Maxwell v. Bay City Bridge Co.

• Decision Date: 08 October 1879
• Citation: 2 N.W. 639,41 Mich. 453
• Court: Michigan Supreme Court
• Parties: ANDREW C. MAXWELL v. BAY CITY BRIDGE COMPANY.

2 N.W. 639

41 Mich. 453

ANDREW C. MAXWELL v. BAY CITY BRIDGE COMPANY.

Supreme Court of Michigan

October 8, 1879

Boards of supervisors cannot delegate their statutory powers of regulating the bridging of navigable streams, and cannot exercise the power unless the petition for leave to erect a bridge confers jurisdiction. The petition to and the resolution of the board should describe with precision the location and nature of the bridge.

License to build upon the licenser's premises is revocable, but if costly improvements are made in reliance upon it, it seems that the licensor should be precluded from demanding damages or compensation.

Andrew C. Maxwell, in person, for plaintiff in error.

Holmes Collins & Stoddard, for defendant in error.

COOLEY, J.

This suit is instituted to recover damages for consequential injury suffered by plaintiff as proprietor of lots three four and five, in block thirty, of Bay City, in consequence of the keeping up of a bridge by the defendant across the Saginaw river. The plaintiff's lots have a front on the river a little below Third street, and they have warehouses upon them with a wharf in front, at which the large steamers and other vessels navigating the great lakes and their connecting waters have been accustomed to land and receive passengers and freight. The width of the river at this point is about a thousand feet between the wharf lines, and it has a general course to the north.

The bridge of which complaint is made begins at the foot of Third street, and extends across the river, at right angles to its general course, to the foot of the Midland road, so called on the west side. The east abutment of the bridge extends into the river about forty-three feet beyond the dock line and seventy-seven feet beyond this the pier is reached, upon which rests and revolves the movable portion of the bridge or swing. This pier is forty feet wide, and 274 feet long, and being parallel with the shore it extends out in front of the plaintiff's lots fifty-seven feet or thereabouts. The openings for the passage of vessels, when the swing is open, are about seventy-seven feet each. The structure, as the foregoing figures will show, is considerably to the east of the middle of the river.

There are three counts in the declaration, the first of which, after describing the plaintiff's lots and the warehouses and wharf thereon, and the keeping up of the bridge, alleges as the grievance that the bridge "impedes the free arrival and departure of vessels from the said wharf or dock of the plaintiff, and prevents the full enjoyment of his rights on the said river, and renders it difficult for vessels to land at or depart from said dock or wharf, by reason of which the business and profits of the said dock or wharf of the plaintiff have been greatly diminished, and by reason whereof it is very difficult and dangerous for steamboats, vessels and barges to land at or depart from the said wharf of the plaintiff."

The second count complains that the pier "so far projects out into the said river, and beyond the channel thereof as established by law, as to render the landing and departure of steamboats, vessels and barges to or from the wharf or dock of the plaintiff difficult and dangerous, whereby the business and profits of the plaintiff from his said wharf or dock have been greatly diminished."

What is here meant by the channel of the river "as established by law" is not explained in the case.

The third count avers the ownership by the plaintiff of the lots described, and "also, as part thereof, of the soil and ground of the bed of the Saginaw river between the river banks and the center or bed of the stream," and that "the defendant entered into and upon such other lands of the plaintiff, and drove great piles into the land and soil of the plaintiff under the water of said river, and has kept and maintained the same ever since, whereby the steamboats, vessels and barges that had heretofore landed at the wharf or dock of the plaintiff on the said lots were detained and delayed and damaged, and the profits of the wharf diminished."

The erection and maintenance of the bridge was justified by the defendant under an authority supposed to have been granted by the board of supervisors of Bay county, under the provisions of the sections which constituted sections 487, 488 and 489 of the Comp.Laws of 1871, and the most important question in the case concerns the sufficiency of this authority. To determine this the action of the supervisors must be compared with the statute from which they derive their power. The first of the three sections confers upon the board the power to permit or prohibit the construction of any dam or bridge over or across any navigable stream. The second provides that whenever any person or persons, or any incorporation, shall wish to construct a dam across any such stream, such person or persons, or corporation, shall present to the board of supervisors, or file with their clerk, to be presented to them at their next meeting, a petition praying for leave to construct such dam, and setting forth the purpose, location, height and description of such dam, and whether it is proposed to construct a lock or shute or apron, and of what description, for the passage of boats, vessels, rafts or timber. It then provides for public notice of a hearing on such petition, and proceeds, further, to declare that if the board shall allow the said dam to be constructed the petitioners shall be at liberty to construct the same by complying fully with the terms and conditions set forth in their petition. The third of the sections provides that when any person or persons, township officers or corporation, shall wish to construct any bridge across any stream at a point where the same is navigable for boats or vessels of fifteen tons burden or more, they shall apply to the board of supervisors by petition, and the powers and mode of proceeding shall be the same, as near as may be, as provided for the case of dams. Every such petition shall set forth the kind and description of bridge proposed to be constructed, and whether the same is to be constructed with a draw, or whether any and what provision is to be made for the passage of vessels or boats; and the board shall have the power to grant or refuse the passage of such petition, upon such terms as they shall deem just and reasonable, and to prescribe what description of bridge may be constructed, or to prohibit the construction of any bridge on the proposed location, as in their judgment the public interest shall require.

It is now to be seen whether the defendant has brought itself within the requirements of these sections.

It appears that the defendant presented a petition in March, 1864, for a license to "construct and maintain a bridge accross the Saginaw river at a place between Second and Ninth streets in Bay City; said bridge to be built of timber, plank and iron, and supported by piles in a good and substantial manner, with one or more draws or swings providing for the passage of vessels or boats, the openings of which to be at least seventy-five feet; to have a double track for the passage of teams, vehicles and animals, except the openings, where there may be a double or single track, and a walk on each of the outsides of said bridge for foot passengers." If this petition was sufficient to answer the requirements of the statute, it conferred upon the board of supervisors jurisdiction to act upon the subject, but not otherwise. Powers v. Irish, 23 Mich. 429. That tribunal could only act under the law, and if the law was not complied with in the preliminary steps, its proceedings must be nullities. No question was made upon the notice of hearing, and we pass over that to the petition itself.

The statute requires the petition to state the location of the proposed bridge. This petition proposes that it be located somewhere between Second and Ninth streets in Bay City. It was said, on the argument, that there are seven streets between the two named, but we are not informed what the distance is between them. It must, however, be considerable, and as the streets appear to terminate on the river, where the important commercial interests of the city are likely to be most active, it is not an unreasonable inference that an important portion of the city is, and was when the bridge was petitioned for, embraced within the lines of the two streets named. There is also some evidence in the record that within these lines there was some contest for the location; it being thought likely to influence, favorably or otherwise, the business interests on or near the street which should be its eastern terminus; and it is scarcely possible that in any commercial town the location of a bridge across its navigable waters should not be a subject of solicitude to the public, and especially to all owners of water property and all concerned in water transportation. It is evident that such was the case when the location of this bridge was under consideration.

That an important purpose was in view in requiring the proposed location to be specified cannot be questioned. The statute intends that the project contemplated shall be placed before the public by the petition and notice of hearing, so that public sentiment may have opportunity to form in respect to it, and so that parties concerned may be prepared to express their approval or disapproval to the board, with their reasons; and this, too, without being confused with many projects, every one of which would constitute an impediment to the combining and concentrating of public opinion upon the merits or demerits of any other.

It is not necessary to express, in this case, an opinion upon the precision...