Statement of Facts.

CARDWELL v. AMERICAN BRIDGE COMPANY.

APPEAL FROM THE CÍRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA.

Submitted January 6, 1885.-Decided January 19, 1885.

The doctrine that, in the absence of legislation by Congress, a State may authorize a navigable stream within its limits to be obstructed by a bridge or highway, reasserted, and the former cases to that effect referred to. The provision in the act admitting California, "that all the navigable waters within the said State shall be common highways and forever free, as well to the inhabitants of said State, as to the citizens of the United States, without any tax, impost, or duty therefor," does not deprive the State of the power possessed by other States, in the absence of legislation by Congress, to authorize the erection of bridges over navigable waters within the State. That provision aims to prevent the use of the navigable streams by private parties to the exclusion of the public, and the exaction of tolls for their navigation.

Bill in equity, for the removal of a bridge erected by the defendant in error over the American River in California, below the lands of the plaintiff in error situate on that river.

The American River is a branch of the Sacramento River in California. It is entirely within the State, and navigable for small steamboats and barges from its mouth to the town of Folsom, a distance of thirty miles. By its junction with the Sacramento River, vessels starting upon it can proceed to the bay of San Francisco, and thence to adjoining States and foreign countries. It is therefore a navigable water of the United States, and, as such, is under the control of the general government in the exercise of its power to regulate foreign and inter-state commerce, so far as may be necessary to insure its free navigation.

The defendant was a corporation organized under the laws of California, and, pursuant to the authority conferred by an act of its legislature, had constructed a bridge over the American River, of twenty feet in width and three hundred feet in length, which was used as a roadway across the stream. Its floor was about fourteen feet above extreme low water, and about five feet above extreme high water; and the bridge was

Argument for Appellant.

without a draw or opening for the passage of vessels. Steamboats and other craft were therefore obstructed by it in the navigation of the river.

The complainant alleged that he was the owner of a large tract of land, bordering on the river, below Folsom, and raised many tons of grain each year; that he was also the owner of a steamboat and other vessels by which he could ship his grain down the river but for the obstruction caused by the bridge; that there were also large quarries of granite on his land sufficient to supply the markets of Sacramento and San Francisco for years, and also large deposits of cobble-stone which had a value for paving, and, but for the obstruction, he could ship the granite and cobble-stone by his vessels and sell them at a profit, whereas the expense of sending them by rail or other means open to him were such as to deprive him of all profit on them. He, therefore, filed his bill against the company, and prayed that it might be enjoined from maintaining the bridge across the river until a draw should have been placed in it sufficient to allow steamboats, vessels and watercraft, capable of navigating the stream, to pass and repass, freely and safely. A demurrer to the bill was sustained and the bill dismissed, and the case was brought here on appeal.

Mr. J. J. Scrivener, and Mr. John L. Boone for appellant.The act admitting California, 9 Stat. 452, provided in § 3 that "all the navigable waters within the said State shall be common highways and forever free, as well to the inhabitants of said State, as to the citizens of the United States, without any tax, duty, or impost therefor." This provision withdrew the subject matter of navigable rivers from the jurisdiction of the State, and distinguishes this case from the line of cases as to the power of States over them. In effect it leaves them subject to the exclusive will of Congress under article 1, section 8, of the Constitution. The court below took this view in language which we quote and adopt as part of our brief. The question is, has Congress done this with reference to the navigable waters of California? If Congress has so acted, that legislation is found in the act admitting California into the Union, which act provides, "that

Argument for Appellant.

all the navigable waters within the State shall be common highways, and forever free, as well to the inhabitants of said State as to the citizens of the United States, without any tax, impost, or duty therefor." 9 Stat. 452, 453. How can the American River be a "common highway," or how can it be "free" to "the citizens of the United States," or "the inhabitants of the State," with a low bridge across it, without a draw, and so constructed as to preclude all navigation by steamers or vessels? To be a common highway, or to be free to all to use as such, involves a capacity to be practically used as a highway, and such capacity is wanting where there is an impassable barrier or obstruction. "Now, an obstructed Wheeling Bridge Case,

navigation cannot be said to be free." 13 How. 518, 565. This provision is a law of Congress, and it is valid, not as a compact between the United States and the State of California, but as a law of Congress, passed by virtue of the constitutional power of Congress to regulate commerce among the States and with foreign nations, and to establish post roads. Pollard's Lessee v. Hagan, 3 How. 212, 224, 225, 229, 230; Wheeling Bridge Case, above cited, 566; Woodruff v. North Bloomfield Mining Co., 1 West Coast Rep. 183, 212. What does this provision of the statute mean? Can there be any reason to suppose that Congress intended anything else than to make or continue the navigable waters of the State, by virtue of its power to regulate commerce, practical free highways, and to take away the power of the State to destroy or wholly obstruct their navigability? Had nothing been said upon the subject in the act of admission, but subsequently, after the admission of California into the Union "on an equal footing with the original States in all respects whatever," Congress had passed a separate, independent act, with no other provision in it, providing "that all the navigable waters within the State of California shall be common highways, and forever free, as well to the inhabitants of said State as to the citizens of the United States, without any tax, impost, or duty therefor," would anybody suppose that Congress, by the passage of such an act, under the circumstances indicated, could have any other purpose than to take

Opinion of the Court.

control of the navigable waters of the State for the purpose of preventing any interference with, or obstruction to, their navigability, or "so far as might be necessary to insure their free navigation?" See also Hatch v. Wallamet Iron Bridge Co., 7 Sawyer, 127; Wallamet Bridge Co. v. Hatch, 19 Fed. Rep. 347. These principles bring this case within the uniform and unqualified line of decisions for a period of sixty years from Gibbons v. Ogden, 9 Wheat. 1, to Miller v. Mayor of New York, 109 U. S. 385.

Mr. J. B. Haggin, and Mr. A. T. Britton for appellee.

MR. JUSTICE FIELD delivered the opinion of the court. He recited the facts as above stated, and continued:

The questions thus presented are neither new nor difficult of solution. Except in one particular, they have been considered and determined in many cases, of which the most important are Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245; Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 564; Gilman v. Philadelphia, 3 Wall. 713; Pound v. Turck, 95 U. S. 459; Escanaba Co. v. Chicago, 107 U. S. 678, and Miller v. Mayor of New York, 109 U. S. 385. In these cases the control of Congress over navigable waters within the States so as to preserve their free navigation under the commercial clause of the Constitution, the power of the States within which they lie to authorize the construction of bridges over them until Congress intervenes and supersedes their authority, and the right of private parties to interfere with their construction or continuance, have been fully considered, and we are entirely satisfied with the soundness of the conclusions reached. They recognize the full power of the States to regulate within their limits matters of internal police, which embraces among other things the construction, repair and maintenance of roads and bridges, and the establishment of ferries; that the States are more likely to appreciate the importance of these means of internal communication and to provide for their proper management, than a government at a distance; and that, as to bridges over navigable streams, their power is subordinate to that of Congress, as

Opinion of the Court.

an act of the latter body is, by the Constitution, made the supreme law of the land; but that until Congress acts on the subject their power is plenary. When Congress acts directly with reference to the bridges authorized by the State, its will must control so far as may be necessary to secure the free navigation of the streams.

In Wilson v. Blackbird Creek Marsh Co., a dam had been constructed across a small navigable river in the State of Delaware, by authority of its legislature; and this court held that the obstruction which it caused to the navigation of the stream was an affair between the government of the State and its citizens, in the absence of any law of Congress on the subject.

In the case of Gilman v. Philadelphia, a bridge across the Schuylkill River connecting East and West Philadelphia, had been constructed by authority of the legislature of Pennsylvania. It was without a draw, and prevented the passage of vessels to wharves above it, although the river was tide water and navigable to them, and commerce had been carried on to them for years in all kinds of vessels. The owner of the wharves filed a bill to prevent the erection of the bridge, alleging that it would be an unlawful obstruction to the navigation of the river and an illegal interference with his rights, and claimed that he was entitled to be protected by an injunction against the progress of the work, and to a decree for its abatement should it be proceeded with to completion. But the court held that the State had not exceeded the bounds of her authority in permitting its construction, and until the power of the Constitution was made effective by appropriate legislation, the power of the State was plenary, and its exercise, in good faith, could not be made the subject of review here. The court observed that it was not to be forgotten that bridges, which are connecting parts of turnpikes, streets, and railroads, were means of commercial transportation, as well as navigable waters; that the commerce which passed over a bridge might be much greater than would be transported on the water obstructed; and that it was for the municipal power to weigh the considerations that applied to the subject, and to decide

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