Slike strani

& 190. Diversion of water by digging well.- If A. digs a deep well or fountain, thereby occasioning a diversion of the water from a certain spring and water-course on the meadow land of B., so as to render the same dry during a portion of the year, the latter is entitled to relief against the former. Dexter v. The Providence Aqueduct Co., 1 Story, 387.

$ 191. A party may recover at law nominal damages for a diversion of a water-course, where no actual damage has been sustained, as a means of establishing and protecting his right. He may also assert his right in equity by a writ of injunction. Webb v. The Portland Mfg. Co., 3 Sump., 189; 3 Law Rep., 374 (SS 88-101).

$ 192. Water right, passes by deed, when.- A water right granted in gross is an easement without any fixed or limited dominant estate, and where such water-power is taken to certain property and there applied to run a mill and machinery thereon, it does not become “ appurtenant " to such property in the technical sense of that term. But if, while the water is being thus used, the owner conveys the premises by metes and bounds, making no mention of the water right, it will nevertheless pass therewith, such appearing to have been the intention of the parties. And where the water-power is being used at the time when the conveyance is made, such conveyance being made to secure a loan, and it appears that the premises, including the water right, are worth but little more than the amount of the loan, and that the water right alone is worth one-third the amount, such facts and circumstances are sufficient evidence of the intention of the parties that the water right should pass. Bank of British North America v. Miller, 6 Fed. R., 545; 7 Saw., 163.


SUMMARY Authority of congress paramount, SS 193, 194.- Tributaries to the Mississippi,

$$ 195, 207.— Bridge not deemed an obstruction, when, § 196. — Bridge authorized by a state, SS 197, 206. — Mode of re ss, $ 198. — Booms and dams in river wholly within a state, s 199, 201, 202, 203.- Chippewa river, Wisconsin, $ 200.- Ordinance of 1787, S202, 204.— Improvement of navigable rivers, $ 204.— Draw bridge, $ 205. Illinois river, $ 200.- Mississippi river and tributaries, $ 207. - Party obstructing not entitled to notice to remove, S 208.- Pontoons sunk by accident; party entitled to a reasonable time to raise and remove, S 209.- Removal of wrecks; diversion or change in course of channel, SS 210, 211.– Boat injured by collision with bridge, $ 212.- Bridge erected under act of congress not necessarily legal, ss 213, 214.- Erection of structure enjoined, when, $ 215.Withdrawal of consent by congress to erection of bridge, & 216.- Jurisdiction of federal

courts, $ 217. $ 193. In the regulation of commerce the authority of congress is paramount, and its de termination in respect to interference with navigation is conclusive, and a court will not enjoin the erection of a bridge over a navigable river which has been authorized by congress and is being built according to the requirements of the act authorizing it. Miller u. Mayor, etc., of New York, SS 218-223,

$ 194. Under the provisions of the constitution giving congress authority to regulate commerce, congress has authority to exercise jurisdiction over all navigable streams to the extent that may be necessary for the encouragement and protection of commerce between two or more states. Jolly v. Terre Haute Bridge Co., SS 224-231.

$ 195. While the several states of the original Northwest Territory have jurisdiction over the tributaries of the Mississippi, and may authorize the erection of bridges over them, yet they must not infringe upon the provisions of the ordinance of 1787, relating to the free navigation of such tributaries. Ibid.

$ 196. A bridge across a navigable river will not be considered a material obstruction to navigation where it involves merely slight difficulties and short stoppages, but if it involves much loss of time in passing, or danger of accident, or injury to life or property, or the use of extraordinary caution, then it becomes an obstruction. Ibid.

$ 197. It is no defense to an action for damages caused by a bridge over a pavigable tributary to the Mississippi, which is an obstruction to navigation, that it was authorized by a state legislature. Ibid.

$ 198. Where, in the absence of congressional legislation on the subject, a private corporation, authorized by the legislature of a state to place obstructions in a navigable river of that state, exceeds its authority, a court of equity will not, at the instance of a private individual, declare such obstructions a nuisance. The only remedy of a party injured is a suit for damages. Heerman v. Beef Slough Manuf'g Co., SS 232-236.

$ 199. In the absence of congressional action it is within the province of a state legislature to determine whether the benefit to the logging interest and to the general commerce of the state to be derived from the construction of booms, dams, etc., in a navigable river wholly VOL. XXVIII – 50


within the state would counterbalance the injury which such obstructions would cause to steamboat navigation. Ibid.

$ 200. The Chippewa river, in Wisconsin, is a public highway for the passage of boats and also for the floating of logs and lumber. The right to use the river for the floating of logs is common to all and is recognized and protected by the courts. Ibid.

$ 201. If a river lies wholly within a state the legislature may authorize a private corporation to build dams, piers and booms to assist in floating logs, although such dams, etc., may interfere with the navigation of the river by vessels, congress not having assumed control of the commerce of the river. Ibid.

$ 202. In the absence of congressional prohibition the state of Wisconsin, by its legislature, may authorize the erection of a dam across a navigable river within its borders, hotwithstanding the ordinance of 1787, and although such dam may partially obstruct navigation. Woodman v. Kilbourn Manuf'g Co., SS 237, 238.

8 203. The erection of a dam across a navigable river, which is authorized by the state leg. islature on condition that it shall be so constructed that rafts of lumber can pass safely and without delay, will not be enjoined, though it is alleged, as a ground therefor, that the erection of a dam in compliance with those conditions is a physical impossibility. Ibid.

$ 204. The ordinance of 1787, making navigable rivers free public highways, referred to such rivers in their natural state, and does not prevent their improvement by means of structures therein or forbid tolls on rivers thus improved. Palmer v. Commissioners of Cuyahoga Co., SS 239-243.

$ 205. A draw-bridge is not an obstruction to navigation, and a state may authorize the erection of such a bridge across a navigable river when such erection does not infringe on federal powers or violate the ordinance of 1787. Ibid.

& 206. Defendants placed piers in the principal channel of the Ilinois river so as to essentially obstruct its navigation, in consequence of which plaintiff suffered loss. Held, that it was no defense on the part of the defendants that in placing the piers they had complied with an act of the legislature of Illinois authorizing a bridge to be constructed, but that they must go further and show that the piers were not a material obstruction to the navigation of the river. Columbus Ins. Co. v. Curtenius, $S 244–249.

8 207. The whole legislation from the ordinance of 1787 to the present time clearly indicates that congress has intended that the Mississippi river and its navigable tributaries should remain free from all material obstruction to their navigation. Hence a state cannot authorize any material obstruction to be placed in the channel of a navigable tributary of the Mississippi. Ibid.

S 208. A person who places an obstruction in a navigable river is not entitled to notice to remove the same; and if injury be caused by such obstruction he is liable in damages, although no notice to remove the nuisance was ever given him. Missouri River Packet Co. v. Hannibal & St. Joseph R. Co., SS 250-257.

8 209. Where pontoons, which are lawful and proper structures for the protection of a bridge erected over a navigable river, are sunk by unavoidable accident, the owner is entitled to a reasonable time in which to raise or remove them; but where it appeared that such pontoons were sunk, and that two years afterwards a passing vessel was injured by reason of the curreut of the river having been diverted by the suuken pontoons, no effort having in the meantime been made by the owner to raise or remove them, held, that such owner was liable 'for the injury. Ibid.

$ 210. Those navigating a river are under no obligation to remove wrecks which may be made in the ordinary and proper course of navigation; but he who for his own benefit, and not for the purpose of navigation or commerce, uses any navigable part of a river, is liable in damages to the party injured if such use causes a diversion and change in the ordinary course of the channel of the river, and thereby increases the difficulty and danger of navigation, and injury results therefrom. Ibid.

$ 211, Where the defendant, a bridge company, had put pontoons in a navigable river for the protection of its bridge, not being required by law so to do, and such pontoons from some cause suuk, thus diverting the current of the river from its usual and ordinary course or channel, and such change of current caused or contributed to the collision of plaintiff's boat with one of the piers of the bridge, held, that the defendant was liable for the injury sustained, provided that, at the time of the collision, the plaintiff was navigating his boat with care and skill and did not contribute to the injury by his own neglect. Ibid.

$ 212. The owner of a vessel which has been injured by collision with a bridge constructed over a navigable river under authority granted by an act of congress must show, in order to maintain an action for damages against the bridge owners, not only that such bridge was not constructed according to the requirements of the act, but that the unlawful structure actually caused or contributed to the injury complained of. Ibid.

$ 213. The fact that a bridge across navigable water of the United States was constructed under authority granted by an act of congress does not render it a legal structure, except in so far as it is found to be “according to its limitations," and if the powers granted are exceeded, or are exercised in a manner different from that provided in the grant of authority, the grant will be no protection. Ibid.

§ 214. The act of congress of July 25, 1866, authorizing the construction of bridges across the Mississippi and Missouri rivers, provided that the piers should be parallel to the current of the river, and that the spans between the piers should be of a certain length. Held, that in determining whether the bridge as erected was an unlawful obstruction of the river by reason of its not corresponding with the requirements of the act, the open spaces between the spans must be measured at right angles with the piers, and not along the line of the track of the railroad or the chord of the bridge, in case the bridge should have been built diagonally across the river. Ibid.

$ 215. The erection of a structure in a bavigable river will not be enjoined unless it appears that when completed it will be a nuisance per se. City of St. Louis v. Knapp, Stout & Co., S. 258, 259.

$ 216. In an act authorizing the erection of a bridge over the Ohio river congress reserved the right to withdraw the assent given, in case the proposed bridge should prove a material or substantial obstruction to navigation, or to direct necessary alterations. Before the bridge was finished, and while it was being erected in conformity to the proposed plan, congress made certain alterations in the plan, and directed the bridge company to conform thereto, which it did at a largely increased expense. Held, that the United States were under no liability to the bridge company for such increased cost of construction. Bridge Co. v. United States, SS 260–262.

$ 217. In proceedings in equity to declare a bridge across a navigable stream to be a nuisance, the courts of the United States are strictly limited to their territorial jurisdiction. A federal court of Iowa has no jurisdiction to declare a bridge across the Mississippi between Iowa and Illinois to be a puisance, especially where the navigable channel is in the Illinois side of the river and the injury complained of was sustained at that place. Mississippi & Missouri R. Co, v. Ward, S 263–266.

[NOTES.— See SS 267–346.)


(Circuit Court for New York: 13 Blatchford, 469-480. 1876.)

Opinion by JOHNSON, J.

STATEMENT OF Facts.— The plaintiff in this suit is a citizen of the state of New York, and the defendants are the municipal corporations of the cities of New York and Brooklyn, and also certain individual citizens of the state. This court, therefore, derives no jurisdiction from the citizenship of the parties, for it is, in general, only when there is a controversy between citizens of different states that jurisdiction is conferred upon the ground of the citizenship of the parties. We must look, therefore, to the subject-matter of the suit to sustain the jurisdiction. The circuit courts of the United States have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority. Act of March 3, 1875, $ 1; 18 U. S. Stat. at Large, 470.

$ 218. This court cannot excercise jurisdiction because of an alleged violation of the laws of a state of which both parties are citizens.

The claim of the plaintiff is that the proposed bridge over the East river, between the cities of New York and Brooklyn, will be a public nuisance from which he will suffer a particular private injury other than the common injury which every citizen suffers from a public nuisance. Now, if the bridge will be a public nuisance, it must be because it will violate the law of New York or that of the United States. For a violation of the law of New York the plaintiff cannot come into this court. He and the defendants are citizens of New York,


and he must seek his remedy from the justice of that state. Jurisdiction in that behalf beiween citizens of the same state is not conferred upon the circuit courts of the United States. In The Passaic Bridge Cases, 3 Wall., 789, Mr. Justice Grier, giving judgment in the circuit court for the district of New Jersey, said: “The complainants in these bills, in order to show jurisdiction in the court, bare stated themselves to be citizens of the state of New York. Their right to a remedy in the courts of the United States is not asserted on account of the subject-matter of the controversy, but they rest upon their personal right, as citizens of another state, to sue in this tribunal. It is plain, by their own showing, that they can demand no other remedy from this court than would be administered by the tribunals of the state of New Jersey in a suit between her own citizens. A citizen of New York who purchases wharves in Newark has no greater right than the citizen of New Jersey.” In the case now before this court a citizen of New York sues corporations and citizens of New York. That alone does not make a case of jurisdiction in this court, nor would the jurisdictional difficulty be avoided by the existence of a cause of action for a violation of the law of New York. On neither ground, nor on both combined, can this court entertain jurisdiction. Just as diversity of citizenship, in the case before Judge Grier, required him to administer the law of New Jersey between the parties in that suit, so identity of citizenship in this case excludes a violation of the law of New York from being the subject of redress in this court between these parties. Here the subject-matter of the suit alone gives jurisdiction, and it must, in its exercise, be confined to that subject-matter.

The inquiry is, therefore, whether, by the constitution or laws of the United States, the bridge in question will be a public nuisance and specially injurious to the plaintiff. If, upon inquiry, it shall be found that the bridge in question is being built in conformity with, and not in violation of, the constitution and laws of the United States, then no court of the United States can regard it as a public nuisance, nor undertake by injunction to interfere with its construction.

The congress has legislated directly upon the subject of this bridge, and in that law has referred to the previous legislation of New York. It will therefore be most convenient to state, in their chronological order, the laws of the state and of the United States relating to the building of the bridge.

$ 219. Legislation of New York and of the United States with reference to the bridge across the East river.

Chapter 399 of the laws of New York of 1867, page 948, passed April 16, 1867, created a corporation by the name of The New York Bridge Company, for the purpose of constructing and maintaining a permanent bridge over the East river, between the cities of New York and Brooklyn. To this corporation power was given to acquire and hold so much real estate as might be necessary for the site of the bridge, and of all piers, abutments, walls, tollhouses and other structures proper to said bridge, and for the opening of suitable avenues of approach to said bridge, but not any land under water, in the river, beyond the pier lines established by law. By the tenth section it was further enacted that the bridge should not be at a less elevation than one hundred and thirty feet above high tide at the middle of the river; that it should not obstruct any street which it should cross, but that such street should be spanned by a suitable arch or suspended platform as should give a suitable height for the passage under the same for all purposes of public travel

or transportation; that no street running in the line of the bridge should be closed without full compensation to the owners of land fronting on the same for all damages they might sustain; that the bridge should commence at or near the junction of Main and Fulton streets, in Brooklyn, and should be so constructed as to cross the river as directly as possible to some point at or below Chatham Square, in the city of New York, not south of the junction of Nassau and Chatham streets; and it should be built with a substantial railing or siding, and shouid be kept fully lighted through all hours of the night. This section was prefaced with a provision in these words: “Nothing in this act contained shall be construed to authorize, nor shall it authorize, the construction of any bridge which shall obstruct the free and common navigation of the East river, or the construction of any pier in the said river beyond the pier lines established by law.” It will be observed that this is not a prohibition of the obstruction of navigation. Appropriate language of prohibition is found immediately below _"it shall not obstruct any street which it shall cross.” This provision is limited to enacting that the statute shall not be taken to authorize the obstruction of navigation.

This act was followed, in 1869, by chapter 26 of the laws of that year (p. 15), passed February 20th, by which, after providing for the representation of the two cities of New York and Brooklyn in the board of directors of the bridge company, it was enacted that the company should proceed without delay to construct the bridge.

In the same year an act of congress was passed, approved March 3, 1869 (15 U. S. Stat. at Large, 336), which enacted ($ 1) that “the bridge across the East river, between the cities of New York and Brooklyn, in the state of Neir York, to be constructed under and by virtue of an act of the legislature of the state of New York, entitled "An act to incorporate the New York Bridge Company for the purpose of constructing and maintaining a bridge over the East river, between the cities of New York and Brooklyn," passed April 16, 1867, is hereby declared to be, when completed in accordance with the aforesaid law of the state of New York, a lawful structure and post-road for the conveyance of the mails of the United States: Provided, that the said bridge shall be so constructed and built as not to obstruct, impair or injuriously modify the navigation of the river; and, in order to secure a compliance with these conditions, the company, previous to commencing the construction of the bridge, sball submit to the secretary of war a plan of the bridge, with a detailed map of the river at the proposed site of the bridge, and for the distance of a mile above and below the site, exhibiting the depths and currents at all points of the same, together with all other information touching said bridge and river as may be deemed requisite by the secretary of war to determine whether the said bridge, when built, will conform to the prescribed conditions of the act, not to obstruct, impair or injuriously modify the pavigation of the river.” By the second section it was further enacted "that the secretary of war is hereby authorized and directed, upon receiving said plan. and map, and other information, and upon being satisfied that a bridge built on such plan, and at said locality, will conform to the prescribed conditions of this act, not to obstruct, impair or injuriously modify the navigation of said river, to notify said company that he approves the same, and upon receiving such notification the said company may proceed to the erection of said bridge, conforming strictly to the approved plan and location. But until the secretary of war approve the plan and location of said bridge and notify said com

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