diction to afford relief to the injured creditor." Wend v. Pierce, ,9 Cow. 724. Still less would it deserve that name if it should refuse that relief in the only form in which it can be effectual-viz., by injunction and order for a receiver-on the ground that the defendant has so far carried out his threat to secrete and make way with his property that the complainant is unable to find it or describe it in his bill. If this court refuses to interpose until, by bill of discovery or proceedings supplementary to execution, the creditor is able to specify and. describe the character of the property, it, in effect, invites the defendant to frustrate its decree, by sending the property or its proceeds out of the jurisdiction, or by conveying it to innocent or pretended innocent purchasers, or otherwise of it in such a. way as to place it beyond the reach of the court. Motion denied.
(Oi1'cuit OQurt,D. Ot-ttJon. April 21, 1 8 8 1 . ) ' ;
prelhninary injunctiori granted to restrain the erection efa ,bridge across thieWallamet river, 'at. Portland, bontr8ry to' the Bct of .. congress (11 St. 383) declaring the waters of the state free and common at the suit of a riparian owner injured thereby.
NA.VIGATION. .., '.
Where congreSs bas declared a navigable river to be a commori highway, the state cannot authorize an obstruction therein, and anything which materially interferes 'with Or limits the navigability thereof, considering the use which it is or may be subject to, is an Obstruction and a violation' of such act of congress, which the United States circuit court has jurisdiction, under the judiciary act of 1875, (18. St. 470,) to prevent or abate by injunction.
In Equity. Application for preliminary injunction. Hugh T. Bingham, Edward Bingham, and E. C. Bronaugh, for plaintiffs. H. Y. Thompson, W. Lair Hill, and Byron B. Bellinger, for defendant.
HATCH V. WALLAMET BRIDGE 00.
DEADY, D. J. This application was first heard before me sitting in this court alone, and on April 6th I delivered an opinion thereon, to the effect that the bridge where and as it was being constructed by the defendant was a serious obstruction to the navigation of the Wallamet river, contrary to the act of congress of February 14,1859, (11 St. 383,) admitting the state into the Union, which declares that all the navigable waters of the state "shall be common highways and forever free" to all the citizens of the United States ; and that this court, under section 1 of the act of March 3, 1875, (18 St 470,) giving it jU'i'isdiction of a suit arising under an act of congress, has authority to restrain parties from violating said act by obstructing the navigartion of· any of said waters at the suit of anyone injured thereby.- 'But; considering the importance of the matter to thll dflfendlUlt, I did not then direct ·the injunction to issue, butcontinu6d'th'e application for further hearing, upbn ithesaIile· 841C'h :ad· ditil:mal.evidence as the parties might ptoduee;''WheJi' ithe circuit judge,Mr.Justice Sawyer, should' be present, restrained,the defendant, as prllJyed in the 'bill, 'in, the ·mean· time. That hearing has been had, and theoonclusionreac'hed by his hQnor;tj}e circuit by him. .As preliminary tHereto, I merely'wlsh to say :for that the further1i;horough investigation of this .question;.'and ,a,ble argument of the case pro and, con, has.'onlYdeepened my conviction that, the proposed 'bridge is and will be a nuisance and serious impediment to the naVigation ,of ,:, The law of the case upon which the contention· mainly turned upon. the first hearing is now admitted by the defend· ant to be correctly' stated <in the opinion then delivered by myself. The only remaining question for consideration is, will the erection of this bridge seriously impair or affect the navigability of the river? If it appears probable that it will, the defendant ought not to be allowed to proceed further in the commission of the wrong. It has been well said, by some scientific authority upon this subject, that any bridge is a
*See ante, 326.
serious obstruction to the navigation of a river which can be essentially improved. Upon the evidence"and in the very nature of things, there be no doubt that this bridge, where and as it is being constructed, is a s.erious obstruction to the navigation of the river. It will absolutely obstruct the navigation of the l"iver, except for the space of 100 feet on either side of the pivot pier, and these openings are altogether to<;l narrow: to admit the safe and convenient passage of the sea-going vessels that COme to .this port,or even the largel class of river-boats, except, in favorable conditions of wind and ,water. Indeed, the farther investigation of this matter makes it. app very probable to my mind that no bridge, ar unless it be a suspension one, can be constructed over the river at this point without being a serious obstruction to its n!J,vigability, and impairing its usefulness as a common highway for the citizens of the United States. ,The Wallamet river in ,front of Portland is not only a navigable stream with a ship channel: it is also aaea-port,the harbor, as I have before said, of "the emporium and financial center of the northwest,"-and to u.ll appearance is destined to be second to no city in importance on the Pacific coast save one. Probably nine-tenths of the exports produced west of the Rockymountaina and north of the parallel are gatbElred here for sale and shipment ablload upon sea-going vessels of, in some cases, 8,OQO tons burden. Every bushel of grain grown for over this vast region, and particularly in the great, Wallamet valley, feels the cost of storage and dockage .at this port, and. anything which limits or restricts the capacity or convenience of its harbor works a direct injury to the great body of the producers throughout the country. Therefore it is that the convenience of the com· paratively small population immediately east of Portland, or even in Portland, is not alone to be considered in this matter. The rive.r navigable water of the people of the United States, at!iUheharbor is for the free use of all the people whose exports and imports freight the vessels that frequent it from all parts of the !odd. At this point, on the west bank of the river, the ox teams of the Wallamet valley first met the sea.going ves-
HATCH,V. WALLAMET DRIDGE CO.
sel"ap.d the tra;ffia between them was the begiiuiing of 'OregQn'scommerce. ,Out of this commerce grew 'the town of Portland. But destroy or materially restrict or impede the' free use of this\harbor, or the approaches to it" and so far you the town and injure the commerce of the eountry. The injunction, ought to be allowed.
SAWYER, C. J. I have very little to add to what the district judge has said. I fully concur with him in the conclusions that he has reached. It is very clear that, )lnder the admitted law of the case, the act admitting the state into the union which provides that the navigable waters of· the state : shall be free and common highways; and in view of the decision of the supreme court in the Whe'elingBridge Case, 13 How. 518, in which it was held, under a similar act, that any obstruction to the navigation of the Ohio river was unlawful, except by the consent of congress; and the judiciary act of March 3, 1875, giving this ,conrt jurisdiction of .a suit arising out of an act of congress,.-that this court has authority to restrain the defendant from placing anystiucture in this' river which will obstruct its navigation. The only remaining question, then; is whether the bridge now being constructed by the defendant will be such an ob-, struction. To my mind the testimony clearly indicates that · the bridge is and will be an unlawful obstruction to naviga- ' tion. And I thinJr this must be apparent to every person familiar with the subject, or even of general intelligence; If it is at all a material obstruction, it comes within the inhibition of the statute, and is unlawful. It was argued by counsel for:tlle defendant that the commerce of the country is not all carried on up and down or upon the river, and that the merce and convenience of the. people which cross it must be taken into consideration in determining the propriety of' bridging it. It may be of importance to the cities uptin' either bank of the river that they should have communication by means of a bridge; but these are considerations to be addressed to .-mother tribunal than this ,court. They ShllUld be addressed to congress, where, upon an application for per-
mission to bridge the river; these conflicting interests can be considered and adjusted as may be thought best for the public good. But this court must simply ascertain whether the bridge will be a material obstruction to the navigation of the river. It cannot balance these conflicting interests and determine that the one will be more benefited by the bridge than the other will be injured thereby. Its power is confined to the determination of the question whether it will be a material obstructioJ? to navigation or not. In the Wheeling Bridge Case the obstruction caused by the bridge, as compared with the benefit, was exceedingly smail. That suit was commenced in 1849, when the commerce on the Ohio was more limited than now, and the bridge was a connecting link in a great public highway by rail and otherwise. The referee reported that, of all the steam-boats then running on the river, only nine were prevented from passing the bridge on account of the great height-from 68i to 80 feet-of their"chimneys," and they for only a few days in the year. And although these chimneys might have been shortened or lowered, when passing the bridge, by means of hinges, and although the benefit resulting to navigation in the increased draft given by such tall chimneys must have been small in comparison to the benefit to commerce resulting from the bridge, yet the latter was determined to be a violation of the act of congress declaring the navigation of the river "free and common to the citizens of the United States," and the court ordered it abated as a nuisance. As I said during the hearing, it appears from the evidence that the draw is too narrow to admit the passage of the larger vessels that come here, and on that account the bridge is an obstruction to navigation; and I am satisfied that the further investigation of the subject will make this more apparent. :aut I am also satisfied that this bridge, whatever· the width of the draw, will be an obstruction if erected in the midst of this harbor. In the course of the argument the question was ll.sked of counsel: Would not even these piers, without a bridge upon
HATCH V. WALLAMET BRIDGE CO.
them, standing where they are, be regarded as a nuisance and have to be removed? Now, the fact that you put (l, bridge upon them does not render them any the less an obstruction, but more so. Located, as it is, right in the midst of the harbor, where vessels are required to move constantly from place to place, without a passage, except at the single point of this draw, the bridge will be a serious obstruction to navigation in the harbor even if the draw was sufficient for the passage of vessels up and down the stream. The act of does not limit the free navigation of the river to a particular part or channel, but it declares the whole river a free and common highway to the full extent of its capability of navigation. A bridge may not be a material obstruction to the navigation of a river, if erected at a point where vessels simply pass up and down the channel on their way to and from a port. But, in the case of a harbor like this, the location, surroundings, and circumstances must be considered, and they may require that no part of it be obstructed or closed to navigation. In this view of the matter I think that any bridge in this harbor would necessarily be such an obstruction to its navigation as to require the consent of congress to justify it. This place is a commercial center-the second port ip importance on the Pacific coast-mainly because ocean vessels of a large size can come to its docks. Therefore it is a serious qUEstion whether the people of Portland or the state of Oregon can afford to allow a bridge to be built in the midst of this harbor, at a point where ships must congregate, and thereby create such an obstruction therein as may, and probably will, turn the commerce of the city in other channels. This harbor is not large, and when the shipping here is much increased, as it doubtless will be with the growth of the country and the place, there will be no room to spare in it. Ships often remain in the harbor of San Francisco three or four months waiting employment. But they could not afford to incur the expense of lying at the docks .0.11 this time. They pay wharfage a few days, while at the docks discharging or taking in cargo, and ill the mean time draw out into the v.6,no.8-50
str,eam, where they can lay without expense. All the navigable waters of this harbor will be needed for the use and accommodation of shipping. In San Francisco, where a large portion of the shipping lies out in the stream, my recollection, from judicial investigation, is that a clear passageway of 600 feet or yards-I think the latter-from the end of the wharves is always kept open, and even then collisions often occur, as the records of the courts there will show. All these things are to be considered in determining whether it is good policy, even if congress could be brought to consent to it, to bisect this harbor with a bridge that would render it unnavigable along its line, except at a particular point. But when we consider the commerce of the city, the size of the harbor, and the character of the vessels that come to the port, we think the erection of this bridge will prove a great obstruction to the navigation of the river, both on account of "the insufficiency of the draw, and, gener. ally considered, as abridge, and therefore be injurious to the plaintiffs; and, so considering, we feel bound to grant this injunction. O.bjection has been made that the plaintiffs have been guilty of delay in applying for this preliminary injunction. There are cases iIi which such an objection has force, but it does not apply here. This is a matter in which a large num· ber of people are interested, and usually what is everybody's business is nobody's business. It is a large task for any OIle man to undertake to conduct a litigation against a large com. pany, and 'it is one he WO,uld not undertake unless he was compelled to. It is alleged in the bill, and the evidence shows, that the plaintiffs have actually been compelled to sue, because the owners of vessels have refused to take them to their wharves on account of the danger of passing this con. struction, even in its present condition, when there is something more than the mere draw to go through; and they may not have been' of the extent that the bridge would prove an obstruction, until it was so developed and shown. The bill was filed in January, and I think there haa befon no great delay, the circumstances considered.
FARGO V. L., N. A. & C. BY. CO.
Another satisfactory answer to this objection is the fact that, upon the evidence now in the case, or that is ever likely to be, and the knowledge which is open to everyone, that in all probability this injunction must be finally sustained. If the injunction is not now issued, and the defendant is allowed to go on and finish the bridge ·before the final determination of this suit, it would then have to be removed, if the court so adjudged, as it probably would, unless congress, in the m:'ean time, should see fit to authorize it, as it did the Wheeling bridge, which, considering the character of the obstruction, is not at all probable. The amount of the bond to be given by the plaintiffs I will leave to be settled before the district judge.
Dlllt\DY, D. J. For the convenience of parties, I now say that I think the bond ought to be given ina sum not exceeding $25,000, and that, unless cause is shown to the contrary, the order of the court will be that the injunction issue upon the plaintiffs giving bond in that sum, with sufficient sureties, to be executed before and to the approval' of the of this court; Mr. William B. Gilbert.
(Oircuit Court, D. Indiana. May 3,1881.)
JOINT-STOCK (JO:MlPABY-CITIZENBHIP-SUIT IN NAME OF PRESIDENT.
A New York joint-stock company possessing the right, by the law under which it was organized, to sue and be sued in the name of its president or treasurer, is a citizen of the state of New York in the same sense that corporations are citizens of the states under whost! laws they are organized; and such joint-stock company may, by the of states, sue and be sued in the name of such officer in· the federal courts as a citizen of New York, even though shareholders of such joint-stock are citizens of the same state as the adverse party to the suit.
Indetermining what such joint-stock companies are, regard is to be had to their essential attributes rather than to any mere name by