Frost v. Washington County R. Co.

• Decision Date: 23 December 1901
• Citation: 96 Me. 76,51 A. 806
• Parties: FROST v. WASHINGTON COUNTY R. CO.
• Court: Maine Supreme Court

51 A. 806

96 Me. 76

FROST

v. WASHINGTON COUNTY R. CO.

Supreme Judicial Court of Maine.

Dec. 23, 1901.

(Official.)

Report from supreme judicial court, Washington county.

Action by Charles F. Frost against the Washington County Railroad Company. Case reported, and judgment for defendant.

Action on the case brought to recover damages claimed to have been sustained by plaintiff by reason of the building and maintenance, by the defendant company, of a trestle for its railroad across the channel leading to a tide-water cove in Passamaquoddy Bay, whereby access was cut off from plaintiff's store and mill to the high seas.

It was admitted that the railroad was duly located, and the location filed with and approved by the board of railroad commissioners, and that that body had granted a certificate to operate the road over the trestle.

The cove was closed to vessels by reason of the trestle May 20, 1898, and has remained so ever since. An act of congress approved April 12, 1900, declared the trestle to be a lawful structure. Plaintiff introduced a certified copy of this act as reported back to the senate from committee, with alterations showing that the bill was not enacted in its original form. The following words were stricken out, viz., "In their present position, condition, and elevation, and shall be so held and taken to be, anything in any law or laws of the United States to the contrary notwithstanding"; also the whole of section 2, viz., "That the Washington County Railroad Company its successors or assigns, is authorized to have and maintain its said trestles at their present site and elevation and in their present condition,"—and in place of the stricken portions was inserted the proviso at the end of the bill as printed in the opinion.

The changes in the bill were on the recommendation of the war department.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and PEABODY, JJ.

G. M. Hanson, A St. Clair, and L. H. Newcomb, for plaintiff.

G. A. Curran and B. B. Murray, for defendant.

EMERY, J. A small tide-water bay or cove makes westerly from Passamaquoddy Bay into the land in the town of Perry. The entrance to this cove from the bay is a navigable channel between Pleasant Point on the mainland on the north and Oarlow Island on the south, and this channel, for the purposes of this case, may be regarded as the only practicable passage by water in and out of the cove. For several years prior to 1898, and since, the plaintiff has owned a tract of land on the shore of this cove about three-quarters of a mile up the cove from the entrance. On this tract of land, prior to 1898, he had built a wharf into the cove, and had built a gristmill, and was carrying on a business of buying, grinding, and selling grain, etc., and also was dealing in wood, country produce, etc. The most of his transportation of the merchandise of his business was by water to and from his wharf, in and out of the cove, through the entrance above described. From this wharf and cove, vessels and boats could proceed by sea to other coast states and to the coasts of foreign nations.

The plaintiff had been carrying on this business in this manner through this navigable channel for several years prior to 1898, when the Washington County Railroad Company, in building its railroad into Eastport, built and has since maintained and now maintains a trestle across this channel between Pleasant Point and Carlow Island for the passage of its trains. This trestle practically prevents any navigation of that channel and any transportation by water in and out of the cove. This event has greatly injured the plaintiff's business and the value of his wharf and mill, although the railroad company has not taken nor trespassed upon any of his land or other property, but only interfered with his right of navigation through the channel into the bay and sea. He has brought this action on the case against the railroad company to recover compensation for the injury thus done him by the company's acts in building and maintaining that trestle.

L The first question is whether the defendant company has any legal right to build and maintain a trestle of that character at that place with such effect. It was authorized by its charter (Sp. Laws 1893, c. 454) to locate, construct maintain, and operate a railroad from some point on the Maine Central Railroad in Hancock county to Calais, including a branch to Eastport. It was also empowered by its charter (section 5) "to erect and maintain bridges across tide waters * * * which its railroad may cross; provided they shall be so constructed as not unnecessarily to obstruct the navigation of such waters."

Under this charter the defendant company duly located its branch line to Eastport across this channel where the trestle now is, and this location was duly filed with the railroad commissioners and the county commissioners, and was duly approved by them. The defendant company thereupon, in 1898, built the trestle on the line of the approved location to support its railroad track, and now maintains it as a part of its through railroad from Eastport to its connection with the Maine Central Railroad and with the railroad system of the United States and Canada. The railroad commissioners gave authority to the company to operate its railroad over the trestle as now constructed.

The plaintiff, however, contends that all this gave the defendant company no authority to construct and maintain the trestle it has; viz., a trestle so constructed that it unnecessarily obstructs, and even entirely prevents, the navigation of this channel and cove. He claims that the proviso above quoted in section 5 of its charter limits its authority to build bridges and trestles to those of such character and construction as will not unnecessarily obstruct navigation as described, to his detriment and hence this trestle is, as to him at least, an unlawful structure not authorized by the company's charter.

To meet this contention of the plaintiff's, the defendant relies upon an act of the congress of the United States approved April 12, 1900 (chapter 187, 31 Stat), of the following tenor, viz.: "Be it enacted," etc., "that the trestle on the Eastport Branch of the Washington County Railroad Company, being the property of the Washington County Railroad Company, and running from the extreme point of land south of Pleasant Point in the town of Perry county of Washington and state of Maine to the extreme northern end of Carlow's Island in the town of Eastport in said county and state; and a certain other trestle, also the property of said railroad company, in the East Machias river in said county of Washington and state of Maine, at the extreme end of said river near the village of East Machias in said county and state, be, and both of said trestles hereby are, declared to be lawful structures: provided, that such modifications are made in their present position, condition, and elevation as the secretary of war may order in the interests of navigation." It is not disputed that the trestle first described in the above act is the trestle in question.

We have now to consider the effect of this act of congress upon the question whether the trestle, as now built and maintained, is a lawful or unlawful structure as to the plaintiff. Under the commerce clause of the constitution of the United States (article 1, § 8, par. 3), congress undoubtedly has full and exclusive jurisdiction over navigation and commerce in this channel whenever it chooses to exercise that jurisdiction. Whatever navigability existed in this channel and cove to and from the plaintiff's wharf was directly available to commerce with other states and foreign nations over the waters of the cove, channel, bay, and the great highway of the ocean. "Commerce among states does not stop at a state line. Coming from abroad, it penetrates wherever it can find navigable waters reaching from without into the interior, and may follow them up as far as navigation is practicable." Gilman v. City of Philadelphia, 3 Wall. 725, 18 L. Ed. 96. In Cardwell v. Bridge Co., 113 U. S. 265, 5 Sup. Ct. 423, 28 L. Ed. 959, the American river, a small branch of the Sacramento, though entirely within the state and navigable only by barges and small steamboats, was yet said to be a navigable water of the United States, and as such under the control of the government of the United States, as to its navigation. So, Grand river, though wholly within the state of Michigan and flowing into Lake Michigan, was hold to be within the commerce clause of the United States constitution. The Daniel Ball, 10 Wall. 557, 19 L. Ed. 999....