litigation, provided he is not guilty of laches or bad faith. The courts of New Yo,rk have so decided, and upon such a question their decision should be followed by this court. Burgess v. Gregory, 1 Edw. Ch. 449; v. Rhodes, 4: Sa.ndf. Ch. 434 ; Northrop v. Wright; 1,H()w.lr. 146; Robinson v. 1 Denio, 628; 2 Wait, eh. Pro (2d Rev. Ed.) 102. Pro 57:a; 1 There Sbpuld be an order requiring the complainant, within 20 days, to file security in the sum of $250, and providing fora stay of proceedings in the usual form.
(Circuit Oou-rt, D. Oreoon. ,.october 29, 1883.)
1. VERIFICATION OF BILL IN EQUITY. ,
A bill in equity, even for an injunction, need not be verified unless it is in· tended to, be used as evidenee on an application for a provisional injunction. A suit arises under a law of the United States when the controversy involved therein turns upon the elliilltence, oroPeratiou of such a law, and therefore a suit by ariparian owner to enjoin the construction of a bridge contiguous and injurious to h\s prqperty, upon the ground that the defendant is not authorized to build the same by a certain act of congress, as it pretends and claims, under said act, and is wit.hin the jurisdiction of the proper circuit -court, 3. IN WHAT OOURTS NORTHERN PACIFIO MAY SUE OR BE SUED-CITIZENIlHIP Oll'.-
JumSDIcTION UNDER A LAW OF THE UNITED STATES.
8embte, that the Northern Pacific Railway Company, being created by an act of congress, may sue or be sued in the pruper circuit court of the United Btateg in all cases i and; qurere, of what state, if any, is it a citizen, for the purpose of jurisdiction in such courts Y
ACT INCORPORATING TIlE NORTIlERN PACIFIC-OONS'l'RUCTION OF.
The act of July 2, 1864, (13 St. 365,) incorporating the Northern Pacific Railway Company, and the acts amendatory therepf, are a grant by the public to a private corporation, and mnst therefore be construed moot sfrictly against the latter, so that no authority, right, or privilege cunbe b,eldto pass thereby unless the same is therein plainly expresied or clearly implied. . .
5. NOR'fHERN'PACIFIC AU'rHORIZED TO BRIDGE A NAVIGABLE WATER
OF ITS ROAD.
The Northern Pacific Railway Company was author-iiled by said acts" to lay out, lOCate,. construct, fllrnish, maintain, and enjoy a continuous railway" from Lake Superior to Portland, Oregon, '-'with all the powers, privileges, and immunitie.s necessary to carr3' into effect the purpose" of-said acts; the same" to be constructed in a sn13stantial,and workmanlike manner, with all the necessary draws, '' ....... bridges,etc" ' ... '" equal in all respects to railways of the first class i" and it is necessary to cross the Wltllamet river with such road in order to reach Portland from the eastward. . Held, that the right of the Northern Pacific Railway Company to build and maintain a draw-bridge across said river, or other llavigable '\Vater on the line of its road to Portland, without causing any unnecessary inju"yorobstruction to the usef-ulness thereof, is cleaxly implied in said acts i but th:\,t.congress not haVing pl'.escribed the exact location ?r part\Cular !lharac.ter of said bridge, the right of the corporatio.n \0 construct It IS suhject tp the Judgment of the proper court as to 'Whether It ·is being constructed Witilout unnecessary injury to the navigabilitv of such water, the or likely to be.
HUGHES V. NoATHESN PAd. BY. 00.
6. FORFErrrRE OF CORPORATE nIGHTS.
The IpgisJature may provide that a corporation shan eeliae:io eXist, or forfeit a particular right or privilege, unless it does certain thingswithiu a given time, and in case of such failure the prescribed consequence will 'follow of course, without the intervention of a court, or any proceeding to declare or estal:ilish the same; but the provisions in the acts aforesaid, to the effect that the grants thereby made to the Northern Pacific ltailway Company are made upon the condition that the road will be completed within a certain time, have no such effect, but are simply conditions subsequent, without any special consequence prescribed for a breach of them, and therefore no one can complain of any such breach, or take advantage. of it, except the government of the United States; and it only, as declared in the act, for the purpose of securing "a speedy completion of the said road."
In Equity. George H. Williams and the plaintiff in person, for plaintiff. Joseph N. Dolph and Gyrus A.Dolph, for defendants. DEADY, J. The plaintiff brings this suit to enjoin the defendants, or any of them, from building a bridge aoross the Wallamet river at the north end of Portland. The bill alleges that the plaintiff is the owner of the river blooks numbered 11, 12, and 13, and the south half of 14, in Watson's addition to Portland, lying on thewest bank of the Wallamet river, between North Front street and said river, with the usual right of wharfage and dookage in front thereof; that the port of Portland is a where sea-going vessels enter, and that said river is navigable above and to the southwarti of said property for such vessels for the. ,distanoe of two miles the defendants, or some one or moreofthem, are now engaged in and threaten to oontinue the oonstruction'of a bridge aoross said river Within the limits of the port of Portland, and down the stream 'from :and to the north of. said property, and to maintain to operate the. same when built; and that said bridge, if oonstruoted and maintained, will be a great and lasting obstru,otion to the use of the Wallamet river to the south and up the strea.mof said river from said bridge for the pa,sBage of boats, ships, and vessels to property there situate, and will thereby greatly and in a lasting manner damage all the wharf property situate up the ,stream of .said river from and to the south of said bridge, ,at;ld therewith will work a great and lasting damage to the property aforesaid, and also constitllte a great and lasting obstruotion and hindranoe to the oommerce of the of Portland;" that said property has no wharf. upon it at present" but may be used for such purpose, "and is of great value therefor;" that the several defendants, through "separate oorporations," are aU un· der the control of the same persons, so that plaintiff is ti.nable to determine which of them is in fact engaged in oonstructioK said bridge, or proposes to maintain and operate the same; that the said persons olaim one or of s/loid defendant,corporationa" are authorized by the state of OregQn,and the United States to build and maintain the said bridge, but that neither said defend'&nts has any "suoh power or authority at this time," nor has the state consented
to the construction of the proposed bridge, or the secretary of war approved of the location thereof. The caUBewas argued and submitted on a demurrer to the bill by each of thedeferidants. The grounds of the several demurrers are substantially these: (1) The bill is not verified; (2) the bill is without equity, and the plaintiff is not entitled thereon to an injunction; and (3) the court has no jurisdiction of the SUbject-matter or tlle parties to the Buit. On the argument it was admitted by the (\Ounsel for the defendants, that the bridge was being built by the Northern Pacific Railway Company alone, under the act of congress of July 2, 1864, l13 St. 365,) and the acts amendatory thereof, and the act of the legislative asof Oregon of October 28, 1874. Sess. Laws, 10l. semblyof the This b'eingso, it would been proper for the other defendants to have and denied or disclaimed any interest or participation in or controversy. However, the case will be, considered by the cotirt as it was argued by couusel,upon the theory that theconttoversy is now one between the plaintiff and the Northern Pacific Railway only. By the first section of the act of 2d, aforesaid, entitled" An act granting lands to aid in the construction of a railway and a telegraph line from Lake Superior to Puget sound, on the Pacinc coast, by the porthern route," congress provided that the persons therein named, and others who might be associated with them, should constitute a ,corporation by the name of the Northern Pacific Railway Company" with power and authority, among other things,"Tolay out, locate, construct. furnish, maintain, and enj'oya cOlltinuous railway and telegraph line, with appurtenances, namely, beginning at a point on 'Lake Superior, in the state of Minnesota or Wisconsin; thence westeriy by the most eligible railway route, as Shall be determined by said company, within the territory of the United States, on a line north of the forty-fifth degree of latitude, to some. point on PugetsQun4, with a lJi"anch via the valley of the Columbia river to a point at or near P01'tland, in the state of leaving the main trunk line at the not more than 300 miles from the western terminus."
':"':'And it was al'so declared by that said company hereby vested with all the powers, p'rivileges, and immunit'ies necessary to carry into effect the'purpo!lesof this ach,B herein set forth." By sections 2 and 3 of the act the compallY is granted of way through the public and ,certain odd·numbered'sections thereof, on either side of said way, for the purpose of aiding in the construction of its road. ' Section!>; provides......; "That said Northern Pacific Railway shaH be construcred in a substantial and
workmanlike manner, with all the necessary draws, culverts, bridges, 'viaducts, crossinKS, turn-outs, stations, and waterin'g places, and all other appurtenancE's, including furniture and rolling stock,equal in all respects to railways of the first class, when prepared for business,with rails·of the best quality, manufactured from the best iron."
HUGHES' V. NORTHERN PAO. RY. 00.
The act further provides that the company is authnized j within certain limits, "to enter upon, purchase, take, and hold any lands or premises that may be necessary and proper for the construction and working of said road," and prescribes a mode of ascertaining the value thereof, in case the owner and the company cannot agree thereabout (section 7;) that "each and every grant, right, and privilege" thereby made to the company is made upon the condition that the road shall be completed by July 4, 1876, (section 8;) that the road "shall be a post-route and military road, subject to the use of the United States" for all government service, (section 11;) and that the company "shall obtain the consent of the legislature of any state through which any portion of said railway may pass previous to commencing the constrnction thereof." This consent was obtained from the state of Oregon by the act of October 28, 1874, supra, which provides.. That the consent of this state be and is hereby given to the Northern Pacific Railway Company, a corporation chartered by an act of the congress of the United States, approved July 2, 1864, to construct its road and telegraph line, or any portions of the same, within the boundaries of this state, and to enjoy, within said boundaries, the rights alld privileges which said corporation has, or may have, under the laws of the United by vj.rtue of said act of congress, and the amendments thereto." .
Subsequently, congress extended the time for the completion of the road to July 4, 1878. See act of May 7, 1866, (14 St. 435,) and of July 1, 1868, (15 St. 255.) By the joint resolution of April 10, 1869, (16 St. 57,) the company was authorized "to extend its' branch line from a point at or near Portland, Oregon, to some suitabltl point on Puget sound, to be determined by said company, and also to connect the same· :with its main line west of the Cascade mountains, in the territory of Washington; said extension being subject to all the conditions and provisions, and said company in respect thereto being entitled to all the rights and privileges, conferred by the act incorporating said company, and all acts additional or amendatory there6f;" and by that ofM.ay 31, 1870, ,(16 St. 378,) it was further authorized "to struct, under the provisions and with the privileg.es, grants,and duties provided for in its act of incorporation, its main road ito some point on Puget sound, via the valley of the Columbia river, witlithe right to locate and .construct its branch from some convenient point on its main trunk line across the Cascade mountains to Puget sQmnd;" and required to complete 25 miles of said main line between Portland and the sound by January 1, 1872, and 40 miles a yearthereafter until it was completed between said points. By this summary it appears that the Northern Pacific Railroad is authorized, since May 31, 1870, to construct its "main line" down the Columbia river, and Via Portland, instead of across the Cascade mountains to the sound, and thus make the former plaee the, practical weste:r;n terminus of the
.:oad, with an extension or branch northward to some point on the latter; and what has been done in this respect is a matter of such common notoriety that the court may take judicial notice of it. The company has constructed its main line from the eastern terminus to the Wallula junction,-a point 214 miles east of Portland, -where it connects with the road of the Oregon Railway & Navigation Company, extending from Portland, up the Columbia river, to said junction, and is operatcCl m connection therewith, as one road, from the latter place to St. Paul. Its extension northward has also been constructed from Portland to Tacoma, on the sound, a distance of 143 miles, thus making a continuous line of road from Lake Superior to tide-water on the Pacific. The objection that the bill is not verified is immaterial. A bill in equity is not required to be sworn to, unless it is sought to be used as evidence upon an application for a provisional injunction or the
The first question to be considered is, has the court jurisdiction of this suit? The defendant, by its demurrer, raises the question of jurisdiction, but did not press it upon the argument. By section 1 of the act of March 3, 1875, (18 St. 4-70,) jurisdiction is conferred on this court of a. suit in equity arising under a. law of the United States. The bill alleges that the defenda,nt claims the right to construct the bridge in question by authority of an act of congress and of the state, but denies that it is so authorized. A controversy, which turns upon the existence, effect, or operfl,tion of an act of congresj;l, ariseE! under such an act, and a suit bro:ught to determine the. same is a. case arising under such act within the meaning of the statute. On the argument counsel for the defendant insisted that it was authorized to build the bridge by the act of its incorporation, in connection with the act of the state consenting thereto. This, coupled with the denial of such authority by the plaintiff, is an admission that the court has jurisdiction of the suit on account of the subjectmatter. The defendant claims the right to build a bridge across the Wallamet river under a law of the United States, which right the plaintiff denies, and this suit, which is brought to determine this claim, is necessarily a. suit arising under such law of the United States. Hatch v. Wallamet Iron Bridge 00. 7 Sawy. 131; [So C. 6 FED. REP. 326,780;] Bybee V. Hawkett,6 Sawy.598; [So C. 5 FED. REP. 1.] There is no controversy in the case arising under the law of the state. The state has not given the defendant any absolute right .to construct a railway or bridge within its limits, but only consented that it may do in this respect whatever it is authorized to do by the act of its incorporation. So that the only question in the case is, has congress, by the act of July 2, 1864, empowered the defendant to construct a railway bridge across. the Wallamet at this point? If it
HUGHES V. NORTHERNPAO. RY. CO.
has, the plaintiff admits that this suit cannot he maintained; and if it has not, it is equally clear that the defendant, in attempting it, is guilty of a nuisance to the special injury of the plaintiff, and there· fore ought to be restrained from so doing. There is also iuvolved in this suit the effect to be given to the clause in section 2 of the act of February 14:, 1859, (11 St. 383,) providing for the admission of the state into the Union, which declares that "all the navigable waters of said state shall be common highways" to all citizens of the United States. In effect, this statute prohibits the erection of any bridge across the Wallamet river, unless it be one so far above the stream as not to interfere in any degree with its navigation, without the consent of the United States; 'even if authorized by the state. Wheeling Bridge Oase, 18 How. 431; Hatchv. Wallamet Iron Bridge 00.7 Sawy. 135; [So C. 6 FED. REP. 326, 780.] The question whether the proposed bridge is -contrary to or in conflict with the injunction of this statute is a national one, and a suit to determine it arises under a law of the United States, and is, therefore, ' within the jurisdiction of this court. 'O.born v. Baltk of U. s. I} Wheat. 816; Hatch V. Wallamet Iron Bridge 00., supra. Whether the court also has jurisdiction of the suit on account of tho citizenship of the parties, it is not now necessary to determine. The plaintiff is a citizen of Oregon, and it is assumed by the demurrer that the defendant is also;' But thtf status of 'the defendant in this respect is not settled by any adjudication that I am aware of. cIt has been sued in this court by a of another state as a citizen of Oregon, and submitted without question to a. trial of the case anti a judgment against it accordingly. It is a corporation created by an act of congress, with'ability "to sue and be sued" in all the courts "within the United States," and is authorized and empowered to construct and operate a railway in this and other states of this Union. The capacity "to sue a.nd be sund" does not of itself authorize the defendarit:·to sue or be sued in:any court, irrespective of the jurisdiction pertaining to the same. It only: enables it to sue or be sued as a natural pel'SOh might, in any cOlIrf having otherwise jurisdiction of the c()ntroversy. Manuf'rs'Nat. Bank, etc.: v. Baack, 8 138. ",; But of what state, if any, the defendant is a citizen, is n'otso clear. In Orange Nat. Bank V. Traver, 7 Sawy. 210; [S.C.'7FED. REP. 146,] this court was inclined to the opinion that a banking corporation formed under t4'e national banking act ofJune 3; 1864, (13 st. 99,) to do business in Massachusetts,. was a citizen of that Btate. And such was theconcfusion reached by Mr. Justice BLATCHFORD in' Manu/'rs Nat. Bank, .etc., v. Baack, supra. See Main v. Secdiul.Ndt; Bank, etc., 6 Biss. 26. But the defendant· is' toelist' and do business in more states than one, without fatly delllaration vision indicating a particular domicile orprineipal place ofbusil1ess' in any. . fI.r ..
. But in Osborn v. Bank of U. S. 9 Wheat. 816, it was held by the supreme court that a corporation created by an act of congress might be thereby authorized "to sue and be sued" generally in the circuit courts of the United States; and the power of congress to give such court jurisdiction of such a suit was sustained on the ground that any suit by or against such a corporation was necessarily a case arising under the laws of the United States, and therefore within the scope of its judicial power. And, since the decision in that case, congress, by the act of 1875, supra, has conferred upon the circuit courts jurisdiction in all cases arising under the law of the United States. The effect of this legislation, under the ruling in Osborn v. Bank of U. S., supra, is equivalent to a special clause in the charter of the Northern Pacific, authorizing it to sue and be sued in the circuit courts inall cases. on the ground of the nature of But the jurisdiction of the the controversy, being clear, the question as to the authority of the defendant to construct the. bridge, is next to be determined. And, first, it is manifest that the defendant is authorized to construct and operate its road tofortland, either as a point on the main. line to Puget sound or the northern extension of the branch thereto. At the passage of the act of 1864, it is quite likely that congress knew but little about the relative situation of Portland, or whether the construction of the branch road to this point involved the crossing of the Wallamet river or not. as time passed, Portland grew in importance. The observation of the company, derived from those engaged in the survey and construction of the western end of its road, induced it to obtain from congress, in 1869, the authority to extend its branch from Portland, northward, to Puget sound, and in 1870 to construct its main line down the Columbia river valley, instead of across the Cascade mountains. This legislation was a. practical admission by congress and the company of the mistake made in the original act, concerning the location of the main line of the road, and, in effect, gave the company the right to construct it to Portland, with an extension northward from there to the sound. To accomplish be crossed at or near this poirt, either by a bridge this, the river or a ferry, and this must have been then known to congress. Under the authority to construct its road to Portland, the right of the com· pany to cross the river by a ferry or a bridge/so high above the stream as in no way to interfere with its navigation, will be readily conceded. The power to construct and operate its road to and from Portland is given in express terms; and, undoubtedly, it may erect a bridge, as a part of said road, that does not interfere with the tion of the river. It is admitted that the aot incorporating the defendant is public grant, which is not to have effect beyond what is plainly expressed or olearly implied therein, or contrary to the manifest purpose of it. Any mnterial doubt or ambiguity in its termB or provisions must be
HUGHES V. NOR['HERN PAO.RY. CO.
resolved against it, and in favor of the public.. Nothing is to be taken as conceded but what is granted in plain terms, or by clear or necessary implication. Coolidge v. Williams, 4 Mass. 144; Charles River Bridge v. Warren Bridge, 11 Pet. 544, 600; Perine v. C. ri; D. Canal Co. 9 How. 192 j Fertilizing Co. v. Hyde Park, 97 U, S. 666 j Burns v.Multnomah Ry. Co. 8 Sawy. 553; [So C.15 FED. REP, 177;] TiVl'lls v. O. R. ri; N. Co. 8 Sawy. 616; [So C. 15 FED. REP. 561;) Cooley, Canst. Lim. 394. It is also a well-settled rule that a bridge which in any way or degree interferes with or obstruots the navigation of a navigable water, unless authorized by the proper public authority, is a public nuisance, and may be abated or the building thereof restrained at the suit of any private person who may suffer special damage therefrom. Ang. Water-courses, § 555; The Wheeling Bridge Case, 13 How; 564; Hatch v. Wallamet iron B1'idge 00.7 Sawy. 127; [8. C. 6 FED. REP. 326, 7 8 0 . ] . . As was said by this court in Hatch v. Wallamet Iron Bridge .co., sup1'a,132 :
"The power to authorize the' erection of a bridge over a navigable waterof a state for the convenience of the inhabitants thereof, belongs to the state as a part of its general police power. Congress does not possess this power directly, eo nomine, but its control over the navigable waters of the state, as a means of commerce, gives it a practical veto upon the power of the state in this respect. Therefore, no state can authorize or maintain the erection of a bridge over a naVigable water, which, in effect, contravenes or conflicts with a 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 part of a highway between itself and other states."
But this is not to be understood as denying the right of congress to bridge or authorize the bridging of navigable waters, under its constitutional power "to establish post-offices and post-roads," or make war or provide for the common defense. Wheeling Bridge Case, 18 How. 431. There is no express permission or authority in the charter of the Northern Pacific for bridging a navigable water on the line of its road, and the act of the state goes no further than to oonsent that the defendant may bridge the river if authorized thereto by congress. It is said, and the fact is admitted, that it has already constructed a bridge, without question, across the Missoud river at Bismarck, under the authority of its charter. But that is understood to be a high bridge, that in no way impairs the navigability of the stream. On the other hand, it is claimed that the defendant impliedly admitted the want of authority, in this respect, in its charter, when it obtained from congress, on February 27, 1873, special permission to construct and maintain a draw-bridge across the St. Louis river between . Rice's Point, in the state of Minnesota, and Connor's Point, in the state of Wisoonsin. 17 St. 477. But in reply it is said that this v.18,no.8-S
bridge is not OIl the main line of the Northern Pacific, and was built by the company for some collateral purpose; and this appears probable from the provisions of the act, one of which is that any railway company may use the bridge under regulations to be prescribed bJ the secretary of war. It is claimed by the defendant that section 5 of the act of 1864 contains authority to bnild the bridge. But while it does mention "draws" and "bridges" as things to be provided in the construction of the road, I think the primary purpose of this flection is to lay upon the defendant a rule or standard of conduct in the construction and equipment of its road, rather than to confer upon it power to build draw-bridges over navigable waters. At the same time, it is not to be denied that the mention of "draws" and "bridges" as things "necessary," or that may be "necessary," in the construction of the defendant's road. and requiring them to be made "in a substantial and workmanlike manner," does imply, in some measure at least, that it was the intention of congress to authorize it to build. "draw-bridges" on the line of its road whenever necessary to make it equil.l in that respect to railways of the first class. And it will not do to say that this provision is satisfied by the erection of 8ubstantial bridges across the non-navigable waters, ravines, and gulches on the line of its road, for in such bridges "draws" are not needed or used. My impression is, and nothing bas been shown (}r suggested to the that the term "draw," as used in this section, means a contrivanc.e by which a section of 1Io bridge across a navigable water is turned· upwards or at right angles to itself, and parallel with the direction of the stream, so a.s to admit of the passage of vesselsthrongh the open space that could not otherwise pass the point. The definition in the lexicon is, "That part of. a bridge which is made to be drawn Up,Ol" aside." Wore. Diet. "Draw." rUhis exposition is corthe ter1ll as use·d in the act, is redundant and without significance, unless the defendant is authorized to, and must if necessary, construct a low bridge across the navagable water, but so as to admit the passage of vessels through it. What effect is to be given to the wor.d "necessary" in this section, and who is. t0ba the judge of what is "necessary" to the construction and equipment of the road in the manner therein contemplated, may also be acquestion.. For the purpose of entitling the defendant to a patent fQr the lands, coterminous .with the completed sections of the road, it is probably enough that it is constructed with such "draws, culverts, and bridges" as the commissioners appointed 'to examine the same, under section 4 of the act, may deem sufficient. But the judgment of these commissioners in this respect cannot have tne 'effect to limit or restrain the right of the defendant to construct or provide additional or more costly and convenient draws and bridges, or other means of maintaining and operating its road as a first-class one. \Vhatever, in the judgment of the commissioners, is required to
JlUGHES". NORTHERN PAO. BY. 00.
bring the road up to the standard prescribed Py seetion .5 of the act, is "necessary" to be done before the defendant is entitled to the land devoted by congress to its construction. But in crossing a naYlgable water on the line of its road the company is not limited to the use of such means only as are absolutely necessary.· Within certain limits it may use those which it thinks most convenient. A ferry may be all that is absolutely ,necessary for the transportation of passengers and freight, or even trains. But the company may prefer, and the exigencies of its business may require, the more safe and expeditious, though costly, method of a bridge. As has been said, the power to bridge this river is not given by the act to the defend1tut in express terms. Neither is the power so given to cross it at all. Therefore, unless it appears, by a clear and necessary implication from what is, expressly provided, that it was the intention of oongress to authorize it to oross the river by means of a draw-bridge, or at all, the to do so is nnlawful. ' The power "to layout, locate, construct, furnish, maintain, and enjoy a oontinuous railroad" from Lake Superior to fortland, "with all the powers, privileges, and immunities necessary" to that end, is expressly conferred upon the company. Portland .cannot be reached from Lake Superior, or any point on the line between here and there, without crossing the Wallamet river. The right to oross it is, then, clearly implied in the express authority to constrpct a "continuous" line of railway from a point to the ward of it.to a town on its western bank. Argumentp,anuot make tbisproposition plainer than the mere statement power to construct the road cannot be exercised without)he implied power of crossing the river in· some way. Bllt by w.hat means may . this crossing be effected? Only two methods are known or suggested-a ferry or a bridge. ,The former mlty be 'ilufficient' to entitle the company to the land grant, but where the. ,oonstruction of a bridge is practica.ble, I think a ferry is co..sidered an inferior method of prolonging a railway across a stream. If the river.was not nlLvigable it would be absolutely necessary to bridge it. And if, being ,navthe defendant is not authorized to do sO,it must be, not from "ant'of power to build a bridge, but from want of authority in so doing to obstrnct or impair the na.vigability of the stream. . The allegations in the bill concerning the oharacter, and location of the bridge, and the degree of obstruction it may to J;l.avigation, are very genera.l and indefinite. The moat that can be inferred from. them is that the proposed bridge is not a high one, and there: fore will, at least, be some obstruction to' n&vigati6n. During tht. past 17 yeats congrcass has authorized the,'con8trnctionof drawrailway lines across the Ohio, Misgouri; and Mississippi bridges river8; and on June 28,1874, (188t. 281,)'it;authorbed the' OreRailway Company to bridge·theWallamet at this 'poitrt,' proiided ,'the chaw should, not be less tha:n: $00 feet. Sell
Hatch v. Iron Bridge Co. 7 Sawy. 138; [So C. 6 FED. REP. 326, 780.] , In endeavoring to ascedain what was the intention of congress in this matter, account may be takell of its action in similar cases, and when it appears that i' has commonly consented to the constrnction 'of draw-bridges for the use of railways over important navigable streatns, the inference may be more safely and reasonably made that such was its intention in this case. The act of congress expressly provides for a first-class continuous road to Portland, to be constructed with all the necessary "draws" and "bridges." Thifl, of itself, implies that the defendant may cross whatever waters are on the line of its road by the means usual in such cases, and particularly by those especially mentioned-draw-bridges. And when we see from the expresS action of congress in other similar cases that draw-bridges are commonly used with its consent, the implication is much strengthened that such was the intention in this case. In U. P. R. Co. v. Hall, 91 U. S. 348, it was held 'that the bridge across the Missouri river between Omana, in Nebraska, and Council Bluffs, in· Iowa, is a part of the lin&i of the Union· Pacific Railway, and that the company was, therefore, authorized toconstrnct U under section 14 of the act July 1, 18'32, (12 St. 489 which simply provided for the constl'UctiOl of a line of railway by that company "from a point on the western boundary of the state of Iowa" to the 100th meridian west of Greenwich. The company claimed that the bridge was built under section 9 of the amendatory act of July 9, 1864, (13 St. 360,) which expressly authorized it to bridge the river, provided the same 1hould "be constructed with suitable and proper draws for the passage of steam-boats," and should "be buil\ kept, and maintained at the expense of the company in such manner as not to impair the usefulness of said river for navigation to any greater ilxtent than such strtlctures of the most improved character necessarily do," and was, therefore, not a part of its road, and need not be operated as such." In delivering the opinion 'of the court, Mr. Justice STRONG said :
"From that act· [July 1, 1862] alon& we have deduced the' conclusion that the company was authortzed and rtlq1,lired to build their railway to t1l.e Iowa shore. That authority included within itself power to build .ll bridge over the Missoun. ,. No express grant to bridge the river was needed. Whatever bridgeS wereneeessary on their line were as fully authorized as the line itself; and the' company were as much empowered to build one acrQSS the:Missourl as they were across the Platte, or any. other river intersecting the line of their road." ,
. The demurrer to the bill only raises the question of the authority of the defendant .tobuild a draw-bridge a.li this pointtha.t;will,in some measure impair the navigability of the river. My deliberate conclusion is, though notreMhed without hesitation, that thea,," of congreBs authori2ledthe construction of such a bridge. And thisc()llclusion is directly supported by the authority of U. P. R.Oo. v.. HaU,
HUGHES.,. NORTHBRN PAO. BY. 00.
IUpra. For, although, as suggested by counsellor the plailrlifi,. the question in that case arose in a proceeding to compel the company to operate its road and bridge as a continuous line 01 railway for the benefit of the public, still the question of its power under an act similar to the charter of the Northern Pacific, to bridge a navigable water in the line of its road, was squarely presented to the court and unqualitiedly decided in the affirmative. See, also, People v. R. J; S. R. Co. 15 Wend. 129. But the plaintiff also maintains that admitting the defendant once had the right to bridge the river, it has lost it by the failure to keep the condition upon which the grant to it was ma.de, namely, the completion of the road by July 4, l878. 1'he argument is that the d!'lfendant, in the construction 01 this bridge and the appropriation of the space over the river therefor, is attempting to exercise the right of eminent domain after the practical expiration of its charter, a.nd therefore without authority of law. But admitting this, the defendant is not attempting to take the plaintiff's property for any purpose; and. the. river way is a publiq easeDlf,lnt which the defendant may be.authori,zedby the legislature to cross with a bridge without condemnation or compensation. If the defendant, in the exercise of this privilege, negligently or unnecessarily injures or impairs toe value of the private property of the plaintiff, he inay have his action on that acdOunt for damages. Transp. Co. v. Chicago, 99 U. S. 689; PumpeUy v. Green Bay 00. 18 Wall. 174:; Cooley, Const. Lim. 541. And this is really the complaint of the plaintiff, that in consequence of the erection of this bridge his river property immediately above it will be impaired in value, and not that the defendant is attempting or intending to take or condemn his property to its use. this question, it must be admitted that if the But ant has forfeited its right to·further construct its road by reason Jf its failure to complete it within the time allotted, then it has no right to obstruct a public easement, as the navigation of this river, by the construction of a bridge thereover, and if it attempts to do so to the special injury of the plaintiff it may be restrained. But the defendant did not lose its corporate existence by the failure to complete its road within the allotted time, either as to the whole of it or .the part not so completed, and the numerous authorities cited in support of the affirmative of the proposition are not in point. It is not necessary to notice them all. Two of them (In re B., W. J; N. Ry. 00.72 N. Y. 248, and Brooklyn 8. T. 00. v. Brooklyn, 78. N. Y. 527) are among the leading ones. In tbeseit was held that a corporation organized under a special act to construct a railway, with a special prOYision that unless the road /)r some portion of it was completed within a specified time the corporate existence and powerssbould cease or be de.emed at an end, could not exercise the right.of eminent (lomain after a failure to ,comply with the. act. in respeot io the time require.d.
But the case at bar is very different from these. The charter of the defendant in'noway limits its existence to the time allotted for the completion of the road, or provides tha,t any of its powers or privileges shall be forfeited or circumscribed in case it fails to complete it within that time. Section 8 of the act of 1864, upon which the plaintiff rests this branch of his argument, is simply a condition subsequent, to the effect that the corporation will complete the road by a certain time. Nothing is better established than that.a failure to keep sue}. a conditwn does not forfeit the corporate existence of privileges, and that no one can take advantage of it or complain of it except the government making the grant and imposing the condition. Schulenberg v. Harriman, 21 Wall. 62; Southern Pac. R. 00. v. Orton, 6 Sawy.179j Natoma W. <f M. Co.v.Clarkin, 14 Cal. 552; Cowellv. Colorado Springs Co. 100 U. IS. 60; And this doctrine is recognized and well stated, with its1imitations, by EARL, J., in the very case cited by plaintiff from 78 N. Y. (p. 529.) The learned judge says:
"'fhe general principle is not disputed that a corporation, by omitting to perform a duty impose(l by its charter, or to comply with its does not ipso !afJto lose its corporate character or cease to be a corporation, but simplY' exposes to the hazal'd of deprived of Its corporate character and frauchlses by the jUdgment of the court in an action instituted tor that purpose hy the attorney gf'nera.\ in bebIJt of t,he people; but it cauIlOt be denied that the legiRh\.tllle has toe power to provide that a llOrporation may 10"" ill:! corporate existence without the iutervent.ion of the courts by flny onllssion of duty or viOlation of Us charter. or defaUlt as to limitations imposed, and whether legislature has so provide in any case depends upon the constructlOll of the language UBIlU."
But the conditions imposed upon the defendant by section 8 of the act is even modified by the provisions in section 9,· from which it plainly appears that so far from congress intending that the powers of the corporation should cease or become forfeited in any particular by reason of its failure or inability to keep any of the conditions imposed by said section 8, expressly reserved to itself the right in case of Buen failure, for the period of one year, to "do any and all acts and things which maybe needful and necessary to insure a. speedy completion of the said road." In this way congress undertook to secure the completion of this great national work in a.ny event,a.nd so plainly deelaLvd in advance what might otherwise havb been left to inference and argument from analogous cases, that It reserved t,o itself the right to deal with tne defendant for b.ny failure to comply witn the conditions of the grant, ana. to excuse or enforce \he same as it mIght, under all the circumstances,deem just to the defendant and best for the public good. Indeed, in view of themagnitud.e and hazard of the undertaking, it was expressly provided that even congress should not take advanf..,ge of a failure to perform any of the oonditions for any penod ltl8S than a year. And l eVBn the land set apart by congress to aid in the can·
HUGHES ". NORTHERN PAC. RY. CO.
struction of the road was not left liable to revert to the public domain. or be otherwise disposed of by congress for the failure of the company the wo!k asrequired by the act ; but, as was to construct or said in U. S. v. Childers, 8 Sawy. 174. IS. C. 12 FED. REP. 586,J it was devoted to the construction of the road in any event. and it is the duty of congress to see that it is so applied. See, also, on this point. Southern Pac. R. Co. V. Orton, 6 Sawy. 178. And this position is fortified hy the fact that when congress intended that the corporate' existence of the defendant should be forfeited or affected by its failure to keep a condition imposed upon it, it has elpressly said so; as in section 19, where it is provided that unless $2,000,000 of the stock is subscl'ibed, and 10 per centum paid thereon within two years from the passage of the act, "it shall be null and void." . The demurrer to the bill must be sustained, as the defendant has at least a right to build a draw-bnctge across the river on the line of its road to Portland from the eastward or the sound. But it is to be regretted that tqe)egislative authority h,as not gone further and provided mor.e vartic'ularly ana definitely for the site and character of the proposed bridge. As it is, these matters, within certain limits, must elther be determiped by the companyor the courts, -by the former in the first instance, and the latter, ultimately. For it is not to be presumed for a moment that congress or the state, ;., consentmg to the erection of, a draw-bridge at this point, tended to remit the whole matter to the judgment or convenience of' the defendant, and permit it to thereby obstruct or impair the navigation of the river at its pleasure. On the contrary, it will be presumed, until the contrary is declared, that congress intended, as provided in the act aforesaid, concerning ,the bridge at Omaha, that the defendant should locate and. CO)lstruct its bridge "in such manner as not to impair the usefulness of said river for' navigation to any greater extent than such structures of the most approved character necessarily do." A bridge across the river immediately in front of the city would be a senous obstruction to the usefulness of the river, as compared with one a mlle or more above or below, and the latter even more so than the wrmer. SO,a wagon-road bridge, intended as an ordinal'y thorougbfare between the two sides of the river, and in which the draw is usually closed, would cause much more obstruction to navigation than a railway bridge. in which the draw is only occasionally closed. Until congress provides some specific directions in the ,:rpatter lhe courts must determine, if the question is made, how far' "the. defend· ant may impair the usefulness of the river in the construction and operation of the bridge. In determining what is a reasonable ,1,1se of the river, in this respect, reference may be hadto thegenar8illegislation of congress, providing in de,tail what railway companies may construct across navigable streams, and how far the convenience of the water travel and transportation may be impaired for
the benefit of that on land. The bridge which congress has impliedly authorized the defendant to build across the Wallamet may be presumed to be equal in these respects to those which it has expressly provided for under similar circumstances· . As has been stated, the bill is indefinite as to the location of the bridge, and substantially silent as to its character. But the general facts as to both are well understood in this community, and may even be taken notice of by the court. A detailed description of the structure and location is given in the annual report of the secretary of the board of trade, published in the Daily Oregonian of September 25, 1883. The location of the bridge is opposite Albina, and over a mile north of Stark-street ferry; the western end is 200 feet to the north of the intersection of Front and Sixteenth streets; and the eastern end 32 feet south of the end of the Northern Pacific Terminal Ooinpany's dock. The length of the bridge between the end piers is l,lti6 feet. It consists of three fixed spans of 264 feet each in length, and a draw span,which is the third from the western shore, of 394 feet in length. These spans are of iron and steel, with a double-track railway thereon, and rest on six stone piers. The draw will be worked by steam, and when open will allow a clear channel for the passage of vessels of 174 feet in width on either side of the pier, with a depth of 25 feet therein at extreme low water. The structure will be 11.6 feet in the clear above extreme high water. or about 38 feet above extreme low water. In general, and particularly in the width and operation of the draw, this plan compares favorably with the bridges elsewhere allowed by congress, and is more favorable to the passage of vessels than the bridge authorized at this point by the act of June 23, 1874. The demurrer is sustained and the bill dismissed.
(Oircuit Oourt, E. D. Ne1IJ York. June 29,1883.)
8PECIFIOPERFORMANCE-INOOHPLE'l'E TITLE AFTERWARDS PEHFEOTED.
Where a bill in equity was filed to compel the specific performance of an agreement to purchase lands, and it appeared that the complainant had not been able to give a perfect title at the time agreed, and that after an extension of 30 days he still was unable, but afterwards he broug'ht this suit to compel the defendant to accept the title, and on the trial tendered a good title, held, that the defendant was justified in rejecting the title when it was tenderprl and that, even If the complainant were able at the time of the trial to give perfect title, it would not be doing equity to compel the defendant to accept it after nearly two years had elapsed since the day named in the contract for passing the title. .
1Reported by R. D. & Wyllys Benedict, oftbe New York bar.