Sweeney v. Chicago, Milwaukee & St. Paul Railway Co.

Taylor, J.

After a careful reading of the complaint we •think the demurrer was properly overruled.

- The learned counsel for the appellant insists that because .the complaint does not in express terms show that in the construction and maintenance of said bridge the defendant has violated the provisions of either sec. 1605 or sec. 1837, R. S. 1878, it does not show a cause of action. These sections read as follows:

“ Section 1605. Every person or corporation that maintains any dam or bridge across the Wisconsin river, shall also maintain at one side of the slide over such dam, and at each end of the channel span of such bridge, a guide boom, constructed in such manner and of sufficient length to secure-.the safe passage of all rafts, lumber and water crafts over-ithe slide of such dams, and through the channel span of such.. *66 bridge; and such boom, at its upper end, shall be securely attached to some pier or other firm structure. This section shall not apply to any bridge below the city of Portage, until the channel span thereof shall have been established by .the engineer of the United States in charge of the improvement of said river, nor to the bridge across said river within the limits of said city.”

“ Section 1831. When it shall be necessary, in the construction of a railroad, to erect a bridge or arched culvert over any highway, street, turnpike, or planlcroad, it shall be sufficient to construct the "same so as to give a clear passage way of twenty feet, or two passage ways of" fourteen feet each. All bridges now or hereafter constructed across the Fox or Wisconsin river shall be constructed or modified, and such reasonable alterations therein made, from time to time, as may be required, and according to plans approved by the secretary of war of the United States, or such engineer as he shall designate, by any railroad corporation owning or using the same.”

Sec. 1605 is, clearly, passed to protect those having occasion to navigate the stream bridged, against the owner of the bridge. This is evident from the fact that the next section gives the party injured by the neglect of the bridge-owner to maintain the piers and booms, treble damages. The exception in the last part of the section, in favor of bridges below Portage, until the channel span shall be designated by the engineer of the United States, would, undoubtedly, relieve the owner of such bridge from an action to recover treble damages for an injury occasioned by neglect to maintain such piers and booms at the channel span, if such span had not been designated. by such engineer. If this were an action to recover treble damages under sec. 1606, R. S., the second statement of the cause of action would be clearly insufficient, and the first would probably bo held so, notwithstanding the general statement that “said span was *67 duly established as the channel span of said bridge;” but for the purposes of this appeal we are not called upon to decide and do not decide that question. In our view of the law it would be no defense to this action if it were shown that the engineer of the United States in charge, etc., bad not in fact established the channel span.

It is clear the legislature could not have intended to relieve a railroad company, or any other company or person, from liability for any unreasonable or unnecessary obstruction of the navigable waters of the Wisconsin river, either by the erection of bridges over the same, or by maintaining any other structures on or over the same; and if it had so intended, it is equally clear that such action or intent of the legislature would not justify such obstruction. The right of the citizen to navigate the waters of the Wisconsin river upon such part of it as is in fact useful for navigation, is secured by a higher authority than the legislature of this state. This right was first secured by article IY of the Ordinance of 1787, which, among other things, provides that “the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor.” This provision of the ordinance was adopted as a part of the constitution of this state in the identical words of the ordinance. See sec. 1, art. IX, Const.

The navigability of the waters of the Wisconsin river, so far as the same are navigable in fact, is protected not only by the common law of the country, but by an express constitutional-provision/ There can be no contention, therefore, that the legislature has the power to entirely obstruct the navigation of said river. That the legislature has.the power to authorize the buildinsr of bridges across the' navigable *68 waters of the Wisconsin, notwithstanding the Ordinance, the provisions of our constitution, and the common law, must also be admitted. But that power must be subordinate to the rights of navigation, and bridges so authorized to be constructed and maintained must be so constructed and maintained as not to materially or unnecessarily obstruct such navigation. This was so held in the great leading case of Pennsylvania v. Wheeling & B. Bridge Co., 13 How., 518 , as well as the following cases: Columbus Ins. Co. v. Peoria Bridge Asso., 6 McLean, 70 ; Columbus Ins. Co. v. Curtenius, id., 209 ; Jolly v. Terre Haute Braw-Bridge Co., id., 237; U. S. v. New Bedford Bridge, 1 Wood. & M., 401; Comm’rs of St. Joseph Co. v. Pidge, 5 Ind., 13 ; Comm. v. Breed, 4 Pick., 460 ; Depew v. Trustees of W. & E. Canal, 5 Ind., 8 ; Dover v. Portsmouth Bridge, 17 N. H., 200; Illinois R. P. Co. v. Peoria Bridge Asso., 38 Ill., 467 ; State v. P. & K. R. R. Co., 57 Me., 402; Miss, & M. R. R. Co. v. Ward, 2 Black (U. S.), 485; Cooley’s Con. Lim. (5th ed.),731. Upon the main question of the subordination of the rights of a bridge or other company, which may be authorized to build and maintain a structure across the navigable waters of this state, to the right of navigation, Chief Justice DixoN, in the case of Milwaukee G. L. Co. v. Schooner “ Gamecockf 23 Wis., 151 , says: “The great question in this case is that which relates to the duty of the company to lay its pipes so as not to interfere with the rights of navigation. We have examined this question with much care, and are satisfied that the charge of the learned judge is a correct statement of the law applicable to the case. . . . The question is settled by authority, and we fully sanction and affirm all that the court below said to the jury upon it.” The charge of the circuit judge, referred to by the learned chief justice, stated, among other things, “that although the plaintiff had the right to lay its pipes at the bottom of the river, it must lay them in such manner as not to interfere with the navigable *69 capacity of the river, so that vessels may pass up and down the river as heretofore in the free exercise of all the rights and privileges incident to the management of ships.” In another part of his charge, the circuit judge, referring to the right to build railroad and other bridges across navigable' streams, says: “It necessarily follows, from all this, that all the qualifications of this kind of legislation, authorizing these different constructions, are and must be subordinate to the great right of navigation.”

The Wisconsin river is a stream over which the regulations of congress extend. The Montello, 20 Wall., 430 . In regard to such streams Judge Cooley says: “ In general terms it may be said that the state may authorize such constructions, provided they do not constitute material obstructions to navigation; but whether they are to be regarded as material obstructions or not, is to be determined in each case upon its own circumstances. The character of the structure, the facility afforded for vessels to pass it, the relative amount of traffic likely to be done upon the stream and over the bridge, and whether the traffic by rail would be likely to be more incommoded by the want of the bridge than the traffic by water with it, are all circumstances to be taken into account in determining this question. It is quite evident that a structure might constitute a material obstruction on the Ohio or Mississippi, where vessels are constantly passing, which would be unobjectionable on a stream which a boat only enters at intervals of weeks or months. The decision of the state legislature that the erection is not an obstruction is not conclusive, but the final determination will rest with the federal courts, who have jurisdiction to cause the structure to be abated, if it be found to obstruct unnecessarily the traffic upon the water. Parties constructing the bridge must be prepared to show, not only the state authority, and that the plan and construction are proper, but also that it accommodates more than it impedes the *70 general commerce.” Perhaps the last remark of the le.aracd author, as to the necessity of the bridge-owner showing that his bridge accommodates more than it impedes the general commerce, is not a true test as to his right to maintain the bridge. If it .does not in fact materially or unnecessarily obstruct the water navigation, it would seem sufficient without investigating the comparative aid which the bridge affords to the general commerce of the country.

In Blanchard v. W. U. Tel. Co., 60 N. Y., 510, the court of appeals says: “In furtherance of commerce, and travel, slight obstructions, and such as may temporarily interrupt the passage of vessels or occasion a cursory inconvenience, but which do not materially impair navigation, are made lawfful and tolerated by reason of the great public good that result's from these inconsiderable disturbances of the right of the public to the free and uninterrupted use of navigable streams. Upon this principle the bridging of streams, the building of wharves, and other like acts, are permitted; the necessary obstruction in every case being reduced to its minimum. If there is an unnecessary interference with the navigation, the act becomes unlawful by reason of the excess of the limits within which obstructions are allowed in the interest of the public.” The rule above stated is sanctioned by this court in Barnes v. Racine, 4 Wis., 454, 466 .

Within the rule established by the courts, the allegation in the complaint in the first statement of the cause of action, that the main channel of the river was so obstructed by the stone, abutments, piles, and piers of the defendant’s bridge that no boats or rafts could pass said bridge in safety without guide booms extending up the stream from each end of the span, clearly shows an unnecessary and unlawful obstruction of navigation upon the river; and it could be no defense that the engineer of the United States had not designated such span as the channel span. If there was, in fact, another and safer way to pass said bridge, or if the engineer *71 in charge had designated another place as the channel span, and the defendant had maintained the proper booms at such designated span, so that the plaintiff could have passed his raft in safety at such other place, such facts might be a defense to the plaintiff’s action. Upon the statement in the complaint no presumption of law arises that such was the fact. Such facts are defensive matter to be set up by the answer.

The allegations of unlawful obstruction made in the second statement are equally conclusive against the defendant upon the question of unnecessary obstruction to the navigation of the river. In Enos v. Hamilton, 27 Wis., 256 , this court says: “If the obstruction of the river so that it could not be navigated was lawful, and continued only for a reasonable length of time, according to the course of navigation, or if it was made necessary by reason of misfortune or inevitable accident, and without fault on the part of the defendants, these were matters properly coming from the defense, and which need not be negatived by the complaint.” As to the sufficiency of the allegations of the complaint to show an unlawful obstruction, see Illinois R. P. Co. v. Peoria Bridge Asso., 38 Ill., 467 .

By the Court'.— The order of the circuit court is affirmed, and the cause is remanded for further proceedings according to law.