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of a nuisance. Now this is a question that we cannot examine, nor reach by a decree, as the relief suggested is clearly beyond our power in this suit. Congress could extend the jurisdiction of the federal courts across the Mississippi river by enlarging the judicial districts on either side; or it could confer concurrent jurisdiction on adjoining districts, extending to trespasses and torts committed within the shores of the river. But courts of justice cannot do it unless authorized by an act of congress.

It is also insisted with great earnestness that the public is entitled to the free navigation of the whole river from bank to bank, and as the western half of the river is undeniably within the jurisdiction of Iowa, it follows that the bridge is a clear nuisance within that district to the extent of half its length. According to this assumption no lawful bridge could be built across the Mississippi anywhere; nor could the great facilities to commerce, accomplished by the invention of railroads, be made available where great rivers had to be crossed. It is ordered that the bill be dismissed and that the costs be divided each party paying its own.

MR. JUSTICE NELSON dissented. MR. JUSTICE MILLER took no part in the decision.

§ 267. Congress has full authority to authorize a bridge over a navigable river, and its determination of the amount of interference with navigation which is permissible is conclusive. Miller v. Mayor, etc., of New York,* 18 Blatch., 212.

§ 268. Congress has authority to prescribe the number, location and construction of bridges over the Mississippi river, and may delegate their authority to an officer of the government, as the secretary of war, and his determination in the matter will be conclusive. United States v. Milwaukee & St. Paul R. Co.,* 5 Biss., 410.

§ 269. Power of congress under commercial clause.— Under the power to regulate commerce, congress has power to prevent the obstruction of any navigable river which is a means of commerce between any two or more states. The exercise of this great public right is not incompatible with the enjoyment of local rights. The public right consists in an unobstructed use of a navigable water connecting two or more states. The local right is to cross such water. The general commercial right is paramount to all state authority. Works v. The Junction Railroad,* 5 McL., 425.

§ 270. The power of congress to regulate commerce among the states is paramount to the power of a state to authorize the building of a bridge across a navigable river within the state. Silliman v. Hudson River Bridge Co.,* 4 Blatch., 74.

$271. Congress has power to declare a bridge which obstructs the navigation of a river to be a lawful structure, and any suit to have such bridge declared a nuisance pending at the time of the passage of the act removes the ground of complaint against the structure. The Clinton Bridge,* 10 Wall., 454; 1 Woolw., 150; 7 Am. L. Reg. (N. S.), 149.

§ 272. The determination of the circumstances under which a bridge may be built over a navigable stream, and the prescribing of rules for its construction and maintenance, come within the powers conferred on congress by the commerce clause in the constitution of the United States. Ibid.

§ 273. Under the grant of power to congress to regulate commerce among the several states, as given by the constitution of the United States, the general government has jurisdiction over navigable streams so far as may be necessary for commercial purposes. Jolly v. The Terre Haute Draw-bridge Co., 3 Am. L. Reg., 29.

$274. The power of congress to regulate commerce includes navigation, and under this power congress has the right to improve navigable rivers, and keep them open and free from obstruction without reference to state lines or compacts between different states with reference to the same. South Carolina v. Georgia, 4 Otto, 4.

$275. Congress, under its power to regulate commerce and navigation, has the right, where a river divides into two channels, to obstruct one of them at the point of divergence in order to increase the flow of water in the other, and that although such river forms the boundary between two states between which a compact had been entered into that the river should remain equally free to the citizens of both states. Ibid.

§ 276. An act of congress authorizing the continuance of a bridge previously decreed to be

abated as an obstruction to navigation is constitutional, and such decree will not be executed except as to costs. State of Pennsylvania v. The Wheeling and Belmont Bridge Co., 18 How.,

421.

$277. The power of congress to regulate commerce includes the power to legalize a bridge built across navigable water of the United States. Ibid.

§ 278. Until the dormant power of the constitution is awakened and made effective by appropriate legislation, the reserved power of the states to build bridges over navigable streams wholly within their borders is plenary, and its exercise in good faith cannot be made the subject of review in a federal court. Gilman v. Philadelphia, 3 Wall., 713.

$279. Congress may interpose, whenever it shall be deemed necessary, by general or special laws, and regulate all bridges over navigable waters, remove offending bridges, and punish those who shall thereafter erect them. Within the sphere of this authority both the legislative and judicial power of the nation are supreme. Ibid.

§ 280. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a state other than those in which they lie. This necessarily includes the power to keep them open and free from any obstruction to their navigation interposed by the states or otherwise; to remove such obstructions when they exist; and to provide by such sanctions as may be deemed proper against the occurrence of the evil and for the punishment of offenders. And it is for congress to determine when its full power shall be brought into activity, and as to the regulations and sanctions which shall be provided. Ibid.

§ 281. A court of the United States has the power to prevent, by injunction, the present or future erection of any bridge under the authority of one of the states that by its construction will interfere with the navigation of a public stream upon which there is a commerce to any considerable extent with other states, though such stream lies wholly within the limits of the state. The question in such case is relative, whether the bridge be or be not a greater obstruction to commerce than benefit to the public. Devoe v. The Penrose Ferry Bridge Co.,* 3 Am. L. Reg., 79.

§ 282. The Chicago river and its branches, although wholly within the state of Illinois, are navigable waters of the United States, over which congress, under its commercial power, may exercise control to the extent necessary to protect and improve their free navigation; but until congress acts on the subject the state has plenary power over bridges across them, and may vest in the authorities of the city of Chicago jurisdiction over bridges within its limits, their construction, repair and use, and empower them to make regulations in regard to the times at which the bridges shall be kept open for the passage of vessels. Escanaba Company v. Chicago, 17 Otto, 678.

$283. Power of the states. In the absence of any congressional restriction the legislature of a state may authorize the erection of a bridge over a navigable river lying within the state. Per HALL, J. Silliman v. Hudson River Bridge Co.,* 4 Blatch., 395.

§ 284. Where a state legislature has authorized the erection of a bridge over a navigable river within the state the question of the necessity for the bridge will not be considered by the court in proceedings to enjoin its erection. Silliman v. Troy, etc., Bridge Co.,* 11 Blatch., 274.

§ 285. Where congress has assumed the control of a navigable river by establishing ports of entry, removing obstructions, etc., it is no justification for the erection of a bridge across it which obstructs navigation that the bridge was erected by state authority and is wholly within the limits of the state; and this is especially true of the Ohio river, the navigation of which was declared by the compact between Virginia and Kentucky to be forever free. State of Pennsylvania v. Wheeling, etc.. Bridge Co.,* 13 How., 518.

§ 286. The act of congress of February 14, 1859, which provides "that all the navigable waters of said state [Oregon] shall be common highways and forever free," etc., is paramount to an act of the state legislature authorizing the erection of a bridge across the Wallamet river; and if the erection of such bridge in the manner proposed will impede or interfere with the navigation of such river it is unlawful, and a federal court will enjoin its construction at the suit of riparian owners who would be injured thereby. Hatch v. Wallamet Iron Bridge Co.,* 6 Fed. R., 326; 7 Saw., 127; 11 Rep., 630.

§ 287. The Illinois river is a navigable stream, free to all the citizens of the United States, and the state of Illinois cannot authorize the construction of a bridge which will be a material obstruction to its navigation. Columbus Insurance Co. v. Peoria Bridge Co.,* 6 McL., 70.

§ 288. The regulation of a navigable river lying within a state is, in the absence of specific legislation by congress in reference thereto, wholly within the control of the state, and the government cannot interfere by information or by bill in chancery either to abate or prevent

any obstructions to the navigation of the river. United States v. Beef Slough, etc., Co.,* 8 Biss., 421.

§ 289. The state of Virginia has the right to regulate the use of its navigable waters so long as the control thereof is not assumed by the United States in its public capacity, and may grant the privilege of erecting a wharf between the end of a street at low-water mark and the channel of a navigable river, even though such wharf will cut off access from such river to the side of a wharf erected by the United States as owner of lands abutting on such street and on such river. United States v. Bain,* 3 Hughes, 593.

§ 290. The states have a concurrent right with the United States to authorize improvements on the navigable waters of the United States in which their citizens are interested so far as these waters lie within their territorial limits, when such improvements do not injure the general interests of commerce or conflict with any control assumed by the federal government over the same locality. But here the power of the states ends. Congress having made appropriations for improvements at the mouth of the St. Louis river intended to keep open and to deepen the channel at that point between the western end of Lake Superior and Superior bay left the expenditures and mode of improvement under the control of the engineer corps of the war department. Upon bill filed by the attorney-general of the United States, affidavits of the members of the engineer corps having been made to the effect that a canal proposed to be constructed under the authority of the state of Minnesota across the upper end of Minnesota Point would seriously interfere with the work of the government by diverting the current of the St. Louis river, held, that a temporary injunction restraining the construction of the canal must be granted, the case made by the bill not having been satisfactorily refuted. United States v. City of Duluth,* 10 Am. L. Reg. (N. S.), 449.

§ 291. No state can authorize or maintain the erection of a bridge over a navigable water which in effect contravenes or conflicts with the law of congress concerning the navigation of the same; and the fact that such water is wholly within the state is immaterial, if it is accessible from another state or forms a port of a navigable way between itself and other states. Hatch v. Wallamet Iron Bridge Co.,* 6 Fed. R., 326; 7 Saw., 127; 11 Rep., 630.

§ 292. A state law authorizing the erection of a dam across a navigable river wholly within the limits of the state is not unconstitutional if there be no congressional legislation on the subject. Pound v. Turck, 5 Otto, 459.

§ 293. A person incurs no liability by obstructing the navigation of a river when authorized so to do by statute of the state, there being no act of congress on the subject. Ibid. § 294. A state may pass an act by which a navigable creek within it may be dammed or obstructed for the purpose of improving its lands, although such creek was previously navigable from the sea, if congress has not legislated upon the subject. The existence of the power in congress to regulate commerce does not invalidate such state law, unless the power be exercised by appropriate legislation. Willson v. The Blackbird Creek Marsh Co., 2 Pet., 245,

§ 295. A law of the state of Mississippi for improving the navigation of a river which empties into the Mississippi is not in conflict with the act of congress providing for the admission of that state into the Union, which guaranties the free navigation of the Mississippi river. Being admitted upon a footing of equality with the other states, the state of Mississippi has the rightful power to change the channels or courses of such rivers, wholly within its boundaries, for purposes of internal improvement. Withers v. Buckley, 20 How., 84.

§ 296. A federal court cannot be called upon to prevent a wrong resulting from the exercise of the power of a state to erect bridges over its own navigable streams until congress has taken the initiative by enacting a commercial regulation with which the exercise of such power is inconsistent. Hence the court refused to enjoin the erection of a bridge over the Raritan river at its mouth, only ten feet in height above the water, which would completely intercept the navigation of the river, except as accommodated by two draws, each one hundred feet in width, congress never having legislated upon the subject. Easton v. New York & Long Branch R. Co.,* 9 Phil. (Pa.), 475.

§ 297. Where a state legislature has authorized the construction of a bridge across a navigable river lying wholly within the state, the federal courts will not interfere by injunction because congress has established a port of entry above the site of the bridge. Milnor v. Railroad Co.,* 6 Am. L. Reg. (O. S.), 6.

§ 298. A state has complete power to bridge or authorize the bridging of navigable streams within its borders in all cases where the national will has not been asserted by congress in respect to such streams. Pennsylvania R. Co. v. New York & Long Branch R. Co.,* 18 Int. Rev. Rec., 142.

§ 299. On an injunction bill filed to restrain the defendants from constructing a bridge over the Raritan river, which they had been authorized by the state legislature to build, held, that, to successfully deny the power of the state to so authorize the construction of the

bridge, the complainants must establish, 1, that the matter or subject in controversy is within the legislative jurisdiction of the national government; 2, that congress has in fact legislated on the subject and embraced it within the regulations established by law; 3, that the party impeaching the state legislation has acquired rights in the subject-matter in dispute, and that these rights have been invaded by such legislation. Ibid.

§300. The Susquehanna river is a highway, not only for citizens of the state of Pennsylvania, but for the citizens of all the other states as well, and the latter class of citizens cannot be denied navigation privileges on such river on the ground that they are not citizens of Pennsylvania. Mason v. The Boom Co., 3 Wall. Jr., 252.

§ 301. If a state legislature grant a franchise to a boom company to construct a boom which shall not extend more than half way across a river, and which shall be so constructed as to admit the safe passage of rafts, boats and lumber, and not impede the navigation of the river, and such boom, when constructed in the best manner and in accordanee with the act of incorporation, actually impedes the navigation in a manner never contemplated by the legislature, it is a nuisance. A different rule must be applied to this than to ordinary grants, and if a proviso of the grant is repugnant to the grant itself, the grant must fail. Ibid.

§ 302. Bill was filed in equity to enjoin a bridge company from building a bridge over the Hudson river at Albany under an authority which had been granted by the New York legislature. The circuit court dismissed the bill. On appeal the court being equally divided as to the constitutional right of a state to pass a law authorizing the erection of bridges over navigable rivers of the United States, as well as on the special question whether the navigation of the Hudson would be practically obstructed by the proposed bridge, the decree of the circuit court stood affirmed of necessity. Albany Bridge Case, 2 Wall., 403.

§ 303. Ordinance of 1787.- In relation to the states carved out of the Northwest Territory the guaranty in the ordinance of 1787 as to navigable streams is still in force. Jolly v. The Terre Haute Draw-bridge Co.,* 3 Am. L. Reg., 29.

§ 304. The ordinance of 1787, providing that certain navigable waters "and the carrying places between the same shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, . . without any tax, impost or duty therefor," had reference to the waters as they then were, and does not prevent the legislature from improving the navigation of rivers and the carrying places between them, and exacting a toll for the increased facilities. Spooner v. McConnell, 1 McL., 337; 3 Am. L. Reg., 29.

§ 305. There is nothing in the ordinance of 1787 or subsequent legislation of congress which precludes the state of Illinois from asserting control over the bridges across the Chicago river and its branches. Whatever the limitation upon her powers as a government whilst in a territorial condition, whether from the ordinance of 1787 or the legislation of congress, it ceased to have any operative force except as voluntarily adopted by her, after she became a state of the Union. Escanaba Co. v. Chicago, 17 Otto, 678.

$306. When bridge held a nuisance. When a federal court is asked to restrain the erection of a bridge on the ground that it will be an obstruction to navigation, and the testimony offered to prove it so is so nearly balanced as not to incline the scale on either side, the extraordinary and preventive power of an injunction, which may be ruinous to one of the parties, ought not to be exercised. Works v. The Junction Railroad,* 5 McL., 425.

§ 307. A bridge over a navigable river, authorized by congress and by the laws of the state in which it is located, and constructed in the manner required by such laws, cannot be enjoined as a nuisance. Miller v. Mayor, etc., of New York,* 18 Blatch., 212.

§ 308. Upon the evidence, and after a consideration of adjudicated cases, it was held that the bridge across the Hudson river at Troy was not such an obstruction to navigation as should be enjoined. Silliman v. Troy, etc., Bridge Co.,* 11 Blatch., 274.

§ 309. The erection of a bridge which will not amount to a nuisance as an obstruction to navigation will not be enjoined. Northern Pacific R. Co. v. Barnesville & Moorhead R. Co.,* 2 McC., 224.

§ 310. The federal government has exclusive authority to regulate commerce between the states, and the courts may enjoin the erection of a bridge across a navigable river lying wholly within the limits of a state. Devoe v. Penrose Ferry Bridge Co.,* 3 Am. L. Reg. (O. S.), 79.

§ 311. But the question whether the erection of the bridge will be enjoined depends upon whether the bridge is of less value to the public than is the free navigation of the river. Ibid. § 312. A bridge of sufficient elevation or with a proper draw is not necessarily an impediment to navigation; neither is any structure or fixture such impediment which facilitates commerce instead of being a hindrance. A bridge which merely occasions slight stoppages and loss of time, unattended with danger of accident to life or property, is not such obstruction. Jolly v. The Terre Haute Draw-bridge Co., 3 Am. L. Reg., 29.

$313. Where a bridge constructed over a navigable stream is a material obstruction, but the actual injury sustained by plaintiff's boat was the result of recklessness or want of skill in those having charge of her, there is no liability on the part of the bridge company. Ibid. § 314. In determining whether a bridge may be lawfully erected over a navigable stream wholly within the boundaries of a state, it must not be forgotten that bridges which are connecting parts of turnpikes, streets and railroads are means of commercial transportation as well as navigable waters, and that the commerce which passes over a bridge may be much greater than would ever be transported on the water it obstructs. It is for the municipal power to weigh the considerations which belong to the subject, and to decide which shall be preferred, and how far either shall be made subservient to the other. And if a state authorize, in good faith, the erection of such a bridge, no control having been asserted by congress over the stream in question, the federal courts will not enjoin the erection of the bridge. Gilman v. Philadelphia, 3 Wall., 713.

§ 315. A draw-bridge over navigabie water, although it unavoidably occasions some delay in passing it, is not necessarily such an obstruction to the navigation as to amount to a nuisance. The delay is submitted to in consideration of the benefits conferred. Works v. The Junction Railroad,* 5 McL., 425.

§ 316. In considering whether a draw-bridge is an obstruction to the navigation of a river the unskilfulness of the seamen, and the probability of men not being ready at the draw to open it, are to be laid out of consideration. The law presumes that what ought to be done will be done, and that since seamen should be skilful they will be so. Ibid.

§ 317. The erection of a railroad draw-bridge across the Connecticut river between Saybrook and Lyman may be enjoined as an obstruction of navigation and commerce by the federal courts, although authorized by the state legislature. Baird v. Shore Line R'y Co., 6 Blatch., 276.

§ 318. But the erection of such bridge having been subsequently legalized by congress the injunction was dissolved. Baird v. Shore Line R'y Co., 6 Blatch., 461.

$319. Where the law permitting the bridging of a navigable river provides for a draw having a clear opening of a width named, the measurement must be made at right angles to the current. Columbus Insurance Co. v. Peoria Bridge Co.,* 6 McL., 70.

§ 320. A draw-bridge across a navigable river, which causes only a temporary delay of boats passing up or down the river, no toll or other charge being required, cannot be considered an obstruction to free navigation within the meaning of the ordinance of 1787. Escanaba Co. v. Chicago, 17 Otto, 678.

§ 321. Piers and cribs improperly erected in a navigable river cannot be used by a railway company without compensation to the owner. Railway Company v. Renwick,* 12 Otto, 180. § 322. Though the Oconto river is, in contemplation of law at least, a navigable river, and no obstructions such as piers and booms can be placed therein without authority from the legislature, yet it seems that mill owners who maintain similar obstructions cannot, after acquiescing for some time, complain of them as obstructions simply. Leigh v. Holt,* 5 Biss., 388.

§ 323. Persons maintaining piers and booms in a navigable river for the securing of logs belonging to them which float down the river are bound to use unusual diligence in keeping a passage-way clear. The rights of the public in such a case should be liberally, and the rights of the owner of the piers and booms strictly, construed. Ibid.

§ 324. The owners of piers and booms in a navigable river still retain their common right to the use of the channel remaining. Ibid.

§ 325. A riparian owner and proprietor of a saw-mill on the bank of the Mississippi river has no right to erect a pier extending into the navigable channel in order to construct a boom for the protection and detention of logs until he may manufacture them. Such a structure materially interferes with the paramount right of navigation, is unlawful, and comes within the legal definition of a nuisance. Northwestern Union Packet Co. v. Atlee, 2 Dill., 479; 12 Am. L. Reg. (N. S.), 561.

§ 326. A cable laid across a navigable river as a guy on which to run a ferry-boat cannot, unless it actually prevents or renders hazardous the navigation of the river, be considered an obstruction to navigation in the ordinary sense of the term. The Vancouver, 2 Saw., 381; 18 Int. Rev. Rec., 103.

§ 327. Where a company is authorized to construct a railroad between two points "over" a navigable water, a right to construct a bridge over that water is implied, as a necessary means of carrying into effect the power granted. Works v. The Junction Railroad,* 5 McL., 425.

§ 328. The right to cross a navigable water by a railroad bridge must be given by the sovereign power of a state or of the nation, by a special or general act. Where this is not done,

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