City of Boston v. Crowley

• Decision Date: 21 March 1889
• Citation: 38 F. 202
• Parties: CITY OF BOSTON v. CROWLEY.
• Court: U.S. District Court — District of Massachusetts

38 F. 202

CITY OF BOSTON v. CROWLEY.

United States Circuit Court, D. Massachusetts.

March 21, 1889

T. M Babson, Asst. City Sol., for appellant.

C. T. &amp T. H. Russell, for appellee.

COLT J.

This case is an appeal from a decree of the district court which held that the libel set forth a good cause of action against the city, and that the cause of action was within the admiralty jurisdiction of this court. It is admitted that the allegations of the libel and amended libel, except as to damages, are true; and it is further agreed that the damages amount to $870. The libelant represents the owners of the schooner Henry S. Culver. The vessel arrived in Boston, January 20, 1887, with a cargo of coal, from Baltimore, to be delivered at the Old Colony wharf, which is situated above the Dover-Street bridge. In proceeding in tow through the bridge the vessel was caught and stuck in the draw, and was thereby damaged to the amount agreed upon. The schooner's beam was 35 feet. The libelant contends that the city was required by law to maintain a draw 36 feet in the clear, and it is admitted that at this time the draw was not of this required width. The structure was originally known as the 'Boston South Bridge,' and it was erected by proprietors in 1803. Acts Mass. 1803, c. 113. By the act of incorporation it was provided that 'there also shall be made a good and sufficient draw or passage-way, at least thirty feet wide in the channel over which said bridge shall be built, proper for the passing and repassing of vessels. ' The bridge was maintained as a private property until 1831, when the legislature passed an act authorizing the sale of the franchise and materials to the city of Boston. Acts Mass. 1831, c. 71. One of the provisos in the act was that the 'city shall always be held liable to keep said bridge and draw in good repair, and to raise the draw of said bridge and afford all necessary and proper accommodation to vessels that have occasion to pass the same by night or by day. ' On April 19, 1832, the city took a deed of the franchise and materials of the bridge for $3,500, under the terms and provisions set forth in the act of the legislature. In 1876, the legislature authorized the city to widen the bridge not exceeding 60 feet, and to construct fenders, guards, and to change the locality of the draw, and to do such other acts as it might deem necessary and convenient to secure a bridge and draw which should safely and conveniently accommodate public travel and navigation, subject however, to the provisions of chapter 432 of the Acts of 1869. Acts Mass. 1876, c. 105. By this act of 1869 the rights of the commonwealth in tide-waters were made subject to the determination and approval of harbor commissioners. Acts Mass. 1869, c. 432. The board of harbor commissioners was created in 1866. By section 4 of the act the approval of the commissioners was required in all work authorized by the legislature of building any bridge, wharf, pier, or draw over tide-waters; and, further, that the work should not be commenced until the plan and mode of performing it should be approved by the commissioners, and that they should have the power to alter plans at their discretion, and to prescribe the direction, limit, and mode of building wharves and other structures to any extent that does not control the legislative grant, and that all such works should be executed under their supervision. Acting under this authority the commissioners, upon an application by the city, granted...