TJaAS &' P. RY. 00. 11. INTERSTATE TRANSP.
& P. Ry. Co. v.
(Circuit Court, E. D. Louisf.ana. May 18, 1890.)
NAVIGA.BLE W A.TERS-BRIDGE-INJUNCTION.
In a suit to restrain defendant from passing its tow-boats through the draw of plaintiff's bridge, at high water, with more than two barges in tow, it appeared that the at the eastern end consisted of wooden piles, and that there was no protection of any kind to prevent boats from colliding with the piles, or, in case of high water, with the bridge itself. The pier on which the draw turned was also unprotected. Complainant did not object to the use of the western draw, as the bridge-seat at that end was built on caissons, and was protected with iron pieces. Defendant introduced affidavits of 13 men experienced in the navigation of the . river that the bridge could be completely protected by lines of piling outside the pier and bridge-seat. Complainant's manager and engineer made affidavit that this would cause too great a pressure of water on the bridge, injure the channel,ete. It also appeared that in all the years defendant had navigated the river its boats had caused but a single accident to the bridge, and then the damage was slight. Helll,'that complainant failed to show either that its bridge was properly constructed, or that defel).dant's navigation of. the river was dangerous to the bridge, and that the injunctiO'D would be denied.
In Equity. On motion for injunction pendente lite. Suit by the Texas & Pacific Railway Company to restrain the Interstate Transportation Company from taking a, larger tow than two barges through the draw of complainant's bridge, at high water. Howe & P.rentiss, CW. W. Howe, of counsel,) for complainant. J. D. Hornor, for defendant. '
PARDEE, J. Assuming that the case made by'the bill is one that is within' the jurisdiction of this court sitting as a court of equity, and presents a case for equitable relief, still it appears on this hearing that two important facts, incumbent upon the complainant to establish, are left in doubt, if not actually disproved, to-wit: That the complainant's bridge is properly constructed and guarded so as to interfere as little as possible with the free and safe navigation of the Atchafalaya river; and that the actual navigation by the defendant of the said. river, with its tow-boats and barges in each tow to the number of six, is dangerous to the safety of the bridge. It appe.ars that the bridge-seat at the eastern end of the bridge is ctmstructed of wooden piles driven in the river, and that there is no protection, by way of outer piling and guards, to prevent any steam-boat or tow from colliding directly with these wooden supports of the bridge, and, when the river is very high, with the bridge itself; and that the pier in the middle of the stream, on which ·the bridge turns, is also unprotected with sufficient piles and guards. Defendant produces 13 affidavits of experienced men in the steam-boat business, generally engaged in, and familiar with, the navigation of the Atchafalaya'river, to the effect that the bridge is not a suitable bridge for the purpose for which it is intended, by reason of the fact that, to be properly constructed and protected, it should have a line of piling from the outside upper corner of the eastern bridge-seat runningdiagonally up the river to the shore, which should be planked; and that the same precaution should be taken with the pier on which the bridge turns
in the middle of the stream, which would then make a funnel through which of-all kinds could pass witbfimt injury to themselves 'or the said bridge;'and that if such precautions were taken it would insure perfect. protection.to the hridge itself and make navigation .absolutely safe. The complainant meets this point :with an affi,·cla,v:it of #rant, g(3Jileral of the complaining company, a civil engineer of well"establishedreputation, to the effect that the pl!ln pi" prote¢ting the bridge by tB4:!, piling described is impracticable in the ,Atchafalaya river and, similar 'streams; that it is not adopted at Morgan City bridge; that the effect of it would be to press the current against its curves, and destroy it,or push it over; that it would injure bank up the water, ap.dcreate eddies; also cause the 'water to eat out and undermine the supports, not only of such works, blit ,'of the bridge itself. Of cottrae, this is a matter upon which the court has no expert knowledge, and can only be governed by the showing nlade by the parties. 'The weight of evidetlce on this showing is against the complainant company. The affidavit of Vice-President and General Manager Grant, which is the main support of the complainant's case; captains this "Deponent furthpf states. that while the tows of defendant mijtht pass through the western side of the draw, which has il'On pieces on both sides, with safety to the bridge, they insist on passing through the eastern side of the draw. where, on the eastern side thereof, the bridge-seat is of wood." to the court that there Counsel for complainant, on the was no objection whatever to the use of the west side of the draw, as there was no danger to be apprehended from such use, no matter how many barges the defendant's tugs might undertake to tow through. An inspection of -the drawings of the bridge presented by. the defendant .shows that the west bridge-seat is built upon caiSS01)S, which are apparently strongly made and well founded, and fully able to withstand collision with any tow of coal-barges. It would seem from these facts that the objection made by the defendant to the construction of ,the is well founded. If it is impracticable, for the ,bridge as General Manager Grant, for the complainant to put reasons qut the pilings and guards mentioned in defendant's affidavits as necessary for the protection ,of the eastern end of the bridge, it would seem that to hinder, except, perhaps, expense, putting the bridge:slJat on as substantial a foundation as· the western, to-wit, on caissons, with iron pieces on both sides; in other wordfl,:if the west-: ern bridge-seat" on caissons with iron pieces on both sides,. properly and is strong enough, as is admitted, to resist collisions from tows lfj* any number of boats, why should not the eastern bridge-seat, in ;fbe .interest of navigation and with a view to obstruct the strealll as littlpas construGted in the same way? presented by the defendants-all, ,as stated above, by , men in the steam-boat business, generally engaged in, and familiar with. the !favigation of the AtGhafalaya, river-are io the further
TEXAS &: ,l'.'RY. CO. fl·. INTERSTATE TBANSP. 00.
effect that there is actually no danger to the complainant's bridge from the towing of defendant's barges in the usual manner through the said draw; that it has been continously done since the construction of the bridge, and during the yearly high-water in the river, without accident of any kind to the bridge, with the single exception stated in complainant's bill, which exception did not inflict any material injury on the bridge, and generally without accident to the boats and barges towed through. The complainant's affidavits, on the same point, (two in number,) state' apprehensions largely, and, outside of the fact that one barge did slightly, collide with the bridge-seat, do not set forth specific facts. The claim made in the bill, and in General Manager Grant's affidavit, "that the dangerof taking three barges through at the present extraordinary stage of high water is generally enhanced by the width of the tow combined with its length. The current of the Atchafalaya river at that point is of great velocity, much more than that of the Mississippi river. It is a torrent, and full of eddies. If a tow of three barges is diverted, asit is apt to be, from a direction parallel with the stream, the danger of striking the excessive, and at high the impact would be on the upper portiqn of the bridge or when the liability of the injury is excessive,"-:",is fuIlymet by defendant's affidavits to the effect that such swinging of the entire tow in a direction across the opening of the bridge, tending to strike and break said bridge, is highly improbable and hardly possible, as the boats of the defendant company are in the habit of running a stern line to the shore, and there fastening it, which makes it impossiblefor the tow to swing. In, fact the case is so left, on the showing made, that the court cannot say tha,t it is actually dangerous to the safety of complainll.nt's bridge that the defendant should tow through, at the present stage of high water, any number of barges in one tow up to the number of six. It also appears, by the affidavits presented by the defendant, that the insurance companies taking risks upon the boats and barges towed through the complainant's bridge approve of the number of barges. towed by the defendant, provided they do not exceed three coal-boats or more than six coal barges at anyone time; and this, notwithstanding the ,character of the bridge, with the extremely high water, and the rapidity of the current. On the whole case, I am of the opinion that the asked for should be refused, and the restraining order heretofore granted should be dissolved, and it, is so ordered.
CARPENTER". UNITED STATES.
(Circuit OOl,trt, 8.1).
April 8, 1890.}
In an action by a governmant oMber against the United States for indemnity against bis iiability for damages'(fortbe seizure of a flat-boat, if it be viewed as , .sounding in tort, l;tdemurrer to tb,e will be sustained under Act Congo Maroh 8, '1887, O. 859, § 1, aotions 'of tort from the jurisdiction of the court. 2.. SAME-Ex CONTRAOTU-LIMITATIONS, . If the action be considered 68 on implied assnmpsit, tbe demurrer will still be sustained, under subdivision 2 of same section, limiting tbe bringing of such suits .. to six years af1;erri"ht accrued,where it appears that the seizure was made more tbansix years !lefore suit brought, 68 the liability of the United States accrued then, and not when the owner of the boat recovered damages against plaintiff.
CLAIMS AGAINST. UJ;'ITED
'John W. Herron, for defendant.
. Bateman & Harper, for plaintiff.
SAGE, J. If this case is to be considered as sounding in tort, the demurter to the petition must be .sustained for the reason that the act of March 3. 1887, under which it ill brought, excludes from the jurisdiction ofthe court cases sounding in tort. If it is to be considered as an actioll upon an implied assmnpsit, the demurrer must be sustained for the reason that the right accrued in 1873, and this action was brought in 1889, whereas the act of March 3, 1887, make:; it a condition precedent to the right to sue that the action shall be brought within six after the right accrued for which the claim is made. It is true thil.tthepetition alleges the material facts of the action hrought by the Owner of the flat-boat against the plaintiff, and a notification to the United States attorney in the city of Pittsburgh,and the further fact that assumed the defense of said suit. It is also alleged that Col. Merrill, the pllflntiff's superior officer, was by him notified of said suit. The petition sets forth, also, that a judgment was rec,overed against the plaintiff, which he was to and did pay on the .6th day of 1886, which was within six years of this suit. But, if we are to treat the suit as upon an implied assumpsit, the cla.im accrued against the United States when its officer took possession of and used the flat-boat, in 1873, and was not postponed until 1886, ,vhen the plaintiff was compelled to pay the claim made against him. The owner of the flat-boat looked, as he had a right to do, to the plaintiff. The plaintiff had the right either to treat the taking of the boat by the government officer as tortious, and sue him individually, or, waiving the tort, make his claim against the government for the use of the flat-boat. The right of the plaintiff to assert his claim for that use did not depend upon the recovery against him by the owner of the flat-boat. The case is a hard one, but the plaintiff's only means of redress is through an appeal to congress. The demurrer is sustained, and the petition will be dismissed.