OITY OJl' PORTLAND
OREGONIAN RY. 00.
CITY OF PORTLAND V. OREGONIAN
(Circuit Court, D. Oregon. March 22, 1881.) 1.
Upon the removal of a cause to 8 circuit conrt, the same hal power, before the first day of its next term. to allow or modify an injunction.
Where a Buitfor injunction turns wholly upon the validity of an act of the legi;llature granting the defendant the exclusive right to , the use of certain property, to aid in the construction and operation of its railway, which is claimed by the plaintiff as a public levee or landing, and the use of such property, in a way not materially in conflict with any use to which it is being put, is of great advantage to the defendant, an injunction restraining it from such use. will be modified accordingly; and, in the consideration of the matter, weight will be given to the presumption that an act of the legislature is valid, and that the defendant is engaged in '8 pUblic enterprise bl which the public is interested. .
Upon the modification of an injunction the court may require, a condition of such modification, that the defendant give 8, bond to secure the plaintiff against any injury which may result to it from the same, or to perform the final decree concerning the same.
Julius a. Moreland, for plaintiff. Ellis G. Hughes, for'defendant. DEADY, D. J. At the last session (1880) of the legislative assembly, an act was passed granting the defendant,-the Oregonian Railway Company, limited,-among other things, the use of the triangular-shaped piece of ground lying between the east line of blocks 112 and 113 of the city of Portland and the east bank of the Wallamet river, the same being, as appears from the map, about 520 feet long and 50 feet wide at the Bouth end and 300 feet at the north end, and known as the "Public Levee," and dedicated to public use as a levee by a map and ordinance of the plaintiff-the city of Portlanu-recorded March 6, 1869, "to be held, used, and enjoyed for occupation by track, side-track, water stations, depot buildings, wharves, and warehouses," and such other "erections" as may be found necessary or convenient in the v.6,no.4-21
shipping and storing of freight under the exclusive control of the Qwners of the railway then being constructed by the defendant from Portland to the head of the Wallamet valley; with a proviso, that the defendant should not sell or assign the premises otherwise than as an appurtenance to said railway, and that said grant shall be forfeited if said railway is not completed to the said 'premises before January 1, 1882; saving to the plaintiff "any pecuniary or property rights" whjchit.may have in said p.remises "asa municipal corpora,tion, and which the state may not lawfully appropriate in this act." 'In pursuance of this act the defendant entered upon the premises and commeneed to prepare the grouI1d for the uses speeified in the act. The plaintiff, claiming the act of the legislature to be in excess of its power, and therefore void, on January 31, 1881,commenced a suit in the state circuit court for this county, perpetually to enjoin the defendant from occupying or using the premises thereunder, and on the same day obtained an ex parte order for a temporary injunction, restraining the defendant as prayed for in the bill, which was served on February 2d, thereafter. Afterwards, on February 17th, the suit, on the petition of the defendant, was removed to this court, and the transcript filed herein on February 25th. On March 17th, the defendant filed a petition asking that the injunction heretofore granted be modified so as to allow it the use of the premises for a track and side tracks, to facilitate the construction of its road from Portland to the point where it will conneet with the junction of the sections thereof already constructed between a point in Marion county and Brownsville, Linn county, on the east side of the Wallamet river, and Dayton and Sheridan and Dallas, on the west side, stating that it is the owner of the east part of block 71, lying immediately north of said levee, and has a wharf thereon for the loading and unloading of sea-going vessels; that the iron for constructing said railway must be imported in such vessels, and that if allowed the use of the levee as aforesaid, in connection with said block 71 and wharf thereon, it can receive and forward said iron at a great sav-
CITY OF PORTLAND V. OREGONIAN RY. CO.
ing of tiJIle and expense; that no use is now being made of said levee, and that a track can, be laid across it without interfering with the use of it as a levee, and without materially affecting the surface of the ground. On March 21st, the plaintiff showed cause against the application by the affidavit of its clerk, and the matter was .argued by counsel. There is no doubt of the power of the court to grant this, petition at this stage of the proceedings; for, although the cause is not for trial or hearing in this court until the first day of the next term,-the second Monday in April,-yet it is in this court from the date of the removal, and such conserva;' tory acts as the allowance or modification of an injunction may be had therein at any time thereafter. Mahoney Min. ing Co. v. Bennett, 4 Sawy. 289; New Orleans City R. Co. v. Crescent City R. Co. 5 FED. REP. 160.- The final determination of this case will turn upon the validity of the legislative act granting the use of the premises to the defendant. The presumption is in favor of the validity of the act, and at this stage of the litigation this presumption ought to have weight. At least it will not do to assume that the act is invalid, but only that it may be so. There are no particular equities in the bill which the defendant must answer before it is entitled to a modification of this injunction. At best, it is only a suit to try the title of the defendant to property which is claimed to be subject to a public easement, and a preliminary injunction is only allowed to preserve the property for such use, in case it is determined that the defendant has no title thereto. Therefore the defendant ought not to be any further restrained, until the invalidity of its title is determined, than is necessary to preserve the property for the purpose to which the plaintiff claims it is devoted. The property is an unimproved piece of ground, of which no practical use has ever been made as a public levee or landing, and probably never will be, until it is improved by the erection of wharves and warehouses thereon. The business of loading and unloading vessels is not done in this country upon open qQays or
*See, also, In the Ry. Go., 4 FED. REP. 10.
of the Petition of the BaJ'nesville
mud banks. The use of the property for laying and operating a track and side track thereon during the pendency of suit, so as to enable the defendant to connect the construction of its road by rail with its wharf on block 71 aforesaid, and complete it in time to prevent a forfeiture of the grant, will work no possible harm to the plaintiff or public, and may be of much benefit to the defendant; for it seems that by the act the defendant must complete its road "to the said premises," or place "erections" thereon of th'1 value of $10,000, before January 1, 1882, or the grant is forfeited. On account of this injunction it cannot place the" erections" on the property, and, unless it is modified as suggested, it may not be Itble to comply with the other condition. Indeed, there is but little relLson for a preliminary injunction in this case at all. As has been said, the public is making no use of the property as a levee or otherwise, and cannot until it is improved; and if the defendant was even permitted to go on and build a depot thereon, as well as a track and side tracks, what harm would result to the plaintiff from it? If the final determination is against the defendant, it may be compelled to remove them, (0. S. U. 00. v. V. et G. H. W.Oo. 1 Sawy. 482;) or, what is more likely, the plaintiff may keep the improvements as a part of its property and thereby gain what the other loses. Nor is there any suggestion that the defendant is insolvent, and unable to respond in damages for any injury it may cause to the property of the plaintiff. If this were a public levee or landing in fact as well as name, and the defendant was materially interfering with the public use of the premises by its proposed "erections" and "constructions," there would be ground for restraining it until its right to do so was finally determined. But, as it is, there is no public use to be disturbed, and the actual controversy is confined to the right of the defenda,nt to the exclusive use of the premises; and their use by it in the meantime, in such a way as to cause no injury thereto, and at least not to materially interfere with the public use, if any, ought not to be restrained. Again, in the consideration of this question, it ought not
OITY OF PORTLAND V. OREGONIAN RY. CO.
to be forgotten that the speedy construotion of the defend· ant's railway to a deep-water landing in this city is a public enterprise in which the public is interested. As such, the legislature has undertaken to encourage and'promote its com· pletion at an early day. On this consideration alone a court will be careful, in the exercise of the power of injunction before final decree, not needlessly or lightly to interfere with the progress of such an enterprise, or by delaying or impeding its construction for a season, deprive the community of the benefits that may be derived from it. Besides, the court has authority, in the exercise of this power, to take security against any injury which the plaintiff may sustain by reason of the acts permitted to the defendant. N. P. R. Co. v. St. P., M. ct M. Ry. Co. 4 FED. REP. 692. Let the injunction be modified so as to permit the defendant to construct and operate a track and side tracks over and upon the premises during the pendency of this suit; it first giving bond in the penal sum of $5,000, with one or more sureties, to be taken and approved by the master of this court, conditioned that it will, upon the order of this court or upon the entry of a final decree in this suit against the right and claim of the defendant to the use of said premises under and by virtue of said legislative act, remove said track and side tracks from said premises, and leave the same in as good a condition for use as a public levee as they now are; or the defendant may deposit, in the registry of this court, United States bonds of the par value of $5,000 as a security for the performance of said acts.
and another v.
W ALLAl\IET IRoN
(Circuit Court, D. Oregon.
March 28, 1881.)
A suit arises out of a law of the United States when the controversy involved in it turns upon the proper construction or application of such law; and therefore a suit by the owner of ft, vessel authorized to engage in the coasting trade upon the Wallamet river, aud by riparian owners thereon, to enjoin the erection of a bridge over said river at Portland, as being in violation of the act of congress under which said vessel was enrolled and licensed, and the act of congress (11 St. 383) declaring said river a free and common highway, arises under said laws, whether the plaintiffs are entitled to the relief sought or not.
NAVIGABLE WA'l'ERS-CONTROL OF.
The power of congress to regulate commerce (Const. art. 1, § 8) includes, for the purposes of commerce, control of all the navigable waters of the United States which are accessible from a state, other than the one in which they lie; and, for this purpose, they are the waters of the nation, and subject to the legislation of congress in every particular affecting their navigability or use as instruments or means of commerce.
The state has the sale power to bridge the waters within its limits, but this power is subject to the power of congress to prevent obstructions to navigation being placed in such waters within the state, and accessible from without it i and therefore, in the absence of legislation by congress to the contrary, a state may dam or otherwise obstruct the navigable waters within its limits at pleasure.
CONGRESSIONAL ACTION-CONSTRUCTION OF.
The acts of congress authorizing a vessel to engage in the coasting trade within a state arc construed as not manifesting an intention upon the part of congress to interfere with the power of the state to obstruct the navigable waters within its limits, but only to authorize their navigation by such vessel for the purposes of such trade, so long as they are navigable.
The provision in section 2 of the act of February 14, 18,,9, (11 St. 383,) admitting Oregon into the Union, which declares that "·all the navigable waters of said state shall be common highways and forever free" to all the citizens of the United States, is paramount to a law of the state authorizing a bridge to be erected across the Wallamet river; and therefore, if such bridge as proposed to be constructed will materially impede or obstruct the free navigation of said river, it is unlawful, and the parties constructing it may be enjoined at the suit of r:parian owners injureLl
WALLAMET IRON BRIDGE 00.
A preliminary injunction granted to restrain the building of 8 bridge over the Wallamet, with a draw of only100 feet on either side of the pivot pier, under the authority of an act of the state legislature authorizing the bUilding of such bridge, with a good and sufficient draw of not less than 100 feet, upon evidence showing that such 8 bridge would materially obstruct the navigation of the river, because said act did not absolutely authorize a bridge with a draw of only 100 feet, and if it did it was in conflict with the act of congress of Febru.ary 14,1859, supra, declaring the river a free and common highway, and therefore it is void.
Suit in Equity for an Injunction. Motion for preliminary injunction. Todd Bingham, E. C. Bronaugh, and Edward Bingham, for plaintiffs. H. Y. Thompson and George H. Durham, for defendant. DEADY, D. J. On October 18, 1878, the legislature of Oregon passed an act authorizing the "Portland Bridge Company," a corporation incorporated under the laws of Oregon, "or its assigns," to build a bridge, "for all purposes of travel or commerce," across the Wallamet river between Portland and East Portland, "at such point or location on the banks of said river" as it might select, "on or above Morrison street, of said city of Portland:" "provided, that there shall be placed and maintained in said bridge a good and sufficient draw, of not less than 100 feet in the clear in width of a. passage-way, and so constructed and maintained as not to injuriously impede and obstruct the free navigation of said river, but so as to allow the easy and reasonable passage of vessels through said bridge." On July 16,1880, the defendant,-the Wallamet Iron Bridge Company,-as the assignee of said Portland Bridge Company, commenced the erection of a bridge across the river from the foot of Morrison street, in Portland, to N street, in East Portland. At this point the river is about 1,400 feet wide at extreme low water, with a depth of not less than 50 feet for 200 feet from the Morrisonstreet wharf along the line of the proposed bridge, whence it gradually shoals to 23 feet at a further distance of 250 feet. The river rises in the winter months from the rains, and in the spring is backed up by what is known as the June rise in
the Columbia. The highest water is 28 feet above low water, and during the past winter the rise was 21.6 above low water. The current in the ship channel along the line of the proposed bridge is nearly parallel with the direction of the opening between the piers, and varies in velocity from one to seven miles an hour, and at average high water is from three hour. During the winter months strong to four miles southerly winds blow down the river for days at a time. The abutment pier is to be placed at the bank in front of the Morrison-street wharf, and the spaces between the next five piers are as follows: The first, 180 feet; second, a space on either side of the draw-pier of 100 feet each; and then two spaces of 200 feet each. The piers are constructed by driving piles inside of wooden cribs, and filling the spaces between them with loose stone up to a little below low-water mark, and above with iron tubes filled with concrete, except the which is to be of masonry above loW' water. The is to be of spans are to be of wood, except the draw, iron. The lower chord is to be eight feet above high water. The five piers east of the western abutment are now above low water. On January 3d the plaintiffs filed their bill in this court to enjoin the defendant from constructing this bridge, on the ground that the same is and will be a serious and unlawful obstruction to the navigation of the river. Among other things, the bill alleges that Lownsdale is the owner of an interest in wharves and warehouses on blocks 73 and 74 of Portland, on the west bank of said river,-a distance of about 600 feet above the location of said bridge,-of the value of $10,000, and that the plaintiff Hatch is the lessee of the whole of said property for a term of years at a rent of $700 per month; that a large portion of the cpmmerce of the Wallamet valley has been done through and at said wharves and warehouses; that a large portion of the wheat raised in said valley has been received and stored there for shipment in seagoing vessels to foreign ports; that vessels carrying 2,000 tons can navigate the channel on the west side of the river for a distance of a mile above Morrison street, and therefore
HATCH V. WALLAMET IRON BRIDGE CO.
that bank is now occupied by wharves and warehouses en· gaged in the commerce of the Wallamet valley, and other portions of the. coast and Europe; that the space allowed for a draw in said bridge is too narrow to admit the passage of vessels with safety, and therefore they cannot and will ndt come to complainants' wharves to discharge and receive cargo, to their great and permanent injury; that the plaintiff Hatch is the owner of an enrolled and licensed steamboatthe A. A. McCully-which is employed in towing vessels to and from the wharves aforesaid upon the river aforesaid, and that the erection of said bridge with so narrow a draw-opening prevents the same from being done with safety, to his injury. It appears from the affidavit of C. H. Gorri! that he and his brother, R. W. Gorril, of California, are stockholders in the defendant corpora tion, and are engaged as contractors in the construction of the bridge; that they are to receive $150,000 for the work, and are under bonds in the sum of $20,000 to complete the same by April 1, 1882; that they have expended on the work $50,000, including the purchase and of the timber and lumber for seven of the eight spans, and all the iron for the same, and that if not restrained by this court they will complete the bridge by June 1st. Section 1 of the act of March 3, 1875, (18 St. 470,) which, among other things, gives this court jurisdiction of a suit in equity arising under a law of the United States, includes this. case. Congress has power "to regulate commerce with foreign nations and among the several states, "(Const. art. 1, § 8;) and this includes, for the purpose of commerce, the control of all the navigable waters of the United States which are accessi-· ble from a state other than that in which they lie. For this purpose they are the waters of the nation, and subject to the· legislation of congress in every particular affecting their navi. gability or use as instruments or means of commerce. Gibbons v. Ogden, 9 Wheat. 1; Penn. v. W. tt B. Bridge Co. 18How. 431; Gilman v. Philadelphia, 3 Wall. 724.
In pursuance of this power to regulate commerce congress has provided (title L of the Rev. St.) that certain vessels, when enrolled and licensed as required by law, shall have the right to engage in the coasting trade; that is, 'the trade upon the navigable waters of the United States. The plaintiff Hatch is the owner of a vessel so enrolled and licen sed for this district, and his contention is that this uridge will ali.d does prevent the enjoyment of this right, and therefore this suit arises out of a law of congress, as applied to the facts and circumstances of the case. Again, the act of congress of February 14,1859, (11 St.383,) admitting Oregon into the Union, provides (section 2) "that all the navigable waters of said state [Oregon] shall be com· mon highways and forever free, as well to the inhabitants of said state as to aU other citizens of the United States, without any tax, duty, toll, or impost therefor." Both the plaintiffs are riparian proprietors upon the stream over which this bridge is being built, and their contention is that it does and will obstruct the navigation of the river so as to prevent its _ being used as a common highway, to their injury as such proprietors, and therefore this suit arises out of a law of congress as applied to the facts and circumstances of the case: To sustain jurisdiction under this clause of the act of 1875, Bupra, it is not necessary to show or assume that the plaintiffs are entitled to the relief sOllght, but it is sufficient if the controversy turns upon or· grows out of the proper construction or application of these acts of congress, or either of them. The power to authorize the erection of a bridge over a navigable water of 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 authority directly, eo nomine; but its control over the navigable wa.ters of the states, 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 the law of congress concerning the navigation of the same; and the fact
HATCH V. WALLA'MET IRON BRIDGE CO.
thatsuch water is wholly within the state is immaterial, if it is accessible from another state, or forms a part of a navigable way between itself and other states. If, then, this bridge, in its construction or effect, is in conflict with either of these acts of congress, it is so far unlawful; and, if injurious in its operation to the rights of the plaintiffs, is a nuisance, and may be prevented or abated. But if it does not coutravene such law, then, however it may inconvenience or obstruct the navigation of the river, this court cannot interfere. The power of congress to regulate the navigation of the river does not execute itself; nor can this court enforce it until congress has declared its will on the subject. Until then the power is dormant, and the authority of the state is sufficient to justify any structure or obstruction that may be placed therein. In this case the defendant insists that it is building this bridge in pursuance of a law of the state, and that there is no law of congress upon the subject to the contrary, and therefore it is lawful. Does the law under which Hatch's steam-boat is authorized to engage in the coasting trade conflict with the act of the legislature authorizing this bridge? Upon the authorities I do not think it does. The supreme court seems to have been careful not to declare a conflict between state and federal legislation on this subject upon mere implication; and the reason of this is apparent. Congress can at any time declare specifically what shalt be a lawful bridge and what shall not; and as it belongs more properly to the political than the judicial power to determine such questions, the courts will not assume that a bridge is an unlawful obstruction because it incidentatly conflicts with or limits some right or privilege claimed or existing under an act of congress. A license to engage in -the coasting trade means Boiliething. As was' said by Mr. Justice 13wayne, in Gilman v. Philadelphia, supra, it "carries with it right and authority. 'Commerce among the states' does not stop at the state line. Coming from abroad it penetrates wherever it canfillll navigable waters reaching from without into the interior, and
may follow them up as far as navigation is practicable." And in Gibbons v. Ogden, sup'ra, it was held that a law of the state of New York, giving certain persons the exclusive right to navigate the waters of that state by vessels propelled by steam or fire, as against such license, was void. In this last case the law of the state was in direct conflict with that of congress. The latter said, in effect, to its licensee, "You are authorized to navigate the waters of New York with vessels propelled by steam," while the former said "You shall not do so," But in this case there is no necessary conflict between the law of the state and the United States. A license to engage in the coasting trade on the Wallamet river is a license to navigate only so far as it may be navigable. But if the state, in the exercise of its police power to build bridges, obstructs, or even destroys, the navigation of the river, the weight of authority, and, I think, of prudential reason, is that the act of congress licensing the plaintiff's steam-boat to navigate it is not thereby infringed. It is thought to be safer for the courts not to assume that congress intended to interfere with and restrain the power of the state over the navigability of the rivers within its jurisdiction until it says so directly or by necessary implication. Therefore, in the cases of Wilson v. Blackbird Creek Marsh Co. 2 Pet. 245; The Passaic Bridges, 3 Wall. 782; and Gilman v. Philadelphia, Id. 718, it was held that the enrollment and license acts which aut,horized vessels to navigate the waters of particular states were not sufficient to warrant the inference that congress thereby intended to interfere with the right of the states to dam or othewise obstruct the navigation of said waters. Does the act of February 14, 1859, supra, conflict with the act of the state legislature authorizing the erection of this bridge? This act, unlike the one providing for the enrollment and license of vessels, relates directly to the navigability of the waters within the state. Its only purpose is to preserve them for the free use of all the citizens of the United States as common highways. It was passed by congress in pursuance of its control over them as a means of commerce, (Pollard v. Hogan, 3 How. 229,) to secure their
HATCH V. WALLAMET IRON .BRIDGE CO.
free navigability to the inhabitants of the Union, against the possible exactions and obstructions of local authority, prompted by considerations of local convenience or selfishness. The provision, even to its very language, is as old as the articles of compact between the original states and the people and the states of the territory north-west of the Ohio, contained in the ordinance of 1787, for the government of said territory, from the fourth of which it is copied. This ordinance was ratified or recognized by the first congress under the constitution, (1 St. 50,) and the provision securing the freedom of "the navigable waters leadiug into the Mississippi and St. Lawrence" has been continued in force in all the states formed out of said territory to this day. Columbus Ins. Co. v. Curtenius, 6 McLean, 209. In Penn. v. W. iJ B. Bridge Co. 13 How. 518, it was held that a provision in a compact (December 18, 1789) between Virginia and Kentucky concerning the erection of the latter into a state, to the effect that the navigation of the Ohio. so far as the territory of the two states joined thereon, "shall be free and common to the citizens of the United States," which was afterwards sanctioned by congress iu,.the passage oOhe act (1 St. 189) admitting Kentucky into the Union, Wa13. a restraint upon the power of Virginia to Qbstruct the navigation of said river by the erection. of a bridge thereon within her own, limits, and that a bridge so erected, which walj, a substantial obstruction to such navigation, was a nuisance and unlawful. . To the same effect is the decision i:n polumbus Ina. Co. v. Curtenius, 8upra, in which it was held that congress had dedared, by the ordinance of 1787 and otherwise, that the navgable tributaries of the Mississippi were free and common highways to the citizens of the United States, and that therefore an act of the legislature of Illinois, authorizing the construction of a bridge across the Illinois river, near Peoria, was void if .such bridge was a material obstruction to the navigation of said river, as being in conflict with the federal legislation declaring it free and common. These decisions are the authoritative and uncontradicted
exposition of the effect of federal legislation declaring a navigable river forever free and common to the citizens of the United States, upon the otherwise unlimited power of a state to obstruct or impedEl the navigation thereof within its own limits. And the reasoning upon which they rest seems unanswerable. It is self-evident that a river cannot be a common highway, forever free to all the citizens of the United States, which the legislature of anyone state has the power to essentially obstruct. In a well-considered case cited by the defendant, (The People v. S. It R. Ry. CQ. 15 Wend. 132,) in which the right to bridge the Hudson river, in pursuance of an act of the state legislature, was under consideration, Mr. Chief Justice Savage announced the same conclusion,saying: "The place where lit lit the bridge is built is one which coasting vessels have a right to pass, and where any obstruction entirely preventing or essentially impeding the navigation would be un· lawful." In comparing the federal and state acts to ascertain if there is any conflict between them, the circumstances of the case-'-that is, the character and relative importance of the river and the commerce dependent thereon, and the character and need of the bridge and the commerce dependent upon it -must be considered. For, although congress has, in effect, declared the Wallamet river to be forever a "free" and "common highway," yet these terms are used with the implied understanding that the state has the power to bridge it, if it can do so without materially impeding the navigation. What is such an impediment may be a difficult question to decide. .It may depend much upon circumstances. A bridge of a certain character at a certain place may be of great benefit and convenience to a few people, or some petty local trade or business, but a serious inconvenience or injury to many people and a valuable and extensive commerce. The commerce of Oregon, both domestic and foreign, is largely dependent upon the free navigation of the Wallamet river. Steamboats ply upon it most of the year for 100 miles or more south of Portland. At Portland the tide ebbs and
HATCH V. WALLAMET IRON, BRIDGE CO.
flows, and from there to its of 12 xqiles, it is navigated by sea and inland vessels, foreign and domestic, sail and steam, that go thence up and down the greatColumbia, out upon the Pacific ocean, and to all Fhe principal ports, of the world. It is the harbor of Portland, the emporium and,' financial center of the north-w(}st, where the valuable ,products of the country are gathered from far and near and stored for market and exportation, and the imports from sis. : ter states and foreign countries are received and distributed,! throughout the interior. In the near future we may expec:t a large increase of population at this place, and throughout the country with which it maintains business relations, and the commerce 'of Portland will demand the free use of the . harbor and water front, as far south as it can be made useful. The present need of a bridge is to furnish a mOl'e conveni· ent and certain means of crossing the river than a steamferry to the small population that live in East Portland and the neighboring villages; some portion of the passengel's to and from Portland on the east-side railway, the rural popu-, lation that live on the narrow strip of country between East· Portland and the Columbia river, aud the transportation of, their limited dairy and garden products to the Portland mal'kets. It is not intended. by this statement, to suggest that there is no need of a bridge across the river at this place, but only that the interests which may be promoted by it are as a drop in the bucket compared with those that may be seriously inconvenienced or injured by it. With this brief sketch of the circumstances, I proceed to consider whether the act authorizing the building of the bridge is in conflict with the, act of congress declaring it a free and commercial highway. The bridge is required to be built so "as not to injuriously impede and obstruct the free navigation of the river." But the defendant claims that the provision requiring the draw to be not less than 100 feet is equivalent to declaring that a draw of .100 is sufficient. My own impression is that tha act ought to be construed as authorizing a bridge, which: would not materially interfere with navigation, and to thiff end that the draw must be at least ;1.00 feet, and as much
longer as necessary, and that the defendant i's not justified thereby in building a bridge with a draw of only 100 feet, if that would materially interfere with the navigation. But if the construction clq,imed by the defendant is the correct one, it comes to the same thing in the end. The legislature of the state has not the power to say absolutely that a bridge may be built with only a draw of 100 feet, for if such a. bridge interferes materially with the free navigation of the river, the act authorizing it is void, as being in conflict with the paramount law of congress declaring the river a free and common highway. Therefore it is that a bridge ought not to be attempted to be built across such a water as this, where so many and valuable interests are involved, without the sanction of congress, given through the engineer department. The proper ·location and elevation of a bridge across the river at this place, and th'e length and place of draw,-all the circumstances considered,-are questions that more properly pertain to the political than the judicial department of the government. There the matter may be "equitably adjusted," so to speak, according to the circumstances of each case. Here, the court can only ascertain whether the proposed structure interferes materially with the free navigation of the river, and if it does, it must declare it. unlawful. Accordingly, within the past 15 years, congress has been induced to legislate generally and specially upon the subject of bridges across the Mississippi and its tributaries. By the act of December 17, 1872, (ll St. 398,) it is provided that no bridge can be built across the Ohio river without complying with the directions of that act, one of which is that every bridge below the one at Cincinnati shall have a high span of 100 feet above low water, with a space of 400 feet between the piers, and a pivot draw, with two clear openings of 160 feet -each; and by act of April 1, 1872, (17 St. 44,) a railway bridge was authorized across the Mississippi, near Clinton, Iowa, with a draw of not less than 160 feat,-the same to be located, built, and kept subject to the directions of the of war for the security of naviga-
BATOH V. WALLAMET IRON BRIDGE 00.
t.ion, subject even then to be abated as a nuisance by a suit in the United States court, if it should prove an obstruction to the navigation of the river; and by the act of June 4,1872, (17 St. 215,) it is provided that all bridges thereafter built across the Mississippi, by authority of congress, shall be subject to the same direction and control of the secretary of war. By an act of July 25, 1866, (14 St. 244,) congress authorized the building of seven bridges across the Mississippi at different points above St. Louis, and one across the Missouri at Kansas City, and provided that each of them should have two draw openings of not less than 160 feet in the clear. By acts of February 24, 1871, (16 St. 430,) and March 3, 1871, (Id. 473,) bridges were authorized across the Missouri ri"er at Omaha, Nebraska., and Louisiana, Missouri, with two draw openings of not less than 200 feet in the clear. These citations of congressional action might be multiplied greatly. See report of Governeur K. Warren, U. S. major of engineers, on bridging the Mississippi between St. Paul and St. Louis, 1878, pp. 193, 202. Indeed, congress has spoken on the subject of bridging the Wallamet at this place. By act of February 2, 1870, (16 St. 64,) the city of Portland was authorized to bridge the river, under ,the direction of the secretary of war, so as "not to obstruct, impair, or injuriously modify the navigation" of the same. This act expired by its own limitation within six years, and nothing was done under it but an examination and approval of a plan by a board of engineers and the secretary, December 30, 1872. By this plan the bridge was located at the foot of Columbia street-l,820 feet above Morrison-and was to have a draw of 100 feet in the clear on each side of the pivot pier. And on June 23, 1874, (18 St. 281,) congress authorized the Oregon & California Railway Company to bridge the Wallamet river at Portland, under the direction of the secretary of war in all respects, except that the draw should not be less than 300 feet in width, so as "not to obstruct, impair, or injuriously affect the navigation of the same." Nothing has been done under this act, but it is still in force. Taking these instances of congressional action as a reason· v.6,no.4-22
able indication as to what is necessary in the construction of a bridge over this· and other navigable waters of no more importance than this, and navigated with vessels of less tonnage, to prevent the navigation from being injuriously affected thereby, and weighing the testimony in the case, I think this bridge is such an obstruction to the navigation of the Wallametas prevents its being a free and common highway to the citizens of the United States, and is therefore a nuisance, and unlawful. Indeed, I have no doubt of it. Forty-two persons, mostly navigators, including, I think, nearly all the pilots on the Columbia and Wallamet rivers, testify unqualifiedly that the draw is too narrow, and ought to be 200 feet instead of 100; and that in the winter season especially, the time when vessels usually load with grain for foreign ports, owing to the strong currents and high , winds, it will be very unsafe to go through the draw with a good-sized river steam-boat, let alone a tug and sail vessel occupying a space from 70 to 80 feet. The United States engineer in charge of the river and harbor improvements in this district, Col. George L. Gillespie, U. S. A., reports to the chief of engineers at Washington, on December 29,1880, at length upon the subject of this bridge, and concludes that it should have been located at Columbia street; but if allowed to be .constructed at Morrison, the draw should be enlarged to not less than 200 feet, and. that a bridge there with a draw of only 100 feet will result in frequent loss to shipping, and may prevent sea-going vessels from going above the bridge altogether. In reply to this mass of testimony the defendant has introduced six affidavits, one of them being from the contractor, and another from the president of the company:; only two of them being from river pilots. The principal point made in them is that the bridge will be more dangerous to navigation if left in its present condition than if completed. But'31lufficient answer to this is that a court may require by the injunction that the defendant undo what he has done amiss, as well as to refrain from so doing. c. S. u. Co. v. V. <t G. R. W. Co. 1 Sawy. 482. lnmy judgment the preliminary injunction should be allowed. The
defendant ought not to be permitted, against this showing, to place this structure in the river until its right to do so is definitely ascertained and determined. I am surprised that any person should have the hardihood to undertake such an important enterprise, in the face of the act of February 14, 1859, supra, declaring the river a common highway, and the congressional legislation of the last 15 years upon the subject of bridging navigable waters of the United States, without first obtaining the sanction of congress. Bnt this being a matter of some moment to the defendant, I have concluded to delay the issuing of the injunction until the first day of the next term, April 11th, or as soon thereafter as the circuit judge is present, when the matter. may be further heard, if the defendant desires it; and in the. meantime the defendant will be restrained by order, as prayed in the bill.
HAJnLTON and others
CHOUTEAU and others.
(Oircuit Court, E. D. Missouri.
FEDEBAL JURISDICTION-INSOLVENT RECEIVER OF FRAUD. STATE
Suit was instituted in a federal court by the policy-holders Of an insolvent life insurance company against its stOCkholders for the fraudulent appropriation of a part of the assets of the company. Held, that such court could not assume jurisdiction when the company was in the hands of a receiver of a state court, who was proceeding to collect and administer the assets for the lJenefit of all the creditors.-[ED.
In Equity. Demurrer. This was a bill filed by the policy-holders of the St. LOUIS Mutual Life Insurance Company for relief against its stockholders. The company, a Missouri corporation, was chartered on the mutual plan, with stock of the par value of $100,000, of which defendants were the owners. Proceedings were commenced in the state court by the insurance commissioner