Pennsylvania Ry. Co. v. Baltimore & N.Y. Ry. Co.

• Decision Date: 29 December 1888
• Citation: 37 F. 129
• Parties: PENNSYLVANIA RY. CO. v. BALTIMORE & N.Y. RY. CO. et al.
• Court: U.S. District Court — Southern District of New York

37 F. 129

PENNSYLVANIA RY. CO. v. BALTIMORE & N.Y. RY. CO. et al.

United States Circuit Court, S.D. New York.

December 29, 1888

Robinson Scribner & Bright, for plaintiff.

McFarland Bourdman & Platt, for defendants.

WALLACE J.

This is a demurrer to a complaint, alleging, in substance, that the defendants have erected and constructed a bridge across the public navigable waters of the Arthur Kill, a portion of Staten Island sound, so located as to unnecessarily obstruct and interrupt the navigation of the waters by the plaintiff whereby the plaintiff, as a common carrier of goods and passengers, has been subjected to special loss and injury in the prosecution of its business. The complaint also alleges that it was practicable and feasible for the defendants to locate the piers of their bridge and build their structure on a plan which would have been convenient for the defendants and would have afforded ample accommodations for the purposes of the navigation of the Arthur Kill, but that, instead of doing this, they have adopted a location and plan unnecessarily obstructive of navigation, in willful disregard of the interests of the plaintiff and the public. Although it does not appear by the complaint that the defendants were authorized by an act of congress to build and maintain a bridge over the Arthur Kill, the court must take judicial notice that they were. Moreover, it is not now open to discussion that congress could lawfully confer this authority for the purpose of interstate commerce, notwithstanding the waters are partly within the state of New Jersey, and that state has not consented to, but has protested against, the erection of the bridge. That question has been adjudicated by this court in favor of the defendants. Decker v. Railroad Co., 30 F. 723. The act of congress prescribes various conditions and details of location and construction which are to be observed by the defendants in exercising the authority granted, (act June 16, 1886,) and requires the approval of the secretary of war to the plan and location of the structure, precedent to its erection. It is now insisted in behalf of the defendants that the court must presume that these conditions have been complied with, and consequently that the bridge is a lawful structure. The demurrer thus raises the question of the burden of proof in a case where the navigation of public waters has been obstructed under circumstances that...