Selman v. Wolfe

• Decision Date: 01 January 1863
• Citation: 27 Tex. 68
• Parties: BENJAMIN SELMAN AND OTHERS v. SOLOMON WOLFE.
• Court: Texas Supreme Court

27 Tex. 68

BENJAMIN SELMAN AND OTHERS

v.SOLOMON WOLFE.

Supreme Court of Texas.

1863.

The navigable streams within the state are public highways, and are exclusively subject to the control of the state; and the legislature is possessed of the authority to obstruct them either wholly or partially, if in its judgment the public interest will be promoted thereby.

But it has always been the settled policy and cherished object of the state to guard its navigable streams from obstruction, and to secure and improve them as the common highways of trade and travel.

This policy will not be held to be abrogated, nor the enactments for its enforcement to be repealed by mere implication; nor will a charter granted by the legislature to individuals to bridge a navigable stream be held to authorize them to obstruct its navigation, unless the right to do so is expressly granted or necessarily implied in the charter.

Held: That the private act of February 10, 1858, authorizing B. Selman and others to erect a toll-bridge across the Angelina river, did not confer upon the grantees the right to obstruct the navigation of the stream.

Obstructions to the navigation of a navigable stream, erected without authority of law, are nuisances; and may be abated as such by a private person in virtue of common right.

ERROR from Cherokee. Tried below before the Hon. R. A. Reeves.

This action was brought by the appellants to recover damages from the appellee for removing part of the bridge of the plaintiffs across the Angelina river, so as to permit the boats of the defendant to pass down the stream.

The defendant justified his action in removing part of the bridge for the purpose of allowing his boats to pass, alleging that the bridge was an obstruction to the navigation of the stream, and as such was a nuisance which he had a right to abate.

The jury returned a verdict for the defendant. A motion of the plaintiff for a new trial was overruled.

Donley & Anderson, for plaintiffs in error.

Bonner & Bonner, for defendant in error.

MOORE, J.

This action was brought by the appellants to recover damages which, it is alleged, they have sustained from the injury done by appellee to a bridge erected by them across the Angelina river, under a special and private act of the legislature, passed February 10, 1858. It is evident that the disposition we should make of this case must depend upon the construction that should be given to this act of the legislature; we will, therefore, give a copy of it: “An act granting to persons therein named the privilege of erecting a toll-bridge across the Angelina river, and to bridge its sloughs at or near the Buckshot crossing.

Sec. 1. Be it enacted by the legislature of the state of Texas, that Benj. Selman, Robert F. Mitchell and William Roark, of the county of Cherokee, and Charles H. Finley and William Selman, of the county of Nacogdoches, and such associates and successors or assignees as a majority of them may constitute, are hereby authorized to erect a tollbridge across the Angelina river, and to bridge its sloughs, at what is known as the Buckshot crossing, about five miles below Wolfe's bridge, on the Selman road from Douglass, in Nacogdoches county, to Alto, in the county of Cherokee; and the above-named persons, their associates, successors and assigns, shall be allowed to erect a toll-gate, shall have the right of way and all other rights and privileges necessary to the keeping up said toll-bridge, slough bridges and road through the bottom of said river, for twenty years, provided they shall charge no toll to the citizens of Nacogdoches and Cherokee counties, and not exceeding half the rates usually charged for ferriage across said stream to other persons.

Sec. 2. Said company shall keep said toll-bridge in good repair, under the direction of the county court of Nacogdoches county, and this act shall take effect from and after its passage.”

It is not controverted that the bridge erected by appellants was injured by appellee, but it is insisted that the Angelina river at and above said bridge was a navigable stream and a public highway, and that appellants had no authority by virtue of said act to erect such a bridge as would impede or obstruct the navigation upon said stream in the manner it had previously been usually and customarily enjoyed; that the appellants had, by the bridge built by them across said river, obstructed the navigation of the same; and that appellee had been compelled, for the purpose of enabling his boats loaded with cotton for himself and others, to pass said bridge with safety, to remove a portion of it.

Numerous cases have been cited by the attorneys for appellants in their elaborate brief, which conclusively show that the navigable streams exclusively within the state are beyond question the highways of the state, and subject exclusively to its control. The legislature, if in its judgment the public interest will be promoted by so doing, may undoubtedly either partially or wholly obstruct them. (Commonwealth v. Charleston, 1 Pick., 180; Hood v. Proprietors of the Brighton Bridge, 2 Mass., 267; City of Savannah v. The State, 4 Ga., 26; Bailey v. Philadelphia R. R. Co., 4 Harring., 389; Thompson, Wilson and others v. Black Bird Creek Marsh Co., 2 Pet., 241; United States v. New Bedford Bridge, 1 Woodbury & Minot C. C., 400.)

The question for us to determine here, however, is not whether the legislature has the authority to authorize the building of a bridge across a navigable stream, and thereby obstruct it as a public highway, but whether they have by the act which we have copied, conferred upon appellants the right to do so. In considering this question we must, as is insisted by appellee's counsel, bear in mind the previous laws in reference to the navigable streams of the state, and especially those relating to the Angelina river. When we do so, we find that it had been expressly recognized by the legislature as a navigable stream (see act approved Feb. 7, 1853, extra session 4th leg., p. 21), and that the sum of three hundred thousand dollars had been appropriated and set apart by the legislature as a special fund for the improvement of the navigable streams of the state (O. & W., art 1478), and that, too, only some...