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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 tbey are not citizens of Pennsylvania. Mason v. T'he 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 pavigable 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.
S 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 nui
The delay is submitted to in consideration of the benefits conferred. Works v. The Junction Railroad, * 5 McL., 425.
S 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.
8 319. 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 érected 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 boon 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 "i 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. Tne 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,
neither the board of public works, nor an acting commissicner of that board, can approve of the structure of a bridge over it. Ibid.
$ 329. A railroad company has no right to construct a bridge across the Mississippi where congress has acted in the matter and has prescribed the limitations and conditions upon which the bridge may be constructed. United States v. Milwaukee & St. Paul R. Co.,* 5 Biss., 420
$ 330. The right to cross a pavigable river is equal to the right to sail up and down it, and in case of the erection of bridges each must be preserved. Silliman v. Troy, etc., Bridge Co., * 11 Blatch., 274.
$ 331. The right of navigation and of crossing a navigable river are co-existent, equally important, and neither can be permitted to destroy or essentially impair the other. Columbia Insurance Co. v. Peoria Bridge Co.,* 6 McL., 70.
$ 339. Natural falls do not destroy the character of the river above them if it be navigable. Spooner v. McConnell, 1 McL., 337; 3 Am. L. Reg., 29.
$ 333. The common-law doctrine that rivers are only navigable as high as the tide ebbs and flows has no application in this country. Bowman v. Wathen, 2 McL., 376.
$ 334. Nuisance – Rights of private persons.- A private person cannot apply to a court of chancery to prevent or remove a public nuisance which does him no special injury, but he may if the nuisance is immediately injurious to himself, although it may also affect the public. A private person owning a tannery, flour-mill, saw-mill, stores and warehouses, a wharf and water-lots, and stock in a plank road leading from the town where they are situated, which is upon a river navigable for steamboats, schooners and other vessels, and from which trade is carried on with other ports, in which he participates, may enjoin a railroad company from obstructing the navigation of the bay into which that river empties, when such obstruction will materially injure the trade of that town. Works v. The Junction Railroad, * 5 McL, 425.
$ 335. The party injured has a right of action in case of obstruction of navigation, not the government as a political power. United States v. The Railroad Bridge Co., 6 McL., 517.
$ 336. A private person, in order to maintain a suit for preventive relief against a public nuisance such as an obstruction in a navig:ible stream must show that he has sustained, or is in imminent danger of suffering, some special injury. City of Georgetown v. The Alexandria Canal Co., 12 Pet., 91.
$ 337. All navigable streams should be left open, and no one has a right to obstruct the path of vessels along their channels. Where a raft has been driven by the vis major into a channel of the river so as to obstruct it, if it be allowed to remain there an unreasonable length of time, and no exertion be made by the party in charge to extricate it, such conduct would afford ample grounds for the master of a steamboat to take the necessary steps for its removal as a nuisance; but if every effort be made to remove the raft from the channel, no apprehension of a pecuniary loss on the part of the master from a reasonable delay would afford any excuse for the violent and summary destruction of the raft by the latter. Lallande v. The Steamboat C. D., Jr., Newb., 501.
$ 338. Wherever a public nuisance, as an obstruction of a navigable river, is productive of a specific injury to an individual, he may make it the foundation of an action at law, and if the injury would be irreparable a court of equity will interpose by injunction. Gilman r. Philadelphia, 3 Wall., 713.
8 339. Injury of vessel. — Although a bridge may be an obstruction to pavigation, yet if an injury is sustained by a boat by a collision with it in consequence of the vegligence of the persons managing the boat, the owners of the bridge are not liable. Columbus Insurance Co. v. Peoria Bridge Co.,* 6 McL., 70.
§ 340. Following the decision of the supreme court of Illinois, it is held that the city of Chicago, under that clause of its charter which provides that it may prevent and remove obstructions from its harbor, etc., was not liable for an injury caused by the collision of a ves. sel with a sunken rock which the harbor-master had tried to remove, but which was not stirred by his efforts. Goodrich v. City of Chicago, * 4 Biss., 18.
$ 341. A public nuisance, such as an obstruction of a navigable river which is a means of commerce between two or more states, cannot be tolerated on the ground that the community may realize some advantages from its existence. Works v. Junction Railroad,* 5 McL., 425.
$ 342. Procedure.- An indictment at common law could not be sustained in the federal courts of the United States against a bridge over a navigable stream as a nuisance, as no such procedure has been authorized by congress. But a proceeding in equity on the ground of a private and an irreparable injury may be sustained against it by an individual or a corporation. State of Pennsylvania v. Wheeling, etc., Bridge Co., * 13 How., 518. See CONSTITUTION AND LAWS, S 1203-12.
343. Where the erection of a bridge was enjoined, on the subsequent legalization of the bridge by congress the injunction was dissolved. Baird v. Shore Line R’y Co., * 6 Blatch., 461.
$ 344. An indictment does not lie in a federal court for the erection of a bridge across navigable waters. United States v. New Bedford Bridge,* 1 Woodb. & M., 401.
$ 345. The courts of the Union having jurisdiction of the parties in a civil suit are competent to administer the common-law remedy for an injury sustained by reason of an unlawful obstruction in a navigable stream without any express legislation by congress giving the remedy and prescribing the mode of enforcement. Jolly v. The Terre Haute Draw-bridge Co.,* 3 Am. L. Reg., 29.
$ 346. Whether a state suing for the prevention of a nuisance in a narigable river of the United States must not aver that it will sustain some special and peculiar injury therefrom, such as would enable a private person to maintain a similar action in another court, quære, South Carolina v. Georgia, 3 Otto, 4.
IV. POWER OF CONGRESS OVER NAVIGABLE WATERS.
$ 347. Navigable waters of United States.- Rivers constitute navigable waters of the United States within the meaning of the acts of congress, in contradistinction from the navigable waters of the states, when they form, in their ordinary condition, by themselves or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water. The Daniel Ball, 10 Wall., 557.
$ 348. A river, to be navigable water of the United States, must be a highway for commerce with other states or foreign countries. If it does not form such a highway by its connection with other waters, and is only navigable between different places within the state, then it is only navigable water of the state, not of the United States. The Montello, 11 Wall., 411.
$ 349. When a river is navigable.— For the purpose of determining whether a river is navigable water of the United States the mode in which commerce has been carried on is immaterial. If in its natural state it be navigable in fact by steamboats, sailing vessels, Durham boats or vessels of any kind that can float upon the water, it is navigable water. Nor does the navigability of a stream depend upon the difficulties to be overcome, such as those occasioned by falls, rapids and sand-bars, although they may be so great, wbile they last, as to prevent the use of the best instrumentalities for carrying on commerce. The true test is whether the natural navigation of the river is such that it affords a channel for useful
If this be so the river is navigable in fact although its navigation may be encompassed with difficulties by reason of natural barrier, such as rapids and sand-bars. The Montello, 20 Wall., 430; 7 Ch. Leg. N., 105.
$ 350. The Fox river of Wisconsin, notwithstanding its falls, rapids and sand-bars, has always been used as a highway of commerce between Lake Michigan and the Mississippi river, and for that reason is navigable water of the United States. The Fox river was included in the ordinance of 1787. Ibid.
$ 351. A river may in law be navigable although in its natural state there were obstructions to unbroken navigation. Ibid.
$ 352. Grand river, Michigan, from Grand Rapids must be considered as navigable water of the United States. From this point it is navigable in fact, and by its junction with Lake Michigan it forms a continued highway for commerce, both with other states and with foreign countries, and is thus brought under the direct control of congress in the exercise of its commercial power. The Daniel Ball, 10 Wall., 557.
$ 353. The doctrine of the common law as to the navigability of waters has no application in this country. The ebb and flow of the tide do not here constitute the test. Ibid.
$ 354. Those rivers must be regarded as public navigable rivers in law which are navigable in fact, and they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition as highways for commerce, over which trade and travel are or may be couducted in the customary modes of trade and travel on water. Ibid.
$ 355. The intention of congress was clearly manifested by the act of May 18, 1796, to ordain all rivers actually navigable as common-law rivers, whether or not the tide ebbs and flows, and under this act the Detroit river is free for all purposes of navigation and trade. The Brig Empire State, Newb., 541.
$ 356. State rights. — Each state has a right to the soil under navigable water within her territorial limits, subservient only to the surrender she has made to the general government, in the constitution, of the right to regulate commerce with foreign nations and among the several states. Griffing v. Gibb, McAl., 212.
$ 357. Navigable rivers wholly within a state are not outside of state jurisdiction so long as congress does not interfere; and an abridgment of the rights of those who have been accustomed to use them, unless it comes in conflict with the constitution or a law of the United States, is an affair between the government of the state and its citizeus, of which the federal courts can take no cognizance. Transportation Co. v. Chicago, 9 Otto, 635.
$ 358. Each state owns the beds of all tide-waters within its jurisdiction, unless they have been granted away, and the tide-waters themselves, subject to the paramount right of navigation, the regulation of which in respect to foreign and interstate commerce has been granted to the United States. McCready v. Virginia, 4 Otto, 391.
S 359. And each state may appropriate its tide-waters and their beds to be used by its people as a common for taking and cultivating fish, so far as it may be done without obstructing navigation. Ibid.
§ 360. In the improvement of navigation congress may appropriately devolve upon the discretion of executive officers the regulation of details; and an appropriation of a certain sum of money to be expended under the direction of the secretary of war for the improvement of the harbor of Savannah gives that officer the power to select the manner of improvement, and to divert the water from one channel of the river to the other if in his judgment such is a proper mode of improvement. South Carolina v. Georgia, 3 Otto, 4.
§ 361. Congress having undertaken the improvement of the Mississippi a boom company will be enjoined from floating logs down the river to the injury of the improvements. United States v. Rum River, etc., Boom Co.,* 1 McC., 397; S. C., id., 601.
S 362. The improvement for the preservation of the Falls of St. Anthony was within the constitutional authority of congress. United States v. Rum River, etc., Boom Co., * 1 MeC., 601.
$363. The authority of congress in the making of improvements in navigable waters is, when congress sees fit to exercise it, not only paramount but exclusive. So where congress has undertaken the improvement of a harbor, improvements undertaken by a state within the state will be enjoined if they are likely to injure the work undertaken by congress. United States v. City of Duluth,* i Dill., 469. See CONSTITUTION AND LAWS, SS 1213-14.
§ 364. An act providing for the construction of an apron of planked timber over the crest of the Falls of St. Anthony to protect the rock and prevent the washing away of the underlying soft sandstone is within the constitutional jurisdiction of congress, whose duty it is to assume the general control, protection and improvement of the navigable rivers of the United States. United States v. Mississippi & Rum River Boom Co., * 1 McC., 601; 3 Fed. R., 548; 10 Rep., 516.
§ 365. Although, ordinarily, if a right common to all is abused, or so used as to cause camage, the injured party must seek redress by an action at law, yet, where congress has assumed jurisdiction of a river in the interest of commerce, a federal court will furnish relief against any threatened injury to any improvements made under its authority. Thus an apron having been constructed, under direction of congress, over the crest of the Falls of St. Anthony, held, that unless the owners of logs would provide means to prevent their passage over the apron when let loose, or guide them into the sluice-way prepared for them, an injunction would issue. Ibid.
& 366. The use of the Mississippi above the Falls of St. Anthony as a high way for the purpose of running logs to market is a right common to all, subject to be regulated and controlled by the federal government, or, in the absence of any such regulation, by the state within which the river lies. This common right, however, gives no immunity to individuals for injuries committed while using it. Ibid.
§ 367. Landings.— The cities and towns on the Mississippi river, when authorized by the legislature, have the right to pass rules and regulations with respect to their landings, and it is the duty of the courts to respect and uphold them. Steamboat Southern Bell, Newb., 461.
S 368. When a highway upon the water and another upon the land adjoin, the right of passage from one to the other is free to all. The Brig Empire State, Newb., 541.
S 369. Source of a river.- A grant of land lying between two rivers includes the whole country between their sources and their mouths; and it seems that a straight line drawn f.om the source of one river to the source of the other will form a portion of the boundary of such a grant. Where one or both of the rivers pursue such a course that a straight line