ARCHBALD, District Judge*
(after stating the facts as above). This is an information, under the act of Congress of March 3, 1899, § 18, 30 Stat. 1153 (U. S. Comp. St. 1901, p. 3545), against the defendant company for a refusal to make the changes ordered by the Secretary of War in its bridge across the Monongahela river at Brownsville, Pa., 50 miles above the city of Pittsburg. This bridge was built in 1832, under a charter from the state of Pennsylvania, and is located on the line of the Old National Pike, laid out by the federal government in 1807, to give better access to the then distant parts of what is now the Middle West. It closes the gap in the road made by the river, the necessities of travel before that being met by a ferry, and after its construction the ends of the road leading to the ferry were relocated, so as to connect with the approaches to the bridge, which was thus adopted and made an integral part of the thoroughfare. It was built at a cost of from $65,000 to $75,000 and is still in good preservation, and if undisturbed would probably last for 20 years more. It is a toll bridge and the net returns amount to about $10,000 a year, but the changes which have been ordered by the Secretary of War will compel the tearing down of the whole structure, with the loss of all that it represents, and the building of a new bridge (if the franchise is to be preserved) at an estimated additional expenditure of $112,000. There is a large and increasing use of the Monongahela by reason of the mineral and other developments on its upper reaches, but it is effected artificially, by means of slack-water navigation, secured by locks and dams, through which it is connected' with the Ohio at Pittsburg and so brought in touch with the general interior system.of waterways of the Ohio and Mississippi basins. At the time the bridge was built, while the river had been declared to be a navigable stream by the Legislatures of both of the states through which it runs, except for flat bottom boats and rafts, and in times of high water, the navigation of it was very limited, and in dry times, according to the weight of the evidence, practically none at all. Not [721] until 1836, some four years after the bridge was built and in use, was the Monongahela Navigation Company incorporated, for the purpose of improving the river by the artificial means now employed, and not until 18-10 or 1841 were the first dams actually built, slack water being extended up as far as Brownsville, on the lower side of the bridge, in 18-!-i. At the same time, even before the bridge was erected, the improvement of the Monongahela by slack-water navigation was undoubtedly in contemplation, surveys to that end having been independently made by engineers of the state and of the national government. Upon this showing the jury were instructed that the right of the Secretary of War, acting under the authority conferred upon him by Congress to require the changes which had been ordered in the bridge, even though it necessitated its entire demolition, was not open to question ;• but that, in view of the serious results to the company, amounting to a deprivation of it of its property, it was protected by the constitutional provision that private property shall not be taken without just com - pensation being first made, which the company could demand before being required to comply, and should therefore be acquitted, unless the stream at the time the bridge was located upon it was in fact navigable, or the artificial improvement of it which has since been prosecuted, by which the changes in the structure of the bridge were made necessary, was reasonably to be apprehended; in either of which cases the company could not ask for compensation and should be found guilty. The jury having found a verdict in favor of the government, the question is as to the propriety of the instructions which were so given.
Preliminary to that, however, two points are raised which require brief consideration: (1) That the verdict as rendered is defective in form and inconclusive; and (2) that nothing was said to the jury as to the right of the defendant to the benefit of a reasonable doubt, to which it was entitled, the case being a criminal one. The first of these seems to have been suggested by the recent case of Pressed Steel Car Co. v. Steel Car Forge Co., 149 Fed. 182, 79 C. C. A. 130. But the two cases are very different. The difficulty there was that the jury failed to declare whether they found for the plaintiff or the defendant, simply stating that they sustained the validity of the contract sued upon and fixed the damages at a sum named. But here they say, in so many words, that they “find a verdict of guilty”; as to which it is not easy to see how anything could be more positive or certain. Nor is the other matter more serious. The obvious answer to it is that not only was there no request for an instruction as to the effect of a reasonable doubt, but that no exception was taken to the failure to give it. Had there been, it would have enabled the court to at once make the necessary correction as would have undoubtedly been done, and without that, the case being a misdemeanor, the omission must be regarded as immaterial. By the neglect to except at the time, the defendants virtually gave the court to understand that to this extent at least the charge was satisfactory, suggesting that the stress laid upon it, now that the case has gone against them, is an afterthought, if not indeed a catching at straws.
The important questions in the case are those which were first ad[722] verted to; that is to say, whether the judgment of the Secretary of War, that the bridge in its present condition is an unreasonable obstruction to the free navigation of the river, is conclusive; and whether the bridge may be condemned and the company be required to change it, in the way 'specified, even to its entire destruction, without compensation for the property loss so sustained, simply because it is located upon a stream, not navigable as it is claimed, at the time the bridge was built, but having become so by artificial slack-water improvements, to meet the material progress of the country. But the first of these questions cannot be regarded as an open one, being foreclosed by the decision in the Union Bridge Case, 204 U. S. 364, 27 Sup. Ct. 367, 51 L. Ed. 523. It is true, that there was no offer there, as there is here, to show that the bridge was not in fact an obstruction, but the principles upon which the case proceeds are inconsistent with the reception of any such evidence. The authority of Congress over bridges upon navigable waters, as it is there shown, is derived from the power given to it by the Constitution over interstate and foreign commerce, and this of necessity includes the right to determine what shall or shall not be considered unreasonably obstructive to free navigation, and to require a removal or alteration of that which is, to the extent that it is found to be so. The determination of this, as to any particular structure, might be made by direct investigation and action, as was done with regard to the bridge over the Ohio at Wheeling, which was sanctioned by Congress and made a post road (State v. Wheeling & Belmont Bridge Co., 18 How. 421, 15 L. Ed. 435), after it had been decided to be an impediment to navigation and ordered to be changed, in a suit expressly brought to determine that question. State v. Wheeling & Belmont Bridge Co., 13 How. 518, 14 L. Ed. 294. But instead of acting itself, Congress, as it is manifest, may prescribe by statute the conditions under which a bridge shall be regarded as obstructive, and commit the determination of specific cases, either to the courts, in accordance with established legal methods, or to officers of the general government, by administrative action. The latter is the course taken in the statute under discussion, in which, as it is held, Congress has not exceeded its constitutional powers. “Beyond question, if it had so elected,” says Mr. Justice Harlan, in the Union Bridge Case, supra, “Congress, in some effective mode, and without' previous investigation through executive officers, could have determined for itself primarily the fact whether the bridge here in question was an unreasonable obstruction to navigation, and, if it was found to be of that character, could by direct legislation hava required the defendant to make such alterations of its bridge as were requisite for the protection of navigation and commerce over the waterway in question. But investigations by Congress as'to each particular bridge alleged to constitute an unreasonable obstruction to free navigation and direct legislation covering each case, separately, would be impracticable in view of the vast and varied interests which require national legislation from time to time. By the statute in question Congress declared in effect that navigation should be freed from unreasonable obstructions arising from bridges of insufficient height, width of span, or other defects. It stopped, however, with this declaration of a gen[723] eral rule, and imposed upon the Secretary of War the duty of ascertaining what particular cases came within the rule prescribed by Congress, as well as the duty of enforcing the rule in such cases. In performing that duty the Secretary of War will only execute the clearly expressed will of Congress, and will not in any true sense exert legislative or judicial power.” The statute being thus vindicated, the action of the Secretary of War in conformity with its provisions is necessarily conclusive and binding, the same as that of Congress, for which it is 'a mere substitute or alternative. And the course of procedure which is there prescribed having been followed in the present instance, the right of the defendant to question or contest it cannot be countenanced. The same as in the Union Bridge Case, the subject was investigated by officers of the War Department to whom it was referred for the purpose, and after notice to the defendant, and a due hearing of all parties, a report was made to the Secretary of War, stating the facts, and recommending that certain specified changes in the bridge were necessary and should be required. This report was adopted by the Secretary, not perhaps in so many words, but equally effectually by the issuance of an order in conformity with its recommendations. It is true that this was done without any further hearing than that which had already been had before the officer charged with the investigation, who was to a certain extent committed to the necessity for the changes which were recommended. But while the Secretary of War might have heard the parties further, and no doubt would have accorded them that privilege if it had been asked for, he was not bound to do so in order to comply with the statute and make his action legal, nor can it be assumed that he did not give the matter independent consideration, because he did not. In the Union Bridge Case, it was applied for and refused, the obstruction to navigation caused by the bridge being apparently too plain for controversy. And yet the proceedings were sustained.
It is said, however, that Congress having provided for a trial by jury upon a criminal information duly preferred, the question of whether the bridge was in fact an unreasonable obstruction cannot be withdrawn from their consideration or concluded by executive action, the right to a hearing being essential, according to the form of proceedings adopted, in order to comply with the requirement for due process of law. No doubt it would have been competent for Congress to so provide, leaving it to a jury of the district, upon a trial according to the forms of the common law, to say whether, in any given case, the situation was such as to make the bridge an obstruction, but there is nothing in the act to suggest that it was ever so intended. Should Congress undertake to investigate and decide for itself whether a particular bridge was an unreasonable obstruction, it would hardly be contended, after it had passed upon the question, that it was still open, simply because the enforcement of its decision by a criminal prosecution, for a refusal to comply, was provided for. But, as pointed out above, the method given by the statute under consideration is merely an alternative. By a general enactment, Congress has delegated to the Secretary of War the duty of investigating and determining the cases in which the conditions exist that call for action, and his [724] decision is therefore to be treated as equally binding. A prosecution, by information, and a trial'by jury, are merely the means provided for enforcing his orders, it being simply left for the jury to say, whether the statute has been followed in making them, and whether there has been a' willful failure or refusal to comply, after notice, constituting the offense made punishable by the statute. Nor is it of any significance in this connection that the lawful orders of the Secretary are spoken of, this being true of them, if they keep within the authority delegated to him, and are made after a reasonable opportunity to the parties interested to be heard in opposition thereto; nor that, in order to make out the offense, the refusal to comply must be willful, which means no more than that it is without just cause or excuse, as it must be after due notice and opportunity to do so. If, in addition to this, it is left to the jury to review the action of the Secretary, and to say by their verdict whether or not he was justified in his conclusions, his orders become merely persuasive or advisory, which the parties may safely disregard upon the chance of inducing a jury to believe that they are not well grounded. If that was the intention of Congress it is, of course, to be recognized, but it is not to be reached by any doubtful construction, and a careful reading of the statute leaves no place for it. As is there in terms enacted, the Secretary is to investigate and decide with regard to any bridge, constructed over a navigable waterway of the country, first giving the parties a reasonable opportunity to be heard, whether it is unreasonably obstructive to free navigation, on account of insufficient height, width of span, or otherwise, or whether there is difficulty in passing the draw opening or the draw span of the bridge, by rafts, steamboats, or other water craft, and thereupon, if it is, to give notice to the persons or corporation, owning or controlling such bridge, so to alter the same as to render navigation under it reasonably free, easy, and unobstructed, specifying- the changes recommended by the chief of engineers that are required to be made, and prescribing a reasonable time in which to make them. All this has been observed in the case in hand, and the only alternative given by the statute is obedience, neglect or failure to comply being punishable by fine, and each month’s delay being made a new offense to be similarly dealt with. There is no room to be found in any of these provisions for a re-examination by the jury of the question of the obstructive character of the bridge, which must therefore'be held to have been conclusively determined thereby.
But it is said that the changes which are required to be made will virtually destroy the bridge, and thus deprive the defendant of its property, which cannot be done without at least making just compensation. Conceding that, if located upon waters which were naturally navigable, the rights of the owners would be subject to a servitude in favor of the public which would justify such action without this (Gibson v. United States, 166 U. S. 269, 17 Sup. Ct. 578, 41 L. Ed. 996; Scranton v. Wheeler, 179 U. S. 141, 21 Sup. Ct. 48, 45 L. Ed. 126; Union Bridge Co. v. United States, 204 U. S. 364, 27 Sup. Ct. 367, 51 L. Ed. 523), it is contended that the present structure was built at a day when the stream was not navigable, the changes which [725] are proposed to be now introduced being made necessary solely because of the artificial character of the improvements, which is a different matter. There is evidence, contravening this, that the Monongahela, without regard to the slack-water improvements which have been undertaken, was a navigable water within the meaning of the law (The Montello, 20 Wall. 430, 22 L. Ed. 391), and that flowing through West Virginia and Pennsylvania as it did, and connecting at Pittsburg with the vast system of waterways of the Ohio and Mississippi basins, it obviously came within the class of waters over which Congress had authority. The river was also declared navigable by the Legislatures of the two states having immediate jurisdiction over it; and, in the charter granted to the bridge company by the state of Pennsylvania, it was expressly provided that the erection of the bridge should not obstruct the navigation of the river so as to interfere with the passage of rafts, steamboats, or other river craft, which of itself, as pointed out in the Union Bridge Case, where a similar provision appeared, was a warning to the company that the bridge must not obstruct navigation as it then was or subsequently might be. This was sufficient to justify the finding of the jury, and take the case out of the constitutional provision requiring compensation to be made, assuming that the verdict was based upon it. But the jury were also instructed that, even if not in fact navigable at the time, if the company had reasonable grounds to believe that it might become so, in the way it has, the incorporators would take equally subordinate to the right of public improvement which has been exercised; or, in other words, would be subject to the same servitude as if the stream were in fact then and there navigable. There is evidence from which this could have been found, not only in the circumstances which have been alluded to, but also in the surveys which were made before the bridge was built by the engineers of both the state and the national governments, looking to the slack-water improvements which have since been carried through. And as the verdict, under the charge of the court, may have been predicated upon this view, it becomes necessary to consider how far the company was affected by this character of notice.
It will not of course be denied that, in every enterprise, a party is charged with notice, not only of that which is immediately in view, but of that also, which according to outward and obvious indications, is to be reasonably apprehended. This is elementary law, and there is no good reason why it should not apply in a case of this kind the same as any other. It amounts to no more than that every one is bound to observe the situation as it is, and take subject to the consequences reasonably to be expected from that which is thus brought home to him. As already stated, where- a bridge or other structure is located upon waters which are naturally navigable, except as it has been sanctioned by Congress, it is affected with all the infirmities incident to or consequent upon that position. This is not confined to conditions as they are at the time, or else Congress would not be able to provide for the future needs of the country, and would be cut down in the use of such waters, unless compensation was provided, to the ■condition in which nature left them or in which they happened to be [726] at the time any improvement was undertaken. ' This of course is not the law, the capacities having always to be considered, and any one locating on such waters takes subject to them. But the same reason applies, with equal force, to those waterways like the one here which, while not immediately or fully equipped for navigation, are so connected with others which are, that by improvement or otherwise they will in all likelihood be drawn into the common system, as they have been. This is riot to say that the government could run a canal through a man’s farm or overflow it with water and not pay for it. United States v. Lynch, 188 U. S. 445, 23 Sup. Ct. 349, 47 L. Ed. 539. This, besides being an actual physical invasion, would be altogether tod remote an improvement to be ever anticipated, and so is not analogous. But where, as here, there is merely an extension or enlargement of natural means, which according to the evidence was to be reasonably looked for, it operates as no hardship and works no wrong to hold that the parties took subject to the servitude in favor of the public, which is now asserted, in the same way and to the same extent as if the stream were openly and notoriously navigable.
Nor is it of any consequence that the navigation by which the changes required in the bridge are made necessary is in part artificial. In Chicago, Burlington & Quincy R. R. v. Drainage Commissioners, 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 596, the creek which was utilized to drain and reclaim the farm land there involved was artificially enlarged; and yet it was held that the railroad company, at its own expense and without any provision for its reimbursement, could be required-to remove from the creek the bridge and culvert which it had placed there, although it was sufficient, according to the depth and width of the channel at the time, and (unless it abandoned the crossing) to erect and maintain a new bridge which would conform to the regulations established by the drainage commissioners. Here was an entirely new, distinct, and artificial use, the only thing to be said in defense of it being that it was a related one, and yet the structure was required to be removed without compensation having been provided for it. Nor is it of any consequence that the case arose under the state and not the federal law, there being no difference in principle. Similarly also, although not so closely in point, in West Chicago Street Railway v. Chicago, 201 U. S. 506, 26 Sup. Ct. 518, 50 L. Ed. 845, a street railway which had lawfully constructed a funnel under the Chicago river Was required at its own cost and expense to lower the tunnel so as to provide a new and additional depth in the river which had been ascertained by competent local and federal authority to be necessary to meet the increased demands of navigation. In every such instance, as pointed out above, the structure involved of necessity, from its character and location, is subject to a servitude in favor of the public which may be asserted by' the proper governmental authority acting for the common good. Property so conditioned, and affected with such an inherent infirmity, has no value which can claim or call for compensation when thus lawfully appropriated.
But it is further urged that the bridge was adopted by the government as an integral part of the national pike, the ferry crossing the [727] river being given up and the two ends of the road relocated so as to connect with the approaches to it. By this, as it is contended, the bridge was recognized as a lawful structure, the mails being also carried over it as a regularly established post route. But the sanction that was so given, if any, proceeded not from Congress which alone had authority to legalize it, but from the executive branch of the government which had no such power. Conceding, then, that if Congress had acted in the premises the right to maintain the bridge could not be withdrawn without first providing compensation, there is no such result where the only adoption of the bridge was of the character thus shown.
Finding no occasion, then, for disturbing the verdict, the rule for a new trial must be discharged, and, thereupon proceeding to impose the penalty prescribed by law, the sentence of the court is that the Monongahela Bridge Company, defendant, pay a fine of $1,000 to the government of the United States, and pay the costs of prosecution, and that execution issue against the property of the said company to collect such fine and costs unless the same be paid within 10 days.