Pennsylvania v. Wheeling & Belmont Bridge Co.

54 U.S. 518

• Court: Supreme Court of the United States
• Decided: December 15, 1851
• Status: Published

Opinions

Mr. Justice McLEAN

delivered the opinion of the court.

This bill was filed in the clerk’s office of this court, in July, 1849. It charged that the defendants, under color of an act of the Legislature of Virginia, but in direct violation of its terms, w'ere engaged in the construction of a bridge across the Ohio River, at Wheeling, which would obstruct-its navigation, to and from the ports of Pennsylvania, by steamboats and other craft which navigate the same. That the State of Pennsylvania owns certain valuable public works, canals, and railways, constructed at great expense as channels of commerce, for the transportation of passengers and goods, from which a large revenue, as tolls, was received by the State. That these works terminate on the Ohio River, and were constructed with direct reference to its free navigation; the goods and passengers transported on these lines were conveyed in steamboats, on the Ohio River; and the Wheeling Bridge-would so obstruct the navigation of that river, as to cut off and direct trade and business from the public works of Pennsylvania, impair and diminish the tolls and revenue of the Staté, and render its improvements useless. The bill prayed' an injunction against the erection of the bridge, as a public nuisance, and for general relief.

In August, 1849, a ■ supplemental bill was filed, stating that, after notice, the defendants, continued to prosecute-their work, and were engaged in stretching iron cables across the channel of the river, which would obstruct its navigation, and it praved that these cables might be abated.

At the December term of this court, 1849, another supplemental bill was filed, representing that defendants had- completed the erection of the bridge, and that it had obstructed the passage of steamboats carrying freight and passengers to and from the ports of Pennsylvania; that it also hindered the passage of steamships and sea-going vessels, which were accustomed to be constructed at the ports of Pennsylvania, and would injure and destroy the trade and business of ship and boat building, which was carried on by the citizens of Pittsburg, and it prayed an abatement of the bridge as a public nuisance, and for general relief.

In their answers the defendants-allege the exclusive sovereignty of Virginia over the' Ohio River, and set forth the act authorizing the erection of the bridge. And they object to the application for an injunction and the relief prayed for, that the persons injured might have remedy in the courts of Virginia; that the State of Pennsylvania had no corporate capacity to institute this suit in the Supreme Court, to vindicate the rights of her' citizens; that the State is only a nominal party, whose name was, without proper authority, used by individuals; that the bridge is a connecting link of a great public highway, as important as the navigation of the Ohio River; that Pennsylvania had set the example of authorizing bridges across the Ohio; that certain engineers of the United States had recommended a Avire suspension-bridge at Wheeling, and gave as their opinion, that “by an elevation of ninety feet, every imaginable danger of obstructing the navigation would be avoided; ” that certain reports of committees in Congress recognized the necessity of a bridge at Wheeling, and recommended an appropriation for that purpose; that the headway for steamers left by the bridge is amply sufficient, forty-seven feet above the water, for all useful purposes; and if sufficient draught cannot be had at that height, blowers might be added; that chimneys might have hinges on them, so as to be ioAvered without much inconvenience; that the bridge will not be an appreciable inconvenience to the average class of boats ; that the bridge will not diminish or destroy trade between Pittsburg and other ports, or do irreparable injury to the citizens of Pennsylvania.

The answer admits that the State of Pennsylvania has expended large sums of money in the construction of public improvements, terminating at Pittsburg and Beaver; that a great amount of freight and a large number of passengers do pass over said works, and that a large amount of toll to the State is derived therefrom; that the navigation of the Ohio River is important to the works above-referred to, and that the value thereof-would be affected injuriously if from any cause the passage of steamboats from the city of Pittsburg downAvards were obstructed or impeded. But they deny that their bridge or the cables will have any such effect, or that it can in truth be called a nuisance.

To the actual obstruction occasioned by the bridge, as charged in the second supplemental bill, they set up an amendatory and explanatory act of the Virginia Legislature, passed 11th of January, 1850, declaring the height of ninety feet at the eastern abutment, ninety-three and a half feet at the highest point, and sixty ffwo feet at the western abutment, above'the low-water level of the Ohio River, to be of lawful height, and in conformity with the intent and meaning of the 19th section of the charter.

At December term, 1849, the question of jurisdiction was argued on both sides, and it was sustained by the entry of an. order of reference to the Hon. R. H. Walworth, as special commissioner to take testimony and report —

1. Whether the bridge is, or is not, an obstruction of the free navigation of the Ohio River, by vessels propelled by steam or sails, engaged, or which may be engaged, in the commerce • or navigation- of said river.

2. If an obstruction be made to appear, what change or .alteration in the construction and existing condition of the said bridge, if any, call be made, consistent with the continuance of the saíne across said river, that will remove the obstruction to the free navigation.

At the ensuing term, near its close, the commissioner made his report, together with the report of the engineer employed, and the evidence taken before him, deciding,

1. That the bridge is not an obstruction to the free navigation of the Ohio by any vessels propelled by sails.

' 2. That the bridge is an obstruction of the free navigation of the Ohio by vessels propelled.by steam.

3. That the change of alteration which can and should be made in the construction and existing condition of the bridge is, to raise the cables and'flooring in such manner as to give a level headway, at least three hundred feet wide, over a convenient part of the channel, of not less than one hundred and twenty feet above the level of zero on the Wheeling water-gauge.

To this report several exceptions were taken, by the counsel on both sides.

As this is the exercise of original jurisdiction by this uourt, on the ground that the State of Pennsylvania is a party, it is important to ascertain whether such a case is made out as to entitle the State to assume this attitude. In the second section of the third article of the Constitution, it is declared that the Supreme Court shall have original jurisdiction in a case, where a State shall be a party.

In this case the State of Pennsylvania is not a party in virtue if its sovereignty. It does not come here to protect the rights of its citizens. The sovereign powers of a State are adequate to the protection of its own citizens,'and no other jurisdiction can be exercised over them, or in their behalf, except in a few specified cases. Nor can the State prosecute this suit on the ground of any remote or contingent interest in itself. It assumes and claims, not an abstract right, but a direct interest in the controversy, and that the power of this court, can redress its wrongs and save it from irreparable injury. ' If such a case be made out, the jurisdiction may be sustained.

When a State enters into a copartnership, or becomes a stockholder in a bank, orother corporation, its sovereignty is not involved in the business, but it stands and is treated as other stockholders, or partners. And so in the present case, the rights asserted and relief prayed, are considered a's in no respect different from those of an individual. From the dignity of the State, the Constitution gives to it the right to bring an original suit in this court. And this is the only privilege, if the right be established, which the State of Pennsylvania can claim in the prese“nt case.

It is objected, in the first place, that there is no evidence that the State of Pennsylvania, has consented to the prosecution of this suit in its own name.

This would seem to be answered by the fact, that the proceedings were instituted by the attorney-general of the State. He is its legal representative, and- the court cannot presume, without proof, against his authority. In January, 1850, the following declaration passed unanimously by both branches of the Pennsylvania Legislature: “ Whereas the navigation of the River Ohio has been, and is now obstructed by bridges erected across its channel, between Zaire’s Island and the main Virginia and Ohio shores, so that steamboats and other water crafts hitherto accustomed to navigate said river, are hindered in their passage to and from the port of Pittsburg, and other ports in the State of Pennsylvania, and the trade and commerce, and business of this Commonwealth- interrupted, the revenue of her public works diminished and impaired, and steamboats, owned and navigated by citizens of this State, bound to and from her ports, are subjected to labor, expense, and delay, with hazard to life and property, by reason whereof the said bridges are a common and public nuisance, injurious to the State of Pennsylvania and her citizens, therefore be it resolved, &c.

“2. That the proceedings, in behalf of said'State, instituted by her attorney-general in the Supreme Court of" the United States, and now pending therein against the Wheeling and Belmont Bridge Company to abate the nuisance occasioned by their bridge lately erected across the Ohio, be prosecuted to final judgment, decree, and execution, for abatement of said nuisance.”

On a question of disputed boundary, between two States, although the inquiry of the court is limited to the establishment of a common line, yet the exercise of sovereign authority, over more or less territory, (i may depend upon the decision. This gives great dignity and importance to such a controversy, and renders necessary a broader view, than on a question -as to the mere right of property. ’ But in the present case, the State of Pennsylvania claims nothing connected with the exercise of its sovereignty. It asks.from the court a protection of its property, on, the same ground and to the same extent as a corporation or individual may ask it. And it becomes an important question whether such facts are shown, as to require the extraordinary interposition of this court.

Relief in this form is given, as it cannot be given adequately in any other. The injury complained of, in the language of the books, must be irreparable by a suit at law for damages. It is matter of history, as well as in proof, that Pennsylvania, for many years past, has been engaged in making extensive improvements by canals, railroads, and turnpikes, many of them extending from Eastern Pennsylvania to Pittsburg, by which the transportation of goods and passengers is greatly facilitated, and that a large portion of the goods and passengers thus transported are conveyed to and from Pittsburg on the Ohio River.

On the 18th of December, 1789, an act was passed by Virginia, consenting to the erection of the State of Kentucky put of its territory, on certain conditions, apiong which are the following: “ That the use and navigation of the River Ohio, so far as the territory of the proposed State, or the territory that shall remain within the limits of this Commonwealth lies thereon, shall be free and common to the citizens of the United States.” Virg. Revised Code,/1819, p. 19. To this act the assent of Congress was given. 1 Stat. at Large, 189.

Thai the Ohio River is navigable, is a historical fact, which all courts may recognize. For many years the commerce upon it has been regulated by Congress, under the commercial power, by establishing ports, requiring vessels which navigate it to take out licenses, and to observe certain rules for the safety of their passengers and cargoes. Appropriations by Congress have been frequently made, to remove obstructions to navigation from its channel.

It appears that Pennsylvania has constructed a combined line of canal and railroad from Pittsburg and Alleghany cities, to the city of Philadelphia, a distance of about four hundred miles, at an expense of about sixteen millions of dollars, all of which are owned by the State. There is also’ a railroad from Pitts-burg to Harrisburg which will soon be completed, at an expense of some eight or ten millions of dollars. There is also a slack-water navigation from Pittsburg 'to Brownsville, and up the Yaughegany to West Newton, and there are other lines, of communication between Pittsburg and the East, which are owned in whole or .in part by the State, and from which it derives revenue.

And the witnesses generally say, that any obstruction on the .Ohio River, to the free passage of steamboats, must affect injuriously the revenue from the above public works, as it would divert the transportation of goods and passengers from the lines to and from Pittsburg, to the northern lines through New York. Whilst the witnesses differ as to the amount of such an injury, they generally agree in saying, that any serious obstruction or. the Ohio would diminish the trade and lessen the revenue of • the State. The value of the goods to and from Pittsburg, transported on the above lines of communication, is estimated at from forty to fifty millions annually. And it is shown that the commerce on the Ohio, to and from Pittsburg, amounts to about the same sum.

If the bridge be such an obstruction to the navigation of the Ohio as to change, to-any considerable extent, the line of transportation through Pennsylvania to the northern route through New York, or to a more southern route, an injury is done to'the State of Pennsylvania, as the principal proprietor of the lines of communication, by canal and railroad, from Philadelphia to Pittsburg. And this injury is of a character for which an action at law could afford no adequate redress. It is of daily occurrence, and would require numerous, if not daily prosecutions, for the wrong done; and from the nature of that wrong, the compensation could not be measured or ascertained with any degree of precision. The effect would be, if not to reduce the tolls on these lines of transportation, to prevent their increase with the increasing business of the country.

If the obstruction complained of be an injury, it would be difficult to state a stronger case for the extraordinary interposition of a court of chancery. In no case could a remedy be more hopeless by an action at common law. The structure complained of is permanent, and só are the public works sought to be protected. The injury, if there be one., is as permanent as the work from which it proceeds, and as are the works affected by it. And whatever injury there may now be, will become greater in proportion to the increase of population and the commercial developments of the country. And in a country like this, where there would seem to be no limit to its progress, the injury complained of would be far greater in its effects than under less prosperous circumstances.

■ As we are now considering the obstruction of the. bridge, not as to the relief prayed for, but as to the form of-the remedy adopted by the complainant, we are brought to the conclusion, as before announced by this court to the. parties, that there is made out a primd facie case for the exercise of jurisdiction. The witnesses who testify to the obstruction are numerous, and the weight of their testimony is not impaired by'the impeachment of their credit, or. a denial of the facts stated by them.

But it is objected, if not as a matter going to the jurisdiction, as fatal to any further action in the ease, that there are no statutory provisions to guide the court, either by the State of Virginia, or by Congress. It is said that there is no common law of the Union on which the procedure can be founded; that the common law of Virginia is subject to its legislative action, and that the bridge, having been constructed under its authority, it can in no sense be considered a nuisance. That whatever shall be done within the limits of a State, is subject to its laws, written or unwritten, unless it be a violation of the Constitution, or of some act of Congress.

It is admitted that the federal courts have no jurisdiction of common-law offences, and that there is no abstract pervading principle of the common law of the Union under which we can take jurisdiction. And it is admitted, that the case under consideration, is subject to the same rules of action as if the suit had been commenced in the Circuit Court for the District of Virginia.

In the second section of the third article of the Constitution it is declared, “ the judicial power shall extend to all cases, in law-and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made under their authority.”

Chancery jurisdiction is conferred on the courts of th<" United States with the limitation “ that suits in equity shad not be sustained in either of the courts of the United States, in any case where plain, adequate, and complete remedy may be had at law.” The rules of the High Court of Chancery of England have been adopted by the courts of the United States. And there is no other limitation to the exercise of a chancery jurisdiction by these courts, except the value of the matter in controversy, the residence or character of the parties, ox a claim which arises under a law of the United States, and which has been decided against in a State court.

In exercising this jurisdiction, the courts of the Union are not limited by the chancery system adopted by any State, and they exercise their functions in a State where - no court of chancery has been established. The usages of the High Court of Chancery in England, whenever the jurisdiction is exercised, govern the proceedings. This may be said to. be the common law of chancery, and since the organization of the government, it has been observed.

In Robinson v. Campbell, (3 Wheat. 222,) it is said, “ The court, therefore, think that, to effectuate the purposes of the legislature, the remedies in the courts of the United States are to be, at common law or in equity, not according to the practice of State courts, but according to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of those principles.”

This principle is not controverted by what is laid down in the case of Wheaton & Donaldson v. Peters, 8 Pet. 658. In that case, the court say, “ It is clear there can be no common law of the United States. The federal government is composed of twenty-four sovereign and independent States, each of which may have its local 'usages, customs, and common law. There is no principle which pervades the Union, and has the authority of law, that is not embodied in the Constitution or laws of the Union. The common law could be made a part of our federal system only by legislative adoption. ' When, therefore, a common-law right is' asserted, we must look to the State in which the controversy origindfed.” The inquiry, in that easel was, whether a copy-right existed by common law in the State of .Pennsylvania. But, in the case above cited from 3 Wheaton, the court spoke of the remedy. By the act of Congress of 1828, proceedings at law, in the courts of the United .States, are required to conform to the modes of proceeding in the State courts;. but there is no such provision in regard to ■ courts of chancery.

Under this system, where relief can. be given by the English chancery, similar relief may be given by the courts. of the Union.

An indictment at common law. could not be-sustained in the federal courts by the United States, against the bridge as a nuisance, as no such procedure has been authorized by Congress. But' a-proceeding, oh the ground of a private and an irreparable injury, may be sustained against it by an individual or a corporation. Süch a proceeding is common to thé federal .courts, and also to the courts of the State.. The injury makes • the obstruction a private nuisance to the injured party; and the doctrine of nuisance applies. to the case where the jurisdiction ■is made, out, the same as in a.public prosecution. If the'obstruction b(3 unlawful, and the injury irreparable, by a suit at common law, the injured party may claim the extraordinary projection of a court of chancery.

■ Such a proceeding is as common and as free from difficulty as an ordinary injunction-bill, against a proceeding at law,'or.to stay waste or trespass. The powers of a court of chancery are as well adapted, and as effectual' for relief - in the case of a private, nuisance,- as in'either of the cases.named. And, in regard to the exercise of these powers, it is of. no importance whether the eastern channel, over which the bridge' is thrown, is wholly within the limits of .the State of Virginia. The Ohio being a navigable stream, subject to the commercial power of Congress,-. and over, which that power has been exerted; if the river be within the State of Virginia, the commerce upon it, which extends to other States, is not within its jurisdiction; consequently,' if the act of Virginia authorized the-structure of the bridge, so as to obstruct navigation, it' could afford no justification to the Bridge Company.

The act of. Virginia, under which the bridge was built, with scrupulous cafe, guarded the rights of navigation. In the 19th section, it is declared “ That, if the said bridge shall be so -constructed as'to injure the navigation of the said river, the said bridge shall be treated as a public nuisance, and shall be liable to abatement, upon the same principles and in the same manner that other public nuisances are.” And, in the act of the 19th of March, 1847, to revive the first act, it is declared, in the 14th section, “ that if the bridge shall be so erected as to obstruct the' navigation of the Ohio River, in the usual manner, by such steamboats and other crafts as are. now commonly accustomed to navigate the same, when the river shall be as high as the highest floods hereinbefore known, then, unless, upon such obstruction being, found to exist, such obstruction shall be immediately removed or remedied, the said last-mentioned bridge may be treated "as a publicmuisance, and abated accordingly.”

This is'a full recognition of the public right on this great highway, and the grant to the Bridge Company was made subject to that right.

It is objected that there is no act of Congress prohibiting .obstructions on the Ohio River, and that until there shall be such a regulation, a State, in the construction of bridges, has a right to exercise its own discretion on the subject.

Congress have not declared in terms that a State, by the construction of bridges, or otherwise, shall not obstruct the navigation of the Ohio, but they have regulated navigation upon it, as before remarked, by licensing vessels, establishing ports of entry, ^imposing duties upon masters and other officers of boats, and inflicting severe penalties i'or neglect of those duties, by which, damage to life or property has resulted. And they have expressly sanctioned the' compact made by Virginia with Kentucky,- at the time of its admission into the Union, “ that the use and navigation of the River Ohio, so far as the territory of the proposed State, or the territory that shall remain within the limits of this Commonwealth lies thereon, shall be free and com-man- to the citizens of the' United States,” Now, an obstructed navigation cannot be said to be free. It was, no doubt, in' view of this compact, that in the charter for the' bridge, it was required to be so elevated, as hot, at the greatest height of the water, to obstruct navigation. Any individual may abate a public nuisance. 5 Bac. Ab. 797; 2 Roll. Ab. 144, 145; 9 Co. 54; Hawk. P. C. 75, sect. 12.

This compact, by the sanction of Congress, has become a law of the Union. What further legislation can be desired for judicial action? In the case of Green et al. v. Biddle, (8 Wheat. 1,)'this court held that' a law of the State of Kentucky,'which was in violation of this compact between- Virginia and Kentucky, was yoid; and they say this court has authority to declare a State law unconstitutional, upon the ground of its impairing the obligation of a compact between different States of the Union.

The case of Wilson v. The Blackbird Creek Marsh Company, (2 Peters, 250,) is different in principle from the case before us. A dam was built over a creek to drain a marsh, required .by the u-nhealthiness it produced. . It was a small creek, made navigable by the flowing of the tide. The Chief Justice said it was a matter of doubt, whether the small creeks, which the tide makes navigable a short distance, are within the general commercial regulation, and that in such cases of doubt, it would be better for the court to follow the lead of Congress. Congress have led in regulating commerce on the Ohio, which brings the case within the rule above laid down. The facts of the two cases, therefore, instead of being alike, are altogether different.

No State law can hinder or obstruct the free use of a license granted' under an act of Congress. Nor can any State violate the compact, sanctioned as it has been, by obstructing the navigation of the river. > More than this is not necessary to give 'a civil remedy for an injury done by an obstruction. Congress might punish such an act criminally, but until they shall so provide, an indictment will not lie in the courts of the United States for an obstruction which is a public nuisance. But a, public nuisance is also a private nuisance, where a special and ah irremediable mischief is done to an individual.

In the case of the City of Georgetown v. The Alexandria Co.(12 Peters, 98,) this court say, “ The court of equity,-also, pursuing the analogy-of the law, that a party may maintain ¿private action for special damages, even in case of a public nuisance, will now take jurisdiction in case of a public nuisance, at the instance- of a private person, where he is in imminent danger of suffering a special injury, for which, under the circumstances of the case, the law would not afford an adequate remedy.” Where no special damage is alleged, an individual could not prosecute in his Own name for a public nuisance. This doctrine is laid down in Conning et al. v. Lowerre, 6 Johns. . In that case the injunction ’ was granted, and the chancellor said, “ that here was a special grievance to the plaintiffs, affecting the enjoyment of their próperty and the value of it. The obstruction was not only a common or public nuisance,, but worked a special injury to the plaintiffs.”

Chancellor Kent, in the 3d volume of his Commentaries, 411, says, “ The common law, while it acknowledged and protected the right of the owners of the adjacent lands to the soil and water of the river, rendered' that right subordinate to the public convenience, and all erections and impediments made by the owners, to the obstruction of the free use of the river as a highway for boats and rafts are deemed nuisances.”

In Sampson v. Smith, (8 Simons, 272,) it was held that injury to the plaintiff’s trade was sufficient to give jurisdiction against a public nuisance, and that it was not necessary to uSe, in such a prosecution, the name of the attorney-general. And-this was on a bill for the discontinuance of works already erected.

It is said, “ the question of nuisance, or not, must, in cases of doubt, be tried by a jury.” 2 Story’s Eq. 202. In this respect the question is similar to an application for the protection of a patent. Where the right has been long enjoyed, or is clear of doubt, chancery will interfere without a trial at law. Mr. Justice Story says, (Id. 203,) “ A court of equity will not only interfere upon the information of the attorney-general, but also upon the application of private parties, directly affected by the nuisance; whereas, at law, in many cases the remedy is, or may be, solely through the instrumentality of the attorney-general.”

In the same volume, (p. 204,) it is said, “ In regard to private nuisances the interference of courts of equity, by way of injunction, is undoubtedly founded upon the ground of restraining irreparable mischief, or of suppressing oppressive and interminable litigation,' or of preventing multiplicity of suits.” Mit. Eq. Pl. by Jeremy, 144, 145; Eden on Injunctions, ch. 11, 231, 238.

“ There must be such an'injury, as from its nature is not susceptible of being adequately compensated by damages at law, or such as, from its continuance or permanent mischief, must, occasion a constantly recurring grievance, which cannot otherwise be prevented than by an injunction.” “ Formerly, indeed, courts of equity'were extremely reluctant to interfere at all, even in regard to repeated trespasses. But now there is-not the slightest hesitation, if the acts done, or threatened to.be done to the property, would be ruinous or irreparable.” 2 Story’s Eq. 207. ;

In Ripon v. Hobart, 3 Mylne & Keen, 169, Lord Brougham says, “ If the thing sought to be prohibited is in itself a nuisance, the court will interfere to stay irreparable mischief without waiting for the result ofia trial; and will, according to the circumstances, direct an'issue or allow an action,” &c. Lord Eldon, in the case of Attorney-General v. Cleaver, 18 Ves. 218, appeared to think that there was no instance of an injunction to restrain a nuisance without trial. But in this he was clearly wrong.

The fact that the bridge constitutes a nuisance is ascertained by measurement. The 'height of the bridge, of the water, and of the chimneys of steamboats, are the principal facts to be ascertained. If the obstruction exists, it is a nuisance. To ascertain this a jury is not necessary. It is shown in the report, by a mathematical demonstration. And the other matters, connected with the case, as to the benefit of high chimneys, lowering of them in passing under the bridge,' and shortening chimneys, are matters of science and experience, better ascertained by a report than by a verdict. And. the same may be said of the statistics which are in the case.

The object of the suit was, not the recovery of damages, but to enjoin the defendants from building the bridge which would injure the plaintiff. If the bridge be a material obstruction to the navigation of the Ohio, it is not denied that the plaintiff would be injured. The ground of defence taken and maintained is, that- the bridge is not a material obstruction to Commerce on the river. On this point there is no doubt. A jury, in such a case could give no aid to the court, nor security to the parties. Having had, notice of an application for an injunction, before the defendants had thrown any obstruction over the river, they cannot claim that their position is strengthened by the completion of the bridge.

But it is said, the bridge constitutes no serious obstruction to the navigation of the Ohio ; that only seven steamboats, of two hundred and thirty which ply upon the river as high as Pitts-burg, are, obstructed; and that arises from the height of their chimnej's, which might be lowered at a small expense, in passing under the bridge; that by the introduction of blowers, the chimneys might be shortened without lessening the speed of the boats; that the goods and passengers which are conveyed on the public lines of communication, between Pittsburg and Philadelphia, could be as well conveyed on boats of lower chimneys, and consequently the State, as proprietor of those lines, if at all injured, is injured so inconsiderably as not to lay the foundation of this procedure; that none of the,packets or the other boats .on the river are owned by the State of Pennsylvania.

That the bridge constitutes an obstruction, is shown by the report of the commissioner, the answer of defendants, the proof in the case, and by the admission in the argument of the counsel for the defendants. The report of the commissioner is eonsidered, as to the fact of the obstruction, and the extent of it, of the same force as a verdict of a jury. The report having been the result of a most-arduous and scientific investigation., of the facts, is entitled to the full weight of a verdict. 2 Railway Cases, 330. The fact of obstruction was a plain and practical question, but it was connected with other matters, involving questions of Science, which were to be settled on the opinión of experts, and a report being fairly made, the court will, generally, assume it as a basis of action, unless it shall be shown to . have been made under improper influences, or through a mistake of facts. 1 Railway Cases, 576;' Shelford on Railways, 430.

■ In his report the commissioner says : “ The boats running in that line, and passing the site of- the present suspension-bridge, in 1849, previous to the time when the first cables were thrown across the eastern branch of the Ohio, at Wheeling, were the Clipper, No. 2; the Hibernia, No. 2; the Brilliant; the Messenger, No. 2; the Isaac Newton; the New England, No. 2; and the Monongahela.

“ The Clipper, No. 2, came out in March, 1846, was 215 feet long, and had chimneys 64 feet high. The Hibernia, No. 2, came out iii 1847. She was- 225 feet long, and her chimneys were 72| feet high from the water. The Brilliant came out in. February, 1848, was 227 feet long; and had chimneys 71 feet high. The Messenger, No. 2, came out in the Winter or Spring of 1849, was 242 feet long, and has chimneys 76| feet high. The Isaac Newton was 182 feet long, and had chimneys only 63| feet high- The New England, No. 2, was 222 feet long, and her chimneys were 65| feet high. « The dimensions and height of the chimneys of the Monongahela,” the commissioner says, “ I have not been able to ascertain from the evidence.”

•“ There were also two other regular packets running past Wheeling in the Spring and Summer of 1849; previous to the -erection of thé bridge; the two Telegraphs, running- as regular packets between Pittsburg and Louisville, The chimneys of the Telegraph, No.' 1, were 80 feet high, and those of the other Telegraph were 79 feet 9 inches high.

“ Not more than two or three, of these nine packets had their chimneys prepared for lowering at the close of the navigation in the Summer of 1849. And of the five largest only one of them could have gotten under the bridge on a twenty feet stage of water with the chimneys standing; and that one, the Brilliant, could not have gotten under when the water was more than twenty-one feet upon the Wheeling Bar. And neither of the-two Telegraphs could, have gotten under the bridge at a thirteen feet stage of the water with their chimneys standing.”

“ If the bridge,” says the commissioner, “ had been erected in 1847, therefore, and those nine' packets had then been running, two of them could not have - gotten under the bridge for nearly three months, when • the water was thirteen feet and over; two of them would have been unable to get under for thirty-three days, when the /water on the bar was twenty .feet and over; another, the Brilliant, from nineteen to twenty-five days, when the water was twenty-nine feet and over; and the other four as much as ten days, when the water was twenty-nine feet and over, — unless, they had lowered or cut off their .chimneys.”'

“ The passage of three of the Pittsburg and Cincinnati packets, which were running on the Ohio before the erection of the bridge, had been actually stopped or obstructed by such bridge previous to the order of reference in this cause; the Messenger, No. 2, the Hibernia,- No. 2, and the Brilliant.

“ The first of these boats arrived at the bridge on the 10th of November, 1849, on her downward passage, upon a twenty feet stage of water, and had to put off her chimneys before she could pass the bridge. She was .detained there about seven hours, but I believe she did not lose her trip or passengers. She was subsequently detained at the bridge seven hours, and was obliged to cut off her chimneys a second time.'

“ On the 11th of November, 1849, the Hibernia, No. 2, reached the bridge on her upward trip. They attempted to get her under the bridge by sinking her deeper in the water with coal ballast. But, in attempting to pass the bridge, the top of one of her chimneys caught upon a projection from the under side of one of the flooring timbers, and injured the chimney so that it had to be taken down and repaired. The boat was detained thirty-two hours at Wheeling on that occasion; and was obliged to hire-another boat.to take her passengers on. to Pitts-burg, except such of them as preferred to cross the. mountains by .the way of Cumberland.

“ On the 18th of the same month the passage of the Hibernia, No. 2, was again obstructed by the' bridge on her downward passage; by which she lost an entire trip. Finding she could not get under.the bridge in time to save her trip, she transferred her freight and passengers to another boat, and returned to Pittsburg. And-the passage of the same boat was again obstructed by the bridge in coming up the river last Spring. . On that occasion she arrived .at Wheeling between nine and ten o’clock in the- morning, and finding she could not get under the bridge' she gave up the trip, and landed her passengers, who proceeded east by way.of. Cumberland. .

“ The Brilliant was obstructed .by the bridge on her passage up on the 18th December, 1849, and had to wait until her chimneys could be cut off to enable her to pass under the bridge. The chimneys were cut off at' great risk to the lives of those, who were engaged in the operation; and the boat passed under the bridge and proceeded to Pittsburg after a detention of four- or five hours.

“ In the Winter and ’ Spring subsequent to the erection, of the bridge, the Buckeye State, the Keystone. State, and the Cincinnati, three new packets, were brought into the Pittsburg and Cincinnati lines, in the places of the New England, No. 2, the Isaac Newton, and the Monongahela. They were all of much larger dimensions and had much taller chimneys than the old boats for which they were substituted, and, their chimneys were hinged .and rigged for lowering.” The chimnéys óf the Buckeye State were 74 feet 8 inches high, those, of the Keystone 77 feet 5 inches, and those of the Cincinnati 84 feet 7 inches.

“ Two accidents have occurred to those new boats in passing under the bridge since they came out. The Keystone State, on her downward passage, the 4th of March last, in attempting to pass under the apex of the bridge upon a thirteen and' a quarter' feet stage of water, could not get near enough to the Wheeling shore to pass under the apex of the bridge. And ■ in attempting to drop down about twenty feet further west, one of the chimneys struck the bridge and tore away all the guys.or fastenings of both chimneys,- except one guy-rod, broke the westerly chimney in two, broke off the hinge from- the other chimney, and tore up some portions of the hurricane deck to which the guy-rods were fastened. And • if the -remaining guy-rod had given way, both chimneys, Aveighing together about four tons, would have fallen down.”

A somewhat similar accident, it seems from the report, occurred to the Cincinnati, in October, 1850.

On the practicability and safety of lowering the chimneys a great number of witnesses were examined. .And the commissioner says, although there was great conflict in the testimony as respects the danger to the limbs and lives of the passengers in the operation, yet, he says, when the facts sworn to are examined, there is a decided preponderance against the safety of lowering the chimneys. And he remarks, “ The very elevated as well as large chimneys used upon the Cincinnati and Pitts-burg packets, and other boats, of that class, cannot certainly with any facility 6r safety be lowered by hinges at the tops. They are therefore obliged to lower them at the hurricane-deck, by means of a derric. The weight of the I. parts of the two chimneys which must be let down upon those large boats is estimated by the Avitnesses to be from three to four tons. This enormous weight hanging over the cabin, or rather over the berths of passengers, in process of lowering, would probably prove disastrous in the extreme if by any accident the chimneys should come down by the run; which Is very likely to occur, from the carelessness or stupidity of the green hands that the owners and officers of 'Western boats are so often obliged to employ.”

And if to the difficulties stated in the report there be added the darkness of the night, a snow storm, or the falling rain congealing on' the roof of the boat and covering it with ice, and a high wind, which generally is experienced in a storm, it would be impracticable, while the boat was proceeding at the rate of ten or twelve miles an hour, to lower the chimneys, and this must be done or the boat must land. During this operation, the pilot, on whom the safety of the boat. and the lives of the passengers in a great degree depend, must, from his position, be in imminent danger.

The expense of lowering the chimneys, if practicable and safe, would constitute no inconsiderable item. The time lost in raising and lowering chimneys is variously estimated by the witnesses at from one to three hours. Take the minimum of such estimate, and, according to the calculation of Colonel Long, the expense of the boat amounts to $8.33 per hour. Each packet will have to lower its chimneys every time it passes under the bridge, which will be, ordinarily, sixty times a season, amounting to the sum of $499.80, a charge on each packet. To this may be. added the apparatus for lowering the chimneys, estimated at $400, which, with its repairs, may be estimated at $100 pejf annum during the life of the boat, which averages five years. And it is in proof that stationary chimneys will last five years, but if subject to be lowered they will only last half that time. The cost of chimneys for-- a boat is stated at $1000, which may be considered as an increased expense to each boat of $200 per annum. These sums added together make a total of $799.80, which sum multiplied by seven, the number of the packets, make the sum of $5,598.60 which the owners of these packets must necessarily pay as an annual tax, by reason of the obstruction of the bridge, if they run their boats and lower their chimneys.

But it is contended that the difficulty of passing under the bridge may be obviated by shortening the height of the chimneys without lessening materially the speed of the boat.

That high chimneys increase the speed of the boat is proved in the case practically and scientifically.

Professors Benwick, Byrne, and Locke say, that by a law of nature the force or velocity of a draft depends upon the height of the chimney; the force and velocity being measured by the difference in the weight between the column of air within the chimney and an outside column of equal height and diameter; so that á reduction of the height of the chimney involves a diminution of that force with which nature supplies air to combine with fuel for combustion, and by consequence there follows a diminution of heat developed in the furnace, of steam generated in the boiler, and of power- by which the. wheel is moved and the boat propelled.

The commissioner, in his report, says, “ the deduction of science also shows that the draft is increased by elongating the chimneys.” In this question economy of- fuel is not the object to be attained, but the greatest practicable speed consistent with safety. And this is attained, where there is no defect in the furnace, by the combustion pf the largest amount of fuel. Forty-three bushels of bituminous coal are consumed per hour by each of the Pittsburg packets.

The commissioner says,' “ In relation to the questipn whether chimneys as high as those now in use upon the Pittsburg and Cincinnati packets,'and some of the larger boats -on the-Ohio, are necessary for obtaining the maximum • of speed desirable in the navigation of the river, there is a diversity of opinion among the witnesses, especially among those who are not- acquainted .with the scientific principles of chimney-draft in reference to the combustion of fuel for the generation of. steam. But I think there is a. great preponderance of the testimony even of that class of witnesses in favor of the necessity of very high chimneys upon the large Ohio steamboats.”

And he further iemarks: “ Rejecting the deductions of science on the subject, the teachings of expedience show, that as .boats upon the Ohio have been gradually improved in their dimensions, from time to time, and the height of their- chimneys increased, they have been enabled to run. with greater speed, to the evident advantage of commerce and of travel upon the rivers. And the fact .that several different projects, for’ procuring-artificial draft, such .as blowers, as an available substitute for the draft of tall chimneys, have been tried upon the Western waters' and have failed and been abandoned, is very strong evidence in-favor of the necessity of natural draft for the combustion of wood and bituminous coal upon the steamboats navigating the Ohio.*

There is no better evidence of utility, than the progress made in the structure of steamboats and of the machinery by which they are propelled. Men who are engaged in navigation learn by experience and adopt that which will be most conducive to • their own interests.

It appears, from thef-statement of Scowden, an engineer, that the chimneys of the first boat, called the Cincinnati, were 84 feet high from the surface of the water when light, and about 74 feet high from the centre of the flues. Her chimneys were shortened 8 feet, and it diminished her speed up stream from a. mile to a mile and a half per hour. Captain Hazlep states that, adding 8 feet to the chimney of the Telegraph, in 1849, increased her speed about half a mile an hour up stream. And by Captain Duval, that the Clipper’s chimney being cut off 8 feet, in order to pass the Wheeling Bridge, reduced her speed about three hours between Cincinnati and Pittsburg. And it may be fairly inferred, that a reduction of 20 feet would reduce the speed between Cincinnati and Pittsburg about four hours.

According to this estimate, the cost, of the boat per hour being, as above stated, $8.33, if there should be an average loss of four hours in each trip, it would amount to $33.32. This sum multiplied by sixty, the average number of trips each season, would amount to thé sum of $1,999.20, and this being multiplied by seven, the number of the packets, would make the sum of $13,994.40, an annual loss by the owners of the packets, by reducing the height of their chimneys, so as to pass under the bridge at the different stages of the water.

But it is said these seven packets are the only boats obstructed by the bridge of the two hundred and thirty which ply upon the Ohio, and run to Pittsburg.

The transportation of goods and passengers by these packets will show their relative importance, as instruments of commerce, between Cincinnati and Pittsburg. From the evidence, it appears that they convey about one half of the goods in value and three fourths of the passepgers, between- those cities. Taking the Keystone State as a criterion, each packet transports annually thirty thousand nine hundred and sixty tons of freight, and twelve thousand passengers. The line was established in 1844, and it appears from the proof, that since that time it has transported between the above cities, nearly a million of passengers.

It is in proof that the life of these packets averages five years, when their places in the line must be. supplied by new boats. If to their original cost.of construction, there be added .the expense of running‘them for .five years, adding nothing for repairs or accidents, a total sum wilffbe expended of $1,680,000. This amount of capital is appropriated every five year® in "running this line of packets. The structure of the bridge cost less than one eighth of that sum.

The speed of these boats, their excellent accommodations, and their general .good management, recommend them to the pub-.lie, as is shown by the large amount of goods and "passengers they convey. And any change in their structure, or in the production of the propelling power, which shall impede their progress, would nót only impose upon their proprietors a most onerous tax, but it would greatly lessen their profits, by reducing the amount of freight and. passengers. And no part of the amount would, probably, pass to other boats on the river, but to the northern or southern lines, where greater expedition is given.

In the report of the commissioner, a statement is' made of the stages of water, at Wheeling, for twelve years, beginning on the 10th of March, 1838, and ending on the 9th of the same month, 1850..

The highest part of the bridge, by actual measurement from the ground, is 91.31 feet. This elevation is only at a single point, two hundred and eighty-four feet from the face of the eastern abutment. From the apex it deflects east and west, being at the distance of forty feet westward only 89.48 feet above the ground, and at the same distance east only 89.77 feet above the ground. The chimneys on the seven packets require a space of about thirty feet in width to pass under the bridge within the eighty feet allowed, and the depth of water and a sufficient beadway, must be deducted, to show the height of the bridge for the passage of boats. The headway required, as appears from the report of the engineer, should be between the tops of the chimneys and the lowest parts of the bridge, from two to three feet. This would reduce the space, say two feet and a half to 87.27 feet.

In the twelve years above stated, the water was at the stage of twenty-one feet and over, two hundred and nineteen days; consequently no boat, whose chimneys were 66| feet high, could have passed under the bridge. Twent-y-one feet of water, are substituted for twenty feet in the table 'reported, that statement allowing a foot of water below the measurement. The water, in the above period, was twenty-six feet and over, eighty-three days, during which time no boat could have passed under the bridge "whose chimnéys were 62 feet high. The water was twenty-eight feet and over, fifty-five days during the twelve years, which would have prevented a boat from' passing under the bridge, whose chimneys were 60 feet high. ■ Within the same period, the water was sixteen feet and' over, five hundred and thirty-four days; consequently boats, whose chimneys were 72 feet high, during that whole time could not have passed under the. bridge.

In his report, the commissioner says, “ The bridge is nine hundred and eighty feet between the bases- of the two abutments. At the highest point of the bridge, for the distance of .about fifty-six feet in width, there is a clear headway, for'the' passage of steamboats with their chimneys standing, of 91 feet above extreme low water. But this spacé of fifty-six feet in width is not over any part of the', river at extreme low water. The water upon the Wheeling Bar must be about four feet deep, to bring the easterly edge of the stream under the western extremity of the fifty-six feet. And it must be more than fifteen feet deep upon the bar to enable a steamboat, drawing five feet, to avail itself of the ninety-one feet headway above low-water mark, for the whole width of fifty-six feet.”

“ .It follows,, from this statement of facts, that a steamboat, drawing five feet of water, and whose chimneys are 79J feet high or over, cán never pass under the apex of the bridge, at any stage of the water, without lowering her chimneys.”

From the data referred to, the defendants’counsel contend that in a few years, at most, there will be a concentration of railroads at Wheeling, and at other places on the Ohio, connecting the Eastern with the Western country, which, from their speed and safety, must take from the river the passengers and a considerable portion of the freight now transported in steam? boats. That these rOads, crossing the Ohio River, will reach the commercial ports of the interior,.and diffuse a larger amount of commerce than that which is now transported on the Ohio. And it is intimated that the Wheeling Bridge may be used by the railroad cars; but it is clearly proved, that the bridge is not calculated for such a transportation.

However numerous these roads may be, there can be no doubt, that, like similar roads in other parts of the country, their cars will be loaded with freight and passengers. But it may not follow that the Ohio and our other rivers will be deserted, or their business reduced. We have an extent of river coast, counting both shores, exceeding twenty-five thousand miles, through countries the most fertile on the globe. This is a greater distance than the combined railways of the world. That our railroads, as avenues of commerce, may develop our resources in á greater-degree than is now anticipated, must be the desire of every one. But the great thoroughfares, provided by a beneficent Providence, should neither be neglected nor abandoned. . They will still remain the great arteries of commerce.

Past experience teaches us, that however the facilities of commerce may be multiplied, her tracks will be filled with productions which énricffthe country and add to the comforts and enjoyments of its rapidly increasing population. The rewards, of labor will give an .irresistible impulse to enterprise which must secure to. our country a prosperity unequalled. in history. Our internal commerce is more than three times as great as our foreign, and the increased lines of intercourse will cause both rapidly to advance. The protection of the river commerce is by no means hostile to any other. The multiplication of commercial facilities will, in the same proportion, increase the.articles of trade.

If viaducts must be thrown over the Ohio for the contemplat-ed railroads, and bridges for the accommodation of the numerous and rising cities upon the banks of the river, it is of the highest importance that they should not be so built as materially to obstruct its commerce. If the obstructions which have been demonstrated to result from the Wheeling Bridge, are to be multiplied as these crossways are needed, our beautiful rivers will, in a great measure, be abandoned. An experience of forty years shows how much may be done in the structure of steamboats, in the improvement of then machinery, and the propelling power, to increase the speed and the comfort of that mode of transportation, under a continued reduction of expense. But if the limit of advance, in this respect, has already been passed; and a retrograde movement is necessary, by rejecting the improvements recommended by ingenuity and experience, we close our eyes to one great source of our prosperity. What would the West-now have been if steam had not been introduced upon our rivers, and their navigation had not remained free? Without an outlet for the products of a prolific soil and the instruments of mechanical ingenuity, the country could have made but little advance.

It is said that the interest of commerce requires navigable waters to be crossed,and that in such a case the inquiry should be, whether the benefit conferred upon, commerce by the cross route, is not greater than the injury done. In the case of the King v. Sir John Morris, 1 Barn. & Adol. 441, it was held, that the injury cannot be balanced against the benefits secured. And in the case of the King v. George Henry Ward, 4 Ad. & El. 384, it was held, where the jury found that an embankment complained of was a nuisance, but that the inconvenience was counterbalanced by the public benefit arising from the alteration it amounted to a verdict of guilty.

If the obstruction be slight, as á draw in a bridge, which would be safe and convenient for the passage of- vessels, it would not be regarded as a nuisance, where proper attention is given to raise the draw on the approach of vessels. Of this character is the complaint of the plaintiff against the bridge, that it obstructs sea-vessels built at Pittsburg. Sails cannot be used to advantage on the Ohio - or the Mississippi, consequently there can be no' necessity of "raising the masts until it becomes necessary to hoist-the sails. Such vessels float down the river or are tówed by steam-vessels,

It is true the injury done to the State of Pennsylvania may seem to be small, when compared to the magnitude of this subject. It applies to all our rivers, and affects annually a transportation of many millions of passengers, and a commerce worth not less than six hundred millions of dollars. It would be as unwise as it is unlawful to fetter, in any respect, this vast commerce.

In- all the charters, granted for the construction of bridges over navigable waters, it is believed all the States, not excepting Virginia, have provided that their navigation should not be obstructed.

The Bridge Company had legal notiee of the institution of the suit, and of the application for an injunction to stay their proceedings, before' their cables were throw;n across the river. This should have induced them to suspend, for a time, their great work, alike- creditable to the enterprise of their citizens, and the genius and science of the engineer who planned the bridge and superintended its construction. It is a matter of regret that, by the prosecution and, completion of the bridge, they have incurred a high responsibility.

For the reasons and facts stated, we' think that the bridge obstructs the navigation of the Ohio, and that the State of Pennsylvania has been, and will be, injured in her public works, in such manner as not only to authorize the bringing of this-suit, but to entitle her to the relief prayed.

' Believing, from the estimates in the case, that the obstruction to the navigation.of the river may be removed by elevating the bridge, at an expense which, when added to the original cost, will leave a reasonable profit to the stockholders, on the entire capital expended, we have endeavored to ascertain, the kwest point of elevation which will secure this object. And, on a full "view of the evidence, we are brought to the conclusion, that an elevation of the lowest parts of the bridge.for three hundred.feet over the channel of the river, not less than one hundred and eleven feet from the low-water mark, will be sufficient — the flooring of the bridge descending from the termini of the elevation, at ■the- rate of four feet in the hundred ; this will give a level headway for boats of three. hundred feet in width, and will enable those whose chimneys are eighty feet high to pass under the bridge when the water is thirty feet deep from the ground, leaving the tops of the chimneys two feet below the lowest parts of the bridge. If this or some other plan shall not be adopted which shall relieve the navigation from obstruction, on or before the 1st day of February- next, the bridge must be abated.

"We do riot deem it necessary to provide against the floods, which seldom occur, and-which, when at the highest, overwhelm the lower parts of our cities and towns on the banks of the Ohio, and necessarily suspend, for a short time, business upon the river.