SCHEURER 'D.
BRIDGE 00.
178
Suit in Equity for an Injunction. P. S. Willis, for plaintiff. George II. Durham, for defendant. DEADY, J. This suit is brought to restrain the defendant from erecting a bridge across the Wallamet river, between the foot of Madison street, in Portland, and T street, in East Portland. An application for a provisional injunction was heard on the bill and a general demurrer thereto. The plaintiff is a riparian owner, whose land has a frontage of 200 feet on the west bank of the Wallamet river, and is situate about 1,000 feet above the site of the proposed bridge; and his complaint is that the erection of the bridge will 80 obstruct and hinder the navigation of the river as to prevent vessels engaged in the commerce of this port from, at least with safety and convenience, reaching his property. The bill states that the river at the site of the proposed bridge is about 1,475 feet wide, with a ship channel of about 400 feet in widt\l, and that the bridge will consist of six solid spans of 200 feet each in length, resting on piers built in the river, and one section 270 feet long, resting on a draw pier as a pivot, which, when turned parallel with the stream, will give a passage-way of 120 fee·t in width on either side of said pivot pier ; that the distance from the lower chord of the span is only eight feet above high-water mark; and the construction of the proposed bridge will obstruct and impede the navigation of the river, and the use of the harbor of Portland, which from the lower end of the city southward a distance of about three miles, and for a half mile above the plaintiff's property. The defendant claims the right to build a bridge under an act of the legislature of the state, passed February 26, 1885, (Sess. Laws, 472,) as amended by the act of November 24,1885, (Sp. Sess. Laws, 14;) but the plaintiff alleges that the same is void or inoperative, as being in conflict with the act of congress passed February 14, 1859, {ll St. 383,) for the admission of Oregon into the Union. wherein it is provided that "all the navigable waters of the state shall be common highways, and forever free, as well to the inhabitants of said state as to all the other citizens of the United States, without any tax, duty, impost, or toll therefor." The questions arising on this demurrer were considered by this .conrt in H1tch v. Wallamet Iron Bridge Go., 7 Sawy. 127, S. C. 6 Fed. Rep. 326, and again in Wallamet Bridge Go. v Hatch, 9 Sawy. 643, S. C. 19 Fed. Rep. 347, where it was held that, by the act of ] 859, congress, in the exercise of its power to regulate commerce between the several states, had declared the Wallamet river, as a means of said commerce, "a common highway," and therefore the state of Oregon could not authorize anyone to build.a bridge across the same which, the eircumstances considered, would needlessly impede or obstruct the navigation thereof; and that the question of what constitutes such impediment or obstructitm arises under said act of con-
174
J'EDEBAL REPORTER.
gress, and therefore this court has jurisdiction of a suit involving the same. The doctrine of this case was followed in the opinion of the eourt in Cardwell v. American Iliver Bridge Co., 9 Sawy. 662; S. C. 19 Fed. Rep. 562; but on an appeal to the supreme court it was held (113 U. S. 205, and 5 Sup. Ct. Rep. 423) that the provision in the act admitting California into the Union concerning the navigable waters therein, which is similar to that in the one admitting Oregon, does not of itself deprive the state of the power possessed by other states to authorize the erection of bridges over navigable waters therein; and that the provision is only intended to prevent the use of navigable streams by private parties, to the exclusion of the public, l:tnd the exaction of tolls for their navigation. The proposed bridge at the foot of Madison street is five blocks, or &bout 1,300 feet, further south than the one in Hatch's Case, and is otherwise much less objectionable, the opening at the draw being 120 feet in the clear instead of only 100. But it matters not what is the character of the bridge, or how much of an obstruction it will be to navigation, if the state authorizes it, and the United States has passed no law on the subject of impediments and obstructions to the navigation of the river, this court has no jurisdiction to prevent the erection of the same. The Hatch Calle is· now pending in the supreme court on appeal, and may be decided at this term, but it is not probable that any modification of the ruling in the Cardwell Case will be made; and if congress has no power to pass an act to prevent the obstruction of the navigable waters of the state by the erection of solid bridges or otherwise, unless the same applies to the navigable waters of all the states, as the argument in that case seems to imply, then it is not apparent how the provisions in the acts relating to the admission of Oregon and California are valid, even as against a claim under the state to the exclusive use of any vf the navigable waters therein, or to the exaction of tolls for the navigation thereof. Certainly, congress has as much right to legislate against physical obstructions being made to the navigation of the in a state, in detail and specially, as to prevent their exclusive use by anyone, or the exaction of tolls for the same in that way. But admitting the power in congress to legislate specially on this z,ubject, the court in the Cardwell Case went so far as to hold that, notwithstanding the act of congress in effect declares the American river a common highway, forever free "to the citizens of the United States, the state of. California may authorize the erection of a low, solid bridge across it, which prevents it from being used as a highway by anyone. The act, says the court, has but one object, namely, "to insure a highway open to all, without preference to any." But I respectfully submit that on this interpretation of the act a better definition of its purpose would be: "It intends to secure an open highway to all 01' tv none, as the state ma.y judge expedient." But whatever my judgment in the premises may be, this construe-
CENTRAL TRUST CO. 11. WABASH, ST. L. 01: P. BY. CO.
175
tion of the by congress is binding on this court, and therefore I must refuse this injunction, and sustain the demurrer to the bill, and dismiss it; and it is so ordered.
CENTRAL TRUST
Co. and another (fuMILTON,
tl. WABASH, ST.
Intervenor.)1
L. & P. Ry. 00.
(Circuit Oowrt, E. D. Misaoun.
April 2,1886.)
EQUITY PRACTICE-INTERVENING JUDGMENT CREDITORS.
Where a small judgment creditor of a railroad, whose judgment was recovered before the appointment of a receiver, and who lives at a distance from the place where court is held. intervenes ina foreclosure suit against the road, he should be given the fullest opportunity of a hearing, and technical rules should not be enforced against him.
In Equity. Motion to set aside order confirming report of master on intervening petition of George Hamilton. James Carr, for intervenor. Wells H. Blodgett, for receiver. BREWER, J., (wrally.) In the intervention of George Hamilton in the Wabash Case, it appears that a. year ago a petition of intervention was filed, which was referred to the master, and by him reported upon. The intervention was on account of a judgment agaiust the Wabash road, in one of the outlying counties, a short time before the appointment of the receivers. The petition was filed by counselliving in such county. Upon the filing of the master's report, which was adverse to the claim, the matter passed along without action until the fifteenth of March of the present year, when, through new counsel, without leave of the court, an amended petition of inter· vention was filed. Four days thereafter the report of the master was confirmed. Now, a motion is made to set aside that order of confirmation, and refAr the matter back to the master. Upon the hearing of this motion there was little or no discussion as to whether, under the amended petition, the petitioner would have any lien upon the corpus of the property prior to the lien of the mortgages, or even upon the earnings of the road; and I express no opinion as to whether he would have any claim based upon the facts as stated in his amended petition. have no question but that, technically, he is entitled to no further hearing in this court. He neglected to file any exceptions to the master's report; and yet it must be remembered that this claim
r
1Reported by Benj. F. Rex, Esq., oCthe at. LouiB bar.