Flanagan v. City of Philadelphia

The opinion of the court was delivered, April 21st 1862, by

Woodward, J.

The plaintiffs are engaged in the business of towing boats and barges on the river Schuylkill, below Fairmount dam. Their business is important--in"pbiht of magnitude, for it is in the proofs that nine thousand boats pass down the river each year, having a tonnage of over a million tons, all which boats return empty, making the total number of boats, laden and light, eighteen thousand. The plaintiffs complain that their right of navigation is likely to be materially injured by the erection of the Chestnut Street Bridge across said river, if it be built according to the plan adopted by the city councils, and they pray that the city and the city’s contractors may be restrained^, from pvect.ixig-«,d^hrTd^-3--nnleRS it be built upon piers in the same .relative position as-those of the Market Street Bridge, or, unless a clear navigable water-way of at least one hundred and ninety-five feet be left free and unobstructed. We have affidavits from the engineers of the city, and others, explaining and justifying the plan adopted by councils, and counter affidavits on the part of the plaintiffs, which argue strongly in favour of a suspension bridge, as less expensive than a bridge with piers, whilst it would leave the navigation entirely free from obstruction. But if it roust be a bridge with one or more piers, the affidavits on the part of the plaintiffs tend to show that two piers in line with those of the Market Street Bridge would obstruct navigation less than the one pier which the city proposes to locate in or near the middle of the channel.

It is impossible for us to decide the cause upon the comparative merits of the several plans proposed. We are not a board of engineers, and cannot undertake to say what would be the cheapest and best plan of bridging the Schuylkill at the place designated. The city, fully authorized by law to erect the bridge, as is shown in the opinion herewith filed in the case of the board of wardens, employed Strickland Kneass, Esq., a competent civil engineer, to examine the site, and to prepare a plan of bridge that should combine economy of expenditure with durability and usefulness of structure, and present the least possible obstruction to the water-way. Mr. Kneass performed this duty, and the councils adopted his plan. He and other experienced engineers give reasons in their affidavits, which they deem unanswerable, in favour of the bridge as planned.. They maintain earnestly that one pier will be less obstructive to navigation than two, and that, however expedient it might be to erect a suspension instead of a permanent bridge, if it were to be under the supervision and administration of such competent agents as a private corporation would be likely to employ, yet for a municipal corporation, whose agents and watchmen are not selected with special reference to taking care of suspension bridges, a permanent bridge, which they say will require less supervision, will be preferable.

The city has taken the proper course in determining the plan of the bridge, and the only question which is fit to engage our attention is whether, at the suit of the navigators of the river, we, as a court of equity, ought to prevent the city from building the bridge according to the plan adopted. This question involves two others : first, whether the legislature is competent to authorize the Schuylkill to be bridged, to the prejudice of the right of navigation; and, second, whether the plan adopted is in substantial conformity to the'authority granted.

First, as to the power of the legislature. There is no natural right of the citizen, except the personal rights of life and liberty, which is paramount to his fight to navigate freely the navigable streams of the country he inhabits. It ranks immediately after those great personal rights. It is superior even to the right of fishing, which contributes to the food on which the community subsists, for it has been judicially decided that when the rights of navigation conflict with the rights of fishing, the latter must give way to the former: Port v. Mann, 1 Southard’s Rep. 61; Shrunk v. Schuylkill Nav. Co., 14 S. & R. 71; Hart v. Hill, 1 Whart. 136.

When the king held, among the royal prerogatives, the dominion over and the right of property in the waters of the sea, and inland waters of the sea, they were, nevertheless, of common right public for every subject to navigate upon, and to fish in, without interruption. These inherent privileges of navigation and fishing were denominated jura publica, or jura communia, in contradistinction from jura coronce. They are said in the old books to exist of “ common right,” which, according to Lord Coke, is only another epithet for common law. A sense of the importance of preserving navigation unobstructed in all navigable rivers, was manifested in England at a very early period, as is indicated by the laws relating to sewers, which are remarkable for antiquity: Collis on Sewers 25. The principle of that clause of Magna Charta to which I took occasion to refer in Ingham’s Case, 12 Casey 201, has been considered as discountenancing all obstructions to navigation, and therefore on an information filed against a defendant for building locks in the Thames, Chief Justice Holt said, that to hinder the course of a navigable river was against Magna Charta: Rex v. Clarke, 12 Mod. Rep. 615. By statute of Edward 3, ch. 4, it was enacted that all mills, weirs, stanks, stakes, and kiddles, which were levied and set in the time of King Edward 1, and after, whereby ships and vessels were disturbed, should be cut and pulled down. The statute 4 Henry 4, ch. 15, after reciting that by weirs, stakes, and kiddles in the water of the Thames, and in other great rivers throughout the realm, the common passage of ships and boats are disturbed, and also the young fry of fish be destroyed, enacts that “ all the former statutes thereof made be held, and kept, and put in execution.” These statutes show the high value which in early times our English ancestry set upon the free and unobstructed passage of navigable rivers, and their long-continued solicitude and determination to preserve it: Angell on Tidewaters 83, 85, and Statutes at Large, vol. 1.

These principles of the common law and of the old statutes came with our forefathers to Pennsylvania. Navigation was, from the first settlement of the province, an inherent and paramount right of the people. But we did not retain the common law definition of navigable streams. At common law, those rivers only are called navigable in which the tide ebbs and flows. All rivers entirely above the influence of the tide, if they are so large as to admit navigation, and to be of public use for the passage of vessels, boats, &c., may be, as well as those which ebb and flow, under the servitude of the public interest, and are used as public highways by water. “ There be some streams or rivers,” says Lord Hale, “that are private not only in property or ownership, but also in use, as little streams and rivers that are not a common passage for the king’s people. Again, there be other rivers, as well fresh as salt, that are of common or public use for the carriage of boats and lighters; and these, whether they are fresh or salt, whether they flow and reflow or not, are primd facie, publici juris, common highways for man, goods, or both, from one inland town or another:” Hargrave’s Tracts, Be Jure Maris, ch. 3. The common law definition of navigable rivers affects, therefore, rather the proprietorship in the soil or bed of the river than the right of navigation. This was secured to the public in all streams competent to sustain it, whether they were, legally speaking, navigable or were not.

But in Pennsylvania we have followed the civil law definition of navigable rivers, rather than that of the common law, and we hold as navigable not only those streams which are subject to tides, but all rivers capable of being navigated; that is, navigable in the common sense of the term. Instead of granting the soil usque ad filum, we have bounded our grants at low-water on all such rivers, and have retained, as eminent domain, for the use of all citizens, whatever of soil and water were found between the lines that describe the low water. In this we have departed not only from the common law of England, but from the law of most, though not all our sister states: Carson v. Blazer, 2 Binn. 475; Shrunk v. Schuylkill Navigation Co., 14 S. & R. 71; Barclay Railroad Co. v. Ingham, 12 Casey 201.

The Schuylkill, in that part of it which the plaintiffs navigate, is a navigable river, even according to the common law definition, for the tide flows and reflows in it; but if this circumstance were wanting, it would be navigable according to the common law of Pennsylvania. It is one of our great rivers, the soil of which has never been granted by the Commonwealth. It is open and free to all citizens for purposes of navigation. The plaintiffs, therefore, must be regarded as in the exercise of a clear and undoubted right — a right always recognised as paramount to every other use of the river, and inherent in them, by virtue of their citizenship of a free state.

But clear and important as this right is, it enjoys no constitutional guaranty, like life and liberty, and therefore may be impaired by the legislature. Whether it may be totally destroyed or not, is not the question in this case; for, at most, it is only proposed to impair, and not to extinguish it. In England, though the Queen, at this day, can do nothing in derogation of the public right of navigation, such public right being paramount to any right of the Crown, yet the omnipotence of parliament is competent even to extinguish the right to navigate a river, or an arm of the sea: Williams v. Wilcox, 8 A. & E. 314; Rex v. Montaigne, 4 B. & C. 598. But with us, the legislative power is not quite so absolute. If it is not at all restrained by those natural rights which inhere in every citizen, as it certainly is not by any express limitation of onr state constitution, it is somewhat qualified by the grants of power which the state has made to the general government in the Constitution of the United States. The power to regulate commerce with foreign nations, and among the several states, was held by the Supreme Court of the United States, in Gibbons v. Ogden, 9 Wh. 1, to include the power to regulate navigation, a power which does not stop at the external boundary of the state, but may be introduced into the interior. This case set aside much of the reasoning of the Court of Errors of New York, in the great case of Livingston & Fulton v. Van Ingen, 9 Johns. 507, as well as the judgment in Gibbons v. Ogden, 17 Id. 488. The state legislation, on which these cases was founded, was overthrown also, because inconsistent with the Acts of Congress regulating the coasting trade and navigation of the country.

But in respect to domestic streams, which, like the Schuylkill, rise, run, and empty within our own borders, state legislation is unaffected by the Constitution of the United States, unless it is in cónfliü.Uwith the Navigation Laws or some other enactments of Congress. In Wilcox v. The Blackbird Creek Marsh Co., 2 Peters 250, it was held that an Act of Assembly which authorized a dam in a creek where the tide ebbs and flows, was an affair between the government of the state of Delaware and its citizens, of Avhich the Supreme Court of the United States could take no cognisance. “If Congress had passed any act which bore upon the case,” said Marshall, C. J.; “ any act in execution of the power to regulate commerce, we should feel not much difficulty in saying that a state law coming in conflict with such act would be void. But Congress has passed no such act.” Judge Story lays it clown as a principle, that in order to consider a state law as void because conflicting with a statute of the United States, it must not only affect the subject-matter, have some influence over it, but must be directly incompatible or repugnant — an extreme inconvenience to it: 1 Story’s Com. on Con. 432. In the case of The United States v. The New Bedford Bridge, 1 Woodbury & Minot’s Rep. 407, where the late Justice Woodbury discussed all the authorities at great length, he says that where a stream is within the limits of a state in its whole course, he could see no reason, as a general principle, why that state might not obstruct its navigation or suspend it. As a general ¡principle, there doubtless is no reason why the power of the state legislature is not as absolute over such streams as that of Parliament over the streams of Great Britain; but since many of such streams, the Schuylkill inclusive, bear a necessary relation to the commerce of the country, and since the state has not only delegated to Congress the power to regulate commerce, but has agreed also in the Federal Constitution, “ that the citizens of each state shall he entitled to all privileges and immunities of citizens in the several states,” it is an inevitable deduction that the legislative power of the state is not competent to destroy the navigability of such a stream as the Schuylkill. And if, from respect to the constitutional rights of citizens of other states, the navigation of the Schuylkill may not be suspended or destroyed by state legislation, then certainly we must imply a limitation of legislative power in behalf of our own citizens, or else we come to the absurd conclusion that the citizens of New York or New Hampshire have more rights in the waters of the Schuylkill than the citizens of Pennsylvania. (Edt though the legislative power be not competent to suspend or dest'r,c>y''havigation, it may. improve, regulate, and control the_-n,avigation, unless it comes into direct conflict "with some constitutional Act of Congress'." ,Tlris~is a power that has been freely exercised by the states ever since the constitution was adopted. A partial diminution of the navigability of the stream by the erection of a bridge, is quite within the competency of the state legislature. Bridges are great public conveniences, monuments of civilization, and means to the highest development of the social life of the community. In all cases the legislature has the power to inquire when the public convenience demands a partial restraint of the freedom of navigation for the sake of a bridge, and to prescribe the terms and conditions on which the bridge shall be built. Where, as in the case of Dugan v. The Monongahela Bridge Co., 3 Casey 303, the legislature have taken the wise precaution of introducing a proviso to save unimpaired the rights of navigation, we held'the company who built the bridge liable to compensate a navigator in damages for his property destroyed against the piers of the bridge, without fault on his part; but where, as in the late case of Clark v. The Birmingham and Pittsburgh Bridge Co., 5 Wright 147, a bridge was authorized without any such express proviso, we refused to sustain an action for damages by a party injured by the piers.

The sum of the whole matter is, that so long as the legislature comes into conflict with no constitutional enactment of the general government in respect to the tidewaters of the river Schuylkill, they may bridge those waters upon such terms and conditions as do only impair and diminish the freedom of navigation, without destroying the right altogether.

And this brings me to the observation that what the plaintiffs complain of is a prospective abridgment of their rights of navigation, not a total .denial of them. They fear they will not be able to tow six hundred feet of boats and barges safely — that the wind will drive the long retinue of their tugs upon the one pier of the bridge, or upon the shipping and boats that usually lie moored on either side of the river in the neighbourhood of the bridge. Well, suppose it be' so, and that the consequence be a necessary reduction of the length of the tows; is that too great a sacrifice to make for the comfort and convenience which a bridge will furnish to the populous districts on the banks of the Schuylkill? Do the plaintiffs mean that this large city shall suffer perpetually the want of the bridge, lest they be compelled to shorten their tows ? That were unreasonable. Their right of navigation, like all the rights of citizenship, is held subject to the common weal, and of the time and manner of promoting that, the legislature are the judges. They have authorized the city to build the bridge, and if the plaintiffs find their rights impaired thereby — not destroyed, but only impaired — it is one of the sacrifices which must be borne for the sake of the general good, and compensation of which must be looked for in the increase of population, wealth, and business which will result from the erection of the bridge.

It only remains to inquire whether the city proposes to build the bridge on a plan which conforms substantially to the directions of the legislature. The only legislative directions concerning the bridge, are found in the Act of 27th March 1852. It is to be a “good and substantial bridge;” is to be located “at or opposite to Chestnut street,” and it is to be “ constructed upon such piers or abutments as to afford at all times a clear and uninterrupted passage for the water of said river, equal, at least in area, to that now existing, at the Permanent Bridge oyer the Schuylkill, at High street;” and then follows a limitation on the cost, which appears to have been applicable only to the commissioners of the county, and not to the city, who succeeded by virtue of the Consolidation Act to the powers of the county commissioners, without the limitation.

The area- of water-way was a good deal discussed in the argument ; the plaintiffs maintaining that it meant the same superficial breadth as is found under the Market Street Bridge. But as the river is considerably narrower at Chestnut street than at Market (one hundred and twenty-four feet Mr. Kneass makes the difference), it seems unreasonable to give the act such construction as the plaintiffs contend for. How could a bridge be built on piers at Chestnut' street, where the river is only three hundred and sixty-four feet wide, and leave the same width of water-way as at Market street, where the river is four hundred and eighty-six and one-half feet wide ? When it is considered that the legislature were not providing for the navigation by this reference to the “ area,” but only for the relief of the Fairmount Waterworks, by preserving under the Chestnut Street Bridge as much vent for the down-coming water as existed under the Market Street Bridge, Mr. Kneass’s plan of estimating the area seems to be a reasonable construction of the act. He insists that the area is to he got not by linear, but by a square measurement. He is not very full or explicit on the jooint, but as I understand his affidavit, he would multiply the width and the depth of the river to get the area of the passage for water. The product of these lines he considers the square of the volume of water, and he states that it will be, at Chestnut street, after the bridge with one pier shall be constructed, ten thousand three hundred and seventy-one feet, while that existing at Market street is only nine thousand two hundred and six feet, so that, according to Mr. Kneass, notwithstanding the comparative narrowness of the river at Chestnut street, there will be under the new bridge “ a clear and uninterrupted passage for the water of said river,” considerably greater in area than that at Market street. This conclusion of Mr. Kneass is not otherwise questioned by the plaintiffs than as they deny his premises. They will not agree that the area is to be got by squaring the volume of the river, but only by measuring its linear surface.

The dispute depends on the judicial construction of the word area, but instead of going into the etymology of the word, we prefer to deduce its meaning from the plain intent of the enactment. The affidavits show us that once in the history of the Fairmount Waterworks, the wheels were so drowned by a flood in the Schuylkill, that the city was in great danger of suffering for lack of water, and that the piers of the Market Street Bridge offered a considerable obstacle to the flow of the stream. Any piers at Chestnut street would be an additional obstacle. The legislature meant to guard the city from the disastrous consequences of the loss of water, even for a day, by securing as free a discharge for the current of the river in future as is enjoyed at present. What they said had no reference to the rights of navigation, but only to the outflow of the river. To measure that for mere purposes of discharge, the perpendicular depth must be taken as well as the width. The depth as well as width would contribute to relieve the wheels at Fairmount, and therefore the word area, as used in this Act of Assembly, must be taken to include the depth. Ordinarily the word means any plain suj*face, as the floor of a room, or the enclosed space on which a building stands, or the portion of the site which is not built upon: [Webster and Worcester.] In geometry it denotes the superficial contents of any figure — the surface included within any given lines. In neither of these senses was the word well chosen to express the thought of the legislature; for, according to its etymology, it does undoubtedly imply merely a superficial measurement. It is said to come from the Latin, arere, to dry, and implied originally a place where com, when reaped, was dried and threshed. But construing the word according to the evident intent and purpose of the Act of Assembly in which it is found, we give it the effect above indicated, and hold that the city have provided for a passage of water under their new bridge “equal at least in area” to that now existing under the Market Street Bridge.

There is nothing else that calls for discussion in this case. We recognise the plaintiffs’ right of navigation, but hold that the legislature were competent to impair it to the extent they have done in the law before us. We hold, also, that the city propose to build in substantial compliance with the terms of legislation, and therefore that they and their contractors are not to be stopped.

The decree is affirmed.