the further continuance of the structure. This is evident from The Wheeling Bridge Case, where, as has been seen, congressional assent to a substantial obstruction was recognized as sufficient to prevent the execution of a decree of this court requiring the abatement of what, but for this assent, would have been, in the judgment of the court, a public nuisance. The withdrawal of assent, therefore, has been left to depend on the judgment of congress in the exercise of its legislative discretion. For this purpose congress must make its own inquiries and determine for itself whether the obstruction that has been authorized is so material and so substantial as to justify, under all the circumstances of the case, an exercise of the power which was reserved as a condition of the original grant made.

$262. By the grant of a franchise expressly and explicitly defeasible at pleasure congress incurred no liability for the government to the bridge company.

It is next insisted that if in the judgment of congress the public good required the bridge to be removed, or alterations to be made in its structure, just compensation must be made the company for the loss incurred by what was directed. It is true that one cannot be deprived of his property without due process of law, and that private property cannot be taken for public use without just compensation. In the present case the bridge company asked of congress permission to erect its bridge. In response to this request permission was given, but only on condition that it might be revoked at any time if the bridge was found to be detrimental to navigation. This condition was an essential element of the grant, and the company in accepting the privileges conferred by the grant assumed all risks of loss arising from any exercise of the power which congress saw fit to reserve. What the company got from congress was the grant of a franchise, expressly made defeasible at will, to maintain a bridge across one of the great highways of commerce. This franchise was a species of property, but from the moment of its origin its continued existence was dependent on the will of congress, and this was declared in express terms on the face of the grant by which it was created. In the use of the franchise thus granted the company might, and it was expected would, acquire property. The property thus acquired congress could not appropriate to itself by a withdrawal of its assent to the maintenance of the bridge that was to be built, but the franchise, by express agreement, was revocable whenever in the judgment of congress it could not be used without substantial and material detriment to the interest of navigation. A withdrawal of the franchise might render property acquired on the faith of it, and to be used in connection with it, less valuable; but that was a risk which the company voluntarily assumed when it expended its money under the limited license which alone congress was willing to give. It was optional with the company to accept or not what was granted, but having accepted it must submit to the control which congress, in the legitimate exercise of the power that was reserved, may deem it necessary for the common good to insist upon.

We are aware that this is a power which may be abused, but it is one congress saw fit to reserve. For protection against unjust or unwise legislation, within the limits of recognized legislative power, the people must look to the polls and not to the courts. It would be an abuse of judicial power for the courts to attempt to interfere with the constitutional discretion of the legisla

ture.

What has been done seems to have been with due regard to the rights of all

concerned. The constitution made it the duty of congress to protect all commerce which extends beyond state lines against obstruction by or under the authority of the states. Two states had been applied to for leave to bridge an important national river. They gave the leave, but made it subject to the constitutional control of congress. Congress, when applied to, assented to what was wanted, but in express terms reserved to itself the power to revoke what had been done, or require alterations to be made, in case experience proved that the structure which was to be put up substantially and materially interfered with navigation. Under this authority work was at once begun. The next year, by the act of July 10, 1870 (16 Stat., 227, ch. 240, § 5), making large appropriations for the improvement of rivers and harbors, the secretary of war was required to detail three engineers to examine all the bridges erected or in the process of erection across the Ohio, and report to the next congress whether, in their opinion, such bridges, or any of them, as constructed or proposed to be constructed, did or would interfere with free and safe navigation; and if they did or would so interfere, to report what extent of space and elevation above water would be required to prevent obstruction, and an estimate of the cost of changing the bridges built and in the process of building, so as to conform to what was recommended. At the next session the act was passed which required the Newport and Cincinnati Company to alter its bridge, and allowed this suit to be brought for the purpose of determining whether any liability for pecuniary damages had been incurred by the United States to the company for what was done. In this way congress recognized fully the obligation resting on every government when it is guilty of a wrong to make reparation. Exemption from suit does not necessarily imply exemption from liability. Here congress gave the courts jurisdiction to determine whether a wrong had been done, and, if so, to award compensation in money by the payment of the cost of what had been improperly required. In our opinion congress did no more than it was authorized to do, and there is no liability resting on the United States to answer in damages.

It is next insisted that by the terms of the statute authorizing the suit the liability of the United States is established, if it shall be determined that the bridge, as far as it had progressed, was "constructed so as to substantially comply with the provisions of law relating thereto." We do not so understand the statute. The language is as follows: "Full jurisdiction is hereby conferred upon said court to determine: first, whether the bridge, according to the plans on which it has progressed, at the passage of this act, has been constructed so as substantially to comply with the provisions of law relating thereto; and second, the liability of the United States, if any there be, to the said company, by reason of the changes by this act required to be made, and if the said court shall determine that the United States is so liable, and that said bridge was so being built, then the said court shall further ascertain and determine the amount of the actual and necessary cost and expenditures," etc. The rule of damages has been fixed by the statute. As to that the court has no discretion beyond ascertaining the excess of cost. But before damages can be given it must appear both that the United States was in law liable, and that the bridge had been constructed in accordance with the requirements of the law, down to the time the change of plan was directed. That the liability of the United States was not made to depend entirely on the fact that the law in respect to the form of the structure had been complied with is apparent, because if such had been the intention of congress it would have been

entirely unnecessary to submit the second question for determination. But the second is as clearly submitted as the first. Damages are not to be given if either is found in favor of the United States. No matter whether the United States was in law liable or not, if the bridge had not been constructed so as substantially to comply with the law there can be no recovery. That is expressly declared. If, however, it had been properly built, the determination of the question of legal liability became important, and that, in our opinion, depended entirely on the right of congress under the constitution and the laws of the United States to require the change without making just compensation in money. Decree affirmed.

JUSTICES MILLER, FIELD and BRADLEY dissented.

MISSISSIPPI & MISSOURI RAILROAD COMPANY v. WARD.

(2 Black, 485-499. 1862.)

APPEAL from U. S. District Court, District of Iowa.
Opinion by MR. JUSTICE CATRON.

STATEMENT OF FACTS.-James Ward charges the Mississippi & Missouri Railroad Company with having created a nuisance by erecting a bridge across the Mississippi river at Rock Island, and prays that the nuisance may be abated. The respondent resists the relief prayed on the ground, among others, that the complainant does not stand in a position to maintain this suit. Ward was part owner of three steamboats, and commander of one of them, navigating the river in successive trips between St. Louis and St. Paul; and which boats, the complainant alleges, were much injured and delayed by the bridge, which he avers is a great obstruction to navigation — amounting to a prominent nuisance. It is insisted that Ward cannot sue alone and could only come before the court jointly with the other part owners of the vessels injured and delayed. He seeks no damages by his bill, but only an abatement of the nuisance as a preventive remedy against future injury and delay.

§ 263. A bill in equity is now the proper mode to abate a nuisance.

A bill in equity to abate a public nuisance, filed by one who has sustained special damages, has succeeded to the former mode in England of an information in chancery, prosecuted on behalf of the crown, to abate or enjoin the nuisance as a preventive remedy. The private party sues rather as a public prosecutor than on his own account, and, unless he shows that he has sustained and is still sustaining individual damage, he cannot be heard. He seeks redress of a continuing trespass and wrong against himself, and acts in behalf of all others who are or may be injured; nor is there more necessity for joining with his partners in the prosecution than there is for his joining in the suit any other person, as complainant, who has sustained injury. Gibbons on Dilapidation, 402. The character of the nuisance and the sufficiency of the damage sustained is to be judged by the courts. Iverson v. Moore, Ld. Ray., 486; 1 Salk., 15; Gibbons on Dilapidation, 403. But the want of a sufficient amount of damage having been sustained to give the federal courts jurisdiction will not defeat the remedy, as the removal of the obstruction is the matter of controversy and the value of the object must govern.

§ 264. A proceeding to abate a nuisance is necessarily local and must be brought where the nuisance is.

It is next objected that there are not proper defendants brought before the

court. The Chicago & Rock Island Railroad Company, who own the bridge on the Illinois side of the river, and the bridge company who built it, and also A. C. Flagg, who holds a mortgage on the bridge as trustee for others who advanced money to aid in its erection, are not made parties to the suit. The Chicago & Rock Island Railroad Company and the bridge company are incorporated, and located in the state of Illinois, and Flagg resides in the state of New York. The alleged nuisance is situate in Iowa, and, being local, the suit could only be brought in that state; and therefore the court had no power to bring these parties in interest before it.

If the Iowa corporation could have been individually indicted for creating the nuisance, no reason exists why it should not be individually prosecuted in chancery for its abatement. But the facts present a much more serious objection to the complainant's right to sue than either of those above stated. The constitution of Illinois calls for the middle of the Mississippi river as the western boundary of that state, and as Iowa was admitted into the Union after Illinois, a line in the middle of the river is the dividing line between the states.

§ 265. The district court of the United States has no jurisdiction beyond the line of its district.

The complainant sued in the federal court because of his citizenship in a different state from the defendant; and the United States district court holden in Iowa exercised the same jurisdiction that a state court of Iowa could have exercised, and no more. It had no power beyond the middle of the river. On that part of the bridge within Iowa, and its piers, the court below acted and ordered that the structure should be removed.

In considering the merits and the other question as respects the complainant's right to sue some additional facts need be stated. This bridge is one thousand five hundred and seventy feet long, and the number of piers is six. Three of them are on the Iowa side of the river. The draw pier is the fourth; it is three hundred and eighty-six feet long at its bottom, and fortyfive feet wide. The draw space on the Iowa side is one hundred and eleven feet, and on the Illinois side one hundred and sixteen feet wide in the clear. The distance from center to center of the small piers is two hundred and fiftyseven feet. The long pier stands at an angle with the thread of the current of about twenty-four degrees, and the small piers are nearly on a line with the thread of the current. The Illinois draw passage is directly over the deepest channel of the river, and directly over the usual track of steamboats before the bridge was built. The Mississippi is about one thousand four hundred and ten feet wide at the bridge, and the middle of the river is about eighty feet westwardly of the long pier.

The Illinois draw passage (one hundred and sixteen feet), the width of the long pier (forty-five feet), and the eighty feet between it and the eastern line of Iowa, cover a space of two hundred and forty feet of water-way, and which embraces the main channel, where steamboats have at all times navigated. It was at the long pier, and in the Illinois draw east of that pier, that the complainant's boats sustained the injuries on which he found his right to sue the Iowa corporation, and to proceed against the bridge in rem as a public nui

sance.

§ 266. An indictment will only lie in the jurisdiction where the nuisance is; a bill is subject to the same local limitation.

An indictment could only have been prosecuted against the owner for keep

ing up the nuisance in Illinois in the courts of that state, because the nuisance was a trespass and crime against the laws of Illinois, and the injuries to the complainant's boats giving him the privilege to sue and abate the obstruction was as local as the public right to indict. He asks nothing from the person of the defendant, but seeks to remove a local object, because he has sustained special damage from that object.

The district court had no power over the local object inflicting the injury; nor any jurisdiction to inquire of the facts whether damage had been sustained, or how much. These facts are beyond the court's jurisdiction and powers of inquiry, and outside of the case. The district court ordered three spans of the bridge and three of its piers to be removed, extending to middle of the river. And what would be the consequence if we were to affirm that decree? It would, as a consequence, render the bridge useless throughout, but it would not materially remedy the nuisance complained of. The navigation would certainly not be improved, so far as the complainant is concerned, by removing the Iowa end of the bridge. The cross-currents alleged to exist would remain; the large eddy at the lower end of the long pier, and the obstruction to the Iowa draw-passage by the eddy, would still remain.

In the next place: Is the bridge west of the Illinois boundary an unreasonable obstruction, and therefore a nuisance, that a court of chancery can lawfully remove? In considering this question we must be governed by the same rule on which a court of law could proceed in case of an indictment against the bridge company for committing the nuisance; and the rule is that if the abridgment of the right of passage occasioned by the erection was for a public purpose and produced a public benefit, and if the erection was in a reasonable situation, and a reasonable space was left for the passage of vessels on the river, then it is not an unreasonable obstruction and indictable. Rex v. Russell, 6 Barn. & Cresw., 566; 13 How., 623; 15 Wend., 133.

Then, again, the obstruction to navigation must be plainly a nuisance within this rule before it can be removed by decree. If the proceeding was by indictment, and the jury doubted whether the obstruction was a nuisance or not, they would be instructed to acquit the defendant; and so, if this case was referred to a jury to try the fact, and they doubted, they would be bound to acquit. And the same rule applies in a court of chancery where the court ascertains the fact of nuisance. 2 Story's Com. on Eq., 203, 204.

To say the least in this case it is certainly very doubtful whether the bridge on the Iowa side is a serious obstruction amounting to a nuisance.

The smaller piers on that side are parallel with the current passing through them, and do not occasion much impediment of navigation to boats without chimneys, nor to rafts.

The main channel where steamboats uniformly pass before the bridge was built, and must now pass, is eastwardly of the middle of the river, and on the Illinois side. On this state of the facts it must be admitted that it is hardly possible to deal with the whole obstruction of any bridge across the Mississippi river, it being a boundary between states almost throughout its whole length. And it is difficult to decree in any case of material obstruction, unless the whole nuisance is in the power of the court. The case before us presents the difficulty very prominently. The plaintiff's case mainly rests on the fact that the draw pier is at an angle to the current, and it is assumed that if this pier was reconstructed parallel with the current, and the draw on the Illinois side was widened, the obstruction would be removed to a degree making it short