Delaware R. Co. v. Weeks, 509.

• Decision Date: 15 August 1923
• Docket Number: 509.
• Citation: 293 F. 114
• Parties: DELAWARE R. CO. et al. v. WEEKS, Secretary of War, et al.
• Court: U.S. District Court — District of Delaware

293 F. 114

DELAWARE R. CO. et al. v. WEEKS, Secretary of War, et al.

No. 509.

United States District Court, D. Delaware.

August 15, 1923

[Copyrighted Material Omitted]

John Biggs, and P. Warren Green, both of Wilmington, Del., for plaintiffs.

James H. Hughes, Jr., of Wilmington, Del., for defendants.

MORRIS District Judge.

Delaware Railroad Company and the Pennsylvania Railroad Company, owner and lessee, respectively, of a railroad bridge over the Chesapeake & Delaware Canal, instituted this suit against the Secretary of War, the engineer in charge of improvements being made to the canal, and the United States attorney for the district of Delaware, to enjoin the removal of the bridge by the defendants or their compelling, by a resort to criminal proceedings, its removal or alteration by the plaintiffs, unless and until compensation and damages for such removal or alteration be paid or provided for.

The institution of the suit followed a demand made upon the plaintiffs by the Secretary of War that the bridge be removed, or altered, in conformity with submitted specifications, so as to render navigation through the canal when enlarged reasonably free and unobstructed, notice by the United States attorney that failure to comply with the demand would result in the commencement of criminal proceedings against the plaintiffs, and the arrival at a point near the bridge of the advancing operations of enlargement in charge of the engineer. In support of his demand the Secretary of War relies upon the ownership by the United States of the canal and lands spanned by the bridge and a statute of the United States (30 Stat. 1153 (Comp. St. Sec. 9970)) declaring that whenever the Secretary of War has good reason to believe that any bridge constructed over any of the navigable waterways of the United States is an unreasonable obstruction to the free navigation of such waters on account of insufficient height, width of span, or otherwise, it shall be the duty of the Secretary to give notice to the persons or corporations owning or controlling such bridge so to alter the same as to render navigation through or under it reasonably free, easy, and unobstructed. Willful failure or refusal to remove the bridge or comply with the order of alteration is made a misdemeanor. The penal provisions of that act are those to which the United States attorney threatened to resort. Compliance with the order would render useless the present bridge, costing many thousands of dollars. The erection of the specified new bridge would cost upwards of $300,000. No compensation to the plaintiffs has been paid, tendered, or provided for, the defendants contending that under the law the plaintiffs are entitled to none.

A motion for a preliminary injunction was made. It was heard upon bill, answer, affidavits, and exhibits filed by the respective parties. Prior to decision the motion was withdrawn pursuant to a stipulation by counsel that no criminal proceedings would be instituted against the complainants nor the bridge, its piers or abutments interfered with pendente lite, and that final decree should be entered upon the evidence then before the court. The cause is now before the court for final decree upon the stipulated record.

The primary questions arising from the record are: What interest did the plaintiffs have in the canal properties, spanned by the bridge, immediately prior to the acquisition of those properties by the United States; whether the plaintiffs were divested of that interest by the condemnation proceedings through which the United States acquired title to the canal properties; whether the Secretary of War has power under the existing facts to direct the removal or alteration of the bridge; and whether this suit may be maintained against the defendants. These questions will be considered in their order.

The canal, which crosses the head of the Delaware, Maryland, and Virginia Peninsula and connects the waters of the Chesapeake and the Delaware Bay, was constructed by the Chesapeake &amp Delaware Canal Company, incorporated for that purpose by a statute passed by the General Assembly of the State of Delaware January 29, 1801 (3 Del.Laws, c. 78). By that act the canal company was empowered to acquire lands necessary for the construction and operation of that portion of the canal passing through this state and to have perpetual succession. The Legislature reserved the right 'to enact laws for the erecting and maintaining of bridges across the canal at the expense of the said company. ' Lands were acquired by the canal company and the canal constructed. Where crossed by the Delaware Railroad those lands have a width of approximately 500 feet. The canal itself is at that point probably less than 100 feet in width.

The Delaware Railroad Company was created by an act of the General Assembly of the State of Delaware passed June 26, 1836 (9 Del.Laws, c. 11; amended 10 Del.Laws, c. 357; republished as amended 10 Del.Laws, c. 358). It was empowered to have perpetual succession; to 'purchase, receive, have, hold and enjoy to them and their successors, lands, tenements and hereditaments, * * * and all estate, real, personal and mixed of what kind or quality soever'; to acquire lands by condemnation; and to locate and construct a railroad of one or more tracks from a point lying north of the canal to the southern boundary of the state. The act of incorporation further provides:

'Sec. 15. That if in the location of the said railroad, it shall be found necessary to pass over any navigable river, canal or creek by a bridge or other edifice, it shall be the duty of said company to construct and keep in repair a sufficient pass or draw in said bridge or edifice over the channel or deepest part of said river, canal or creek for the purpose of letting vessels pass and repass through the same, which draw shall, at all times on the approach of any masted vessel or vessels, be drawn at the cost of the said railroad company, so as to admit the free passage of such vessel or vessels. * * * '

The railroad was built after the canal had been constructed. At the point at which the railroad crosses the canal property there is a natural depression only partly occupied by the canal. The bridge, which spans the depression, was erected about 1855 to carry a single track. It is about 250 feet long. It is supported between the outer abutments by three piers-- a center pier upon which the draw is turned horizontally, and a north and a south rest pier. The piers and abutments now remain as originally erected with the exception that in 1901 the piers and abutments were lengthened to accommodate an additional track. No deed from the canal company to the railroad company for the land occupied by the piers and abutments has been produced. Nor does the record show that the railroad's right of way over the canal property was condemned. The record does show, however, that the canal company in 1854 appointed a committee to attend to the interests of the company in the location of the 'Delaware Railroad Bridge intended to cross the canal,' and that the committee reported that it had visited the canal and approved the site of the bridge as proposed by the railroad company. Drawings showing the original piers and abutments, together with their proposed enlargements to accommodate an additional track, were approved in writing thereon by the officers of the canal company in 1900 and in 1901. The alterations were made in conformity with those drawings.

The Delaware Railroad Company contends that the foregoing facts disclose that it acquired by adverse possession a fee-simple title to the lands upon which the piers and abutments of its bridge rest. The defendants, on the other hand, contend that the railroad company had only a license to use the lands, revocable at any time by the owner of the canal property. The true rights of the railroad company are found, I think, not in either of these extremes, but between them. The statute of its creation empowered the railroad company to purchase or to condemn the necessary lands for the purpose of locating and constructing its railroad. That statute likewise gave to that company authority to build its railroad over the canal and the lands of the canal company. That was a valid grant of power. West River Bridge Co. v. Dix, 6 How. 507, 12 L.Ed. 535; Cincinnati v. Louis. & Nash. R.R. Co., 223 U.S. 390, 400, 32 Sup.Ct. 267, 56 L.Ed. 481. Apparently the railroad company before building its bridge over the property of the canal company neither purchased nor condemned any land of the latter company. But with the knowledge of the canal company the railroad company entered upon the lands of the latter and by the expenditure of large sums of money built and later enlarged a bridge having its piers and abutments upon those lands. In neither instance did the canal company object. In each instance it expressly acquiesced. The right of passage has been used constantly for upwards of 65 years. It is a well-established rule of law that, under such circumstances, the landowner may not maintain either trespass or ejectment for the entry and is restricted to a suit for damages. Roberts v. Northern Pacific Railroad, 158 U.S. 1, 15 Sup.Ct. 756, 39 L.Ed. 873; Northern Pacific Railroad Co. v. Smith, 171 U.S. 260, 271, 275, 18 Sup.Ct. 794, 43 L.Ed. 157; New York City v. Pine, 185 U.S. 93, 22 Sup.Ct. 592, 46 L.Ed. 820; Essex v. New England Tel. Co., 239 U.S. 313, 321, 36 Sup.Ct. 102, 239 U.S. 313, 60 L.Ed. 301.

I do not find any local authority in conflict with the principle of these cases. Obviously, therefore, the railroad company acquired through its acts and the acquiescence of the canal company therein a substantial interest in the lands of the canal company...