27 US 245 Thompson Willson v. The Black Bird Creek Marsh Company

27 U.S. 245

2 Pet. 245

7 L.Ed. 412


January Term, 1829

THIS was a writ of error to the high court of errors and appeals of the state of Delaware.

The Black Bird Creek Marsh Company were incorporated by an act of the general assembly of Delaware, passed in February 1822; and the owners and possessors of the marsh, cripple,1 and low grounds in Appoquinimink hundred, in New Castle county, and state of Delaware, lying on both sides of Black Bird Creek, below Mathews's landing, and extending to the river Delaware; were authorised and empowered to make and construct a good and sufficient dam across said creek, at such place as the managers or a majority of them shall find to be most suitable for the purpose; and also, to bank the said marsh, cripple, and low ground, &c.

After the passing of this act, the company proceeded to erect and place in the creek a dam, by which the navigation of the creek was obstructed; also embanking the creek, and carrying into execution all the purposes of their incorporation.

The defendants being the owners, &c. of a sloop called the Sally, of 95 9-95ths, tons, regularly licensed and enrolled according to the navigation laws of the United States, broke and injured the dam so erected by the company; and thereupon an action of trespass, viset armis, was instituted against them in the supreme court of the state of Delaware, in which damages were claimed amounting to $20,000. To the declaration filed in the supreme court, the defendants filed three pleas; the first only of which being noticed by the Court in their decision, the second and third are omitted.

This plea was in the following terms:

1. That the place where the supposed trespass is alleged to have been committed, was, and still is, part and parcel of said Black Bird Creek, a public and common navigable creek, in the nature of a highway, in which the tides have always flowed and re-flowed; in which there was, and of right ought to have been, a certain common and public way, in the nature of a highway, for all the citizens of the state of Delaware and of the United States, with sloops or other vessels to navigate, sail, pass and repass, into, over, through, in, and upon the same, at all times of the year, at their own free will and pleasure.

Therefore the said defendants, being citizens of the state of Delaware and of the United States, with the said sloop, sailed in and upon the said creek, in which, &c. as they lawfully might for the cause aforesaid: and because the said gum piles, &c. bank and dam, in the said declaration mentioned, &c. had been wrongfully erected, and were there wrongfully continued standing, and being in and across said navigable creek, and obstructing the same, so that without pulling up, cutting, breaking, and destroying the said gum piles, &c. bank and dam respectively, the said defendants could not pass and repass with the said sloop, into, through, over, and along the said navigable creek. And that the defendants, in order to remove the said obstructions, pulled up, cut, broke, &c. as in the said declaration mentioned, doing no unnecessary damage to the said Black Bird Creek Marsh Company; which is the same supposed trespass, &c.

The plaintiffs, in the supreme court of the state, demurred generally to all the pleas; and the court sustained the demurrers, and gave judgment in their favour. This judgment was affirmed in the court of appeals, and the record remanded, for the purpose of having the damages assessed by a jury. Final judgment having been entered on the verdict of the jury, it was again carried to the court of appeals, where it was affirmed, and was now brought before this Court, by the defendants in that court, for its review.

The case was argued for the plaintiffs in error by Mr. Coxe; and by Mr. Wirt, attorney general, for the defendants.

Mr Coxe insisted that the record contained a case in which the constitutionality of a law of the state of Delaware had been brought into question; and the decision of the highest tribunal of the state had been in favour of its constitutionality. Under the provisions of the 25th section of the judiciary law, this case is, therefore, protected before this Court.

It may be admitted that other questions were presented to the courts of Delaware. As the act incorporating the defendants in error was subsequently, in part, repealed, those courts had before them other questions arising under the repealing statute. But he contended, that upon the authority of many cases decided in this Court, there was sufficient apparent on the record, to show that the constitutionality of the law to which the plaintiff in error objects, must have been decided before those tribunals.

It has been repeatedly held, that to give this Court jurisdiction it is not necessary that the constitutionality of the law shall have been specially questioned before the Hate court. If upon examination of the record it shall be found that unless the court should have held the law to be constitutional, they could not have given the judgment presented by the record, it is sufficient to maintain the jurisdiction here, under the act of congress.

Mr Coxe contended that the judgment of the high court of errors and appeals was erroneous, because the act of the general assembly of the state of Delaware, so far as the same authorized the company to shut up and embank across a navigable stream, below the ebb and flow of the tide, is repugnant to the constitution of the United States; and conferred no valid authority upon the company to destroy the navigation of the creek. He also considered the second act of the legislature of Delaware as a repeal of the provisions of the first law. The Court not having noticed this point in their decision, the arguments of counsel upon it are omitted.

The first plea having stated the river to be navigable, it is against the principles of the common law to obstruct it. 10 Mass. Rep. 70. The rights of navigation are public rights, belonging to all the citizens of the United States. The use of them is necessary for the purposes of commerce to the whole people of the United States.

Navigable streams are the waters of the United States. 9 Wheaton, 187.

He urged that the constitutional power of congress to regulate commerce, includes navigation; and the states are by this provision deprived of the power of closing a navigable river. In this case, the sloop was a licensed and enrolled vessel to carry on the coasting trade, and she was unlawfully and unconstitutionally impeded in the use of her license, by the dam erected by the defendants, under the unconstitutional act of the assembly of Delaware.

The statute of Delaware does not look to the preservation of the health of the citizens of the state, but to private emolument.

Upon the right of navigation being jus publicum, Mr Coxe cited Coop. Justinian, 68. Angel, 15. Vattel, 178, Lib. I. sec. 234, &c. 1 Halstead, 72, 76. Angel, 167. Hargrave's Collection, 36, 72, 87. He relied on the decision of this Court in Gibbons vs. Ogden, 9 Wheaton, 187, as a conclusive authority for the plaintiffs in error.

If Delaware has no right to restrain particular vessels from using her navigable streams, she cannot stop the navigation of those streams.

Mr Wirt, for the defendants, contended that the record does not present a case in which this Court has jurisdiction. The courts of Delaware might have decided in favour of the defendants in error without sustaining the constitutionality of the act of incorporation; and this Court will not assume that the question was decided, if upon other grounds the opinion of the state court could be maintained. In Mathews vs. Zane, the Court held that the question of constitutionality must have arisen inevitably. Does the act authorising the erection of this dam violate the constitution of the United State? It is admitted that the creek was navigable; and that the stream was a public highway. But it is asked whether the legislature of a state may not stop up a public highway within the territories of the state? Parliament, in England, exercises the power to stop up streams, which are public highways. 4 Barn. & Cress. 589.

It cannot be urged that the power to regulate commerce can interfere with the rights of the states over the property within their boundaries. While the waters of the United States belong to the whole people of the nation, this creek continued subject to the power of the state in whose territory it rises. It is one of those sluggish reptile streams, that do not run but creep, and which, wherever it passes, spreads its venom, and destroys the health of all those who inhabit its marshes; and can it be asserted, that a law authorising the erection of a dam, and the formation of banks which will draw off the pestilence, and give to those who have before suffered from disease, health and vigour, is unconstitutional?

The power given by the constitution to congress to regulate commerce, may not be exercised to prevent such measures; and there has been no legislation by congress under the constitution, with which the proceedings of the defendants under the law of Delaware have interfered.

Mr Chief Justice MARSHALL delivered the opinion of the Court.

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The defendants in error deny the jurisdiction of this Court, because, they say, the record does not show that the constitutionality of the act of the legislature, under which the plaintiff claimed to support his action, was drawn into question.


Undoubtedly the plea might have stated in terms that the act, so far as it authorized a dam across the creek, was repugnant to the constitution of the United States; and it might have been safer, it might have avoided any question respecting jurisdiction, so to frame it. But we think it impossible to doubt that the constitutionality of the act was the question, and the only question, which could have been discussed in the state court. That question must have been discussed and decided.


The plaintiffs sustain their right to build a dam across the creek by the act of assembly. Their declaration is founded upon that act. The injury of which they complain is to a right given by it. They do not claim for themselves any right independent of it. They rely entirely upon the act of assembly.


The plea does not controvert the existence of the act, but denies its capacity to authorise the construction of a dam across a navigable stream, in which the tide ebbs and flows; and in which there was, and of right ought to have been, a certain common and public way in the nature of a highway. This plea draws nothing into question but the validity of the act; and the judgment of the court must have been in favour of its validity. Its consistency with, or repugnancy to the constitution of the United States, necessarily arises upon these pleadings, and must have been determined. This Court has repeatedly decided in favour of its jurisdiction in such a case. Martin vs. Hunter's lessee(a), Miller vs. Nicholls(b), and Williams vs. Norris(c), are expressly in point. They establish, as far as precedents can establish any thing, that it is not necessary to state in terms on the record, that the constitution or a law of the United States was drawn in question. It is sufficient to bring the case within the provisions of the 25th section of the judicial act, if the record shows, that the constitution or a law or a treaty of the United States must have been misconstrued, or the decision could not be made. Or, as in this case, that the constitutionality of a state law was questioned, and the decision has been in favour of the party claiming under such law.


The jurisdiction of the Court being established, the more doubtful question is to be considered, whether the act incorporating the Black Bird Creek Marsh Company is repugnant to the constitution, so far as it authorizes a dam across the creek. The plea states the creek to be navigable, in the nature of a highway, through which the tide ebbs and flows.


The act of assembly by which the plaintiffs were authorized to construct their dam, shows plainly that this is one of those many creeks, passing through a deep level marsh adjoining the Delaware, up which the tide flows for some distance. The value of the property on its banks must be enhanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the states. But the measure authorised by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgement, unless it comes in conflict with the constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this Court can take no cognizance.


The counsel for the plaintiffs in error insist that it comes in conflict with the power of the United States 'to regulate commerce with foreign nations and among the several states.' If congress had passed any act which bore upon the case; any act in execution of the power to regulate commerce, the object of which was to control state legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern states; 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. The repugnancy of the law of Delaware to the constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several states; a power which has not been so exercised as to affect the question. We do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject. There is no error, and the judgment is affirmed.1

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This cause came on to be heard on the transcript of the record from the high court of errors and appeals of the state of Delaware, and was argued by counsel; on consideration whereof this Court is of opinion, that there is no error in the judgment of the said high court of errors and appeals of the state of Delaware; whereupon it is considered, ordered and adjudged by this Court, that the judgment of the said court in this cause, be, and the same is, hereby affirmed with costs.


There is no such word in the English language. The word is Dutch, "kreupel" (German kruppel), and means "low wet land, overgrown with bushes."


1 Wheaton, 355.


4 Wheaton, 311.


12 Wheaton, 117.


The same question was involved in the cases of Atkinson v. Philadelphia and Trenton Railroad Co., and Field v. The Same, in the circuit court for the eastern district of Pennsylvania, in June 1834, in which the following opinion was delivered by-

BALDWIN, Judtice,-The complainants having filed their respective bills on the equity side of this court, praying for injunctions to restrain the defendants from erecting a bridge across the Neshaminy creek, on the route of a railroad from Philadelphia to Trenton, which they are about constructing under color of an act of assembly, but, as is alleged, without any authority in law, to the great injury of the complainants; now move that one be granted till answer and the further order of the court. Due notice has been given to the defendants, who accordingly appeared by their counsel; affidavits have been taken on both sides, and the cases fully and ably argued; they are the same in their leading features, the principal difference between them being that Mr. Atkinson is under a contract for delivering lime in vessels navigating the Neshaminy, while Mr. Field is employed in transporting stone thereon, from places on said river above the site of the contemplated bridge. As they both depend on the same facts and principles of law, it is unnecessary to recite the allegations of both bills.

The bill of Mr. Atkinson states, that he is a citizen of New Jersey, employed in transporting articles by water, to and from different places, for which purpose he is the owner of five schooners; that he has, recently, in the course of such business, made a contract with Anthony Taylor, who resides on the Neshaminy river, in Bucks county, in this state, to deliver to him 1000

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bushels of lime, at his wharf, about two miles from the mouth of said river, which is by law a public navigable river or highway, for the free passage of vessels up and down the same. That the defendants, under color of an act of assembly of this state, for incorporating the Philadelphia and Trenton Railroad company, passed in February 1832, are about to construct a permanent bridge over and across said stream, near its mouth, where it is navigable for sea vessels, and thence to the farm of said Taylor, which bridge is intended to be a flat structure, without an elevated arch, span, draw, or other contrivance for permitting masted vessells to pass up and down the river, freely, without interruption, hindrance, delay or unnecessary expense, as heretofore. That neither by the laws of Pennsylvania, nor the constitution of the United States, can any obstruction be placed across the said stream; that it is contrary to law, to impede or interfere with the full and free navigation thereof, for the accommodation of the inhabitants on said river, as well as all the citizens of the United States, who may have occasion to pass and repass on the same, with any masted vessels. That the act of incorporation gives no authority to erect such a bridge as is contemplated, which the defendants have begun to construct, or any bridge which shall, in any way, impede the full and free navigation of said river. The prayer of the bill is for an injunction to restrain the said president and directors, their agents, workmen, laborers, and all other person employed about said railroad, from constructing any bridge whatever over and across said river; and for further relief.

The complainant asserts no right of property in the bank, or in the bed, of the river; his claim to the interposition of this court rests on his contract with Mr. Taylor, for the delivery of 1000 bushels of lime, at his wharf, above the site of the contemplated bridge, and on the common right of navigation resulting from the act of assembly, declaring the Neshaminy a public navigable river. In this position, he asks us to arrest the completion of a public improvement, now in rapid progress, under an authority claimed in virtue of a law especially directed to this object; on such an application, it was our plain duty to pause and inquire whether this was a case in which an injunction should be granted, on the usual allegations of ordinary bills, and the common affidavit of the truth. That the matters involved are of deep concern to the parties and the public at large, cannot be denied, or that the consequences of our interference would be most serious; the injunction asked is not a matter of rights, but rests in the discretion of the court, to be exercised according to certain well-known rules of equity from which we cannot depart. It is, perhaps, the highest, most delicate and dangerous power which can be confided to any judicial tribunal, yet it is one which is indispensable for the purposes of preventive justice; the nature of the cases which call for its exercise is such, too, as often to require a prompt and decisive action, on an ex parte application, without a hearing of the adverse party, and sometimes, without even notice, as that might lead to the immediate commission of an irremediable injury, in order to avoid the effect of the injunction,as, the transfer of stock, the negotiation of a bill of exchange or promissory note, the transfer a chattel of peculiar value, &c. On the other hand, as the erroneous exercise of this power may operate to the irretrievable injury of the party enjoined, and for which, as it is the act of the court, he can have no legal redress in damages, while the complainant may have his remedy at law, though the relief in equity is refused. Too much caution cannot be used by the court in satisfying themselves that the case presented for their summary action is one which admits of neither doubt nor delay.

Hence, the complainant must show in himself an apparent prima facie right of property or action, to the subject-matter of the injunction, as well as an injury intended or threatened by the defendant, which, if done, cannot be compensated by damages or adequate legal remedies, and can be effectually averted only by the protecting preventive power of a court of equity. See 9 Wheat. 840-6; Bonaparte v. Camden & Amboy Railroad Co., Bald. 205. It is never exercised in a doubtful case, or in a new one which does not come within the stablished rules of equity (Dick. 600; Coop. Eq. 77; 7 Johns. Ch. 334); and if

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the courts of the United States can be at liberty to depart at all from the settled course of proceeding in chancery, it would seem to be their duty to proceed with more caution than its ordinary rules require. In England, it is in the discretion of the chancellor, to proceed without nature of the case; if the effect of the injunction would be to suspend the operations of a manufactory, established and carried on at great expense, he would not proceed one step, without notice of the motion for an injunction (Eden 217); but this is merely a matter if discretion. The act of congress, however, makes notice indispensable, before any proceedings had by the court: "Nor shall such writ be granted, in any case, without reasonable notice to the adverse party, or his attorney, of the time and place of moving for the same." (1 U.S. Stat. 334-5.) The spirit of this requisition is not merely to give the notice in face; the party is entitled to all the benefits resulting from notice; to be heard by his counsel, on all matters appearing in the bill, or disclosed in the affidavits of the complainant, not as amici curiae, but as representing the party in interest, who may be affected by the motion, as to whom it becomes an adversary suit, even before demurrer, plea or answer. It is difficult to draw with precision the line between the merits of the summary application, and the final hearing on the whole equity of the case, after an issue. On the motion for the injunction, the court will permit either party to inform its conscience as to the nature of the case, the consequences of granting or refusing it, without going into a full examination of the respective rights of the parties; they are bound to inquire into all circumstances bearing on the necessity of immediate action to prevent an irreparable injury to a prima facie right, and in doing so, are not confined to the case made out by the complainant. Though this remedy will not be withheld, merely because the title of the complainant may admit of a doubt, or be open to litigation, there must be a clear case made out of impending danger, requiring prompt action to save an apparent right from destruction. Eden 234-7; Ibid. 309; Dick. 101; 2 Atk. 182-4.) The defendant has an undoubted right to show, by affidavit, or otherwise, the authority or claim of right by which he acts, and to explain his conduct in relation to the subject-matter of complaint. The whole matter resting solely in the discretion of the court, they must be governed, in its exercise, by the particular circumstances of each case; a greater latitude will be allowed in those which affect persons engaged in large and expensive undertakings, expecially, great works of public improvement, in which a great portion of the community may be interested, than in those merely affecting individuals, litigating on their own account. The consequences of arresting the progress and completion of canals, bridges or artificial roads, are too serious, and the responsibilities of doing it are too great, to be assumed, unless in a plain case of the violation of rights which are under the peculiar protection of courts of equity. See 7 Johns. Ch. 330.

In this case, it was of special importance to be well informed as to the kind of navigation upon the Neshaminy, the kind of bridge proposed to be constructed, the extent of the inconvenience to which vessels would be subjected in consequence of its erection, on the plan contemplated by the defendants, and the nature of the injury which might be done to the complainants by its completion. To restrict the defendants to the case made out by the bill and affidavits of the complainants would mainly deprive the former of the benefits of notice of the motion, as well as confine our inquiries within limits much too narrow for a case so interesting to all concerned as this; in the development of which, we are fully satisfied, that a less expanded view of the subject as to the localities and facts would bot have enables us to come to a conclusion satisfactory to our minds, as to the justice and equity of the application.

A preliminary question of jurisdiction has been raised by the counsel of the respondents, on which we do not deem it necessary to express any opinion; without being understood as deciding it, by taking the case into our consideration, we shall assume, that there are proper parites before us, for all the purposes of the motion, and proceed to consider the grounds on which

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it is urged and restricted.

By an act of assembly of March 1771, the Neshaminy was declared a public highway for the purpose of navigation up and down the same, so far as Barnley's Ford, and no farther. 1 Sm. Laws 322. All citizens of this and other states had, therefore, the full and free right of passing and repassing on the said river, with all kinds of vessels or water-craft, which no individual could in any way impede or obstruct, without subjecting himself to an indictment for a nuisance, or an action for damages by the party injured. This common right is as much under the protection of the law, as a right of property in a citizen, in all matters relating to individuals, to the full extent in which the legislature have granted it; but it is a right derived from legislation, which may be abridged or modified, from time to time, as may be thought most conducive to the public welfare, by authorizing the erection of bridges or dams, which may subject the navigation to parital interruption, or wholly destroy it.

It is also as competent to the legislature to repeal a law declaring any stream a pyblic highway for the purposes of navigation, as it is to vacate a road; the source of the power is the same, and the reason for its exercise, on land or water, are the same- public convenience, and the common advantage of the people-for the furtherance of which, the legislature may take away or modify, at their pleasure, a common right of passage, or any easement which could be enjoyed by any person who had no right of soil of property in the river or road. The only restraint when the constitution imposes on their authority is, that private property shall not be taken for public use, without just compensation, and the consent of the representatives of the people. Const. Penn. Art. 9, § 10. Laws in relation to roads, bridges, rivers and other public highways, which do not take away private rights to property, may be passed at the discretion of the legislature, howver much they may effect common rights; even private rights, if they are not those of property, may be taken away, if it be deemed necessary consequence of their construction, without making compensation. The various laws of this state, authorizing the making of canals, either by the state or incorporated companies, have been so construed by the supreme court, as to establish the rule: 'That the jury are to value the injury to property, without reference to the owner, or the actual state of his business, and in doing that, the only saferule is, to inquire what would the property, unaffected by the obstruction, have sold for, at the time the injury was committed, and what would it have sold for, as affected by the injury. The difference is the true measure of compensation." 7 S. & R. 422-3.

The injuries to be compensated, are those which are done to property immediately, "as the swelling of water into mill-races, the inundation of land, the carrying a canal or lock through a man's land, or the taking away materials." This is the line which seems to have been marked by the legislature. Compensation shall be made for all damages from immediate injury to property, but not for any damage where there is no legal injury, which is called damnum sine injuria-as, the loss of a fishery, by the erection of a dam in the Schuylkill, whereby the passage of fish is prevented. "For not only may the owners of land contiguous to the river, complain of the obstruction, but all others near it, who have been accustomed to receive fish thence, or to fish with an angle or hoop-net. There are other kinds of injury, too, sustained particularly by the owners of land on the river, between the Fairmount dam and the lower falls. All those persons have lost the benefit of navigation free from toll, in batteaux, flats, &c., which was very useful, as it served for carrying produce to market, and bringing up manure for their lands, yet it has not been congended, that for such injury, compensation is to be made. Suppose, the health of the country to be injured be evaporation from the dams, is compensation to made for this, the greatest of all injuries? I presume not. No property has been taken from him, he had no property in the fish or the river, and he was bound to know the law by which the river remained public property, and of course, all emoluments were precarious." 14

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S. & R. 83-4. So, of a spring of water between high and low water mark, of the use of which the owner of adjacent land has been deprived- he is entitled to no compensation, because he had no vested property in it, "and it is ridiculous (says the supreme court), to talk gravely of a great national work being obstructed, because a man will be deprived of the use of what never was his own." 1 P. & W. 467.

We must consider these adjudications of the supreme court of the state, as establishing the general principle, that the right to the use of the navigable streams which are public highways, either for fishing or navigation, is subordinate to laws which regulate its generalpublic and internal concerns; and that no common right in the common property of rivers, is considered as private property, or the subject of individual ownership. As it rests wholly in the discretion of the legislature to provide for any other injury than what the constitution compels them to compensate, the sole remedy for any damages sustained by the interruption of any common right, is that which the law authorizing the construction of a road or canal across a navigable stream, prescribes in favor of a party who may sustain a loss; if the law is silent, the loass is deemed no legal injury, which gives a claim to redress. So far, then, as depends on the constitution and laws of Pennsylvania, and their judicial construction, there is no doubt, that the rights of navigation on the Neshaminy may be wholly or partiallt taken away, by the legislative power of the state, without compensation.

The only remaining objection to the validity of this law rests on its alleged repugnancy to the constitution of the United States by interfering with the poer of congress "to regulate commerce among the several states," and violating that provision which declares, that "the citizens of each state shall be entitled to all privileges and immunities in the several states." The first of these objections is fully answered by the opinion of the supreme court in the case of the Black-bird Creek Marsh Co., 2 Pet. 245. The legislature of Delaware had authorized this company to erect a dam across a navigable creek; the dam formed a permanent obstruction to the navigation, so that no vessel could pass on the stream; but the court decided, that the act of assembly was neither repugnant to the constitution, nor in conflict with any act of congress on the subject of commerce or navigation; and that this abridgement of the common right of navigation was a matter between the government of the state and its citizens; of which they could take no cognisance. Id. 252. State laws on the subject of turnpike-roads, ferries and bridges, are a part of the system of internal commerce and police of the respective states, themselves, without any control by congress (9 Wheat. 208; 12 Id. 443; 9 Johns. 560, 564, 573; 4 W.C.C. 378; Bennett v. Boggs, Bald. 60); and no law on these subjects is prohibited by the constitution of the United States, unless it impairs the obligation of a contract. 2 Pet. 410, &c. The other objection is wholly inapplicable, as the law abridges the right of the citizens of Pennsylvania to the free navigation of the Neshaminy, to the same extent as those of New Jersey, while both are equally entitled to its benefits.

This brings us to the construction of the act. The eighth section authorizes the company to construct a railroad from Philadelphia to Trenton, which, by nexessary implication, gives the power of erecting bridges over the streams between these places, without which the object of the law could not be effected. This is admitted by the counsel for the complainants, but he contends, that the proviso to the eleventh section is a positive prohibition to erect any bridge that shall not leave the navigation as full and free from all impediments as it has heretofore been, so that vessels can pass and repass with standing masts. This proviso is in these words: "That no obstruction whatever shall be placed on or across any stream now declared a public highway, so as to impede or interfere with the full and free navigation thereof, or to change the direction of any stream or water-course, not declared a public highway, so as to affect the rights and interests of the owners thereof, without the consent of the said owners, unless the right to the same be obtained by such process as is before directed in relation to other property; and that any inconvenience or expense attending the alteration

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of vessels now navigating said streams, to conform to the bridges erected by said company, shall be paid out of the funds of the company." The sense of the legislature, as expressed in this proviso, seems clear; the first part is a declaration that there shall be no obstruction to the full and free navigation of the streams; the last clause is the legislative construction of the first, that an inconvenience or expense in so altering the vessels as to conform to the bridge, is not such an obstruction as is prohibited; it is, by necessary implication, a declaration, that the company are not bound to conform the bridge to the vessel, but that the vessel must be made to conform to the bridge, on the company paying the expense. We are bound to give this meaning to the law, or the last sentence becomes senseless, for it can admit of none other; taking the whole together, the sense is obviously, that if the erection of the bridge causes no other obstruction to the navigation than the inconvenience in the alteration of the vessel passing it, it is within the authority of the law. This is the more evident, from the obligation of the company to pay for the expenses being confined to vessels, "now navigating said stream;" this refers to the time of passing the act incorporating the railroad company, and would exclude the owner of any vessel which had not, in February 1832, navigated the Neshaminy, from a right to call on the company for any reimbursement of the expense attending the alteration. The word "full and free navigation," must, therefore, be taken with the qualification attached to them by the legislature; which precludes us from considering such a bridge as they have authorized to be erected, as an obstruction in violation of the law; if the bed of the river is unobstructed, if vessels can freely pass and repass between the piers of the bridge, without injury or interruption, it seems to us, that the public common right of navigation is protected to the extent contemplated by the law. Had it been intended, that the construction of the bridge should have been such as to permit masted vessels to pass, there would have been a provision,that a draw should have been made, as is often done; this seems to have been a matter left to the discretion of the company, on condition of their making compensation to the owners of vessels then navigating the river. So far as we can judge from the bills and affidavits, the only subject of complaint seems to be, that the masts of the vessels must be struck, in order to pass the bridge, according to its present plan of construction; it is admitted, that such is the fact, and it is not denied, that vessels with struck masts can freely and safely navigate the river, without meeting with any obstruction from the bridge, except the trifling delay in striking and raising them.

Thought he prayer of the bill is for an injunction to restrain the erection "of any bridge," the case has not been pressed to that extent in the argument; the great question seems to be, whether the company have a right to erect one, without a draw, which will permit those vessels which have standing masts to pass at pleasure. It appears to us, that the law imposes no such restriction, but that it contemplates the striking of the masts, as the very alteration for which provision is made. The affidavits point us to no other inconvenience or expense, to which the owners of vessels can be subjected, and unless some other is pointed out, it may be fairly inferred that none other exists; the consequence is, that the owners vessels must submit to this restriction on their right of navigation, on the terms prescribed. The legislature had the power to authorize the erection of a dam or causeway, which would stop the navigation, if, in their opinion, it was conducive to the general welfare; whether it would be a discreet exercise of their power, is not for this court to decide, as the whole subject is clearly within their discretion, which the judicial power cannot control. 2 Pet. 412; 4 Id. 593-4; 4 Wheat. 423; 6 Pet. 729. They have thought proper to authorize this company to subject the navigation of the stream on the route of the road to some inconvenience, under the obligation of making compensation for the only injury to the common right of the citizens, which they deemed a proper subject of indemnity. In this respect, and to this extent, they put it upon the same footing as private property, but they have deemed any other inconvenience, expense, or abridgement of navigation to be matters of subordinate importance to the construction of the road; these are questions of public policy, with which we cannot interfere, without usurping legislative powers.

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Though, as it would seem from the affidavits, that the contemplated bridge may render the Nashaminy unnavigable for sea vessels, yet that must have been foreseen by the legislature, to be the necessary consequence of the authority given by the eleventh section; they have made no provision for such a case; the same effect has been produced on the Schuylkill, and other navigable rivers in the state, over which permanent bridges, without draws, have been erected by corporations under the authority of laws, without a doubt of their validity or expediency. The authority given to this corporation, is agreeable to the uniform course of legisation, which allows a degree of latitude in the construction of works of public improvement, according to its nature and objectes, by which more or less discretion is allowed as to the route, plan and execution, which we are not prepared to say, has been wantonly abused by the officers of the company. See 2 Dow P.C. 521; 2 Johns. 740; 7 Id. 380.

The affidavits produced on the part of the company, especially, that of the person employed to construct the bridge, are very strong, to show, that its erection on the present plan is not only required by considerations of convenience, economy and security to the company; but that the making of a draw would be productive of very serious obstructions to the navigation, by requiring an additional pier in the bed of the stream. which would narrow the channel at low water, so that vessels could not pass. They also state, that the bridge crosses the stream at an angle with the current, whereby vessels would be incommoded and endangered in passing through a draw, and express an opinion, that the striking of the masts is much less inconvenience than passing the draw. These statements and opinions, tend strongly to prove, that the powers of the company have not been so exercised as to evince either a want of discretion, or a design to deviate from their authority, by perverting it, so as unnecessarily to impair the rights of navigation. Whether they have abused, or misused their privileges, is an inquiry more proper for the legislature to institute, under the provisions of the 20th section of the law, than for this court to make, in an application for a summary injunction; if we could interfere at all, on such an allegation, it would only be on a clear departure from the route, or a palpable abuse of their discretion, in a manner that could admit of no colorable excuse; such a case we think has not been made out by the complainants. We cannot perceive in the law in quesion, any excess of legislative authority, any violation of any provision of the state or federal constitution, or in its execution by the defendants, the assumption of any power not conferred upon them. any wanton invasion of public or common rights, or any legal ground for an injunction, arresting the further progress of the work, on any principle hitherto recognised in a court of equity.

Were it even conceded, that the bridge is a common nuisance, or a purpresture, the remedy is in a court of law, at the prosecution of the state, for the public offence, where the defendants would have a right of trial by jury, before conviction. If this court enjoin them, it is, in effect an adjudication, that the offence has been committed, and the consequences become visited upon them, in anticipation of their legal guilt. Whether a court of equity would do this, in any case, before a conviction at law, is not well settled; there may be cases where, on the application of the attorney-general, such a proceeding might be sustained; it is unnecessary to give any opinion on such a case till it arises; it is clear, however, that to sustain such an application, the injury must be a public one, and can be redressed only at its suit. 18 Ves. 217, &c; 2 Johns. Ch. 375, &c.; Harg. L. Tracts 83-7. If a public nuisance is also a specific injru to the property of an individual, he has his remedy in equity, not because the act complained of is a nuisance, but on account of the irremediable injury to his private right of property. 6 Johns. Ch. 439-40.

No case has yet occurred, in which an injunction has been granted, in favor of an individual, who claims only a common right, on a common highway, in which he can have no private property; nor can we conceive one, in which it could be justified, unless it was accompanied with an obstruction, or destruction of a private right. The injury, too, must be what is deemed in equity to be irremedial, a permanent appropriation of the property of the

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complainant to the use of the defendants, a destruction or total loss consequent on the act about to be done; "if the injury is susceptible of perfect pecuniary compensation, if the ordinary legal remedy in courts of law can afford adequate satisfaction, it is not, in the sense of the law, irreparable," "it must reach to the very substance and value of the estate, going to its destruction in the character in which it is enjoyed." If the act complained of is done under color of an authority conferred by law, the court will not interfere, if there is any ground of doubt, as to the authority, until the doubt has been removed, and the matter finally determined at law. 7 Johns. Ch. 332, &c., and cases cited. Also, 9 Wheat 842, &c.; 4 Johns. Ch. 22; Cowp. 77; Dick, 600; 2 Johns. Ch. 473.

The application of these familiar principles of the law of equity to the present motions, seems conclusive against them. Mr. Atkinson, as the owner of vessels enployed in navigating the Delaware and its waters, can have only a common right to the navigation of the Neshaminy, the interference with which by the defendants is not the proper subject of an injunction; but if it were so, on general principles, his case would be a clear exception. He does not allege in his bill, that his vessels have standing masts, or that he would be subjected to any particular inconvenience or expense, by conforming his vessels to the bridge about to be erected, or that they had ever been employed in navigating the Neshaminy, prior to the passage of the act. On the contrary, the affidavits of the defendants are full to the fact, that his five schooners have struck masts, and go far to negative their ever having navigated this river, as early as 1832. The bill does not state the time when the contract was made for the delivery of lime, or how much of the 1000 bushels remains to be delivered; one schooner load, it seems, has been received, but we are left in the dark as to the present state of the contract; be that as it may, there seems no impediment to its completion. If his vessels have struck masts, they can pass and repass as heretofore, or if the defendants have illegally obstructed the navigation, the injury is one which admits of adequate compensation; it is, at most, but temporary, as it must cease with the expiration of the contract.

Mr. Field's cas differs from the other onlu in the circumstance of his being engaged in transporting stone from a quarry on the river, above the bridge; this gives him no peculiar claim to our interference, as it is only the mode in which he exercises his common right of navigation; he must stand on the same footing as the other citizens of this and other states, whose common right is protected by the law, subject to the qualifications imposed upon it by the provisions of the charter to this company. So long as they comply with its requisitions for the indemnity of the owners of vessels navigating the river, at the time of its passage, this court cannot restrain them in the completion of the bridge; should they refuse to pay for the inconvenience and expenses attendant on the necessary alteration of the vessels, that might be a case of special injury, under the provisions of the law, which would call for the interposition of the equitable powers of the court. It appears, however, that the company have made a public offer to pay for such alterations, which is all they are bound to do, before an application for indemnity, by any person who alleges himself entitled to it. See Dan. p. 6, 523; 20 Johns. 105, 740; Bonaparte v. Camden & Amboy Railroad Co., Bald. 205.

We can take no judicial notice of any special injury sustained by any citizen of this state, or any general inconvenience to which the people of the Neshaminy, or its vicinity, may be subjected, on account of the bridge; those are exlusively the subjects of judicial cognisance in the courts of the state, nor can we, in any way, consider the injury which any persons who are citizens of other states have sustained, who are nor parties to this suit. The remedy of injunction is individual, applicable only to special injuries in violation of private right, as to which the grievances of one man can have no bearing on those of another, nor can any alleged grievances of the pyblic authorize any one to redress it at his own suit, either in a court of law or equity.

Considering these cases, therefore, as depending either on the validity

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of the act of incorporation, or tis construction, we are of opinion, that the defendants have full legal authority to erect the contemplated bridge, on the plan now in progress, and that it is neither a public nuisance or purpresture; but independently of this consideration, we are also of opinion, that neither of the complainants have such a right, as under any circumstances to entitle them to an injunction, before a trial at law. There is another objection to their motion, arising from the acquiescence of the complainants, from the time, when from the plan of the bridge, it was known that it was not intended to construct it with a draw, and its erection was commenced in September or October last, till the present application was made; this objection might be a very serious one, if it was necessary to consider it, but as we have no doubt on the other points in the case, we shall give no opinion upon it. The motions for injunctions are accordingly overruled.