Bellaire, Benwood & Wheeling F. Co. v. Interstate Bridge Co., 2927.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Citation: 40 F.2d 323
• Docket Number: No. 2927.,2927.
• Parties: BELLAIRE, BENWOOD & WHEELING FERRY CO. v. INTERSTATE BRIDGE CO. et al.
• Decision Date: 08 April 1930

40 F.2d 323 (1930)

BELLAIRE, BENWOOD & WHEELING FERRY CO. v. INTERSTATE BRIDGE CO. et al.

No. 2927.

Circuit Court of Appeals, Fourth Circuit.

April 8, 1930.

John C. Nichols, of Wheeling, W. Va. (James T. Miller, of Moundsville, W. Va., on the brief), for appellant.

Charles McCamic, of Wheeling, W. Va. (McCamic & Clarke, Jay T. McCamic, and James Morgan Clarke, all of Wheeling, W. Va., on the brief), for appellees.

Before PARKER and NORTHCOTT, Circuit Judges, and HAYES, District Judge.

NORTHCOTT, Circuit Judge.

This is a suit in equity, instituted by appellant in the circuit court of Marshall county, W. Va., in August, 1925, seeking to enjoin the appellees from appropriating land claimed by the appellant, and from interfering with the franchise and rights of a ferry operated by appellant, in the erection of a bridge over and across the Ohio river, from Benwood, W. Va., to Bellaire, Ohio. The bill also prays that the "appellees, their officers, agents and employees, be restrained, inhibited and enjoined from placing, erecting or constructing its said piers or abutments for said bridge or other obstructions in the course or channel heretofore and now so continuously and necessarily used by the plaintiff in the operation of its said boats and vessels over and across said Ohio River between its said ferry landing on its lands in the City of Benwood, West Virginia, and its landing on the Ohio shore of said river, in the said City of Bellaire."

The bill alleges, among other things, that appellant is the owner of land in the city of Benwood, Marshall county, W. Va., upon which appellees were constructing certain piers for said bridge, and that appellees, without having obtained the right to do so and without paying appellant any just compensation therefor, had entered upon and taken possession of appellant's land situated on the banks of the said Ohio river; that appellant was also the owner of a ferry across said river, between the above-named cities, that had been in operation for more than fifty years, and had traversed a certain channel across said river; that the piers for said bridge would obstruct appellant's navigation of said Ohio river, and thereby render it impossible or exceedingly dangerous for appellant to operate said ferry across said river.

Before any motion was made for a temporary restraining order the appellees moved the court to remove the suit to the District Court of the United States for the Northern District of West Virginia, and filed a petition, supporting this motion, alleging that the suit was of a civil nature involving questions of law arising under the Constitution and laws of the United States, in that the construction of a bridge over navigable waters was involved.

The petition sets out that the bridge in question was being erected by an Act of Congress, approved March 18, 1924 (43 Stat. 24); that the erection of said bridge had been approved by the Chief of Engineers of the War Department and the Secretary of War, and that the council of the city of Benwood had passed an ordinance authorizing the construction of said bridge. The petition also avers that under the Act of March 23, 1906, said bridge should be recognized and known as a post route, and that said Act of March 23, 1906 (33 USCA §§ 491, 492), 34 Statute at Large, 84, reserves certain rights to the United States with regard to the construction, maintenance, and repair of, without any charge therefor, telegraph and telephone lines across and upon said bridge and its approaches.

Sections 491 and 492, above referred to, read as follows:

"Section 491. When, after March 23, 1906, authority is granted by Congress to any persons to construct and maintain a bridge across or over any of the navigable waters of the United States, such bridge shall not be built or commenced until the plans and specifications for its construction, together with such drawings of the proposed construction and such map of the proposed location as may be required for a full understanding of the subject, have been submitted to the Secretary of War and Chief of Engineers for their approval, nor until they shall have approved such plans and specifications and the location of such bridge and accessory works; and when the plans for any bridge to be constructed under the provisions of this chapter * * * have been approved by the Chief of Engineers and by the Secretary of War it shall not be lawful to deviate from such plans, either before or after completion of the structure, unless the modification of such plans has previously been submitted to and received the approval of the Chief of Engineers and of the Secretary of War.

"§ 492. Any bridge built in accordance with the provisions of this chapter * * * shall be a lawful structure and shall be recognized and known as a post route, upon which no higher charge shall be made for the transmission over the same of the mails, the troops, and the munitions of war of the United States than the rate per mile paid for the transportation over any railroad, street railway, or public highway leading to said bridge; and the United States shall have the right to construct, maintain, and repair, without any charge therefor, telegraph and telephone lines across and upon said bridge and its approaches; and equal privileges in the use of said bridge and its approaches shall be granted to all telegraph and telephone companies."

The petition further alleged that the requirements of the United States with regard to the erection of the bridge had been fully complied with; that the construction of the West Virginia end of said bridge was overhead along a street of the said city of Benwood, and that said bridge was in every respect a lawful bridge.

The circuit court of Marshall county, W. Va., entered an order on the 10th day of August, 1925, removing the cause to the District Court of the United States for the Northern District of West Virginia. In September, 1925, appellant moved in the District Court to remand the cause, which motion was overruled by an order entered on the 2d day of March, 1926. Thereupon appellees filed their joint and several answer, alleging, among other things, want of equity in the bill of complaint, and denying that plaintiff owned the land which was being used in the construction of the bridge and its piers. The answer further alleged that the piers were being constructed in the Ohio river below low-water mark, and at a point in said river that would be covered by a street of said city of Benwood extended to low-water mark on the Ohio shore, one of the boundaries of said city. The answer further sets up that Congress authorized the construction of said bridge, and the Act of Congress of March 23, 1906, regulated the construction of bridges over navigable waters. The answer further states that the bridge was being constructed under authority of the Chief of Engineers of the War Department and the Secretary of War, and was in every respect a lawful bridge.

The answer denied that appellant had any rights in the navigation of the said Ohio river, and denied that appellant was unlawfully interfered with by erection of said bridge and piers. The answer further alleged that the Ohio river is a navigable stream, and that the exclusive jurisdiction as to control of navigation thereon is in the United States government, under article 1, § 8, paragraph 3, of the Constitution of the United States.

By stipulation of counsel and by a decree entered thereon on the 6th day of May, 1927, it was ordered that the evidence of witnesses in said suit be taken in the form of depositions and that said cause be heard on such depositions regularly taken and filed. The cause was argued and submitted for final decree on the 11th day of June, 1928, at which time it was stipulated that the bridge had been completely constructed and was in operation under tolls established by the authority of the United States; and that the steam ferryboat that was in operation at the time of the bringing of this suit had been discontinued and no ferry had been in operation since some time in the month of March, 1928; and that witnesses for the appellant would testify that the reason said boat is not in operation is that it was condemned and ordered out of commission by the authorities of the United States owing to an injury to the hull of the boat caused by coming in contact with one of the piers of defendant bridge company, and that the boat was being reconditioned for service.

The court below, by a decree entered on the 6th day of September, 1928, dismissed the bill of complaint, from which action this appeal was taken.

Two questions are raised by appellant on appeal, first, that the court below erred in overruling plaintiff's motion to remand the cause to the state court, and second, that the court erred in dismissing plaintiff's bill of complaint.

As to the question of the jurisdiction of the federal court, we find, upon an investigation of the authorities, that a number of cases, in which the matter of the construction of bridges across navigable waters or the erection of wharves therein is involved, have been decided by the Supreme Court. Among them are Miller v. New York, 109 U. S. 385, 3 S. Ct. 228, 229, 27 L. Ed. 971; New Orleans, etc., v. Mississippi, 102 U. S. 135, 26 L. Ed. 96; Cummings v. Chicago, 188 U. S. 410, 23 S. Ct. 472, 47 L. Ed. 525; Wheeling Bridge Case, 13 How. (54 U. S.) 518, 14 L. Ed. 249; Newport & Cincinnati Bridge Co. v. United States, 105 U. S. 470, 475, 26 L. Ed. 1143.

The question of the erection of a bridge across the Ohio river was considered by this court in the Parkersburg Branch R. Case, 143 F. 224.

In none of these cases the question of jurisdiction seems to have been raised, and there is no direct discussion of this point, yet it seems apparent, upon a careful study of at least some of them, that jurisdiction must have been had because of the fact that the erection of a bridge over navigable...