PENNSYLVANIA RY. CO. V.I!AloTIMORE & N. Y. RY. CO.
PENNSYLVANIA Ri'.. CO.
BAL'J'IMORE & N. Y. Ry. CO. et. ale
(Circuit Court, 8.. D. New YO'l'/c. December 211,1888.)
Ona complaint for obstructing navigation by a bridge over navigable wa·, tera. the court will take judicial notice of an act of congress authorizing its construct.ion by defendant. aCONSTITUTIONAL LAw- INTERSTATE C?MMERCE-NAVIGA;BLE WATERSCongress can lawfully confer upon a private corporation the capacity to :occupy navigable watere within a state. and appropriate the soil under them, upon acquiring the rig:pts of the owners, in order to construct a ,bridge over such waters for the purposes of interstate commerce. without the COnsent. and notwithstanding the protest, of the state. Following Decker v. Railroad Co., 30 Fed. Rep. 723.
NAVIGABJ,E WATERs,...,.OBeTRucTroN-BJ,UDGES-BURDEN OF PROOF. . BRIDGES.
Where the act authorizing the construction of the bridge prescribes certain details of constructioil, and requires the plans to be approved by the secretary of war, the burden. in an action for obstructing navigation, is upon defendante to show compliance with sllch provisions. In a complaint alleging special damages in consequence of the obstruction, it is not necessary to allege that the bridge was not builtin conformity with the terme of the act author, izing the structure.
In Equity. On demurrer. ;Robinson, Scribner &- Bright, for plaintiff. McFarlanq" Bourdman &- Platt, for defendants. WALLi\CE,J. This is a demurrer to a complaint, alleging, in sub., Btance, that the defendants. have erected and constructed a bridge across the Arthur Kill, a portion of Staten Island the public navigable BOU:nd, so located as to ,unnecessarily obstruct and illterrupt the navigation of the waters 'by the plaintiff, whereby the plaintiff, as a common carrier of goods and passengers, has beep subjected to special loss and ill the prosecution of its business. ,The complaint also alleges that it was practicable and feasible for the defendltnts to locate the piers of their bridge and build. their stnlCture on a pl1W which would have acbeen convenient for the defe,ndants, and, would have .afforded commodations for the purposes of the navigation of the Arthur Kill, but that, instead of doing this, they have adopted a location and plan unnecessarily obstructive of navigation, in willful disregard of the interests of the plaintiff and the public. Although it does not appear by the com· plaint that the defendants were authorized bya.n act of congress to build and maintain a bridge over the Arthur Kill, the court must take judicial notice that they were. Moreover, it is not now open to discussion that congress could lawfully confer this authority for the purposes of interstate commerce, notwithstanding the wat.ers are partly within the state of New Jersey, and that state has not consellted W, but has protested against,the erection of the bridge. That question has been adJudicated -by this court in favor of the defendants. Decker v. Rauwmd Co., 30 Fed. B;ep. 723" The act of congress prescribes various C(}riditiollS and details v.37F.no.4-9
of location and construction which are to be observed by the defenllants in exetcising the authority granted, (act .June 16, 1886,) and requires the approval of the secretary of war to the plan and location of the structure, precedent to its erection; It is now insisted in behalf of the defendants that the court must presume that these conditions have been complied with, alld conseq1Jently that the' bridge is, a lawful structure. The demurrer thus raises the question of the burden of proof in a case where the navigati?Il of public waters has been obstructed under circumstances that constitute a nuisance, unless those concerned are authorizedby competent authority to maintain the obstruction in the manner and to the extent in which it exists. I have no hesitation in deciding that those whp,(:lbstruct the use of a public highway, whethElron land or water, must justify the act by producing their authority, and proving that they have exercised it in essential conformity to its terms. Their ¥t is an. encro'a,chment upon the rights common to all,unless they have a peculiar .privilege which exempt& them from the general rule of obligation.. The fact that a bridge over'navigable waters has been sanctioned by congresll, or by the state, within whose limits thE)Y are situated, and that it, has, been built by the person or corporation authorized to build it, does not render it a legal structure, unless as built it conforms to the terms and limitations of the authority. Oityof Georgetown v. Canal 00., 12 Pet. 97j Paeleet 00. v. Railroad 00.,2 Fed. Rep. 00. v. Pa,eleet Co., 125 U. S. 260,8 Sup. Ct. Rep. 874; Rutz v. City of St. Louis, 7 Fed. Rep. 438. If the contention for the demurrer is !lonnd, it would devolve, upon a plaintiff, whose right to the free of waters has been interrupted by' an impediment which prima facie is a nuisance, to prove that the acted under an assumed authority, but was not justified, because his acts were outside of the limitations 6f: his authority; in other words, to negative facts by way of defense which lire peculiarly within the knowledge of the defendant. It would be as reasonable to contend that the burden of proof is upon a plaintiff, who has'sued an officer for false imprisonment for takirig him in cust'ody on the public highway, to show that the officer acted without process, or under void, process,or without proba.ble cause. The demurrer is over-' wed, with leave to the defendants to answer upon the usual terms.
8. D. Iowa, W; D.
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Plaintiff, a Qf ,Connecticnt·. placed In the, hands of her agent l:q that state a sum for investment in western 10Rns, which the agent procnred to be . negotiated by C.; in Iowa. Part of the amount was loaned through C. to de: fendant. the principal interest being made paYable at the agent's office in Connecticut. C. collected the principal and interest of the various Joans, in. cluding nine installments of interest. from defendant; 'and returnedto defend-