Moon v. Veazie , 31 Me. 360 ( 1849 )

Shepley, C. J., orally.

There are certain facts in this case about which there is no controversy. An Act was passed by the Legislature of this State, approved July 30th, 1846, entitled “ An Act to promote the improvement of the navigation of the Penobscot river,” granting to certain persons, whose rights the present complainant has, on certain conditions, the exclusive right to navigate a portion of the Penobscot river, above tide waters, for a certain time.

Before July, 1846, that-' river had long been used for the running of logs, rafts, boats, &c., and had become for such purposes a public river; but the portion of it described in the Act had never been navigated by steamboats of any description, nor in any way by steam power. The complainant and his associates had expended some money, and performed certain labor on that part of the river, for the purpose of opening a passage for steamboats. During the year 1848, the complainant run steamboats, on that part of the river where the navigation was not obstructed by ice, or prevented by the low state of the water, with the exception of a mile or two of railway, made by him, within the limits mentioned in the Act. And the steamboat of the respondent, Yeazie, has, since that time, under his direction, and with a knowledge of the facts, navigated that portion of the river.

The complainant contends that the Act is in force ; that he has complied with its conditions, and is entitled to the exclusive privilege; that the respondents have unlawfully and injuriously interfered with his rights; and that he is entitled to an injunction, to restrain them from further interference, until the final hearing of the bill.

It is said on the part of the respondents that the Act is unconstitutional and void. In this preliminary proceeding, the court do not intend to decide the question of the constitutionality of the law conclusively. To some extent that question must arise here. If, on an inspection of the Act, the court should perceive that it is doubtful whether the Tlegislature have the constitutional power to grant the right claimed, no injunction would be granted. But if, on inspection of the Act, nothing appears against its constitutionality, the court would not decline on that ground to issue the injunction. The state of facts may, perhaps, be different on the final hearing from what they now appear by the affidavits; and the court intend to say only, that prima facie the Act does not appear to be unconstitutional. It is-said in Daniel’s Ch. Pr., referring to 2 Bland, 461, that the object of an injunction is to keep things as they were before the interference, until the final decisión; but those remarks were not intended to have an application to the state of things like those existing in the present case. Improvements were to be made, and, of course, alterations.

It has been urged, for the respondents, that the riparian owners have all the interests in the waters of the river not acquired by usage, and that this is an individual, and not a ' public, right; and that, therefore, the Legislature have granted what belongs to individuals, and not to the State. Where the right is common to all the community, the Legislature have the power, as agents of the whole, to regulate the navigation of the river. . As there is no mode by which the individuals, constituting the whole community, can do it, the Legislature may do it for them.

This is no new doctrine. In Hale’s treatise De Jure Maris, a work generally approved, c. 2, prop. 3, in discussing the prerogative in fresh water rivers, the law is thus stated ; that “ another part of the jurisdiction is to reform and punish nuisances, to reform annoyances and obstructions to the general right, &c., not in reference to the propriety of the river, but of its public use.” The court are not aware that this doctrine has been denied in any State. The legislation has been, in many cases, in accordance with it. The Legislature of this State, by an Act, authorized the changing of the circuitous channel of the Saco river, by a canal, to a direct course. The action of Spring v. Russell, (7 Greenl. 273,) for an injiuy sustained by the plaintiff in running his logs, in consequence of the change in the channel of the river authorized by the Act, was founded on the principle contended for in the defence in this case. The court decided that the Act was constitutional, and that the plaintiff had no remedy, but under the provisions of the act. A similar course of legislation has been pursued hr New Hampshire, Massachusetts and Connecticut, respecting the navigation of the Connecticut and Merrimac rivers, by authorizing the erection of dams, locks and improvements.

But it is contended, for the respondents, that if the Act is constitutional, that the complainant has not brought himself within its provisions, so as to be entitled to an exclusive right of steamboat navigation in that part of the river. The statute, approved July 30th, 1846, c. 361, is entitled “An act to promote the improvement of the navigation of the Penobscot river.” The fourth section grants to William Moor and Daniel Moor, Jr., and their associates and assigns, “the sole right of navigating said river by boats propelled by steam, from said Oldtown as far up as they shall render the same navigable,” “for the term of twenty years from and after the completion of the improvement, as provided in the third section of this Act,” on certain conditions. That séction contains three conditions. 1. To “improve the navigation of said river from Oldtown to Piscataquis falls, and from Piscataquis falls to the foot of the Five Island Rips.” 2. To “build and ran over said route a steamboat.” 3. “And shall within said seven years build a canal and lock round said falls, or a rail road to connect the route above with the route below said falls.” The first inquiry is, what is the meaning of the word improve ? It is not defined in the Act. The first section authorizes certain things to be done, but does not require that they shall be done. What did the Legislature intend should be done by way of improvement ? One engineer, employed by the respondents, tells what ought to be done and how much it would cost. Another engineer, employed by the complainant, proposes a different mode. And a witness, in his affidavit, says, that the river was navigable for a steamboat before any thing was done. And if several different persons should examine with the view of determining what should be done, and how, there is little probability that they would agree. Some Acts have described in what manner it shall be determined, when the conditions have been complied with; and in such case the grant could not take effect, until the evidence of performance appeared in the manner prescribed. In this Act there is no mode to be found by which this question is to be determined. The court, therefore, can ascertain whether the conditions have been performed only by looking at the object the Legislature had in view. The great and leading object manifestly was to introduce navigation by steam power on that part of the river, where it did not before exist, and to give certain advantages, to encourage its introduction. That appears to have been the main and the controlling purpose. Now, it is an undisputed fact that steamboats were built by the complainant and actually went upon the route, described in the act, for a year or more. The court consider that the actual running of the boats by the complainant on the route described in the Act, as the best proof of the performance of the prescribed conditions.

But it is alleged, and it may be that it is so, that the Legislature intended to have steamboats of more power, and affording greater facilities. But this question is not to be tried by an individual. If one can do it, another may, and there might be constant litigation, and the verdicts might be various. If the Legislature decrees that the object has not been accomplished, and that the contract has not been properly performed, they may direct it to be tried in the proper manner; and that decision will be conclusive. And such are the uniform decisions of the courts on this subject.

The next inquiry is, when did the exclusive privilege for twenty years commence ? It has been said for the respondents, that the exclusive right did not attach until every thing contemplated by the Act had been fully completed; and that all this has not yet been done. For instance, that there was to be no exclusive privilege until the rail road or the canal had been fully completed. A part of the clause in the Act, taken alone, would seem to favor such construction. But the whole statute is to be taken into consideration in giving a construction to particular words of it. It could hardly be supposed to have been the intention of the Legislature, that the . grantees were to be subject to competition, when feeble and struggling to carry the whole design into complete execution in all its parts, and to be free from it, and to have no competition when they became strong; nor that the grantees, by delaying the full completion, should extend then- exclusive right forward to a time when more business might be expected on the river. If the words, to continue, were inserted before the words for twenty years, it would seem to remove any doubt. But, admitting this construction to be incorrect, the exclusive right would commence when the river had been so improved that it was actually navigated by steam power, and when the required rail road had been built and used. It is said that the rail road is an insufficient and unsuitable one. If this be so, it is to be settled by the Legislature, if they think proper, by directing proceedings to vacate the charter.

Has the complainant acquired such right, and placed himself in such situation, as to require the interposition of the court to protect him by way of injunction ? It is said, that before an injunction can be granted, the complainant should have had his right determined at law, or have shown it to have been of long continued existence and exercise. In certain cases this is correct. If the complainant relies on a private grant, and there is a denial of the right claimed, he must first establish his claim at law. But in those cases, where there has been a long continued and uninterrupted possession and enjoyment of the right, an injunction may issue, without a trial at law. Where a State has the right to make the grant, and it has been made, and the required conditions have been performed, it has been held to be equivalent to a determination at law, that the right exists. Unless it be a matter of doubt whether the act complained of is a nuisance, the only object of a trial at law would be to test the constitutionality of the grant from the State. In the case cited, Croton Turnpike Co. v. Ryder, 1 Johns. Ch. 610, the Chancellor says, it is sufficient that the party is in possession of a statute privilege, unless the right to make the grant is a matter of doubt. In the present case, it has already been said, that the constitutionality of the Act, for the purposes of this hearing, is not to be considered as a matter of doubt; and the decisions seem to be uniform, that the Legislature have the right to regulate the navigation on fresh water rivers. The remark, however, is not intended to be so general as to include the great rivers passing through different States. The cases cited for the respondent, such as Ingraham v. Dunnell, (5 Metc. 118,) in Massachusetts, and Porter v. Witham, in this State, (17 Maine, 292,) say, that the court should not proceed to an injunction in doubtful cases. The principle to be derived from the authorities seems to be this. Where the statute right does not appear to be in doubt, and the act complained of is clearly a violation of it, the power of injunction may be properly exercised; but where there is doubt as to the statute right, or it is uncertain whether the acts complained of amount to a nuisance, an injunction should not be decreed until the rights become ascertained at law. And it has been holden, that where the acts complained of are or may be destructive of the rights of the complainant, an injunction may be granted.

It is contended, in behalf of the respondents, that the dam on the western side of the river is not necessary, and that the object of the complainant in placing it there was not to improve the navigation of the river, but to prevent boats, rafts, and scows, from passing up the river; and thereby to increase his own profits. [Here a reference was made to some of the affidavits, and a portion of the testimony was stated.] If one of the respondents was the riparian proprietor of the land where the dam was erected, the Act gives compensation for any land taken, and it is not apparent in what respect that fact can change the rights of the parties. It is stated in one or more affidavits, that a workman who had been in the employment of the complainant in building the dam, said it was erected to prevent the existing navigation, aiid to introduce the mode by steam power. The declarations of workmen employed, cannot bind the employer, if made without authority. An engineer of high reputation has examined that part of the river, at the request of the respondents, and gives his opinion that this dam is wholly unnecessary. Another engineer states, that he was employed by the complainant to determine and direct the best mode of improving the river there, and that he directed the building of that dam, and that the complainant unwillingly • assented to it. This engineer still thinks it necessary. It is said that the dam did not have the effect intended, and that on that account the rail road was built further up than it was first intended. If the grantee of the privilege acts in good faith in his attempts to accomplish the object of it, and to perform the stipulated conditions, the law will not permit any individual to destroy the works thus erected, and make himself the judge of their necessity. And while the contemplated works remain incomplete, it may not be easy to say with certainty whether they will be necessary or not. The destruction of the works erected by advice of one engineer cannot be authorized, because one or more other engineers esteem them useless,^ It is also said that the dam is made between the head . and the foot of the falls, when it was required that the canal or rail road should be made round the falls. If the dam there was properly placed to facilitate the rising of the falls, it cannot be said to be unnecessary. Although the complainant, by the Act, is required to build a canal or rail road around the falls, yet he is authorized by it to improve the navigation of the river between the foot and the head of the falls, as well as in other places ; and he may, if if be practicable, so improve the falls as to enable him to ascend them a part of the distance by means of steam power, and the rest of it by rail road or canal.

The inquiry then will arise/whether the respondents have committed the acts complained of, and which are alleged to be destructive of the rights of the complainant, granted him by the Legislature. It seems to be fully proved, and, indeed, is undisputed, that one of the respondents, under whom the others act, has built a boat propelled by steam power, and has run it on this same route, in some places in the very channel cleared by the complainant, and has done the same kind of business. This must necessarily be injurious, if not destructive, to the interest of the complainant under the legislative grant. The interference of the respondents is clearly shown or admitted.

The court have jurisdiction; the right of the complainant, tinder the legislative grant, is not considered, for the purpose of this hearing, as being doubtful; and the interference with it by the respondents is shown. Is it then the duty of the court to grant the injunction ? The power to grant it should not be exercised where there is an adequate remedy at law. The inquiry then is, if the complainant should eventually prevail, has ¡¡he such remedy ? It is apparent, that if there be competition, there is no adequate mode of measuring the damages. There must be loss of business by the complainant, and there would be continual lawsuits. The respondents may reduce the compensation in such manner as to afford no profits to any one. Again, it must be remembered that there have been cases where a person has done business for nothing, for the sole purpose of driving the owner off from the route ; and it is possible that it might be so done here. On the other hand, the consequence may be, that the boat of the defendants may become worthless, while the case is pending. But the court cannot shrink from performing its duty on that account. The respondent knew that the complainant’s boats had run before he built his. The respondent knew the facts, and is presumed to know the law. One of the parties must suffer loss. The one who acts jmder the authority of the Legislature must not be selected to suffer, under such circumstances.

In view of the whole case, it is the unanimous opinion of the court, that the injunction must be granted.

Note. —The foregoing abstract of the points settled, and also the opinion of the court, were drawn up by Hon. John Shepley of Saco.