successfu),will bring a fund into court, although they may fail in the suit, I am inclined to the opinion that their costs inburred in such suit should be paid by the estate. Assuming, in this case, that the suit of Gazin and others was'brought in good faith, the question presented is whether their costs are entitled to be paid out Of the estate in preference to the legitimate and unquestioned costs and expenses of the assignee, where it is complained that there are not funds enough in the estate to pay both. Theassignee is an officer of court, and where he is not in fault, but his .action is sustained by the court, he is entitled to his costs, charges. and expenses, in preference to any and all other claimants. Section 5099, Rev. St., provides that "the assignee shall be allowed and may retain, out of money in his hands, all the necessary disbursements made by him in the discharge of his duty, and a reasonable compensation for his services in the 'discretion of the court." The petition for rehearing is denied.
BoSTON 'IJ. CROWLEY.
Ccn'rcuit Court, D. Massachusett8.March 21,1889.}
BRIDGES-LIABILITY FOR DEFEOTS.
The city o,fBoston purchased the franchise materials ofa brid/l;e at the entrance to'its harbor, being empowered' so to do by Acts 1I-1ass. 1831. c. 71, which provided that the city should always be "liable to keep said bridge and draw in good repair." and aft'ord:&ll necessary to yessels that have occasion to pass the SaIDe. By Acts Mass. 1876. c.. 105. the city was au· thorized to do such acts as it might deem necessary to secure a bridge and draw which should be safe for the purposes of havigation, subject. however. to the provisions of other acts by which the approval of the board of harbor commissioners was required fn all work authorized by the legislature ofbuild· ing any bridge, wharf. or draw over tide-waters. The said commissioners granted a license to the city providing for the widening of the said bridge. and the construction of a new draw, which was to be' of a certain width. Held, that the city was liable for damages done to a v,essel by being caug'ht in the draw. the city having failed to maintain the draw of the required width.
MUNICIPAL CORPORATIONS-'CIVII, LIABILITY FOR TORT.
In such case a oivil action may be brought against the City in the federal courts for the' damage done, though no such right of action is conferred by statute. '
A court Of admiralty has jurisdiction over damage done to a vessel on navi· gable water by a bridge.
In Admiralty. , T. M. Babson, Asst. ·City Sol., for appellant. a. T. T. H. RU88eU, for, appellee. .
COLT,J. This case is an appeal from B. decree of the district court which held that the libel set forth a good calise of action against the city,· and that the cause of action was within the admiralty jurisdictioll of this court. It is admitted that the alIega'tiol!ls of .the libel and
<;f\r'Y OF' BOSTON
amended libel, except asto datllages, are 'true; and· it is furtlier agreed that the damages amount to $870. The libelant represents the C'Nnel'S of the schooner Henry S. Culver. The vessel arrived in Boston, Jan..: uary 20, 1887 ,with a cargo of coal, from Baltimore r to be delivered at the Old Colony wharf, which is situated above the Dover-Street bridge. In proceeding in tow through the bridge the vessel was caught, and stuck in the draw, and was thereby damaged to the amount agreed npon. The schooner's beam was 3.5 feet. The libelant contends that the city was required by law to maintain a draw 36 feet in the clear, and it is admitted that at this time the· draw was not of this required width. as the "Boston South Bridge," and it was erected by proprietors in 1803. Acts Mass. 1803,c. 113. By the act of incorporation it was provided that" there also shall be made a good and sufficient draw or passage-way, at least thirty feet wide in the channel over which said bridge shall be built, proper for the passing and repassThe bridge was maintained as a private property until ing of 1831, when the legislature an act authurizing the sale oUhe franchise and materials to the city of Boston. Acts Mass. 1831, c. 71. One of the provisos in the act was that the" city shall always be held liable to keep said bridge and draw in good repair. and to raise the draw of said bridge, and afford all necessary and proper accommodation to vessels that have occasion to pass the same bynight:or by day." On April 19, 1832,the city took a deed of the franchise and materials of the bridge for under the terms and provisions set forth in the act of the legislature. In 1876, the legislature authorized the city to widen the bridge not exceeding 60 feet, and to construct fenders, guards, and to change the locality of the draw. and to do suoh other acts as it might deem necessary and convenient to secure a bridge and draw which should safely and conveniently accommodate public travel and navigation, subject however, to the provisions of chapter 432 of the Acts of 1869. Mass. 1876, c. 105. By this !\Ct of 1869 the rights of the commonwealth in tide.waters were made subject to the determination andapproval of harbor commissioners. Acts Mass. 1869, c. 432. The board of harbor commissioners was created in 1866. By section 4 of the act the approval of the commissioners was required in all work authorized by the legislature of building any bridge. wharf, pier, or draw over tidewaters, and, further, that the work should not be commenced until the plan and mode of performing it should be approved by the commissioners, and that they should have the power to alter plans at their discretion, and to prescribe the direction, limit, and mode of building wharves and other structures to any extent that does not control the If'gislative grant, and that all such works should be executed under their supervision. Acting under this authority the commissioners, upon an applicationby the city, granted aUcense June 21, 1876, which provided that the bridge should be widened to a uniform width of 60 feet; that a Dew passagecwlly,cor vessels should be made nearer the middle of the chanDel, which should be S6'feet wide in the clear,.and at right angles.to)he 4cts Mass. 1866, c. 149. The city h&ving
accepted this franchise, with the responsibilities incident thereto, it seems to me that it was manifestly their legal duty to maintain a draw 36 feet wide in the clear. . The position taken by the city, that there was nd public duty imposed upon it to maintain a draw 36 feet wide, I think, from a review of the legislation on this subject, is clearly unsound. The city having acquired this franchise, it would be a strange construction to hold that, having built the draw of the requisite width, it was under no duty to maintain it of such width. I cannot assent to such a proposition. The city assumed to do all that the law imposed, and the proper and reasonable interpretation of the law required not only that the draw should .be 36 feet, but that it should be maintained at that width. Another position taken by the city is that the libel does not set forth a maritime tort, and one that is within the jurisdiction of a court of admiralty. Thisposition cannot be maintained in this court. It is settled in the federal courts that a court of admiralty has jurisdiction over damage done to a vessel on navigable ;yater by a bridge or permanent structure. The test is the locality of the thing iujured, and not the thing inflicting the injury. Railroad Co. v. Tow-Boat Co., 23 How. 209; The Hine, 4 Wall. 555; The Rock Island Bridge, 6 Wall. 213; The Flymouth,3 Wall. 20; Atlee v. Fcwket 00.,21 Wall. 389. Nor can I agree to the proposition that in the federal courts the only remedy for wrongs of this character against quasi corporations such as cities, unless a right of action is conferred by statute, is by indictment. The contrary of this has long been established. Weightman v. Washington, 1 Black, 39; Chicago v. Robbin8; 2 Black, 418; Nebraska City v. Campbell, Id. 590; Barnes v. District of Columbia, 91 U. S. 540; Evanston v. Gunn, 99 U. S. 660. The question before us is not one of the construction of a state statute, where the federal courts are bound to follow the decision of the highest courts of the state, but it is a question of general municipal or commercial law,and as such this court should follow the decisions of the supreme court of the United States. Oatesv. Bank, 100 U. S. 239; Watson v. Tarpley, 18 How. 517; Swift v. T.1Json, 16 Pet. 1. Upon consideration I am satisfied that the city of Boston is liable in this form of action, and therefore that the decree of the district court should be affirmed.
«(Jif'cuit Court, N. D. New York.
March 18, 1889.)
RAILROAD COMPANIES-MuNICIPAL A1D-BoNDS-AOTION TO COMPEL CANOELLATION. . .
. A county judge. assuming to act nnder act N. Y. May 18, 1869, permitting municipal corporations to aid in the cOIlstructionof railroads, rendered a j9dgJUent appointing commissioners execute bonds of a town. The bonds wereaccoroingly executed and delivered to the railroadcC)mpany. but, before dlllivery a writ of certiorari issued from the suprem-ecourt to review