United States v. Parkersburg Branch R. Co.

• Decision Date: 04 February 1905
• Parties: UNITED STATES v. PARKERSBURG BRANCH R. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

134 F. 969

UNITED STATES v. PARKERSBURG BRANCH R. CO. et al.

United States Circuit Court, N.D. West Virginia.

February 4, 1905

Reese Blizzard, U.S. Atty.

Hugh L Bond, Jr., for defendants.

JACKSON District Judge.

The United States filed their bill in this court against the Baltimore & Ohio Railroad Company and the Parkersburg Branch Railroad Company, operated by the said Baltimore & Ohio Railroad Company, and John W. Davis, receiver of the Parkersburg Branch Railroad Company, alleging that the bridge across the Ohio river, at Parkersburg, is an obstruction to navigation at that point, and a great injury to the commerce on the Ohio river. The allegations of the bill are supported by sundry affidavits, some 15 in number. The prayer of the bill is for an injunction restrain and enjoin the defendants their agents and all others acting under them, from constructing or proceeding to construct 'the contemplated bridge across the Ohio river between Parkersburg and Belpre ' To this bill the defendant companies have filed their answer, claiming that, under an act of Congress passed and approved July 14, 1862, c. 167, 12 Stat. 569, they were authorized to build and construct said bridge, subject to the terms and limitations as expressed in the act. The answer of the defendant companies alleges that a bridge was not only built and constructed in compliance with the terms and provisions of the act, but that the defendant companies did more than they were required to do, in building and constructing two channel spans instead of one, and giving greater space of waterway between the stone piers for navigation than was required by the act.

It may be conceded, and I suppose it is true, that the piers upon which the superstructure of the bridge rests are at times especially in high flood tide, to some extent obstructions to navigation. It does not appear that they are serious obstructions in an ordinary stage of water in the river. Assuming that navigation is more or less obstructed at times, the question for the consideration of the court is, what, if any, remedy exists. In the outset of the case, it cannot be denied that a bridge was built in pursuance of the act of Congress. It is not contended that the companies have not fully complied with the terms and provisions of the act of 1862, under which the bridge was constructed. By an act of Congress passed July 11, 1870, c. 240, 16 Stat. 227, Sec. 5, the Secretary of War was required to detail three engineers to examine the bridges across the Ohio river, and, amongst other requirements, to report whether any of them interfered with free and safe navigation. In pursuance of that act the chief engineer detailed three distinguished engineers, who made and submitted to him a report which he afterwards sent to Congress. In this report the engineers found no cause to criticise the company in the construction of this bridge, but stated in their report, as the law required only one channel space of 300 feet that 'the bridge companies are deserving of very great credit, not only in providing two spans instead of one, but in making each space between the piers eighteen feet wider than was required by law for the wisest space. ' This report of the engineers established the fact that the bridge was built and constructed in full compliance with the act of Congress which authorized its erection. It would seem from this report that the government was estopped from denying that the bridge was built in compliance with the act of 1862, and that it is therefore a lawful structure. We are therefore confronted with the question whether it can be removed upon the alleged ground 'that it is a serious obstruction to navigation. ' We answer 'Yes,' but it must be removed by the same power that granted it. Congress alone, in the exercise of its sovereign power, can remove the bridge, but it must be upon terms that are just and right to the owners of it. While, under our laws, private property can be taken by a sovereign when the public good requires it, yet it must be done upon just compensation. This bridge is the private property of the defendant companies; they built it at their own cost and expense, and upon the assurance that when they did so, under the act of Congress, they had acquired a vested right of a permanent character.

It is claimed, however, that the act of Congress passed December 17, 1872, c. 4, 17 Stat. 398, superseded the act of 1862; but this act, passed subsequent to the act of 1862, as well as all the subsequent acts, cannot deprive railroad companies of their franchises acquired under the act of 1862. In the act of 1862 there is no right reserved to alter or amend it. It appears that every limitation or restriction in the act was fully complied with in the erection of the bridge. The act of 1872 is not retroactive, but prospective, and was the first...