that state, consisting of canals connecting
railroads, turnpike roads, and slack water navigation in said
state, constructed years before the said suspension bridge was
erected, all of which improvements terminate at Pittsburgh, on the
Ohio River, and extend throughout the State of Pennsylvania to the
east and north, connecting the City of Philadelphia in said state
and Lake Erie with the River Ohio. That a large commerce for
several years has been and now is carried on over these public
works of internal improvement, on which Pennsylvania levies
reasonable tolls to maintain said works and to compensate her for
their erection. That said bridge imposes serious obstructions to
the largest class of vessels propelled by steam, and which bring
freight and passengers from below said bridge, and which freight
and passengers are intended to pass east and north over the canals
and railroads of Pennsylvania or to be conveyed down the Ohio
River, having been transported on the public works of Pennsylvania,
a portion of which commerce has been hindered and prevented and
hereafter must be hindered and prevented from passing over the
public works of that state because of obstructions to navigation
interposed by said bridge. That the said Ohio River is a navigable
stream, the navigation whereof by law is free to all citizens of
the United States and ought to remain unobstructed; and that the
said suspension bridge not only obstructs and hinders navigation on
said river but by means of such obstructions does occasion a
special damage to the said State of Pennsylvania as aforesaid for
which there is not a plain and an adequate remedy at law, but on
the contrary thereof, such injury is irreparable by an action or
actions at common law.
It is therefore decreed and adjudged that said suspension bridge
is an obstruction and nuisance and that the complainant has a just
and legal right to have the navigation of the said river made free
either by the abatement or elevation of the bridge so that it will
cease to be an obstruction in ordinary stages of high water to the
largest class of steam vessels now navigating the Ohio River, and
which alteration is hereby declared
Page 54 U. S. 627
to be an elevation of said suspension bridge to the height of
one hundred and eleven feet at least, in its undermost parts, above
the low water mark by the Wheeling gauge of the Ohio's water, and
that the height of said one hundred and eleven feet shall be
maintained to the extent of three hundred feet on a level headway
over the channel of the said river. And that from the respective
ends of said headway of three hundred feet to the abutments of each
end of the bridge, the descent shall not exceed at the rate of four
feet fall to every hundred feet of extension on the line of the
bridge, and that the same shall be removed by respondents or
altered as above stated on or before the first day of February,
1853.
Since the above decree was drawn, certain propositions having
been made by the defendants to open an unobstructed navigation for
boats of the largest class which ply to Pittsburgh through the
western channel of the river, as is more particularly stated in the
last opinion of the Court in this case, which may avoid the
obstructions by reason of the bridge complained of by the
plaintiffs, and as time has been given to the first Monday of
February next for the defendants, should they deem proper, to carry
out their propositions by removing all obstructions in the western
channel, on which day the plaintiff may move the Court on the
subject of the decree and of the proposed alterations in the
western channel, which, being before the Court, will enable it to
act in the premises as the law and the equity of the case may
require.
The court order the costs to be paid by defendants.
MR. CHIEF JUSTICE TANEY and MR. JUSTICE DANIEL dissented.
Opinion of MR. JUSTICE DANIEL and MR. CHIEF JUSTICE TANEY.
When this case was formerly before us, my opinion was expressed
at length against the right of this Court to take jurisdiction
thereof. My opinion upon this question remains unchanged, but the
Court having taken jurisdiction, I do not conceive that my
objection to the cognizance by the Court of this controversy
forbids my concurrence in any modification of the decree originally
proposed in this case calculated to relieve the defendants from the
operation of exactions believed by me to be unwarranted by law. I
therefore concur in the proposed modification of the former decree
by which a draw is authorized in the bridge over the western branch
of the River Ohio. I think, however, that the length prescribed by
this Court for the draw is greater than the public exigencies
require, and
Page 54 U. S. 628
that a draw of one hundred feet, at the utmost, would be ample
to meet those exigencies. It is also my opinion that the costs in
this cause should be equally borne by the parties.
MR. CHIEF JUSTICE TANEY also dissented, concurring in the
opinion of MR. JUSTICE DANIEL.