Grand Trunk Ry. Co. v. A. Backus, Jr., & Sons

• Decision Date: 15 May 1891
• Citation: 46 F. 211
• Parties: GRAND TRUNK RY. CO. et al. v. A. BACKUS, Jr., & SONS et al.
• Court: U.S. District Court — Eastern District of Michigan

46 F. 211

GRAND TRUNK RY. CO. et al. v. A. BACKUS, Jr., & SONS et al.

United States Circuit Court, E.D. Michigan.

May 15, 1891

Alfred Russell, for complainants.

Don M Dickinson, for defendants.

JACKSON J., (orally).

The court has considered the application for a temporary injunction in the case of the Grand Trunk Railway Company and the Wabash Railroad Company and the Canadian Pacific Railway against A. Backus & Sons, a corporation, and Absalom Backus Jr. It is shown by the bill that the complainants are corporations of the Dominion of Canada and of the state of Missouri; that they are lessees and licensees of the Detroit Union Railroad Depot & Station Company; that they are engaged in interstate commerce traffic; that transfers are made from the Canadian side of the river to the Michigan side by three large steamers,-- the Landsdowne, being 313 feet in length and about 72 feet in width, making 18 trips a day, and carrying some 16 freight-cars and 10 passenger-cars at each trip,-- and that these vessels, so making transfers for these companies, and doing an interstate commerce business from east to west, pass into the slip of the Detroit Union Railroad Depot & Station Company, of which they are licensees and lessees, and that that ferry-slip is necessary to the transaction of their business, and that the defendants Backus, Jr., & Sons, propose to extend a wharf in front of their adjoining property out into the river a distance, as charged in the bill, of 50 feet from its present front. The complainants allege that such extension would greatly impede their ingress to and egress from the ferry-slip they are using; that it would constitute a public nuisance, and an encroachment upon the navigable water of the river, and would entail upon them irreparable injury, and a serious interference with their business; and they seek, therefore upon the ground that its erection would constitute a public nuisance, and that it would entail special damage upon them, to restrain defendants from proceeding to make such extension of their wharf or dock. The defendants answer, and deny that they propose to extend their dock 50 feet out into the river, and say they only propose to extend it 25 feet, and their affidavits support their answer on that point. They also claim that as the complainants now use their transfer boats, the Landsdowne, the Ontario, and Great Western, they are in fact appropriating defendants' land, inasmuch as those vessels when in the ferry-slip extend rearwards or backwards so as to cover some 25 feet of defendants' front, which they claim is private property, and deny the right of complainants to so use their private property Various affidavits have been filed on each side.

No question is seriously made as to the equity of the bill, if the facts therein stated are substantially true, and no point can be made on the right of these complainants to seek for an injunction, and obtain it, if a public nuisance is being erected, which public nuisance will entail upon them serious special damage, or a serious interruption to their business. Before considering the affidavits and the points raised by the defendants, the court may make a few general observations:

1. It is not questioned, and cannot be, that the Detroit river is one of the navigable streams of the United States, which congress, under the commercial clause of the constitution, has a paramount right and authority to regulate and control.

2. Until congress exercises its superior right of control over public water highways, it is certain that the state bordering thereon, or within the limits of which such navigable waters are located, may directly, or through the instrumentality of its municipalities, regulate the erection of wharves and docks and like structures therein, and also define the channel bank or line of navigability. In the absence of regulations by congress or the state or local authorities, it is also settled that the riparian proprietor or adjacent owner of land bordering upon such waters may erect for himself, or for the use of the public, docks and wharves in such waters, out to the line of their navigability.

In Dutton v. Strong, 1 Black, 132, where the subject was discussed as to the rights of the riparian owner upon our inland waters, the court says:

'Wherever the water of the shore is too shoal to be navigable, there is certainly the same necessity for such erections (wharves and docks) in such internal waters as in bays and arms of the sea; and, where that necessity exists, it is difficult to see any reason for denying to the adjacent owner the right to supply it, but the right must be understood as terminating at the point of navigability. If the riparian proprietor extends his docks, wharves, or other structures beyond the line of navigability, so as to obstruct or in any wise impede the navigation of the public water highway or stream over which the right of the public is paramount, he creates a public nuisance, which persons specially injured thereby are entitled to abate or enjoin.'

Again, it is settled by the authorities, and I am not going to take time to refer to them, that state action or non-action in reference to the navigable waters of the United States in no way affects or restricts the right of congress to exercise its paramount authority, and supersede whatever has been sanctioned or permitted by local authority; because acts of congress upon subjects within the jurisdiction of the general government such as are covered by the commercial clause of the constitution, are necessarily the paramount law of this country. Non-action by congress as to such matters of local character and operation is deemed a declaration that for the time being, and until congress sees fit to otherwise order, they may be regulated by state authority. The state authority of Michigan has in fact made no regulation upon this subject in respect to the Detroit river. In 1883, in rechartering the city of Detroit, it conferred upon the city the authority to fix and define and prescribe the harbor lines, and to define the points in the river beyond which these structures should not be extended. The city of Detroit exercised that authority. The defendants in this case therefore stand alone upon their rights as riparian proprietors, which they insist give them the right to extend their present dock frontage 25 feet out into the river. In extending it out that distance into the river, they will reach a depth of 26 and a fraction feet, or an average mean depth of between 26 and 28 feet, as shown by the soundings and affidavits of a disinterested party, Mr. Ferguson, the assistant engineer of the city. The commerce clause or provision of the constitution includes control of the navigable waters of the United States so far as may be necessary to insure free navigation; and by navigable waters of the United States is meant such as are navigable in fact, and which by themselves, or by their connections with other waters, form a continuous channel for commerce with foreign countries or among the states.

In case of The Daniel Ball, 10 Wall. 557, this question of navigability, which forms the very essence of navigable water, is clearly and fully discussed, and they say in that case as to the test:

'A different test must therefore be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers in law which are navigable in fact; and they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.'

That constitutes its navigability, and must necessarily define the line or point to which navigability must extend. The case of The Daniel Ball has been repeatedly affirmed in various cases I call attention to Escanaba, etc., Co. v. City of Chicago, 107 U.S. 678, 2 S.Ct. 185. It was also affirmed in Miller v. Mayor, 109 U.S. 385, 3 S.Ct. 228, and in Booming Co., v. Speechly, 31 Mich. 336, Judge Cooley, delivering the opinion of the supreme court of this state, announces substantially the same rule in determining that question. In Atlee v. Packet Co., 21 Wall. 389, the adjacent owner, without express authority of law from the state or from any municipal authority, extended his pier out into the Mississippi river, to a point where the water was 12 feet deep. It was held that the packet company whose boat struck the pier had a right of action against him for damages, because the structure was an unlawful one, and because it extended into navigable waters. It is true that in that case, under the admiralty rule, court divided the damages, on the ground that the packet company in the navigation of its boat was also guilty of negligence, but, if the suit had been at law, the packet company would have recovered full damages. Take a case in connection with the navigability of the water in front of the defendants' present wharf. Could not a vessel of 20 tons burden and upwards navigate in front of the present wharf? Suppose a collision were to occur between the present front of the defendants' wharf and the front of the proposed extension, within the 25 feet, or within 10 feet of defendants' present front, could there be any doubt that the...