Opinion of the Court.

reason of the breach of the contract, if such breach was established by the evidence.

2. The court, among other things, said to the jury that in determining the quantity of stock that would probably have been shipped from the plaintiff's yards, they should include only such as the jury believed would have been possible for the defendant to direct to those yards. In the same connection the court said:

"The jury in considering the meaning of the words all live stock which may be transported over the said railroad from East St. Louis,' found in the last clause of the contract sued on, must determine from all the evidence before them what stock is included. The words evidently apply to such stock as in the ordidary course of the defendant's business should be shipped from that point over their line of railroad. It applies to all such stock, whether loaded at plaintiff's yards or some other yards used for loading stock so shipped. As already suggested, it should be applied only to stock which it was possible for defendant to have loaded by plaintiff. It does not apply to stock, the owner or shipper of which directed the loading to be done by some person other than the plaintiff, and over the loading of which defendant had no control."

We are of opinion that there was no error in these instructions. The contract contemplated, upon the part of Struble, all the preparations necessary in and about his yards to meet the necessities of the company's business in the transportation of live stock; and upon the part of the company that it would do all it could, in the absence of special orders from shippers, to bring live stock to plaintiff's yard to be by him loaded in cars for transportation over defendant's road. Such was, in substance, the direction given to the jury. The court could not, under any reasonable interpretation of the contract, have said less than it did.

3. It is assigned for error that the court overruled defendant's motion for a new trial. A large part of the printed argument on behalf of defendant is devoted to a discussion of the grounds assigned in support of the motion for a new trial. But

Statement of Facts.

the action of the court below in refusing a new trial is not subject to review here. This has long been settled by the decisions of this court. Railroad Co. v. Fraloff, 100 U. S. 24; Wabash Railway Co. v. McDaniels, 107 id. 456.

The judgment must be affirmed.

It is so ordered.

MILLER v. MAYOR OF NEW YORK and Others.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

Argued November 6th, 1883.-Decided November 26th, 1883.

Constitutional Law-Navigable Waters-Nuisance.

1. A bridge erected over the East River, in the harbor of New York, in accordance with authority derived from Congress and from the legislature of New York, is a lawful structure which cannot be abated as a public nuisance. So far as it obstructs navigation, it obstructs it under an authority which is empowered to permit the obstruction.

2. It is competent for Congress, having authorized the construction of a bridge of a given height, over a navigable water, to empower the secretary of war to determine whether the proposed structure will be a serious obstruction to navigation, and to authorize changes in the plan of the proposed structure.

3. When the head of an executive department is required by law to give information on any subject to a citizen, he may ordinarily do this through subordinate officers in his department.

4. The navigable waters of the United States include such as are navigable in fact, and which, by themselves or their connections, form a continuous channel for commerce with foreign countries or among the States: Over these Congress has control by virtue of the power vested in it to regulate commerce with foreign nations and among the several States.

5. The former cases, in which the court has considered the power of Congress to authorize the construction of bridges over navigable streams, referred to and considered.

Bill in equity to abate a nuisance.

On the 16th of April, 1867, the legislature of New York passed an act creating a corporation by the name of the New York Bridge Company, for the purpose of constructing and

VOL. CIX-25

Statement of Facts.

maintaining a permanent bridge over the East River, between the cities of New York and Brooklyn. Laws of 1867, chapter 399. The act, among other things, authorized the corporation to acquire and hold so much real estate as might be necessary for the site of the bridge, and of all piers, abutments, walls, toll-houses, and other structures proper to it, and for the opening of suitable avenues of approach, but no land under water beyond the pier lines established by law. It declared that the bridge at the middle of the river should not be at a less elevation than 130 feet above high tide, and should not be so constructed as to obstruct "the free and common navigation of the river;" that it should not obstruct any street it might cross, but span such street by an arch or suspended platform of suitable height to afford passage under it for all purposes of public travel and transportation; and that no street running on the line of the bridge should be closed without full compensation to the owners of the property upon it; and it designated the points of the commencement and termination of the bridge.

On the 20th of February, 1869, the legislature passed an act amending the act of incorporation and providing for the representation of the two cities of New York and Brooklyn in the board of directors of the bridge company, and directing that the company should proceed without delay to construct the bridge, authorizing it for that purpose to use and occupy so much of the lands under the water of the river, not exceeding a front on either side of 250 feet, nor extending beyond the pier lines, as might be necessary for the construction of the towers of the bridge.

By the act of March 3d, 1869, 15 Stat. 336, ch. 139, Congress authorized this work, and declared that when completed it should be

"A lawful structure and post road for the conveyance of the mails of the United States. Provided, That the said bridge shall be so constructed and built as not to obstruct, impair, or injuriously modify the navigation of the river; and in order to secure a compliance with these conditions the company, previous to commencing the construction of the bridge, shall submit to the secre

Statement of Facts.

tary of war a plan of the bridge, with a detailed map of the river at the proposed site of the bridge, and for the distance of a mile above and below the site, exhibiting the depths and currents at all points of the same, together with all other information touching said bridge and river as may be deemed requisite by the secretary of war to determine whether the said bridge, when built, will conform to the prescribed conditions of the act, not to obstruct, impair, or injuriously modify the navigation of the river.

"SEC. 2. And be it further enacted, That the secretary of war is hereby authorized and directed, upon receiving said plan and map and other information, and upon being satisfied that a bridge built on such plan, and at said locality, will conform to the prescribed conditions of this act, not to obstruct, impair, or injuriously modify the navigation of said river, to notify the said company that he approves the same, and upon receiving such notification the said company may proceed to the erection of said bridge, conforming strictly to the approved plan and location. But until the secretary of war approve the plan and location of said bridge, and notify said company of the same in writing, the bridge shall not be built or commenced; and should any change be made in the plan of the bridge during the progress of the work thereon, such change shall be subject likewise to the approval of the secretary of war."

The company complied with the provisions requiring them to submit plans to the secretary of war. A commission, consisting of three officers of the engineer corps, was appointed by the secretary of war to examine these plans. Their report was submitted to the chief of the corps, who thereupon addressed the following letter to the secretary of war:

“OFFICE OF THE CHIEF ENGINEER,

"WASHINGTON, D. C., May 31st, 1869. "SIR: The report, with accompanying papers, of the commission constituted by Special Order No. 72, from the adjutantgeneral's office, to examine and report upon the bridge proposed to be built between the cities of New York and Brooklyn, is herewith respectfully submitted to the secretary of war.

"After an examination of them and a careful consideration of the subject, the conclusion at which I have arrived is, that the

Statement of Facts.

proposed bridge, if built subject to the conditions recommended by the commission, with the prescribed height in the middle of one hundred and thirty feet above mean high water of spring tides, will conform to the requirements of the act of Congress, 'not to obstruct, impair or injuriously modify the navigation of the river;' and I recommend to the secretary of war approval of the same. The phrase in the act of Congress, 'not to obstruct, impair, or injuriously modify the navigation of the river,' was prepared by myself, and with reference to the meaning attached to those words by the best authorities, and they were, I believe, used in the act with that understanding of them. I would further recommend that the bridge company be furnished with a copy of the report of the commission.

"Very respectfully, your obedient servant.

"A. A. HUMPHREYS, "Brigadier-General and Chief of Engineers.

"Hon. JOHN A. RAWLINS,

"Secretary of War."

The secretary of war returned this letter and the accompanying papers to the chief of engineers with this indorsement thereon:

"WAR DEPARTMENT, June 19th, 1869. "Respectfully returned to the chief of engineers, whose views and recommendations, as well as those of the commission herein referred to, are concurred in and approved, provided, that the height of the centre of the main span of the bridge shall not be less than 135 feet in the clear at mean high water of the spring tides; and provided further, that the structure shall conform in all other respects to the conditions recommended by the commission.

"The chief of engineers will furnish the bridge company with a copy of the act establishing the bridge, a copy of the report of the commission and of this report, and will notify the company that the plan and location of the bridge are approved, subject to the conditions herein imposed.

Thereupon the chief of engineers addressed the following letter to the president of the bridge company: