United States v. Parkersburg Branch R. Co.

• Decision Date: 06 February 1906
• Docket Number: 601.
• Parties: UNITED STATES v. PARKERSBURG BRANCH R. CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

143 F. 224

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

No. 601.

United States Court of Appeals, Fourth Circuit.

February 6, 1906

Reese Blizzard, U.S. Atty.

John G Wilson (Hugh L. Bond, on the brief), for appellees.

Before PRITCHARD, Circuit Judge, and WADDILL and KELLER, District judges.

PRITCHARD Circuit Judge.

The United States filed a bill against the Baltimore & Ohio Railroad Company and the Parkersburg Branch Railroad Company operated by the Baltimore Railroad Company, and John W Davis, receiver of the Parkersburg 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 relief demanded is an injunction to restrain and enjoin the appellees, 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. ' The appellees filed their answer, claiming that, under an act of Congress approved July 14, 1862 (chapter 167, 12 Stat 569), they were authorized to build and construct said bridge subject to the terms and limitations as expressed in that act; that a bridge was not only built and constructed in compliance with the terms and provisions of the act, but that the appellees 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.

The only question presented for our consideration is whether the court below erred in refusing to grant an injunction against the appellees.

It is insisted by counsel for appellant that the bridge in question is such as to impede navigation; that, while it was properly constructed at the time of its erection, the changed conditions in trade and commerce and navigation are such that the bridge is not now in conformity with the several acts of Congress regulating the construction of bridges across navigable rivers, etc. It is further contended that the appellees have erected a new bridge, in violation of Act of Cong. March 3, 1899, c. 425, 30 Stat. 1121. It is shown by the bill that this bridge was erected under the authority and in accordance with the act of July 14, 1862. But to support the bill for an injunction the complainant alleges that, the bridge thus authorized and declared to be a lawful structure having become worn out, appellees are building a new bridge on the same site, without the assent of Congress and without the approval of the Secretary of War, as provided in section 9 of the act of Congress of March 3, 1899 (30 Stat. 1151 (U.S. Comp. St. 1901, p. 3540)). It is further alleged that in the building of this new structure temporary trestle work will be placed between the piers narrowing the main channel span. The last allegation as to temporary trestle work is denied under oath in the answer and the testimony shows that no false work of any kind was erected between the piers. The act of 1862, among other things, provided that bridges erected thereon should have unobstructed headways in the channel of the river of not less than 90 feet above low-water mark, and that such channels or waterways should have a width of not less than 300 feet between the piers next to said channel or waterways, and one of the spans adjoining thereto should not be less than 220 feet in length.

This bridge was constructed in accordance with the provisions of the Act of 1862, as appears from the report of the board of engineers upon bridges across the Ohio river dated April 19, 1871, a portion of which reads as follows:

'The bridge accordingly was built of the required height and with two practical channel ways of 318 feet each. As the law only required one channel space of 300 feet, the bridge company are deserving of very great credit in not only providing two channel spaces instead of one, but in making each eighteen feet wider than required by law for the widest. ' U.S. Engineers' Report, p. 47.

'It was the original intention of the company to have built this bridge exactly like that at Bellaire, but after they had started the piers of their main channel span, a protest was made against this span by the coal boat interests. The latter claimed that, although the main span was over the deepest water of the river, it was yet not over the coal boat channel, as the very abrupt bend in the Ohio just below the bridge made it necessary for coal tows to hug the Ohio shore that they might not drift onto the Virginia shore after passing the bridge. An estimate was made of the cost of making an additional channel span near the Ohio shore, and it was found that it would increase the cost of the bridge by $60,000.00. The railroad, however, very liberally offered to bear half of this additional expense provided the coal men furnished the other half. The latter decided that, unless they obtained the new channel span, they might in a single year lose more by collision or by running ashore than the sum required, and therefore the money was advanced at once.

'The board have no changes to recommend in this bridge which like the one at Bellaire has been admirably built and with the most liberal care for the interest of navigation. It is a possibility that in the future it will be found that the main spans of these bridges are too narrow. Should that prove to be the case, we think that any change that may subsequently become necessary should be made at the national expense. The total cost of this bridge, as reported by the Chief Engineer, Jas. L. Randolph, has been $1,223,500.'

The superstructure of this bridge which was made lawful by the act of 1862, and approved by the government engineers as being a 'lawful structure,' in the course of time became worn out to such an extent as to render its renewal necessary in order to insure the safety of passengers and the transportation of commerce. From the time of the erection of the bridge under the act of 1862, until the filing of the bill in this case, there was no objection made as to the manner of its construction. It is therefore necessary that we should determine whether the acts complained of are such as to justify the contention that the appellees are constructing a new bridge. The piers as originally constructed remain intact and occupy the same relative position as when originally constructed in conformity with the act of Congress and approved by the government engineers as a 'lawful structure,' and the only change that has been made is the renewal of the superstructure, the erection of which affords every facility for navigation which was enjoyed when the superstructure was placed on the piers. If the building of the superstructure can be held to be the erection of a new bridge, then the removal of cross-ties and the substitution of new rails could also be held to be prohibited by the act of 1899.

It appears from the record that nothing was done to the bridge, except to renew the superstructure, which was placed on the original piers 90 feet high--there being nothing done which could in the slightest degree interfere with navigation. The superstructure being renewed from time to time without any interruption to traffic. There is not a scintilla of evidence to support the appellant's contention that a new bridge is being built. Under these circumstances the Circuit Court would have no power to grant an injunction, because there is nothing in the record to show that a new bridge has been erected or that it is the purpose of appellees to erect such a structure.

The case of United States v. C. & M.R.R. Co., 134 F. 353, 67 C.C.A. 335, is in point, the facts of which are as follows: The United States sought by bill to restrain the Cincinnati & Muskingum Valley Railroad Company from renewing the superstructure of its bridge over the Muskingum river. The bridge was a lawful structure erected in 1870, under the authority granted by the board of public works of the state of Ohio as follows:

'Ordered that the application of Hon. J. J. Jewett, president Cincinnati & Washington Valley Railroad Company, permit it to build a bridge over the Muskingum river above Jackson Island, and also on the side cut of the Ohio canal, at Dresden, be and the same is hereby granted, and that plots of the same on file in this office be approved with the proviso that if at any time hereafter the interest of navigation on the Muskingum river should require it the said railroad company will modify the bridge by inserting a draw in the same.'

Congress assumed control of this river in 1886, and in 1888 passed an act, the third section of which was the foundation of this proceeding (Act...