Hatch v. Wallamet Bridge Co.

• Decision Date: 21 April 1881
• Parties: HATCH and another v. THE WALLAMET BRIDGE CO.
• Court: U.S. District Court — District of Oregon

6 F. 780

HATCH and another v. THE WALLAMET BRIDGE CO.

United States Circuit Court, D. Oregon.

April 21, 1881

Hugh T Bingham, Edward Bingham, and E. C. Bronaugh, for plaintiffs.

H. Y Thompson, W. Lair Hill, and Byron B. Bellinger, for defendant.

DEADY D.J.

This application was first heard before me sitting in this court alone, and on April 6th I delivered an opinion thereon, to the effect that the bridge where and as it was being constructed by the defendant was a serious obstruction to the navigation of the Wallamet river, contrary to the act of congress of February 14, 1859, (11 St. 383,) admitting the state into the Union, which declares that all the navigable waters of the state 'shall be common highways and forever free' to all the citizens of the United States; and that this court, under section 1 of the act of March 3, 1875, (18 St. 470) giving it jurisdiction of a suit arising under an act of congress, has authority to restrain parties from violating said act by obstructing the navigation of any of said waters at the suit of any one injured thereby. ^[1] But, considering the importance of the matter to the defendant, I did not then direct the injunction to issue, but continued the application for further hearing, upon the same and such additional evidence as the parties might produce, when the circuit judge, Mr. Justice Sawyer, should be present, and restrained the defendant, as prayed in the bill, in the meantime. That hearing has been had, and the conclusion reached by his honor, the circuit judge, will now be announced by him. As preliminary thereto, I merely wish to say for myself that the further thorough investigation of this question, and able argument of the case pro and con, has only deepened my conviction that the proposed bridge is and will be a nuisance and serious impediment to the navigation of this river

The law of the case upon which the contention mainly turned upon the first hearing is now admitted by the defendant to be correctly stated in the opinion then delivered by myself.

The only remaining question for consideration is, will the erection of this bridge seriously impair or affect the navigability of the river? If it appears probable that it will, the defendant ought not to be allowed to proceed further in the commission of the wrong. It has been well said, by some scientific authority upon this subject, that any bridge is a serious obstruction to the navigation of a river which can be essentially improved. Upon the evidence, and in the very nature of things, there can be no doubt that this bridge, where and as it is being constructed, is a serious obstruction to the navigation of the river. It will absolutely obstruct the navigation of the river, except for the space of 100 feet on either side of the pivot pier, and these openings are altogether too narrow to admit the safe and convenient passage of the sea-going vessels that come to this port, or even the larger class of river-boats, except in favorable conditions of wind and water. Indeed, the further investigation of this matter makes it appear very probable to my mind that no bridge, unless it be a suspension one, can be constructed over the river at this point without being a serious obstruction to its navigability, and impairing its usefulness as a common highway for the citizens of the United States.

The Wallamet river in front of Portland is not only a navigable stream with a ship channel: it is also a sea-port,-- the harbor, as I have before said, of 'the emporium and financial center of the northwest,'-- and to all appearance is destined to be second to no city in importance on the Pacific coast save one. Probably nine-tenths of the exports produced west of the Rocky mountains and north of the forty-second parallel are gathered here for sale and shipment abroad upon sea-going vessels of, in some cases, 3,000 tons burden. Every bushel of grain grown for export over this vast region, and particularly in the great Wallamet valley, feels the cost of storage and dockage at this port, and anything which limits or restricts the capacity or convenience of its harbor works a direct injury to the great body of the producers throughout the country. Therefore it is that the convenience of the comparatively small population immediately east of Portland, or even in Portland, is not alone to be considered in this matter. The river is the navigable water of the people of the United States, and the harbor is for the free use of all the people whose exports and imports freight the vessels that frequent it from all parts of the world. At this point, on the west bank of the river, the ox teams of the Wallamet valley first met the sea-going vessel, and the traffic between them was the beginning of Oregon's commerce. Out of this commerce grew the town of Portland. But destroy or materially restrict or impede the free use of this harbor, or the approaches to it, and so far you destroy the town and injure the commerce of the country.

The injunction ought to be allowed.

SAWYER C.J.

I have very little to add to what the district judge has said. I fully concur with him in the conclusions that he has reached. It is very clear that, under the admitted law of the case, the act admitting the state into the union which provides that the navigable waters of the state shall be free and common highways; and in view of the decision of the supreme court in the Wheeling Bridge Case, 13 How. 518, in which it was held, under a similar act, that any obstruction to the navigation of the Ohio river was unlawful, except by the consent of congress; and the judiciary act of March 3, 1875, giving this court jurisdiction of a suit arising out of an act of congress,-- that this court has authority to restrain the defendant from placing any structure in this river which will obstruct its navigation.

The only remaining question, then, is whether the bridge now being constructed by the defendant will be such an obstruction. To my mind the testimony clearly...