The State of Pennsylvania, Complainant v. the Wheeling and Belmont Brideg Company, William Otterson and George Croft

• Decision Date: 01 December 1851
• Citation: 54 U.S. 518,14 L.Ed. 249,13 How. 518
• Parties: THE STATE OF PENNSYLVANIA, COMPLAINANT, v. THE WHEELING AND BELMONT BRIDEG COMPANY, WILLIAM OTTERSON AND GEORGE CROFT
• Court: U.S. Supreme Court

54 U.S. 518 13 How. 518 14 L.Ed. 249 THE STATE OF PENNSYLVANIA, COMPLAINANT, v. THE WHEELING AND BELMONT BRIDEG COMPANY, WILLIAM OTTERSON AND GEORGE CROFT. December Term, 1851

Page 519

THIS was a case upon the equity side of this court, in the exercise of original jurisdiction.

It is noticed in 9 Howard, 647, and again in 11 Howard, 528.

In 9 Howard, a statement is given of the contents of the bill

Page 520

and answer, and of the proceedings in the case, up to the time of its reference to a commissioner, for the purpose of taking further proofs upon the points therein stated. The reader is referred to that volume for these proceedings.

In that report it is mentioned that a notice of the arguments of counsel was deferred until the final decision of the case.

That final decision having taken place at this term, it is proper now to note as briefly as possible the grounds assumed by the respective counsel.

The points made and authorities cited by the counsel for the plaintiff, were the following, viz.

1. That the Ohio River is a public highway of commerce, which, under the Constitution of the United States, has been regulated by Congress. Journal of Congress, vol. 4, 637, 638; Ordinance of 1787, art. 4; Act of Congress admitting Kentucky, (1 Stat. at Large, 189); Virginia act of Assembly, 18 Dec. 1789, (Rev. Code, 1819, 57); Acts of Congress for enrolling and licensing ships or vessels to be employed in the coasting trade, and for regulating the same, (1 Stat. at Large, 305); Act of Congress authorizing duties to be paid at ports on the Ohio, (4 Stat. at Large, 480); Act of Congress to improve the navigation of the Ohio River, (4 Stat. at Large, 32); Acts of Congress providing for inspection, &c., of steamborats, (5 Stat. at Large, 304); Committee Report No. 672, in the House of Representatives, 24th Congress; Report No. 993, 25th Congress, on a bridge at Wheeling; Report No. 79, 28th Congress, 1st session on a bridge at Wheeling; Pennsylvania Resolutions, vol. 29, (Pa. Laws, 487,) on a bridge at Wheeling; Pennsylvania Resolutions, Vol. 31, (Pa. Laws, 591,) on the Wheeling Bridge; 42 Ohio Laws, 269; Green v. Biddle, 8 Wheat, 1; Gordon's Digest 15, 27, 176, 191, 325, 343, 428; 2 Madison Papers, 599, 602, 606, 614, 623, 627, 677; Resolutions of General Assembly of Virginia, November, 1786; Resolution offered by delegates from North Carolina, in Congress, September, 1788, relative to the navigation of the Mississippi, (Journal of Congress, 1788); Resolution of Congress, on the same subject, September, 1788, (Journal of Congress, 1788); 2 Madison Papers, 678; Act providing for sale of Public Land, (1 Stat. at Large, 464, sect. 6); Lyman's American Diplomacy, 300, 303, 310, 311, 315; Report on Commerce and Navigation, December 31, 1849.

2. That free navigation of the Ohio River, as a common highway, having been established by regulations of Congress, and by compact between the States, it cannot lawfully be obstructed by force of any State authority or legislation. Constitution of the United States, art. 1, sect. 8, clauses 2, 4, 17; sect. 9, clause 5

Page 521

sec. 10, clause 2; art. 6, 1st clause; Gibbons v. Ogden, 9 Wheat. 1; Brown v. State of Maryland, 12 Wheaton, 419; Wilson v. Blackbird Creek Marsh Co. 2 Peters, 245; Charles River Bridge v. Warren Bridge, 11 Peters, 540, 542, 604; Norris v. Boston, 7 Howard's United States Rep. 283; Groves v. Slaughter, 15 Peters, 506; Houston v. Moore, 5 Wheaton, 22; Worcester v. Georgia, 6 Peters, 515; Spooner v. McConnell, 1 McLean's Rep. 359; United States v. New Bedford Bridge, 1 Woodb. & Minot, 401, and authorities there cited; Corfield v. Coryell, 4 Wash. C. C. 379; Holmes v. Jennison, 14 Pet. 540; Livingston v. North R. S. B. Co. 3 Cow. 713.

3. That inasmuch as the Wheeling Bridge has been found by the commissioner's report to be an obstruction to the free navigation of the Ohio River, it is a public nuisance that may be abated by a court of equity on complaint of an injured party. Hargrave's Tract, De Jure Maris, 9, 22, 35, 87; 3 Thomas's Co. Lit. 4; 2 Story's Equity, sects. 920, 921, 924; Eden on Injunctions, 157, 158, 160, 161, 222, 228; Drewry on Injunctions, 237, 240, 249, 294; City of Georgetown v. Alexandria Canal Co. 12 Peters, 91; Blakemore v. Glamorganshire Canal Co. 1 Myl. & Keen, 164; 1 McLean, 359; 3 McLean, 226; 1 Woodbury & Minot, 401; Shelford on Railways, 428, 445, and cases there cited; Robinson v. Lord Byron, 1 Bro. C. C. 588; Lane v. Newdigate, 10 Vesey, 192; Spencer v. London and Birmingham Railway Co. 1 Railway Co. 170; Attorney-General v. Manchester Railway, 1 Railway C. 436; North of England Railway v. Clarence Railway, 1 Coll C. C. 521; Angell on Watercourses, 201, 208, 209, 213; Attorney-General v. Burridge, 10 Price, 350; Attorney-General v. Parmeter, Id. 378; Attorney-General v. Johnson, 2 Wils. Ch. R. 87; Attorney-General v. Forbes, 2 Myl. & Craig, 123; Attorney-General v. The Cohoes Co. 6 Paige, Ch. 133; Spencer v. The Railway Co. 8 Simons, 193; Corning v. Lowerre, 6 Johns. Ch. 439; Boston Water Power Co. v. Boston & W. Railroad, 16 Pick. 525; Barrow v. Richards, 8 Paige, Ch. 351; Livingston v. Mayor of N. York, 8 Wend. 99; Bush v. Warren, Prec. Ch. 530; 2 Story's Equity, p. 252; 2 Ans. 603; 2 Starkie's Rep. 448; United States Const. art. 3, sect. 1, 2; Walford on Railways, 408; Shelford on Railways, 430; 1 Railway Cases, 68, 576; 2 Railway Cases, 380; 2 Younge & Coll. 611; Attorney-General v. utica Ins. Co. 2 Johns. Ch. Rep. 379; 1 Baldwin, 205; 1 Swanston, 250; 1 Mylne & Keen, 164; 3 Howard's United States Rep. 229; Pennsylvania v. Wheeling Bridge, before Judge Grier, Pamphlet Reports.

4. That for an injury to a State, she may maintain a suit in a court of competent jurisdiction. King of France v. Morris,

Page 522

3 Yeates, 251; King of Spain v. Oliver, Peters C. C. R. 276; Nabob of The Carnatic v. East India Co. 1 Ves. Jr. 382; Don Diego v. Jolyfe, Hobart, 86; Colombian Government v. Rothschild, 1 Sim. 94; Duke of Brunswick v. King of Hanover, 6 Beav. 1; Story's Equity Pl. sect. 55; Rhode Island v. Massachusetts, 12 Pet. 720; 4 How. 592; Vattel, book 3, chap. 6, sects. 22, 23, 49, 50, 60, 65, 71; Wheaton's International Law, 81, 82; Lieber's Political Ethics, 2, 5, 48, book 2, 196; Whewell's Elements, 2, 5, 849; Mayor of New Orleans v. The United States, 10 Peters, 672; New Jersey v. Wilson, 7 Cranch, 164; United States Constitution, art. 3.

5. That the equitable powers of the Supreme Court of the United States are adequate to grant relief against a public nuisance, and where a State is a party to the suit, that court has original jurisdiction. United States Const. art. 3, sects. 1, 2; City of Georgetown v. Alexandria Canal, 12 Peters, 91; Story's Commentaries, 570; Federalist, No. 80; Osborn v. Bank of United States, 9 Wheaton, 839; Bank of United States v. Planters Bank, 9 Wheat. 904.

The following extract contains the views of Mr. Stanton, one of the counsel for the complainant.

It is my design to present, as briefly as I can, the grounds on which the State of Pennsylvania prosecutes this suit and claims relief of this court. That purpose will be served by the discussion of a single proposition which will embrace all the points made, viz.

That the Ohio River is a highway of commerce leading to and from the ports of Pennsylvania, regulated by Congress, unlawfully obstructed by the Wheeling Bridge, to the injury of the State of Pennsylvania; and therefore that the bridge ought to be abated by decree of this court at her suit.

The first branch of this proposition, that the Ohio River is a highway of commerce, will not be disputed; for it is a geographical and statistical fact recognized by every department of the government of which this court would take judicial notice; and by their answer the defendants admit that this highway is navigated in steamboats by citizens of the State of Pennsylvania, and connects with her ports. The boundary of six States, its waters draining a large territory of four other States, flowing in a south-west direction from the Alleghany Mountains to the Mississippi, presenting to the navigator a broad and placid atream one thousand miles in length, more free from dangers and obstructions than any other navigable river in the world, it is apparent that the regulation of this river would claim the

Page 523

earnest attention of statesmen. Accordingly we find that when the possession of this river and the territory through which it flowed had been secured by independence and peace with Great Britain, the sagacious statesmen of that day speedily turned their attention to the regulation of the western rivers, and the commerce they foresaw must soon flow along their course,

On the 12th day of May, 1786, on the motion of Mr. Grayson, of Virginia, the following resolution was adopted:

'Resolved, That the navigable waters leading into the Mississippi and St. Lawrence, and the carrying-places between the same, be, and they are hereby, declared to be common highways, and be forever free, as well to the inhabitants of said territory as to the citizens of the United States and those of any other States that may be admitted into the confederation, without any tax, impost, or duty therefor.' Journal of Congress, 1786, p. 637.

Soon after this, all questions as to the title of the territory north-west of the Ohio being secured by compromise and cession of the claims of the several States, an ordinance for its regulation was adopted by Congress. This was the ordinance of 13th July, 1787, since become so famous in connection with another question. The 4th article, last clause, of this ordinance, contains a regulation in the same words as the resolution of Mr. Grayson. A similar condition has been imposed on the admission into the Union of every State bordering upon these waters. It is denied by the defendants that Virginia assented to this provision of the ordinance. But this can make no...