Texarkana & Ft. S. Ry. Co. v. Parsons

CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court. The rules of law applicable to this case are well settled. Every citizen has a right to the free navigation of the public waters of the United States, and any interruption or obstruction of this free use by any kind of a structure is, prima facie, a nuisance. But the power of congress to regulate commerce among the states comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States, and the railroads engaged in interstate commerce. Interstate commerce by rail has [411] grown to be more extensive and important than that carried on upon the navigable rivers of the country. To promote and facilitate the commerce by rail, which has to cross navigable streams, it has become common for congress to authorize the construction of bridges over the navigable rivers of the United States. Congress has the power to determine the location, plan, and mode of construction of such bridges; and a bridge constructed over a navigable river in accordance with the requirements of the act of congress is a lawful structure, however much it may interfere with the public right of navigation. State v. Wheeling & B. Bridge Co., 18 How. 421; Silliman v. Bridge Co., 4 Blatchf. 74, Fed. Cas. No. 12,851; Id., 2 Wall. 403; Gilman v. Philadelphia, 3 Wall. 713; City of Georgetown v. Alexandria Canal Co., 12 Pet. 97; Missouri River Packet Co. v. Hannibal & St. J. R. Co., 2 Fed. 285; Hannibal & St. J. R. Co. v. Missouri River Packet Co., 125 U. S. 260, 8 Sup. Ct. 874; Rutz v. City of St. Louis, 7 Fed. 438; Ponnsylvania Ry. Co. v. Baltimore & N. Y. Ry. Co., 37 Fed. 129; in re Clinton Bridge, 1 Woolw. 150, Fed. Cas. No. 2,900; Missouri River Packet Co. v. Hannibal & St. J. R. Co., 79 Mo. 478. It is equally well settled by the authorities we have cited that those who seek to justify the erection or maintenance of a bridge across a navigable river, which obstructs its navigation, upon the ground that congress authorized its erection and maintenance, must show that it was constructed and is maintained in accordance with the requirements of the act of congress. The defendant does not seem to have offered any evidence to prove a compliance with any of the numerous requirements of the ant of congress under authority of which it is claimed the bridge was built, and it was conceded'on the trial that the bridge had not been constructed in accordance with the explicit requirements of the act of congress, in a material respect The act requires that the openings on each side of the pivot pier shall not he less than 130 fe.et in the clear, unless otherwise? expressly directed by the secretary of war; and it was not claimed that any such direction was given, and it was conceded that they were only 125 feet in the clear. The fifth section of the act declares that until the “plan and loca lion of the bridge are approved by tlie secretary of war, the bridge shall not be built.” There was not only no suggestion that the secretary of war liad approved the narrowing of the openings on each side of tin» pivot pier, but it does not appear that he approved the location of the bridge, or the plans, or any plans whatever, relating to its construction. Indeed, for anything contained in the record before us, this bridge was constructed in entire violation of the law. However this may he, the bridge varies in its construction, in a material respect, from the requirements of the act of congress, and is therefore an unauthorized and unlawful structure. The variation is material and substantial and robs the structure of the protection of the statute. The act of congress is mandatory, that “the bridge; shall not he built” until certain things have been done. The complaint avers that these things were not done, and there is no evi [412] dence in the record tending to show that they were done, and in the absence of proof there is no presumption that they were done. Upon the state of the record, therefore, the court would have been justified in telling the jury that the bridge was an illegal structure, and that the defendant was liable to the plaintiff for any damages resulting therefrom. It did not do this, however, but told the jury that, if they found “that the narrowing of the space through which the driftwood should pass caused the driftwood to accumulate there, then you are authorized by your verdict to say that the defendant was responsible for that; and, if that is the natural result of narrowing it, the court will not invite any particular investigation upon your part to any theory that it did not cause that. If you are satisfied from the testimony that the natural result of it would be to cause the driftwood to accumulate, by narrowing the space, then you would be authorized by your verdict to say that the building of the bridge in that manner caused this impediment to the navigation.” This instruction was more favorable to the defendant than it had any right to ask; for, upon the state of the record, the entire structure could only be regarded as a public nuisance. Wood, Nuis. §§ 302, 596, 621; Pennsylvania Ry. Co. v. Baltimore & N. Y. Ry. Co., supra; Missouri River Packet Co. v. Hannibal & St. J. R. Co., 2 Fed. 285; Id., 79 Mo. 478. And, viewed in that light, the only question was whether the bridge, taken as a whole, was the proximate cause of stopping and delaying the plaintiff’s boat. The defendant did not contend that the bridge was not an obstruction to the navigation of the river, but only that congress had authorized the obstruction. This would have been a complete defense, if proved; but it was not proved, and no evidence was offered tending to prove it. On the subject of damages, the court told the jury that, if they found the defendant responsible for the detention of the boat, the plaintiff would be entitled to recover his actual damages. “It is not a case of' speculative damages, but a case of actual damages, as shown by the testimony.” Exception was taken to this part of the charge. The charge is not erroneous for anything in it, and, if the defendant desired a more particular statement of the rule of damages, it should have asked an instruction upon the subject. Williams v. Simons, 16 C. C. A. 628, 70 Fed. 40. It may be well to say that, though this bridge may have been built in entire disregard of the act of congress, it is competent for congress to declare that it shall not be deemed an obstruction to navigation, and to legalize the structure. State v. Wheeling & B. Bridge Co., 18 How. 421. The judgment of the district court is affirmed.