Hughes v. Northern Pac. Ry. Co.

• Decision Date: 29 October 1883
• Citation: 18 F. 106
• Parties: HUGHES v. NORTHERN PAC. RY. CO. and others.
• Court: U.S. District Court — District of Oregon

18 F. 106

HUGHES v. NORTHERN PAC. RY. CO. and others.

United States Circuit Court, D. Oregon.

October 29, 1883

George H. Williams and the plaintiff in person, for plaintiff.

Joseph N. Dolph and Cyrus A. Dolph, for defendants.

DEADY J.

The plaintiff brings this suit to enjoin the defendants, or any of them, from building a bridge across the Wallamet river at the north end of Portland. The bill alleges that the plaintiff is the owner of the river blocks numbered 11, 12 and 13, and the south half of 14, in Watson's addition to Portland, lying on the west bank of the Wallamet river between North Front street and said river, with the usual right of wharfage and dockage in front thereof; that the port of Portland is a sea-port, where sea-going vessels enter, and that said river is navigable above and to the southward of said property for such vessels for the distance of two miles 'that the defendants, or some one or more of them, are now engaged in and threaten to continue the construction of a bridge across said river within the limits of the port of Portland, and down the stream from and to the north of said property, and to maintain and to operate the same when built and that said bridge, if constructed and maintained, will be a great and lasting obstruction to the use of the Wallamet river to the south and up the stream of said river from said bridge for the passage of boats, ships, and vessels to the wharf property there situate, and will thereby greatly and in a lasting manner damage all the wharf property situate up the stream of said river from and to the south of said bridge, and therewith will work a great and lasting damage to the property aforesaid, and also constitute a great and lasting obstruction and hindrance to the commerce of the port of Portland;' that said property has no wharf upon it at present, but may be used for such purpose, 'and is of great value therefor;' that the several defendants, through 'separate corporations,' are all under the control of the same persons, so that plaintiff is unable to determine which of them is in fact engaged in constructing said bridge, or proposes to maintain and operate the same; that the said persons claim that 'some one or more of said defendant corporations' are authorized by the state of Oregon and the United States to build and maintain the said bridge, but that neither of said defendants has any 'such power or authority at this time,' nor has the state consented to the construction of the proposed bridge, or the secretary of war approved of the location thereof.

The cause was argued and submitted on a demurrer to the bill by each of the defendants. The grounds of the several demurrers are substantially these: (1) The bill is not verified; (2) the bill is without equity, and the plaintiff is not entitled thereon to an injunction; and (3) the court has no jurisdiction of the subject-matter or the parties to the suit.

On the argument it was admitted by the counsel for the defendants, that the bridge was being built by the Northern Pacific Railway Company alone, under the act of congress of July 2, 1864, (13 St. 365,) and the acts amendatory thereof, and the act of the legislative assembly of the state of Oregon of October 28, 1874. Sess. Laws, 101. This being so, it would have been proper for the other defendants to have answered and denied or disclaimed any interest or participation in the structure or controversy.

However, the case will be considered by the court as it was argued by counsel, upon the theory that the controversy is now one between the plaintiff and the Northern Pacific Railway only.

By the first section of the act of July 2d, aforesaid, entitled 'An act granting lands to aid in the construction of a railway and a telegraph line from Lake Superior to Puget sound, on the Pacific coast, by the northern route,' congress provided that the persons therein named, and others who might be associated with them, should constitute a corporation by the name of the Northern Pacific Railway Company, with power and authority, among other things,--

'To lay out, locate, construct, furnish, maintain, and enjoy a continuous railway and telegraph line, with appurtenances, namely, beginning at a point on Lake Superior, in the state of Minnesota or Wisconsin; thence westerly by the most eligible railway route, as shall be determined by said company, within the territory of the United States, on a line north of the forty-fifth degree of latitude, to some point on Puget sound, with a branch via the valley of the Columbia river to a point at or near Portland, in the state of Oregon, leaving the main trunk line at the most suitable place, not more than 300 miles from the western terminus.'

-- And it was also declared by said section that said company 'is hereby vested with all the powers, privileges, and immunities necessary to carry into effect the purposes of this act as herein set forth.'

By sections 2 and 3 of the act the company is granted the right of way through the public lands, and certain odd-numbered sections thereof, on either side of said way, for the purpose of aiding in the construction of its road.

Section 5 provides--

'That said Northern Pacific Railway shall be constructed in a substantial and workmanlike manner, with all the necessary draws, culverts, bridges, viaducts, crossings, turn-outs, stations, and watering places, and all other appurtenances, including furniture and rolling stock, equal in all respects to railways of the first class, when prepared for business, with rails of the best quality, manufactured from the best iron.' The act further provides that the company is authorized, within certain limits, 'to enter upon, purchase, take, and hold any lands or premises that may be necessary and proper for the construction and working of said road,' and prescribes a mode of ascertaining the value thereof, in case the owner and the company cannot agree thereabout (section 7;) that 'each and every grant, right, and privilege' thereby made to the company is made upon the condition that the road shall be completed by July 4, 1876, (section 8;) that the road 'shall be a post-route and military road, subject to the use of the United States' for all government service, (section 11;) and that the company 'shall obtain the consent of the legislature of any state through which any portion of said railway may pass previous to commencing the construction thereof.'

This consent was obtained from the state of Oregon by the act of October 28, 1874, supra, which provides--

'That the consent of this state be and is hereby given to the Northern Pacific Railway Company, a corporation chartered by an act of the congress of the United States, approved July 2, 1864, to construct its road and telegraph line, or any portions of the same, within the boundaries of this state, and to enjoy, within said boundaries, the rights and privileges which said corporation has, or may have, under the laws of the United States, by virtue of said act of congress, and the amendments thereto.'

Subsequently, congress extended the time for the completion of the road to July 4, 1878. See act of May 7, 1866, (14 St. 435,) and of July 1, 1868, (15 St. 255.)

By the joint resolution of April 10, 1869, (16 St. 57,) the company was authorized 'to extend its branch line from a point at or near Portland, Oregon, to some suitable point on Puget sound, to be determined by said company, and also to connect the same with its main line west of the Cascade mountains, in the territory of Washington; said extension being subject to all the conditions and provisions, and said company in respect thereto being entitled to all the rights and privileges, conferred by the act incorporating said company, and all acts additional or amendatory thereof;' and by that of May 31, 1870, (16 St. 378,) it was further authorized 'to locate and construct, under the provisions and with the privileges, grants, and duties provided for in its act of incorporation, its main road to some point on Puget sound, via the valley of the Columbia river, with the right to locate and construct its branch from some convenient point on its main trunk line across the Cascade mountains to Puget sound;' and required to complete 25 miles of said main line between Portland and the sound by January 1, 1872, and 40 miles a year thereafter until it was completed between said points. By this summary it appears that the Northern Pacific Railroad is authorized, since May 31, 1870, to construct its 'main line' down the columbia river, and via Portland, instead of across the Cascade mountains to the sound, and thus make the former place the practical western terminus of the road, with an extension or branch northward to some point on the latter; and what has been done in this respect is a matter of such common notoriety that the court may take judicial notice of it.

The company has constructed its main line from the eastern terminus to the Wallula junction,-- a point 214 miles east of Portland,-- where it connects with the road of the Oregon Railway & Navigation Company, extending from Portland, up the Columbia river, to said junction, and is operated in connection therewith, as one road, from the latter place to St. Paul. Its extension northward has also been constructed from Portland to Tacoma, on the sound, a distance of 143 miles, thus making a continuous line of road from Lake Superior to tide-water on the Pacific.

The objection that the bill is not verified is immaterial. A bill in equity is not required to be sworn to, unless it is sought to be used as evidence upon an application for a provisional injunction or the like.

The first question to be considered is, has the court jurisdiction of this suit? The defendant,...