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

In their former opinion nothing was said, from which an inference could be drawn, that the right of crossing the Ohio River by bridges, was incompatible with its navigation. Had this bridge been constructed, in the language of its charter, so "as not to obstruct the navigation of the Ohio in the usual manner, by steamboats and other crafts, as are now commonly accustomed to navigate the same, when the river shall be as high as the highest floods hereinbefore known," this suit could never have been instituted. The charter was granted in 1847, long after the great floods in 1832, and in subsequent years.

The right of navigating the Ohio River, or any other river in our country, does not necessarily conflict with the right of bridging it. But these rights can only be maintained when they are so exercised as not to be incompatible with each other. It is in their improper exercise, and not in their nature, that any incompatibility exists.

We can derive but little instruction on this subject, from European experience and practice. The rivers on that continent are generally diminutive, and of no very great length. They do not compare with the great rivers of the West. The bridges on the Rhine are numerous, and most, if not all of them, have draws, through which boats are continually passing. But their boats are small, with low and light chimneys, and some, if not many of the bridges, rest upon the surface of the water. A boat of two hundred and ninety-five feet in length, as the Pittsburg, it is believed, is not to be found engaged in inland river navigation in Europe.

The report now before us, in its outlines, is not objected to by the defendants. On the contrary, they ask the court to sanction it, leaving open its details. In their former opinion, after stating the elevation which must be given to the suspension-bridge to remove the obstruction, the court say, "if this, or some other plan, shall not be adopted, which shall relieve the navigation from obstruction, on or before the first day of February next, the bridge must be abated." It was supposed that some plan might be suggested to remove the obstruction, at less expense than the elevation or abatement of the bridge. The court had before them only the general plan for relief reported by the commissioner. Under such circumstances, they felt themselves bound to receive and refer the propositions submitted by the defendants' counsel. The affirmative action on these propositions belong to the defendants; and also the eventual responsibility.

The court think that the report of the engineer, in its general aspect, without examining its details, affords such probability of success as to entitle the defendants to the proposed experi

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

ment.

We look to the desired results, and not to the practicability and efficiency of the plan. Of these the defendants must judge. They have the means of ascertaining, with the utmost accuracy, whether a channel can be opened, in the western branch of the river, so as to afford a safe and an unobstructed navigation for the largest class of boats, having chimneys eighty feet high, when they cannot pass under the suspension-bridge. This is the object desired, and any thing short of this would not be satisfactory.

When the subject of a draw was first suggested to the court, it was intimated that no draw was known which exceeded seventy feet in width, but it was supposed that one of eighty feet might be constructed. And the court then said, "we entertain great doubts whether a draw in either of the bridges, as proposed, can be constructed so as to afford a convenient passage for the steamboats that ply upon the Ohio River." A draw of two hundred feet in the clear is now proposed, and one less than that, would not answer the public demand.

The court will not now examine, whether there be not in the western channel other obstructions than the bridge. If such obstruction exist, of whatsoever nature, they must be known to the defendants, and must be removed.

With these general remarks, the court will leave the defendants free in the matter, to act as their own judgments shall dictate.

The elevation of the bridge, in pursuance of the report of the commissioner, was ordered by the court, as the best mode of removing the obstruction, suggested by the evidence. The abatement of the nuisance was the most direct and ordinary mode for giving relief in such cases. The alternative of elevating the bridge was adopted, from considerations connected with the interests of the defendants, and the accommodation of the public. The same views have influenced us, in relation to the proposition now before us. We do not sanction them farther than to leave them to the defendants, to work out and secure, if they shall think proper, the required results, as stated in this opinion. The inconsiderable delay of two or three minutes in passing the draw, and running the increased distance of the western channel, does not constitute a material objection. From the statement made the increase of time would be less than is ordinarily consumed in the landing or receiving a passenger at the shore.

The objection, that the navigation of the eastern channel of the river has been improved by the government, and that the plaintiff has a right to its unobstructed use, is admitted to have much force.

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

In the multitudinous concerns of commerce, we must view things practically, and cannot deal in abstractions. It is not always in the discretion of a court to measure justice by doing or requiring to be done the exact thing which would seem to be most appropriate. Cases may arise in which great interests are involved, that may have had their origin in wrongful acts, yet connected with circumstances which render it extremely difficult, if not impracticable, to do the thing, or cause it to be done, which is most fit and proper. In such cases, as in the law of mechanics, equivalents are of necessity substituted. And if the thing done be all that justice can require, it may suffice. Such, is not unfrequently the necessary action of a court of chancery.

If the western channel of the river shall be made to afford an equally safe and unobstructed passage for boats, as the eastern channel, before the structure of the suspension-bridge, excepting the mere passage of the draw, and the increased distance, no appreciable injury is done to commerce.

The court will direct the decree which has been filed, and which required the bridge to be elevated, as therein specified, on or before the first day of February next to be recorded, and that it shall stand as the order of this court, unless before that time the western channel of the river shall be made by the defendants, to afford an unobstructed passage to boats of the largest class which ply to Pittsburg, agreeably to this opinion; and leave is given to either party to move the court in relation to this matter, on the first Monday of February next.

The costs of this suit are ordered to be paid by the defendants.

Decree.

This cause having been heard in February last, and the opinion of the court pronounced; on the suggestions of the defendants' counsel a reference on certain points was made to William`J. McAlpine, whose report having been made and arguments heard from the counsel on both sides at the adjourned term, in May, 1852, the cause stands for a final decree, on the original bill, the amendments thereto, the answers of respondents, and replications to said answers; and on the proofs in the cause, together with the report of the commissioner appointed by this court to examine the premises, and on the exceptions to said report: — when it appeared-that the respondents, in the year 1849, had erected a suspension-bridge supported by iron-wire cables across that portion of the River Ohio lying between the city of Wheeling and Zane's Island, by virtue of a charter granted by the commonwealth of Virginia, the span of said bridge being over one thousand feet long; and it also appeared that across the

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

other channel of the river west of Zane's Island, there is a trussbridge so constrated as altogether to prevent the passage of steamboats through that channel, which bridge is owned and maintained by the defendants. And it further appeared that the suspension-bridge over the channel of the river east of the island, is so near the flow of the water in its ordinary stages, as seriously to hinder and obstruct the largest class of steamboats from passing and repassing under said bridge, in going to and returning from the port of Pittsburg, in the State of Pennsylvania; that large and expensive public improvements made by, and the property of, that State, consisting of canals connecting railroads, turnpike-roads, and slack-water navigation in said State, constructed years before the said suspension-bridge was erected, all of which improvements terminate at Pittsburg, on the Ohio River, and extend throughout the State of Pennsylvania, to the east and north, connecting the city of Philadelphia, in said State, and Lake Erie with the River Ohio. That a large commerce for several years has been and now is carried on over these public works of internal improvement, on which Pennsylvania levies reasonable, tolls to maintain said works, and to compensate her for their erection. That said bridge imposes serious obstructions to the largest class of vessels propelled by steam, and which bring freight and passengers from below said bridge, and which freight and passengers are intended to pass east and north over the canals and railroads of Pennsylvania, or to be conveyed down the Ohio River, having been transported on the public works of Pennsylvania, a portion of which commerce has been hindered and prevented, and hereafter must be hindered and prevented from passing over the public works of that State, because of obstructions to navigation interposed by said bridge. That the said Ohio River is a navigable stream, the navigation whereof by law is free to all citizens of the United States, and ought to remain unobstructed; and that the said suspensionbridge not only obstructs and hinders navigation on said river but by means of such obstructions does occasion a special damage to the said State of Pennsylvania as aforesaid, for which there is not a plain and an adequate remedy at law, but on the contrary thereof, such injury is irreparable by an action or actions at common law.

It is, therefore, decreed and adjudged, that said suspensionbridge is an obstruction and nuisance, and that the complainant has a just and legal right to have the navigation of the said river made free, either by the abatement or elevation of the bridge, so that it will cease to be an obstruction, in ordinary stages of high water, to the largest class of steam-vessels now navigating the Ohio River, and which alteration is hereby declared

State of Pennsylvania v. The Wheeling &c. Bridge Co. et al: to be an elevation of said suspension-bridge, to the height of one hundred and eleven feet at least, in its undermost parts, above the low-water mark, by the Wheeling gauge of the Ohio's water; and that the height of said one hundred and eleven feet shall be maintained to the extent of three hundred feet on a level headway over the channel of the said river. And that, from the respective ends of said headway, of three hundred feet, to the abutments of each end of the bridge, the descent shall not exceed at the rate of four feet fall to every hundred feet of extension on the line of the bridge; and that the same shall be removed by respondents, or altered, as above stated, on or before the first day of February, 1853.

Since the above decree was drawn, certain propositions having been made by the defendants to open an unobstructed navigation for boats of the largest class, which ply to Pittsburg, through the western channel of the river, as is more particularly stated in the last opinion of the court in this case, which may avoid the obstructions by reason of the bridge complained of by the plaintiffs; and, as time has been given, to the first Monday of February next, for the defendants, should they deem proper, to carry out their propositions, by removing all obstructions in the western channel, on which day the plaintiff may move the court on the subject of the decree, and of the proposed alterations in the western channel, which, being before the court, will enable them to act in the premises as the law and the equity of the case may require.

The court order the costs to be paid by defendants.

Mr. Chief Justice TANEY and Mr. Justice DANIEL dissented.

Opinion of Mr. Justice Daniel and Mr. Chief Justice Taney.

When this case was formerly before us, my opinion was expressed at length against the right of this court to take jurisdiction thereof. My opinion upon this question remains unchanged; but the court having taken jurisdiction, I do not conceive that my objection to the cognizance by the court of this controversy forbids my concurrence in any modification of the decree originally proposed in this case, calculated to relieve the defendants from the operation of exactions, believed by me to be unwarranted by law. I therefore concur in the proposed modification of the former decree, by which a draw is authorized in the bridge over the western branch of the River Ohio. I think, however, that the length prescribed by this court for the draw is greater than the public exigencies require, and