!rEXAS 4t iP. RY. CO. fl. CITY Oil' NEW ORLBANB.
fendant to the suit,at whos,ejoint request the president of the l1efendant company was appointed receiver; to the question as to whether this court ought not to order the receiver to operate that portion ,of the road referred to in the cross·bill, in accordance with the terms of the contracts under which it was constructed. It is ordered that the amended answer of the intervenors be stricken from the files, and that the demurrers to the CJ:O&l-bill be sustained, and the cross-bill be dismissed.
& P. Rv.Co.
E. D. LO'Uiriana. AuguBt 24, 1889.)
An injunction pendente tite, from interfering with ,complain"nt in the erectiQn and maintenance of "uoh structures as it was authorized to , and maintain under the authority ot tlle 'ordinance, did not protect' complainant in the erection,oUhe pilingll;;or other ou,tside the wharf Une ot'theoity. & NAVIGABLE W .Oil' COUBTll-INroNCTION., · ' · '.'. " The MiSsissippi rivel",being a navij1;able Btream, is within the exclusive' Control , of congress, and neither the city of New Orleans nor the' state of Louisl.8.na,C8Il authorize any obstrlwtion of its navigl1otjOJl; .:nor can tile courts extend tbe, , so as to protect complainant in, the 'erebtion of strUcture,B outside th" wlial'f line ,of the city. " ' ,
, ,:BiV ordinance of th,e cit:v of New Orleans, the right was conferred on complainant , railroad company to inclolleand occuPY * * * that portion of the levee. batture, and wharves in the city in front of itB riparian ,property, acquired or to be !'l"l.uiied, between certain s,treets, ",nq to erect and maintaintllere\lu Buch ferry facIlitieB, wharves, piers, warehouses, tracks, depotB, eto., as Bhould be necessary and convenient for the transfer'of carB, engineB, passengers,and freight, and in the traIiBQf its business. , Held, that the right to erect. t1:lese improvements .con· fined to BO much of the levee and wharf 9f tile city lW lay in front of 'tlJEl riparian property of the complainant, and didnQt extend beyQndthe wharf line; and. the QrdinaD,(l6did nC?t authprize :the placing o,f ,piles, or any QtherBtructure" ontsido of the line of the Clty wharf. ' ' ,
InEquity. ,'" Howe & Prentiss, for complainant. <brleton Hoot, for defendllllt. '
The questions now to be decided arise, upon the motion KIf ,the defendantto ,modify or construe the scope and effect of an injunction I !pendente. lite, heretofore granted'in this cause, and:npon of :complainant to' grant an: ,additional injunction pendente lite., .Each illOtion is supported by affidavits., The supplemental and ,bill upon which the injunction pendente lite was graAted, which it ill ;asked shall be continUed and modified, in substance alleges that " virtue ofeertain ,OrdinanceS, made and promulgated by the ,eoup.<lil of the '. ,the & Pacific RaiLwaYiComr' paDj; pfwbich the is the successor,' waa,a,uthol'ized and em- " under certain conditions therein stated, itLElStabliilb: 811dmain,1aint fi?rits use andl.beuefit, upon the nver; front Of the: Mississippi ,nverjiwith,in"theco,rp()Jfl4ielimite of said oity,iaq.d within
scribed liniits, all necessary ferry facilities, wharves, piers, warehouses, elevators, yards, tracks, depots, stations, sheds, and other structures as shall be necessary and convenient for transfer of cars, engines, passengers, and freights, .and in. the transaction of its· business. That the complainantwtlsproceeding to construct the improvements and facilities au, thorized by'said ordinances,when the mayor of said city placed upon said works, so being about to be erected, a policeman, to prevent the same from being done, and threatened to prevent by force the prosecution and completion of the wl)rkand stru(ltures necessary for the convenience and use of said complainant, and authorized by said ordinance. The restraining. order made by the district judge, and afterwards ordered by the circuit judge to stand as an injunction pendente lite, is in substance as follows: :r'hat saip. city of New Orleans, its mayor, agent!'!, servants, and employes, are commanded and strictly enjoined, under the penalty of the law, from interfering with the 'rexas & Pacific Railway Company ,'or 'its 'feceivers in the exercise or any of the rights granted to the New Orleiuis, Texas & PaCific; Railway Company, and its assigns the:said : Texas & pacific by the ordinances set forth in the bill herein,as ordinances Nos. 67,32, 6938, and. 7946, administration serie['j,copies of which are filed herein, and from executing the ordil1ances Nos. 685 and 1828, council series,and from granting to any other person or corporation the rights attempted to be taken away or impaired by said ordinances Nos. 685 and 1828, council series, and from interfering in'an,y way, whether 'by the policemen or otherwise, with tbe',said Texas & Pacific Railway Company, or its asSigns, in the work of building a spur track to connect the track above thetransfer inclosure .het\Veen Ihaliaal)d Terpsichore streets, on which the track ofsaid railway is nowlaid inPelia and Water streets, and along the river front, as dein. the Exhibit P, part of the ,supplemental bill, in any wise, with the work of driving piles so as to reach said wharf of the railway with said spur and track, whether b)' policemen or otherwise, and from in any way hindering or delaying any work provided for in said ordinances Nos. 6690, 6732,6938, and 7646, administration series. It is alleged and proventhat the complainant has driven clusters ofpHes, some 25 feet out from the end of the incline track, and from the wharf Hne: 'into the river, for the pui-poseof staying or holding the transfer steam-boat in its place, and that planks are nailed to these piles, which. itiisalleged 'by defendant, diverts the stream or current in the riverfrom the hank on the east side to the opposite side, and thereby causes an eddy in· tront of the levee and Wharves, both above and below these pilings , outside the wharf line, resulting in the formation of shoals, and leaving ,,the 'water so shallow as to prevent vessels from approaching the wharves, tu.ld discharging and receiving freights, and which, if continued to re· . 'n1ftin,will injure or ruin the wharves of the city. It is insisted on the , pai't, of the cotnplainantthatthe clusters of piles complained of, though . notspeoifically· mentioned in· the ordinance or in the inj unction, are impliedly embraced therein; for the reason that they are necessary to the enjoymentoHhe righis, and privilegeSspecifieally granted; that these
TEXAS &I P. RY. CO. V. CITY OF NEW ORLEANS.
clusters of piles are necessary to enable the transfer vessel to land at the end of the incline track, and to hold it in position; that without them there will be great danger in making the proper connection between the end of the incline track and the track on the transfer vessel, and for the want of which there wiII be great danger of the cars being thrown in the river, and ofloss of life and property. There have been a large number of affidavits read on both sides to prove and disprove the respecti ve positions stated, all of which have been carefully read by me, but which, under the viewI take of the questions arising upon motions before the court, are irreleval1t, and need not be considered. The only questions presented are-JiTirst, was the right conferred upon the complainant to place these piles outside the wharf line conferred upon the complainant by either of the ordinances referred to in the bill ?alld, secoruily,if 80, is the complainant protected in placing and maintaining them there, by the pendente lite injunction granted heretofore, and which the courUs asked to modify. Section 4 of ordinance No. 6938, administration series, under which it is claimed the authority is conferred to erect and mllintain these structures, etc., irlcluding those of which f:ompl8,int is made, reads as follows: ;' "That the New Orleans Paci.fic Railway Company. its successors and assigns. shall have the and the same is hereby conferred, for the term of its charter, and from and after the existing leases of city wharves, to inclose and occupy .for its uses and purposes that portion of the levee, batture, and wharves in the city of New Orleans in front of its riparian property, acquired or to be acquired between Thalia and Terpsichore streets, and to erect and maintain thereon. at its own expense, such feny facilities, wharves, piers, warehouses, elevators, yards, tracks, depots, stations, sheds, andtlther structures as shall be necessaryand convenient for the transfer of cars, engines, passengers, and freight. and in the transaction of its business." By reference to the provisions of the above ordinance, it will be seen thaOhe right to erect these improvements and structures is confined to so much of the levee, batture, and wharf of the city as lay in front of the riparian property then acquired, or thereafter to be acquired, by the New Orleans Pacific Railway Company, its successors or assigns, between Thalia .and Terpsichore streets, and did not extend beyond the wharfline as fixed by the authority of the city, and existing at that time, and such extension of the wharf line as thereafter might be established. By reference to the injunction pendente lite, it will be seen that the complainant is only protected in the erection and maintenance of such structures, etc., as it was authorized to erect and maintain under the authority conferred by the ordinances of the city mentioned in the injunction, and no other. I am therefore satisfied that these ordinances do not authorize the placing of the piles or any other structure ou'tside of the line of the city Wharf, and that the obstruction complained of was not intended to be, and is not, protected by the injunction pendente lite, and that no modification of itis necessary. . The next question is, has this court the power to extend the injunction so as to protect the complainant in the erection and maintenance of theBe or any other pilings or structures outside of the wharf line of the v.40F .no.3-8
city? '1'he Mississippi river it:l one of the principal navigable streams in the United States, and, as such, is within the exclusive control of the congress ,of the United Siatesj being the case, neither the city of New Orleans nor the state of Loujsiana can authorize any obstruction that will, j,J;lterfere with its navigation. In aid of navigation and commerce, congress authorizes cities and towns and other corporate bodies, and sometimes individuals, to erect l:l.nd maintain levees and warehouses, etc.· on, the banks of navigable streams, and, in aid of commerce and transportation, authorizes the construction of bridges over navigable , streams, tinder such restrictions as will not hinder or delay the navigation on such rivers. But this power is invested in congress, the lawmaking power, and not in the CQurts, the judicial department of the government.Therefore the motion of. complainant to extenlj the injunction must he denied. A decree will be entered in accordance with the above ' conclusions.,
, ' (t:lJrcu:u' Oourt, D. ()reu0n.
. The Act Oong. Feb: 25,1867,'(14 St. 400,) granted to the state of Oregon lands to aid In the construction'of, a,military,wagon l'OlllHrom Dalles Cityto Fort Boise. Section
8, Of" the, a,ctproVi,'d, es"tha,t ',' said .rolldJtb"a\l,',l1e cO,nstru,c,ted w,ithsUOh,' wid,th" gJ':l!odation , and bridges as to permit Of Its regular use, as a wagon road, arid in: such special "matiner as the state 0.1' Oregon may prescribe." By an act passed October 20,1868, the.state'ofOregon transferred the grant totbeDalles Military Road CompanY,but prescri1;Mld no manner" for J)Qnst;l.'!qcting road. 'B:eld.,! that these two acts formed the Ellltire statutory colltraqt road company.!Jnd that the statute of Or. Oct. 14, 1&12; relative 'to the CoIlstrnctioh of roads by private'oorp<iratlotts, which had ,to this llpepiflc r,oadorgrant, did the question between tne United States and tlie road company as to whether, the !atter had constructed therclad In the manner and Within the'time as preaoribed by the act (If ';, s.copgresB.. ; h.;"",,' ',:,' being in either actreql1lrlng the roacl one claimr i ".' ing under it, to:tl),"ntain ,the road belln once complef,$land QCCepted ,by tpe governmEint in,accordance with provisions of the aUI,8uch <; i:' fraud as to vitiat6the acceptance, itllright to the lands agatnlit the Uulted States vested ir11lvooal,>ly non such acceptane:e.;' ,
.forfeit land!J the act,ofcongress,approved "An '!-ct;rPfPYlding in certain cases for the for,ifoad grants of Oregon." 25 St. 850. On ,portionEHlf the hiU fqriwpertinence. ,L. S. Atty, , .and W.o.. John80'fI" for plaintiff. :Jl1IlMlf:IC KeUy" a. S. Wa,rd,and, «. Bellinger, for,defendants.
i it '
,'i J .. 'The first paragraph of the bill sets ont the suhstance of the actofcppgress passed February 25, 1867, entitled" An act ,grantinf 'lands 4Uhast!lote of Oregon, to a:idinthe conatnlCtion ofa military ,WIlgM,l.9I1d ,fJ;om ,on to Fort:: Boise;, on
UNITED STATES fJ. DALLES MILITARY ROAD CO.
the Snake river," found in 14 U. S. St. 409.. The second paragraph in like manner sets out the substance of the statute of Oregon, passed ber 20, 1868, entitled "An act donating certain lands to Dalles Military Road Company," found in the statutes of Oregon for 1868, p. 3. Notwithstanding these allegations in the second paragraph it is alleged in the third, "that the state of Oregon never, at any time, passed any laws whatsoever, for the specific purpose of carrying the act of congress into effect," meaning only, it must be presumed, in view of the preceding allegations of the bill, that it never passed any law other than that set out, or any law prescribing any" other special manner" ofconstructing the road than that prescribed in the said act of congress, as it was authorized to do by section 3 of that act. The bill then proceeds to aver: "But long before the passage of the act of congress" the state legislature did pass "An act providing for private corporations, and the appropriation of private property therefor," which act provided, that any road constructed by such corporation, should be constructed in a certain manner, of a certain width, etc., fully described in the act; also, for bridging and ferrying streams, with many other particulars, and that said act has been in force, at all times, since its passage on October 14, 1862. This passage is excepted 'to as impertinent, the said statute being, as contended, inapplicable, and having no relation to the road as constructed, or required to be constructed by defendant-the Dalles Company, under and in pursuance of the congressional grant to the state of Oregon, and the statute of Oregon, set out in the· bill transferring the said grant to the Dalles Company upon the same "conditions and limitations" as in the act of congress prescribed, and no others_ I am satisfied, that this exception must be sustained. Section 3 of the act of congress provides, "that said road shall be constructed with such width, gradation, and bridges, as to permit of its regular use as a wagon road, and in such special manner, as the state of Oregon may prescribe." Congress was providing for the construction of this particular road, and made no reference to any other does not say, in "such road, or to any existing statute of Oregon. special maner," as the statutes of Oregon have heretofore provided '"for roads constructed under its authority and laws," or "in such 'special manner' as the laws of Oregon now provide for the construction of roads, toll or otherwise, by corporations or private parties," but in such other "special manner, as the state of Oregon may prescribe." That is to say, may hereafter prescribe, when regranting the lands to ail! in the construction of the road, or in hereafter, contracting with parties to construct the road, either for the lands, or for a money consideration, to be Wid in whole, or in part, out of the proceeds of the lands. The act of congress, evidently, contemplates future, not past action-such "other special manner" as the state rnn,y prescribe for this particular road-not such as it has already, heretofore prescribed for other roads, toll or otherwise. This is the only limitation prescribed by congress in thia particular. Upon examining the statute of Oregon, transferring the congressional granUo the Dalles Military Road Comp.any, it will be seen that ;no "spe-
ciitlmanner" of constructing the road was therein prescribed, and the Dalles Company was not limited to any description of road to be constructed, other than that found in the act of congress itself. The statute is a special, independent act, limited to the very object named in and contemplated by the act of congress,and referring to no other road or object. In the pream ble it recites the act of congress verbatim in full, and then provides "that there is hereby granted to Dalles Military Road Company incorporated * * * all lands, right of way, rights. privileges and immunities heretofore granted or pledged to this state by the act of congress in this act heretofore recited, for the purpose of aiding said company in constructing the road mentioned and described in said act of congress, upon the conditions and limitatiDns therein prescribed." Laws 1868, p. 5. There is no reference to any prior statute of Oregon, and no description at all of the road to be constructed by the defendant; no "special manner" prescribed, nothing except the description in the act of congress itself. Itsimply adopts the provisions of that statute, and by. that act the rights of the Dalles Company, so far As.governing the land grant under the act of congress is concerned, are entitled to be judged. This is special legislation .relating to a single specific subject-fnatter, and we are not·toimport into it other conditions which the legislature has itself omitted to incorporate. As the state of Oregon, in transferring the congressional grant oOand to the defendant, in consideration of its building the road, did not prescribe any" special manner" in which it should be built, or any manner other than that prescribed by congress itself, when the conditions prescribed by the act of oongress were performed within the time limited, the right to the lands became fU,lly and irrevocably vested. The terms of the statutory contract between the state and the Dalles Company are found in the two acts-the· act 'of congress granting the lands to the state .on the conditions alone prescribed in it, and the state act in express terms granting them to the Dalles Company upon conditions and limitations, no others having been inprecisely serted. The act of the state of Oregon without other conditions therein than those prescribed in the act of congress, operated as a transfer or assignment to the com pany of the congressional grant without restriction, and it was only necessary for the company to perform those conditions, in' order to become entitled to the lands. Prior legislation, therefore, upon a subject-matter, having no reference to this specific road, or this speeifie land grant, cannot affect the question between the United States and these ,defendants as to whether the road was constructed by the Dalles Company in the manner and within. the time prescribed in the act of congress, and the statute of Oregon strictly following the provisions of the act of congress, without prescribing any future conditions. It may have been necessary for, the Dalles Company to perform conditions enjoined by the statutes of Oregon, other than those prescribed by the now in question, in order to entitle if to enjoy. other rights under other laws of Oregon. But if so, those conditions, and the independent rights Rcquired by their performance, are wholly outside of and foreign to, this investigation, and witll wqichw'e.now have no concern. Our in-
UNITED STATESV. DALLES MILITARY ROAD CO.
quiry is limited to the requirements of the statutory contract set out. The first exception must, therefore, be sustained, the matter excepted to being impertinent to this inquiry. The next exception is to the allegation relating to maintaining the road after construction, in case it was constructed in accordance with the act. The allegation is that the road "was not and never has been maintained as a public highway by either or any of the defendants herein, or any person or persons claiming any interest in the lands embracl:1d within the limits provided for by the said act of congress." And the other exceptions all relate to similar allegations as to "maintaining the road" after not to a failure to construct the road in accordance with the It is contended· that these allegations are impertinent, because the defendants, under the terms of the contract, embodied in the act of and the act of the legislature of the state of Oregon, set out in the bill, were not under any obligation to maintain the road after it 'had been once constructed in accordance with the terms of the contract. And this view appears to me to be correct, so far as the vesting of the right of the defendant to the lands is concerned. lean find l)othing in either .act that requires the Dalles or anybody holding under it, to 111aintain the road; after it has been once completed, in accordance with th,e terms of the statutory 'contract, and been approved and accepted by the government, through its agent, for that purpoile duly appointed by the statute and contract, the parties acting in good faith, aod there being no, such fraud as should vitiate such approval and acceptance. The lands were granted in the words Qf the statute, "to aid in the construction" of the road. "The lands hereby granted shall be exclusively applied to the .construction. of said road, and to no other purpose." After. the com pletion of 10 miles a quantity of land "not to exceed 30 sections, maybe spld, and so on from time to time until said road shall be completed." 'There is nothing said in eitner act about maintaining the road after. its .completion. When the road has been completed,honestly approved, anQ accepted in accordance with the provisions of these two statutes, the contract has been fully executed on the part of the Dalles Company, and the contract having been fully performed, its right to the lands has irrevocably vested. The grant is in prt£8enti and there is no provision for forfeiture in case the road is not afterwards maintained. It is provided that if the road not "completed" within the time prescribed, no mora lands shall be sold and those "unsold shall revert to the United States." But no provision is made for their forfeiture for ,not maintaining the road after completed. The contracting party, after· completing the road in pursuance of the terms of the statute, might then abandon it and leave it to the state or the government, or whoever else may have an interest in it, either to tKe care of it or allow it to, go to destruction, so far as any rights or liabilities under these two statutes are concerned. As well J1light one who has contracted with a builder for the erection of It house. upon certain specifications for a specified price, atter the completion of t.he structure'is accordance with the contract, and acceptance of the house require the builder to eve, Mter maintain it in rcepair. .,