Mauldin v. Central of Georgia Ry. Co.

• Decision Date: 13 February 1913
• Citation: 61 So. 947,181 Ala. 591
• Parties: MAULDIN v. CENTRAL OF GEORGIA RY. CO.
• Court: Alabama Supreme Court

61 So. 947

181 Ala. 591

MAULDIN v. CENTRAL OF GEORGIA RY. CO.

Supreme Court of Alabama

February 13, 1913

Rehearing Denied April 23, 1913

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Action by C.M. Mauldin against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Evans &amp Parrish, of Montgomery, for appellant.

W.O Mulkey, of Geneva, for appellee.

MAYFIELD J.

This is an action in tort for the maintenance of a public nuisance in that, as alleged, the defendant obstructs a navigable stream. Demurrers were sustained to a number, if not to all, of the 14 counts of the complaint. The only errors assigned however, are as to counts 12, 13, and 14.

The plaintiff is alleged to have been engaged in the business of rafting logs and lumber down the Choctawhatchie river, and the defendant in the business of operating a commercial railroad which crosses this river. It is alleged that a part of defendant's railroad consisted of a bridge which spanned this river, and that the piers or substructure of the bridge obstructed the passageway of such streams, except a space of about 30 feet in width, and that driftwood collected against said substructure and thus obstructed the use of said river for the purpose of navigation in floating logs and timbers down said river, and that on certain occasions mentioned the plaintiff was damaged on account of said obstructions, in that he lost a part of his rafts by reason thereof. The main contention is narrowed down to this: Did any one of these counts sufficiently allege the maintenance of a public nuisance?

The law as to the obstruction of streams like the one in question, and as to the right of individual for damages on account thereof, has been the subject of repeated adjudications in both the state courts and the federal court. The Supreme Court of the United States, after referring to these cases, in the case of Cardwell v. Bridge Company, 113 U.S. 210, 5 Sup.Ct. 425, 28 L.Ed. 959, said: "These cases illustrate the general doctrine, now fully recognized, that the commercial power of Congress is exclusive of state authority only when the subjects upon which it is exerted are national in their character and admit and require uniformity of regulations affecting alike all the states; and that when the subjects within that power are local in their nature or operation, or constitute mere aids to commerce, the states may provide for their regulation and management, until Congress intervenes and supersedes their action." In the same case it is said: "The control of Congress over navigable waters within the states so as to preserve their free navigation under the commercial clause of the Constitution, the power of the states within which they lie to authorize the construction of bridges over them until Congress intervenes and supersedes their authority, and the right of private parties to interfere with their construction or continuance, have been fully considered, and we are entirely satisfied with the soundness of the conclusions reached. They recognize the full power of the states to regulate within their limits matters of internal police, which embraces among other things the construction, repair, and maintenance of roads and bridges, and the establishment of ferries; that the states are more likely to appreciate the importance of these means of internal communication and to provide for their proper management than a government at a distance; and that, as to bridges over navigable streams, their power is subordinate to that of Congress, as an act of the latter body is, by the Constitution, made the supreme law of the land; but that until Congress acts on the subject their power is plenary. When Congress acts directly with reference to the bridges authorized by the state, its will must control so far as may be necessary to secure the free navigation of the streams. In Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245 , a dam had been constructed across a small navigable river in the state of Delaware, by authority of its Legislature; and this court held that the obstruction which it caused to the navigation of the stream was an affair between the government of the state and its citizens, in the absence of any law of Congress on the subject."

The case in which the question has probably received the fullest consideration is that of Gilman v. Philadelphia, 3 Wall. 713. 18 L.Ed. 96. The members of the court in that case were divided in opinion, and therefore the case was thoroughly and fully considered by the whole court and the law upon the subject learnedly and ably examined and expounded. In that case it was said: "It is almost as important that the law should be settled permanently as that it should be settled correctly. Its rules should be fixed deliberately and adhered to firmly, unless clearly erroneous. Vacillation is a serious evil. 'Misera est servitus ubi lex est vaga aut incerta.' *** Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a state other than those in which they lie. For this purpose they are the public property of the nation and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the states or otherwise, to remove such obstructions when they exist, and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes Congress possesses all the powers which existed in the states before the adoption of the national Constitution, and which have always existed in the Parliament in England. It is for Congress to determine when its full power shall be brought into activity, and as to the regulations and sanctions which shall be provided. *** The national government possesses no powers but such as have been delegated to it. The states have all but such as they have surrendered. The power to authorize the building of bridges is not to be found in the federal Constitution. It has not been taken from the states. It must reside somewhere. They had it before the Constitution was adopted, and they have it still. 'When the Revolution took place the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters and the soil under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government.' *** In the Wheeling Bridge Case this court placed its judgment upon the ground 'that Congress had acted upon the subject, and had regulated the Ohio river, and had thereby secured to the public, by virtue of its authority, the free and unobstructed use of the same, and that the erection of the bridge, so far as it interfered with the enjoyment of this use, was inconsistent with and in violation of the acts of Congress, and destructive of the right derived under them; and that, to the extent of this interference with the free navigation of the Ohio river, the act of the Legislature of Virginia...