.", J'EDERAL itEl!ORTER,VoL,
so;
tooJr in doing so erectedjot,caused to be erected, ,temporary falsework,onpiles across the the draw-span, its line",dscontinued, while was being rebuilt or repaired, The piles and false work obinterrupted the ordinary navigation6f the. river from about the 8th to the 23d of April, 1890.00 and after the latter date, boats which had been cut down for the purpose could and did pass under the uninjured spa;n,of the bridge, and were of sufficient capaQityto carryall of complainants'Areight to Nashville, Tenn. Before closing the channel of the riYar, the defendant arranged with the captain and superintendent of only regular line of steamers or packet 'navigating 'the to 'place ofie or more boats below, and ll'tlotheror others abova;thebridge,soas to continue regular trips, and transfer !freight and passengel's'at' ,the point Of obstruction, by means of a barge anchored and method of transfer was continued during ,the entire time the' channel was closed. The between the defendant !and the said packet companies plying the river was to the effect that the former should pay the latter $600 per week, and that the latter should transfer all freight without extra charge to shipp.ers;ethe intent of the agreement ,being to protect shippers against any increased or rate of freights because of the temporary obstruc.. ordinary na.vigationof the river. Under and in pursuance of this! agreement with defendants i the steamers or packet companies maintained the. usual and ordinary' freight rate; and on the 23d of April, notifiedcomplainants.that they were prepared and ready to carry ol'!,transport alltheir freight (chiefly corn in sacks) from the lower Cumberland: ;and Ohio riv.er to Nashville, without even transferring the same at the bridge; but complainants declined to ship that way, as they had previously declined to. ship by boat, and allow this freight to be transferred- II-t the hridgeby means of the anchored barge. But from the 9th of' April to some time in May, 1890, they had their freight carried or brought to' Nashville by railroad, at an extra cost of 4 cents per 100 pounds. The additional freight rate thus paid by them on these ship-mentl'1 of grain, over and above the river rate, amounted to $1,800.41. Complainan:ts.Jurthermore: intimate that they had paid out $500 for traveling'expenses and extra labor, and sustained damage to grain in the Sum of 3242'.64, on account of said obstruction of the river by defenda.nt. The,sethree amounts,aggregating the sum of $2,543.05, thespecial master: has reported 'as the loss sustained by complainants, and which they.are entitled to: recover of the defendant, on account of its temporaryintetruption of the ordinary navigation of the river in rebuild' ing or repairing its bridge,as aforesaid. The special master finds and reports that"DefE'ndaritcould have its draw:I;lJlll,11 by erectit}g work up and dow.ri' the stream, thus leaving the open wllile work was in progress;' lbnt this would have severed its lirie m,uch more completely than the modeactuaHy pursued severed the line of navigation, inasmuch as its passengers an'd freight would have had to be ferried overthe river; an operation
RHEA:". 'NEWPQlbTN. &: M. V. R. CO.
19
attended;with far danger. delay, and expense than the transfer from one boat to another over the deck of a barge. The traffic of defendant's road also 'exceeds tile traffic on the river, and the public convenience was thereforelmbserved by the mode of constr!1ction which was pursued."
Themast(jJ"s conclusion that the defendant is liable {orthe special loss or damage sustained by complainants, as reported, to $2,543.05, is hased upon the. theory" that, under the doctrine of the Whteling Bridge Case, 13 How. 518. the state of Kentucky has no constitutional right to authorize an obstruction of the navigation of the Cumberland river," for the that said river was not wholly or throughout its entire length :within the state of Kentucky, but tra\'ersed and bore the commerce ofanother state, (Tennessee,) which rendered it a navigable stream, subject to the exclusive jurisdiction of congress, under the commerce clause of the constitution, and that the building of a bridge across it could only be authorized or sanctioned by the general government, acting and speaking for the whole country. The master reached the conclusion, as the result oOhe supreme court's decisions on the subject, that in respect to navigable streams wholly and entirely within its and continuance of bridges limits, a state could authorize the acrOss the same until congress should act upon the subject; but in respect to navigable water not wholly or entirely within the limits of a single Btate, but extending through or traversing two or more states, the absence of any action or regulation by congress was a declaration that such water should be and remain free from any and all control or ob· struction by the state or stlltes o\'er the same, or any portion thereof. Applying this latter rule to the Cumberland river, the master reported that the state of Kentucky had no constitutional right or power to defendant to erect or maintain a bridge across the Cumberland river, although that portion of the river where the bridge crosses the same was wholly within the state; that the obstruction created in repairing or rebuilding the bridge was unlawful, and created, a public nuisance; lind that complainants were entitled to recover from defendant the special damage sustained in consequence thereof. lithese propositions and condusiollSof the master are sURtained by theaathodties, the cmnplainants are entitled to a decree for the special injury· suflered by them in consequence of the temporary obstruction to the ordinary naviglltion of the Cumberlnnd river. The Wheeling Bridge Case, 13 How. 518, specially relied on to support the master's conclusion, does not control the present case. It will be seen, by, reference to the leading opinion in theWMeling Bridge Que, the lllw of Virginia whicB authorized the erection of the bridge thus complained of was heldlo Le inoperative chiefly on two grounds--Hr8t, itimpaired the obligation of the compact between Virginia and Kenttl.cky that the usa and navigntion of the Ohio, so far as the territory of baidstates ,was concel'l1ed, Should be free and common to the citizens of the United States; and, 8econd, because it was iil conflict with the lep;islatioo of,congr.esll, which hns eltpressly sanctioned said compact, and tbt¥'eb;ym4de it "31aw altha Union." In the/l'resent case there is no
20
FEDERAL 'REPofiTER, vol.
50.
such cdmpactbetween Tennessee'and Kentucky in respect'tothe' Cum· nor has congressiunder its constitutional authority, legislated' bn,the subject. The WpeeJillg bridge was in itself a permanent obstruction to navigation, while defendant's structure or false work was only a temporary and partial interruption to the usual course of navigation, with provision and arrangement made for the transfer of freight and passengers without extra charge to either, and without serious delay, risk, or danger. The question as to whether the state of Kentucky had the ('onstitutional right to authorize the erection of a bridge across the Cumberland river within its jurisdiction, andth(l consequent lawfulness or unlawfulness of defendant's temporary obstruction to navigation in rebuilding said bridge in order to restore its severed line, must, in the opinion of the court, be settled and determined by the principles announced in the cases of Willson v. Greek Marsh 00'.,'2 Pet. 245; Palmer v. Commissioners, 3 McLean, 226; Railroad Co. Ward, 2 Black, 494; Gilmanv. Philadelphia, 3 Wall. 721; Pound v. Turck,95 U. S. 462; Transportation Co. v. Chicago,99 U.S. 643; Mobile v.Kimball·, 102 U. S. 691; Transportation Co. v. Chicago, 107 U. S. 687, 2 Sup. Ct. Rep. 185; Miller v. Mayor, etc., 109 p. 8.385, 3 Sup. Ct. Rep. 228; Cardwell v. Bridge Co., 113 U. S. 205, 5 SUp'.ICCt. Rep. 423; Hamilton v. Railroad Co., 119 U. S. 281, 7 Sup. Ct. Rep. 206; Huse v. ,Glover j 119 U. S. 543, 7 Sup. Ct. Rep. 313; Sands v. Improvement Co., 123 U. S. 293, 8 Sup. Ct. Rep. 113; and Bridge Co. v. Hatch, 125 U. S. 1:, 8, 9, 8 Sup. Ct. Rep. 811. It is not.necessary to review these decisions. While they establish beyond all question the' paramount authority of congresa, under the commerce clause of the constitution, over all navigable waters of the United States, they also settle the proposition that, until congrElss exercises its superior right of control and regulation, the states or state within·whose territoriallirnitssuch waters or streams are'located may directly, or through delegated authority, authorize the erection of bridges across the same, and that such' structures are not unlawful until so declared by congress. In respect to such structures over navigable wawithin the limits of a state, non-action by congress is not a declaration that such waters must remain free and unobstructed, but that the state's authority over the same may be exercised to the extent, at least, of permitting and authorizing the establishment of ferries and the ,building of bridges over the same, necessary or convenient for either its local or interstate commerce. .Nnvigable waters lying within the limits of a state are' both state and national in their character, with the paramount right of'control or regulation in the general government when oongresschooses to exercise the authority over the same; but j until such authority is exercised, the jurisdiction and power of the state to the 'erection or construction ofbridges over the same is clearly established. But it is urged by counsel for complainants. that such authority of the state is confined, as reported by the special master, to cases in which the navigable stream Or water is located wholly, throughout its entire length,within :thelimits of the state. It is true,that in
RHEA !7. NEWPORT
&M.V. R. CO.
21
most of the Cllses above cited the public or navigable waters were wholly· within the limits of the state authorizing the erection of bridges arabstructions in or over the same, and that expressions are found in one or more of the opinions which apparently attach some importance to that fact. The decisions did not, however, proceed or rest upon that ground, but upon the principle that such portion of navigable waters as lay or were embraced with,in the limits or territorial jurisdiction of the state were subject to state authority, in respect to bridges over the :same, until congress exercised its superior and paramount authority of l:'egulation and control. Navigable waters entirely within the limits of a state stand upon the same footing and are subject to the same controlling authority of congress as those extending through or reaching beyond the state. The right of the state, in the absence of congressional regulation to the contrary, to authorize the erection of bridges over such portion of navigable waters as :may be embraced within its limits, does not depend upon. the length of such waters, nor is the statels authority restricted or affected by the fact that some portion of the stream may extend beyond its territorial jurisdiction. The commerce clause of the constitution includes control of all navigable watel'S of the United States, so far as may be necessary to .insure their free navigation. By navigable waters are meant such as are navigable in fact, and which by themselves, or by their connections with. other waters, form a continuous cbannel with foreign countries or among. the states. . The Daniel BaU, 10 Wall. 563; TranspQrtationOJ. v. Ohicago, 107 U. B. 682,683,2 Sup. Ct. Rep. 185; Millerv. May01',etc., 109 U. 8. 395, Sup. Ct. Rep, 228. There is no distinction, undel' the commerce clause of the constitution, or in principle, between a navigable stream running through two or more states, and such a stream located wholly in one state, arid connecting with other navigable waters, so as to form a continuous channel of communication with foreign nations or among the states. The decisions of the supreme court procl3ed upon no such distinction, noc do they, in our opinion, sanction or support the position contended for; thiltin the latter class o( cases the state ma.yauthorize the construction of a bridge over thestreaw within its limits, but that in the former class the :state has nosnch authority. The theory upon which this contention is based is that nayigable waters wholly within the,Jimits of a state, but connectinj]; with other wltters, forming continuous channels ofcommunieation with foreign .nations 9r among the states, are not so "national" in in ,their character as streams extending through two or more states. This position is not correct, neither is it supported by the authorities. On the contrary,. the adjudged cases recognize no such distincother structures erected over navigable wa- , tion in respect· to tel's under the decisions. of the supreme cQ.urt establish the general doctrine, as stated by Mr. Justice ,FIELD <in CardweU v. Bridge Co., 113 U., 8.210, 58up. Ct. Rep. 423,-
a
"·That the commercial power ofcongresilis .exclusive ofstate authQrltyonly Wilen the subjects upollwhich,itis exerted are national in theh' character. ,and !luifpflllit,y:of fegulatloDlJ. affecting alike aU, tIle states;
22
nDERAL
vol.
50;;
tile sUbj,ects within that pOwer arl!llocal in their nature or !,f,conl\titute, mere· aids to, commerce, the states may provide, for their fl'g',ulation/ind management until congress iptervenes and supersedes tbeir action,'l'
.,.....they also establish that bridges over nllvigable waters are not of 8uch national character 8S to exclude state' action in respect thereto, but are, on the eontrary, of such local, limited, and special character, as aids to commerce, as to come within the management and authority of the states "until congrf'ss intervenes and this action." This is clearly pointed out in Cownty ojMobile v. Kimball, 102 U. S. 698, 699, and Railway Co. ,·.Illinois, 118U. S.585, 7 Sup. Ct. Rep. 4, and recognized in all subsequent cases, down to and including Bridge Co. v. Hatch, 125 U. S. 1-17, 8 Sup. Ct. Rep.81l. 'l'he subjects which have been considered of such national character as to require uniformity of regulation, and to exclude all state action and control, are those relating to interstate and foreign commerce, and the instmmentalities employed therein,-such as the imposition of taxes Of other restrictions upon or interference with such commerce. In respect to all such subjects, non-action by congress is tantamount to a declaration that they shall remain free and unohstructed by state acHon. The cases of '"Felton v. Mi8souri,91 U. S. 27.1)-280; Ferry Co. v. PennS'ylvania, 114 U. S. 196-204,5 Sup. Ct. Rep. 826; Pickard v. Onr Co., 117 U. S. 34,6 Sup. Ct. Rep. 635; ,and Railway Co. 'If. Illin0i8, 118 U. S. 557-575, 7 Sup. Ct. Rep. 4,-furnish illustrations of the subjects considered of national importnnce, and requiring suoh uniformity of regulation as to exclude state action and regulation. But the princi pIe of these cases has never been extended to .local structures, such as bridges erected by state authority on or over navigable waters which lie wholly within the limits of the state at the point or locality where such structures are erected. But for the commerce clause of the constitution, the state of Kentucky would have exclusive jurisdiction and authority over that portion of the river situated within her territorial limits. Her power over it would be as fuB, cOinplete, and extensive as though the river, throughout its entire length, lay wholly within her borders. As a member of the Union, her soverdgn right over the river, as a navigable stream of the United States, is Jimited by the power conferred upon the general government tocregulate commerce among the stale!'l. The delegated and paramount authority of congress is confined to regulation of such ,,'aters as highways of commerce; leaving the sovereignty of the state over the same otht<rwise intact and :unimpaired. See PoUard v. Hagan, 3 How. 223; Bridge Co. v. Hatch, 125 U. S. 1-12, 8 Sup. Ct. Rep. 811. But subject to this power of regulation, and until it is called into exercise by congress, the state of Kentucky had the right to sanction and authorize the building of bridges across the stream to aid and facilitate her local and interstate commerce. The bridge, as originally' constructed, and alter being restored was nptan unlaw luI interference with navigation. The methochem.ployed to restore or rebuild it was not an un· reasonable ()bstructionorinterruption of navigation, under the authority
lawfully conferred to build and maintain it. The line of road of which it forrned'lln essential highway, just as the Cumberland river is. The traffic over the road, as reported by the master, exceeds that on the river. ".' !fhe' ptlblicconvenience and benefit were subservedby the mode of rebuiJdipg the bridge which de, iendantadopted. In fe,building its bridge, in pursuance of authority conferred by law of and without unreasonably or obstructing, navigation of the river, it cannot be held that defendant created apublipnuisance such as will entitle complainants toreco"er ant the speciai damages which 'they claim to SUBtained. This conclusion is clearly and fully supported by the cases of ThantpOrlJition Co. v.Chieago, 99 U. 8. 635; .Harrriltun v. Railroad Co. , 119 U.S.: 280-285, 7 Sup. Ct. Rep. 206; and ,(heen« B. R. Nav. Co. v. Chesapeake, O. «.S. W; R.Co., 88 Ky. 1""1,2, 10 S.W. 6. What was said and ruled.by this court in Backus, 46 Fed. Rep. 216, in nowise conflicts with the views herein expressed and conreached. The proposed· structure there complained of came direptly the acto(congress approved September 19, 1890; The temporary obstruction here complained of was erected and removed: bethat legiala.tionofcongl'ess was enacted. It may be proper to state that, if complainants could recover at all, the amount reported by the master in their they could not be, favor. The two itemsof$500 for traveling expenses and extra labor, and $242.64 for damage to grain, are not sbown.to have heen occasioned by, or.to bave been and resultof,thedefendant'stemporary or partial obstruction of the usual navigation.' In respect totbe item of 4n;800.41 for extra freight paid by them, the proof shows that this was largely, it not :wholly, self-imposed. No valid .is .given for not transferring. their freight over or across the barge provided for the purpose,under the arrangement made between the defendant:and,the superintendent of the. packet companies plying the. river. would haye cost them nothing, would have with. :but little delay, and would. have involved little,if any,more ;risk or exposuri:l!of the freight; tbarUhe method of shipmentadopted by If.!lew. On and: aftl'lrthe23d of April, 1890, complainants .could. hav:e Bbipped their freight .by the riveri and were offered transportation that way, without It dQesn,ot, appear. that. they had previously made and entered into any bindillgcolltracts to ship by other route or routes, such as would have,prevented theiracceptance.of Capt. Rymin's proposition to carry thildreight by .the Cumberland river, as usual. But,without further .reference to the matter or question ol:nctual damage sustained, the courUa clearly of the opinion that, upon well-settledprinciples, the complainants .arenot entiilootorecover anything underthe facts and circumstances of this casco It follows that their exceptions to the report of the special should be overruled, that defendant's 2d, 3d, 4th, and 5th exceptions be sustained, and that complainants' bill should.. be dismissed; with costs lobe taxed, including an allowance, to the special master.. It .islf.ccordinglysoordered;anq adjudged.
FEDI£RAL REPORTER.
vol. 50.
:ChnCAGO,
M. &
ST. P.
R1'. Co.
'11. PULLMAN PALACE-CAR CO.
(Oircuit Oourt" N. D·. Illinois. Maroh 28. 1892.) EQUITY' PAAOofJ<lE-OBJECTlONS TO
A bill tor anaOCiounting oharged that complainant and defendant entered into a oontract, in. of a partnershill agreement, that the defendant was to keep the bocks and render monthly acoounts to. the oomplainant, and that the defendant fraudulentlY 'misstated such acooUnts.' The defendant answ/lred, denying the charges, but that it did not object to an acoounting. , lletd" that it was too late, ondlotion for a reference, for the .defendant to insist that the oharges in the bill wlke:llot sUfficiently specific. '
'WAIVER-AcCOUNTING.
.' InEquity'. ,:Bill by the Chicago, Milwaukee & St.Pa-ul Railway Comp!my Palace.Car Company for an accounting. Johrl. W.,:(Vary'and Edtoin Walker, .for c'omplainant. Isham" Lincoln Beale and J L. Runnels, for defendant. "
GRESHAM! Circuit Judge. 'l'hisis 8 suit by the St. Paul Company againsttliei J?Ullman Company for an accounting. On'September 22, 1882, the .parities entered into a written ,agreement {or the operation of sleeping-cars, parlor and dining cars. by defendant on the lines of the complainant,forjoint account. ,The complainant had previously operated it!! own sleeping, parlor,and dining-room equipment, and, by the .terms of tbe agreement, the defendant acquired a one-fourth interest in the carson the lines. It was contemplated that additional equipmentwQuldbeneeded, a.nd that it should be acquired and owned jointly, upon the Same terms. It was made the duty of the defendant "to keep frill and complete books of account, showfng all the expenses, receipts, loSses, iind.profitsarising from the operation" of the cars; and so much of the general expenses of the defendant were to be added to the specific expenses of the cars, operated under the contract, as the number of such cars hore to the whole number of cars run by the Pullman Oompany, on aU lines operated by it. It was made the duty of the defendantto ,balance tbe accounts as often as once a month, and pay to the complainant three·fourthsof the profits, thus ascertained, on or before the end aLtha month following. Losses were to be borne, one-fourth by :the' defendant and by the complainant. The complainant was given the option to terminate the partnership relation on six: months' written notice to the defendant before three stated periods, which right was:exercisedby giving the necessary notice that the agreement would terminate on September 30, 1890. The parties thereupon agreed that the fair cash value of the defendant's one-fourth interest in theequipment was worth $105,000, which the complainant refused to pay, for the alleged reason that an accounting would show it was entitled to a mucb larger sum from the defendant. After setting out the terms of the agreement, the bill, on information and .belief, avers that, although the defendant rendered monthly statements purporting,:to show the earnings and expenses, in gross, for each of the sleeping-cars operated for joint benefit, the charges for expenses,