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State of Pennsylvania v. The Wheeling &c. Bridge 'Co. et al.

the libellants claim additional damages, for the injury and expenses sustained from the seizure and detention. It applies only to these additional damages; and, however strong the grounds of suspicion may have been, it is no bar to restitutica, if the claimant can show that the goods which he claims belonged to him, were neutral, and that nothing had been done that subjected them to capture arid condemnation.

The judgment of the Circuit Court must therefore te reversed, and a mandate, awarded, directing the case to be temanded to the District Court, to be there proceeded in, according to the rules and principles stated in this opinion.

The appeal on the part of the respondent is dismissed. The decision upon the matter in controversy was in his favor, and the question of law decided against him on the first demurrer, was open for argument upon the appeal of the libellants. There was no ground, therefore, for this appeal.

Order in Jecker et al. v. Montgomery. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs; and that this cause be, and the same is hereby, remanded to the said Circuit Court, for further proceedings to be had therein, in conformity to the opinion of this court.

Order in Montgomery v. Jecker et al. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel; on consideration whereof, it is now here ordered, adjudged, and decreed, by this court, that this cause be, and the same is hereby, dismissed, with.costs.



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 suffi. ciently direct interest to sustain an application to this court, in the exercise of ori.

State of Pennsylvania v. The Wheeling &c. Bridge Co. et al.

ginal jurisdiction, for an injunction to remove the obstraction. The remedy at law

would be incomplete. It is admitted that the federal courts have no jurisdiction of common-law offences,

and that there is no abstract, pervailing 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 Con.

stitution, 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 rolief

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 froiu thé 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 their 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 decrec.

This was a case upon the equity side of this court, in the exercise of original jurisdiction.

It is noticed in 9 Howard, 647, and again in 11 Howard, 528. In 9 Howard, a statement is given of the contents of the bill

State of Pennsylvania v. The Wheeling &c. Bridge Co. et al.

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 gr unds assumed by the respective counsel.

The prints made and authorities cited by the counsel for the plaintiff

, were the following, viz. 1. That the Ohio River is a public highway of commerce, which, under the Constitution of the United States, has been regulated by Congress. Journal of Congress, vol. 4, 637, 638; Ordinance of 1787, art. 4; Act of Congress admitting Kentucky, (1 Stat. at Large, 189); Virginia act of Assembly, 18 Dec. 1789, (Rev. Code, 1819, 57); Acts of Congress for enrolling and licensing ships or vessels to be employed in the coasting trade, and for regulating the same, (1 Stat. at Large, 305); Act of Congress authorizing duties to be paid at ports on the Ohio, (4 Stat. at Large, 480); Act of Congress to improve the navigation of the Ohio River, (4 Stat. at Large, 32); Acts of Congress providing for inspection, &c., of steamboats, (5 Stat. at Large, 304); Committee Report No. 672, in the House of Representatives, 24th Congress; Report No. 993, 25th Congress, on a bridge at Wheeling; Report No. 79, 28th Congress, 1st session on a bridge at Wheeling; Pennsylvania Resolutions, vol. 29, (Pa. Laws, 487,) on a bridge at Wheeling ; Pennsylvania Resolutions, vol. 31, (Pa. Laws, 591,) on the Wheeling Bridge; 42 Ohio Laws, 269; Green v. Biddle, 8 Wheat, 1; Gordon's Digest 15, 27, 176, 191, 325, 343, 428; 2 Madison Papers, 599, 602, 606, 614, 623, 627, 677; Resolutions of General Assembly of Virginia, November, 1786; Resolution offered by delegates from North Carolina, in Congress, September, 1788, relative to the navigation of the Mississippi, (Journal of Congress, 1788); Resolution of Congress, on the same subject, September, 1788, (Journal of Congress, 1788); 2 Madison Papers, 678; Act providing for sale of Public Land, (1 Stat. at Large, 464, sect. 6); Lyman's American Diplomacy, 300, 303, 310, 311, 315; Report on Commerce and Navigation, December 31, 1849.

2. That free navigation of the Ohio River, as a common highway, having been established by regulations of Congress, and by compact between the States, it cannot lawfully be obstructed by force of any State authority or legislation. Constitution of the United States, art. 1, sect. 8, clauses 2, 4, 17; sect. 9, clause 5

State of Pennsylvania v. The Whecling &c. Bridge Co. et al.

sec. 10, clause 2; art. 6, 1st clause; Gibbons v. Ogden, 9 Wheat. 1; Brown v, State of Maryland, 12 Wheaton, 419; Wilson v. Blackbird Creek Marsh Co. 2 Peters, 245; Charles River Bridge v. Warren Bridge, 11 Peters, 540, 542, 604; Norris v. Boston, 7 Howard's United States Rep. 283; Groves v. Slaughter, 15 Peters, 506; Houston v. Moore, 5 Wheaton, 22; Worcester v. Georgia, 6 Peters, 515; Spooner U, McConnell, 1 McLean's Rep. 359; United States v. New Bedford Bridge, 1 Woodb. & Minot, 401, and authorities there cited; Corfield v. Coryell, 4 Wash. c. Ć. 379; Holmes v. Jennison, 14 Pet. 540; Livingston

North R. S. B. Co. 3 Cow. 713.

3. That inasmuch as the Wheeling Bridge has been found by the commissioner's eport to be an obstruction to the free · navigation of the Ohio River, it is a public nuisance that may be abated by a court of equity on complaint of an injured party. Hargrave's Tract, De Jure Maris, 9, 22, 35, 87; 3 Thomas's Co. Lit. 4; 2 Story's Equity, sects. 920, 921, 924; Eden on Injunctions, 157, 158, 160, 161, 222, 228 ; Drewry on Injunctions, 237, 240, 249, 294; City of Georgetown v. Alexandria Canal Co. 12 Peters, 91; Blakemore v. Glamorganshire Canal Co. 1 Myl. & Keen, 164; 1 McLean, 359; 3 McLeán, 226; 1 Woodbury & Minot, 401 ; Shelford on Railways, 428, 445, and cases there cited; Robinson v. Lord Byron, 1 Bro. C. C. 588; Lane v. Newdigate, 10 Veşey, 192; Spencer v. London and Birmingham Railway Co. 1 Railway C. 170; Attorney-General v. Manchester Railway, 1 Railway C. 436; North of England Railway v. Clarence 'Railway, 1 Coll

. C. C. 521; Angell on Watercourses, 201, 208, 209, 213; Attorney-General v. Burridge, 10 Price, 350; Attorney-General v. Parmeter, Id. 378; Attorney-General v. Johnson, 2 Wils. Ch. R. 87; Attorney-General r. Forbes, 2 Myl. & Craig, 123; Attorney-General v. The Cohoes Co. 6 Paige, Ch. 133; Spencer v. The Railway Co. 8 Simons, 193; Corning v. Lowerre, 6 Johns. Ch. 439; Boston Water Power Co. v. Boston & W. Railroad, 16 Pick. 525; Barrow v. Richards, 8 Paige, Ch. 351 ; Livingston v. Mayor of N. York, 8 Wend. 99; Bush v. Warren, Prec. Ch. 530; 2 Story's Equity, p. 252; 2 Ans. 603; 2 Starkie's Rep. 448; United States Const. art. 3, sect. 1, 2; Walford on Railways, 408; Shelford on Railways, 430; 1 Railway Cases, 68, 576; 2 Railway Cases, 380; 2 Younge & Coll. 611; Attorney-General v. Utica Ins. Co. 2 Johns. Ch. Rep. 379; 1 Baldwin, 205; 1 Swanston, 250; 1 Mylne & Keen, 164; 3 Howard's United States Rep. 229; Pennsylvania v. Wheeling Bridge, before Judge Grier, Pamphlet Reports.

4. That for an injury to a State, she may maintain a suit in a court of competent jurisdiction. King of France v. Morris ,

State of Pennsylvania v. The Wheeling &c. Bridge Co. et al. 3. Yeates, 251; King of Spain v. Oliver, Peters C. C. R. 276; Nabob of The Carnatic v. East India Co. 1 Ves. Jr. 382; Don Diego v. Jolyfe, Hobart, 86; Colombian Government v. Rothschild, 1 Sim. 94; Duke of Brunswick_v. King of Hanover, 6 Beav. 1; Story's Equity Pl. sect. 55; Rhode Island v. Massachusetts, 12 Pet. 720; 4 How. 592; Vattel, book 3, chap. 6, sects. 22, 23, 49, 50, 60, 65, 71; Wheaton's International Law, 81, 82; Lieber's Political Ethics, 2, 5, 48, book 2, 196; Whewell's Elements, 2, 5, 849; Mayor of New Orleans v. The United States, 10 Peters, 672; New Jersey v. Wilson, 7 Cranch, 164; United States Constitution, art. 3.

5. That the equitable powers of the Supreme Court of the United States are adequate to grant relief against a public nuisance, and where a State is a party to the suit, that court has original jurisdiction. United States Const. art. 3, sects. 1, 2; City of Georgetown v. Alexandria Canal, 12 Peters, 91 ; Story's Commentaries, 570; Federalist, No. 80; Osborn v. Bank of United States, 9 Wheaton, 839; Bank of United States v. Planters Bank, 9 Wheat. 904.

The following extract contains the views of Mr. Stanton, one of the counsel for the complainant.

It is my design to present, as briefly as I can, the grounds on which the State of Pennsylvania prosecutes this suit and claims relief of this court. That purpose will be served by the discussion of a single proposition which will embrace all the points made, viz.

That the Ohio River is a highway of commerce leading to and from the ports of Pennsylvania, regulated by Congress, unlawfully obstructed by the Wheeling Bridge, to the injury of the State of Pennsylvania; and therefore that the bridge ought to be abated by decree of this court at her suit.

The first branch of this proposition, that the Ohio River is a highway of commerce, will not be disputed; for it is a geographical and statistical fact recognized by every department of the government of which this court would take judicial notice; and by their answer the defendants admit that this highway is navigated in steamboats by citizens of the State of Pennsylvania, and connects with her ports. The boundary of six States, its waters draining a large territory of four other States, flowing in a south-west direction from the Alleghany Mountains to the Mississippi, presenting to the navigator a broad and placid stream one thousand miles in length, more free from dangers and obstructions than any other navigable river in the world, it is apparent that the regulation of this river would claim the

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