Faust v. City of Cleveland

• Decision Date: 15 April 1903
• Docket Number: 1,100.
• Parties: FAUST v. CITY OF CLEVELAND.
• Court: U.S. Court of Appeals — Sixth Circuit

121 F. 810

FAUST v. CITY OF CLEVELAND.

No. 1,100.

United States Court of Appeals, Sixth Circuit.

April 15, 1903

Benjamin A. Gage, for appellee.

This is a libel in personam against the city of Cleveland, a municipal corporation of the state of Ohio. The libelant is the owner of the steam tug Crown Prince, which came into collision with a snag or other submerged obstruction in that part of the navigable river Cuyahoga, lying within the corporate limits of the municipality, and constituting a part of the harbor, and was sunk and totally lost as a consequence. It is averred that the municipality was under a duty to keep the harbor or river within its limits free from such obstructions, and that it had for a long time prior to the loss of the libelant's vessel exercised control and supervision over the river where the disaster complained of happened. It is also averred that the municipality had notice of this particular obstruction, and time to remove same before the collision complained of. The libel contains the usual averments as to the equipment and negligence of the Crown Prince. The respondent excepted upon the ground that it was under no legal duty to keep the river clear, and was not legally responsible for the loss of the libelant's tug. The exception was sustained, and the libel dismissed. Libelant has appealed.

Before LURTON and SEVERENS, Circuit Judges, and COCHRAN, District Judge.

LURTON Circuit Judge, after making the foregoing statement of the case, .

There is no averment that the city either caused or contributed to the creation of the obstruction in the river. If, therefore it is liable to the libelant, it is because it was under some positive duty to remove the submerged object when notice was received of its existence. The argument for libelant is that the river within the limits of the city is a 'highway,' within the meaning of section 2640, Rev St. Ohio 1892, defining the duties of Ohio municipalities. It is as follows:

'The council shall have the care, supervision and control of all public highways, streets, avenues, alleys, sidewalks, public grounds and bridges within the corporation, and shall cause the same to be kept open and in repair, and free from nuisance.'

That the river is a highway for the passage of vessels engaged in foreign and interstate commerce, as well as domestic traffic, is true; but that that part of the river Cuyahoga which happens to be within the corporate limits of the city of Cleveland is one of the highways in the sense that its streets and alleys and roads are so as to charge it with the duty of keeping it safe for navigation by removing obstructions is not properly to be inferred from the section cited. The word 'highway' is a very broad term, and may, as a generic word, include every possible thoroughfare. Thus, as noticed by the court below, a railroad is a highway; and, if the word as used in this Ohio statute is to be regarded as used in its broadest sense, the railroads within the city would likewise fall within the care of the city-- a result quite absurd, as all must confess. Plainly, the word 'highway' is to be understood as applying to such highways as customarily fall within the care and supervision of cities and towns, and the words following, 'streets, avenues, alleys, sidewalks, public grounds and bridges,' must be taken as limiting the meaning of 'highways.' The learned trial judge properly placed this interpretation upon the statute, saying:

'I think we should properly read into the statute the words 'such as,' after 'highways'; the designations following being explanatory of the term 'highway."

Neither do the other sections of the Ohio Revised Statutes, concerning the control of the shores and banks of lakes and rivers, and providing for the appointment of harbor masters for the purpose of regulating navigation within the city, impose the duty of regulating the depth of water or removing obstructions.

The river Cuyahoga is a navigable river, and, as such, is subject to the control of Congress, and to its regulations and general supervision. But the interest of the state in its own domestic commerce is such that the regulation of Congress is not necessarily exclusive of all control or authority by the state. It has therefore been held that legislation by the state for the purpose of aiding commerce by the improvement of such streams by providing for the deepening of the channel or the removal of obstructions does not encroach upon the power of Congress, if not in conflict with any system for their improvement provided by the Congress. County of Mobile v. Kimball, 102 U.S. 691, 26 L.Ed. 238. In the case cited above, a law of Alabama which provided for the deepening of the harbor of Mobile at the expense of the county of Mobile was held valid; the court regarding the state as having authority to impose the duty of improving and caring for such a navigable body of water within the state upon one of its municipal corporations within whose limits the harbor lay. But this duty of providing for the safe navigation of rivers is a duty which rests upon the United States and upon the state. It is not a duty which can be enforced by an individual. It belongs, plainly, to the sphere of the governmental duties of imperfect obligation. The federal government or the state government may voluntarily assume it, or the latter may impose it upon one of its municipalities to the extent...