Hatch v. Wallamet Iron Bridge Co.

• Decision Date: 28 March 1881
• Citation: 6 F. 326
• Parties: HATCH and another v. THE WALLAMET IRON BRIDGE CO.
• Court: U.S. District Court — District of Oregon

6 F. 326

HATCH and another v. THE WALLAMET IRON BRIDGE CO.

United States Circuit Court, D. Oregon.

March 28, 1881

Todd Bingham, E. C. Bronaugh, and Edward Bingham, for plaintiffs.

H. Y Thompson and George H. Durham, for defendant.

DEADY D.J.

On October 18, 1878, the legislature of Oregon passed an act authorizing the 'Portland Bridge Company,' a corporation incorporated under the laws of Oregon, 'or its assigns,' to build a bridge, 'for all purposes of travel or commerce,' across the wallamet river between Portland and East Portland, 'at such point or location on the banks of said river' as it might select, 'on or above Morrison street, of said city of Portland:' 'provided, that there shall be placed and maintained in said bridge a good and sufficient draw, of not less than 100 feet in the clear in width of a passage-way, and so constructed and maintained as not to injuriously impede and obstruct the free navigation of said river, but so as to allow the easy and reasonable passage of vessels through said bridge. ' On July 16, 1880, the defendant,-- the Wallamet Iron Bridge Company, commenced the erection of a bridge across the river from the foot of Morrison street, in Portland, to N street, in East Portland. At this point the river is about 1,400 feet wide at extreme low water, with a depth of not less than 50 feet for 200 feet from the Morrisonstreet wharf along the line of the proposed bridge whence it gradually shoals to 23 feet at a further distance of 250 feet. The river rises in the winter months from the rains, and in the spring is backed up by what is known as the June rise in the Columbia. The highest water is 28 feet above low water and during the past winter the rise was 21.6 above low water. The current in the ship channel along the line of the proposed bridge is nearly parallel with the direction of the opening between the piers, and varies in velocity from one to seven miles an hour, and at average high water is from three to four miles an hour. During the winter months strong southerly winds blow down the river for days at a time. The abutment pier is to be placed at the bank in front of the Morrisonstreet wharf, and the spaces between the next five piers are as follows: The first, 180 feet; second, a space on either side of the draw-pier of 100 feet each; and then two spaces of 200 feet each. The piers are constructed by driving piles inside of wooden cribs, and filling the spaces between them with loose stone up to a little below low-water mark, and above with iron tubes filled with concrete, except the draw-pier, which is to be of masonry above low water. The spans are to be of wood, except the draw, which is to be of iron. The lower chord is to be eight feet above high water. The five piers east of the western abutment are now above low water.

On January 3d the plaintiffs filed their bill in this court to enjoin the defendant from constructing this bridge, on the ground that the same is and will be a serious and unlawful obstruction to the navigation of the river. Among other things, the bill alleges that Lownsdale is the owner of an interest in wharves and warehouses on blocks 73 and 74 of Portland, on the west bank of said river,-- a distance of about 600 feet above the location of said bridge,--of the value of $10,000, and that the plaintiff Hatch is the lessee of the whole of said property for a term of years at a rent of $700 per month; that a large portion of the commerce of the Wallamet valley has been done through and at said wharves and warehouses; that a large portion of the wheat raised in said valley has been received and stored there for shipment in sea-going vessels to foreign ports; that vessels carrying 2,000 tons can navigate the channel on the west side of the river for a distance of a mile above Morrison street, and therefore that bank is now occupied by wharves and warehouses engaged in the commerce of the Wallamet valley, and other portions of the coast and Europe; that the space allowed for a draw in said bridge is too narrow to admit the passage of vessels with safety, and therefore they cannot and will not come to complainants' wharves to discharge and receive cargo, to their great and permanent injury; that the plaintiff Hatch is the owner of an enrolled and licensed steamboat-- the A. A. McCully-- which is employed in towing vessels to and from the wharves aforesaid upon the river aforesaid, and that the erection of said bridge with so narrow a draw-opening prevents the same from being done with safety, to his injury.

It appears from the affidavit of C. H. Gorril that he and his brother, R. W. Gorril, of California, are stockholders in the defendant corporation, and are engaged as contractors in the construction of the bridge; that they are to receive $150,000 for the work, and are under bonds in the sum of $20,000 to complete the same by April 1, 1882; that they have expended on the work $50,000, including the purchase and preparation of the timber and lumber for seven of the eight spans, and all the iron for the same, and that if not restrained by this court they will complete the bridge by June 1st.

Section 1 of the act of March 3, 1875, (18 St. 470,) which, among other things, gives this court jurisdiction of a suit in equity arising under a law of the United States, includes this case.

Congress has power 'to regulate commerce with foreign nations and among the several states,' (Const. art. 1, Sec. 8;) and this includes, for the purpose of commerce, the control of all the navigable waters of the United States which are accessible from a state other than that in which they lie. For this purpose they are the waters of the nation, and subject to the legislation of congress in every particular affecting their navigability or use as instruments or means of commerce. Gibbons v. Ogden, 9 Wheat. 1; Penn. v. W. & B. Bridge Co. 18 How. 431; Gilman v. Philadelphia, 3 Wall. 724.

In pursuance of this power to regulate commerce congress has provided (title L of the Rev. St.) that certain vessels, when enrolled and licensed as required by law, shall have the right to engage in the coasting trade; that is, the trade upon the navigable waters of the United States. The plaintiff Hatch is the owner of a vessel so enrolled and licensed for this district, and his contention is that this bridge will and does prevent the enjoyment of this right, and therefore this suit arises out of a law of congress, as applied to the facts and circumstances of the case.

Again, the act of congress of February 14, 1859, (11 St. 383,) admitting Oregon into the Union, provides (section 2) 'that all the navigable waters of said state (Oregon) shall be common highways and forever free, as well to the inhabitants of said state as to all other citizens of the United States, without any tax, duty, toll, or impost therefor. ' Both the plaintiffs are riparian proprietors upon the stream over which this bridge is being built, and their contention is that it does and will obstruct the navigation of the river so as to prevent its being used as a common highway, to their injury as such proprietors, and therefore this suit arises out of a law of congress as applied to the facts and circumstances of the case.

To sustain jurisdiction under this clause of the act of 1875, supra, it is not necessary to show or assume that the plaintiffs are entitled to the relief sought, but it is sufficient if the controversy turns upon or grows out of the proper construction or application of these acts of congress, or either of them.

The power to authorize the erection of a bridge over a navigable water of a state, for the convenience of the inhabitants thereof, belongs to the state as a part of its general police power. Congress does not possess this authority directly, eo nomine; but its control over the navigable waters of the states, as a means of commerce, gives it a practical veto upon the power of the state in this respect. Therefore, no state can authorize or maintain the erection of a bridge over a navigable water, which in effect contravenes or conflicts with the law of congress concerning the navigation of the same; and the fact that such water is wholly within the state is immaterial, if it is accessible from another state, or forms a part of a navigable way between itself and other states.

If, then, this bridge, in its construction or effect, is in conflict with either of these acts of congress, it is so far unlawful; and, if injurious in its operation to the rights of the plaintiffs, is a nuisance, and may be prevented or abated. But if it does not contravene such law, then, however it may inconvenience or obstruct the navigation of the river, this court cannot interfere. The power of congress to regulate the navigation of the river does not execute itself; nor can this court enforce it until congress has declared its will on the subject. Until then the power is dormant, and the authority of the state is sufficient to justify any structure or obstruction that may be placed therein.

In this case the defendant insists that it is building this bridge in pursuance of a law of the state, and that there is no law of congress upon the subject to the contrary, and therefore it is lawful. Does the law under which Hatch's steam-boat is authorized to engage in the coasting trade conflict with the act of the legislature authorizing this bridge? Upon the authorities I do not think it does. The supreme court seems to have been careful not to declare a conflict between state and federal legislation on this subject upon mere implication; and the reason of this is apparent. Congress can at any time declare specifically what shall be a lawful bridge and what shall not; and as it belongs more properly to the political than...