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for erecting a dam, by the authority of the above named act, to the obstruction of the navigation.'

A state legislature may constitutionally incorporate a company to make a lock and slack water navigation, without requiring it to make compensation for consequential damage to private property in the execution of the work. Hence the Monongahela Navigation Company incorporated to make such a navigation from Pittsburg to the line between Pennsylvania and Virginia, by dams and locks in the Monongahela river, was not held liable in an action on the case for obstructing the water on the Youheogany river by a dam in the Monongahela, to the injury of the plaintiff's mill."

If therefore the more apparent object of an impediment to the navigation be to the profit of an individual grantee, it is the right and duty of the legislature to determine whether the public interest is so connected with the private, as to authorize the act, and the grantee while acting within the powers granted, is not liable for any injury suffered by any other individual by altering the flux and reflux of the tide.3

It was said by the counsel in the case of the Com

1 Brown v. The Commonwealth, 3 S. & Rawle (Penn.) 273.

2 Law Rep. for May 1844, p. 38; and see the case in 6 Whart. (Penn.) R. 109.

3 Parker v. Cutler Mill Dam Corporation, 2 App. (Me.) R. 353.

monwealth v. Breed, in Massachusetts,' that the grant of a right to build a bridge was upon the petition and for the especial benefit of an individual. The court said, it was doubtless true; and it was also true, that many other enterprises had originated in motives of private gain, which had resulted in great public improvements.

Very important cases of the description of those above referred to as damnum absque, &c. are those of the erection of bridges over navigable water, by authority of the legislature, so near another bridge before erected over the same channel, under the same authority, as injuriously to affect the tolls of the bridge so first erected. The proprietors of a first erected bridge applied to the supreme court of Massachusetts to restrain by an injunction the construction of the second bridge, and the court in 1829, after elaborate and learned arguments by the counsel, on both sides, and upon very great deliberation, dismissed the bill, the judges being equally divided; Parker, C. J., and Putnam, J., being of opinion, that the complaint was maintained, and Morton, J., and Wilde, J., declaring their opinion, that the bill should be dismissed. The case was then brought by writ of error to the supreme court of the United States, in which, in 1837, the decree of the court in Massachusetts was affirmed,- Mr. J. Story dissent

1 Commonwealth v. Breed, 4 Pick. (Mass.) R. 460.

ing, and accompanying his opinion by a very elaborate and very learned argument, in which Mr. J. Thompson concurred. The opinion of the court against granting the injunction, was delivered by Taney, C. J., and was grounded upon the consideration, that the end of all government is to promote the happiness and prosperity of the community, by which it is established; and that it could never be assumed, that the government intended to diminish its power of accomplishing the end for which it was created; and in a country like this, free, active, and enterprising, continually advancing in numbers and wealth, new channels of communication are daily found necessary, both for travel and trade, and are essential to the prosperity and happiness of the people. The continued existence of government would be of no great value, if by implications and presumptions, it was to be disarmed of the powers necessary to accomplish the ends of its creation, and if the functions it was designed to perform, were to be transferred to the hands of corporations. While the rights of private property were to be regarded, those of the community should be faithfully preserved.1

In the case of the Mohawk Bridge Co. v. Utica and Schenectady Railroad Company, in the court of chancery of the state of New York, there was an

1 Charles River Bridge v. Warren Bridge, 7 Pick. (Mass) R. 344; S. C. in error, 11 Peters (U. S.) R. 420.

CH. IV.] PUBLIC RIGHT OF NAVIGATION.
NAVIGA

101

application for an injunction by the Mohawk Bridge Company and twenty-four others, to restrain the defendants from erecting a bridge for the passage of their railway over the Mohawk river, at the city of Schenectady. The Mohawk Bridge Company were the owners of a toll bridge across the river about one hundred rods above where the defendants had commenced, and were proceeding to erect their bridge for the passage of their rail-road cars with passengers on their railway; and the other complainants were land owners adjoining the river. The Mohawk Bridge Company alleged in their bill, that the proposed erection would endanger the safety of their bridge by damming up the ice at the breaking up of the river; and also that the carrying of passengers across the river in the rail-road cars would be a damage to the bridge company, by diverting the travel from their toll bridge; and would for that reason be an injurious interference with the exclusive privilege secured by their charter. And all the complainants insisted, that the rail-road corporation was not authorized by its charter to erect a bridge, or to cross the river with its railway. It was held, that the complainants were not entitled to the relief asked, and the motion for an injunction be denied; that the grant to a corporation of the right to erect a toll bridge across a river, without any restriction as to the right of the legislature to grant a similar privilege to others, does not deprive a future legis

lature of the power to authorize the erection of another toll bridge across the same river so near to the first, as to divert a part of the travel which would have crossed the river on the first bridge, if the last had not been created.'

The construction, under a charter granted by the legislature of Alabama, of a toll bridge, within a short distance of a licensed ferry, was held in that state not a violation of the vested rights of the ferry keeper. The court considered, that the principle, that private property cannot be subjected to public use without compensation, apply to an alleged loss by the keeper of such ferry."

"The legislature of Connecticut, in 1808, incorporated a bridge company, with authority to collect tolls, and, in the act of incorporation, prescribed the manner in which the bridge and causeway should be constructed, and required other expenses to be incurred; and then it provided, that whenever the tolls should reimburse to the company the sums advanced by them in building the bridge and the other expenses referred to, with an interest of twelve per cent. per annum thereon, the bridge and causeway, and rate of toll, should be subject to such regulations and orders as the legislature should think proper to make. After some other provisions, not material here, it was pro

1 Mohawk Bridge Co. v. Utica and Schen. R. Ro. Co. 6 Paige (N. Y.) Ch. R. 554.

2

Dyer v. Tuscaloosa Bridge, 2 Port. (Ala.) R. 296.

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