M. C.C. of Havre De Grace v. Harlow

Stockbridge, J., delivered the opinion of the Court. The Mayor and City Council of Havre do Grace filed the bill in this case to prevent, by means of injunction, the building of a dam or dams ■ across the Susquehanna River by James H. Harlow and Frank J. Iioen, upon the theory that the construction of such dam or darns would be in the nature of a public nuisance which the City might invoke the arm of the law to restrain. The nature of the particular injury done to the plaintiff as a municipal corporation was two-fold: first, that by the erection of such an obstruction the fishing industry of the municipality would be seriously injured; and, secondly, that such obstruction would destroy the navigable nature of the Susquehanna River, and thereby render unprofitable and perhaps valueless certain wharf property owned by the municipality. At the argument, it was urged that the river was an artery of commerce, and as such that, whether such commerce was interstate or intrastate; it rested in control of the national government rather than of the State.

To this it was replied that the question of exclusive federal jurisdiction was not raised before the trial Oourt, and therefore that under the provision of section 9 of Article V of the Code of Public General Laws the matter was not one open for the consideration of this Court on appeal. Prior to the adoption of the-Act of March 3, 1899 (section 10 of Chapter 425 [Vol. 30 Statutes at Large] of the Act of the 55th Congress), the rule ²⁶⁸ was that laid down in such cases as Cardwell v. American River Bridge Company, 19th Fed. 562, and Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678 , that “The power of Congress to control the internal navigable waters of the states under the authority to regulate commerce is exclusive when exercised; but, until Congress acts the Legislature of any State has the power to authorize the obstruction of any navigable waters within its borders by the erection of bridges, dams or other structures for the convenience and advantage of commercial intercourse.” By the Act referred to it was provided: “That the creation of any obstruction not affirmatively authorized by Congress to the navigable capacity of any of the waters of the United States is hereby prohibited.” The record in this case does not disclose that there has been any affirmative action by Congress; the most that it shows is that on two occasions reports have been made to the Secretary of War reaching directly opposite conclusions as to the navigability of the Susquehanna River, but it is not necessary in this case for this Court to pass upon the federal question. That will more properly be raised in an entirely different tribunal.

So far as the present case is concerned, this Court is necessarily controlled by other,considerations. As to the right of the appellant to maintain the suit at all, there may be a serious question. It has been held in a long line of cases that the private individual may not enjoin that which is done under the authority of express legislative sanction, and since a municipal corporation derives its powers from a legislative grant, it is not easy to logically establish a proposition that because the Legislature has chartered a municipal corporation, such creature of the State is invested with any power to enjoin the doing of an act the right to do which is expressly conferred by the same authority from which the municipal body derives its existence, and of subsequent date. But even if this were not true, the fact remains that to enjoin the erection of that which it is antici ²⁶⁹ pated will or may become a public nuisance, there must be upon the part of the plaintiff some injury sustained, or reasonably to be anticipated, other and different in kind from that to which the public at large is subjected.

B. & O. R. R. v. Gilmor, 125 Md. 610 . The citizens of Havre de Grace, and the municipality, if it can be assumed that the municipality represents them, has no monopoly in the rights of fishery and navigation. These are common rights to which all citizens of the State are entitled. They are rights enjoyed by all in the navigable waters of a stream, and to a more limited extent in non-navigable waters.

The evidence shows without contradiction that for many years shad fishing was an important industry of the City of Havre de Grace, giving employment during the season to several hundred persons, but it also shows that that industry has dwindled to comparatively insignificant proportions, and this diminution is shown to be due, not to the erection of a dam or dams across the Susquehanna River, but because by reason of nets, stretched below the City of Havre de Grace', the fish have been arrested and caught before reaching that point on their way to their spawning grounds in the upper portions or branches of the river. The witnesses, who were examined upon this aspect of the case all spoke of the proposed dam as being an obstruction to the fish, unless fishways were provided in the dam to be erected. But tbe Act of 1908, Chapter 268, now in question, provides in express terms in section 6: “That in every such dam so constructed by said Company the said Company shall construct and maintain sufficient fishways or ladders to permit the passage of fish from the waters below to the waters above any such dams.” This is an express, limitation upon the character of the structures to be erected, and one which the State through its. proper officers should require the Susquehanna Power Company to fully comply with, and such being the case this ²⁷⁰ ground for maintaining the bill of the plaintiff can not be sustained. The constitutionality of the Act is mainly attacked upon the ground that it is an illegal authorization of the obstruction to commerce upon the river.

To satisfactorily deal with the question thus presented it is necessary to understand exactly what the legislation, both as affecting this company .and as defining the rights of the public in the Susquehanna, has been. In 1883 the Susquehanna Water Power and Paper Company of Harford County was chartered under the general incorporation law. The powers set forth in its certificate of incorporation were further enlarged by the Act of 1884, Ch. ■85. Then followed the Act of 1900, Ch. 248.

A dam had been built at that time across the river, and the Act of 1900 recognized the Susquehanna Power and Paper Company as the owner of that dam. It did not, however, contain any grant of power for the erection of a dam across the river below the one already constructed. By an Act of the Legislature of 1797, Chapter 99, it had been declared that: “The bed of the river Susquehanna from the Maryland line to the tidewater, shall be considered a public highway, free for any person or persons whatsoever to work thereon in clearing, the obstructions to its navigation.” By the Act of 1813, Chapter 116, it was provided: “In -consideration of the Act of the Legislature of Pennsylvania, passed February 19, 1801, that the bed of the river Susquehanna from the Maryland line to the Bay of the Chesapeake, is hereby declared, and shall forever hereafter, be a public highway, and that individuals or bodies corporate may at all times remove obstructions in its navigation.” Both of these Acts reserved certain rights to the proprietors who were said, in an Act of 1783, Chapter 23 (November session), to “have undertaken to render the river Susquehanna navigable from the line of this State to tidewater.” ²⁷¹ To militate against declarations such as these, and so as to operate pro tanto as a repeal of them, a subsequent Act of the Legislature must be clear and definite, and it does not appear that this element was sufficiently present in the Act of 1900 to have that effect. When now we come to the Act of 1908 we find an express grant of power in section 3: “To locate and build in, along or across the said river and the bed and shores thereof, and the canals, railroads, ferries and highways thereon, there along or leading thereto, any dam or dams the crest or crests of which shall not exceed an elevation of one hundred and ten feet above mean low tide at Havre de Grace, said dam or dams to be located at any point between tidewater and Mason and Dixon’s line.” Power is also given to acquire land by purchase or condemnation for the construction of said dam or dams, and “to cut, re-cut or enlarge canals along the shores of said river, with dimensions commensurate with the beam, disr plaeement, tonnage and motive power of all vessels which shall navigate the back-water formed by its said dam or dams,” This Act, therefore, differs from the antecedent' act in that it establishes a maximum height for any dam or dams to be built, and also territorial limits within which their construction may be had.

Such were some of the franchises which were mortgaged by the Susquehanna Power Company to the Girard Trust Company, and upon the foreclosure of which mortgage passed to the appellees. It will be apparent that no provision of this Act is in contravention of any expressed principle in the Constitution and that the relief now sought can be granted only in case it amounts to the destruction of an inalienable right of the public. In dealing with navigable waters some matters may be regarded as axiomatic; thus, a stream may bo navigable in part and nan-navigable in part, and the navigability of one ²⁷² part does not- of itself render the entire stream throughout the full length of its course a navigable stream; also, a stream which is non-navigable may be made navigable by the removal of those things which constitute obstructions to its navigability; and conversely, a stream navigable at one time may as the result of any one or more of a variety of causes become thereafter non-navigable. Hnder the English common law navigable waters were held to be those in which the tide ebbs and flows—this fact, was made the test of navigability.

By the Roman law rivers in which the flow of water is perennial were held to belong to the public, and they were navigable if they were capable of being navigated, in the ordinary sense of that word. The Code Napoleon speaks of navigable rivers as “floatable,” that is rivers admitting floats. The rale of the civil law is the one which has prevailed in this country; Ten Eyck v. Warwick, 75 Hun. 562 ; Ingraham v. Wilkinson, 21 Mass. 268 ; Stuart v. Clark’s Lessee, 32 Tenn. 9 . A mere declaration, though by statutory authority, that a stream is navigable, could not make it so unless it was navigable in fact; 29 Cyc. 293.

And it has also been held in this country, in derogation of the civil law rule, that to constitute a navigable stream, it need not be perennially so-, but the seasons of navigation must- occur regularly, and be of sufficient duration and character to subserve a useful purpose for commercial enterprises. See cases- cited in 20 Cyc. 292. Or, as it has been expressed in some of the oases, the test of navigability is navigable capacity without regard to the character of the craft, the business done, the ease of navigation, the surroundings of the stream, or whether it connects with another stream or highway, or flows into a private estate; State v. Pac. Guano Co., 22 S. C. 50; Heyward v. Farmer Min.

Co., 42 S. C. 138; Bucki v. Cone, 25 Fla. 1 . And, again, any stream though above tidewater’, is a navigable water if of sufficient capacity to float the products of ²⁷³ the mine, the forests or the tillage of the country through which they float to market; Lewis v. Coffee County, 77 Ala. 190 ; Burk County Commrs. v. Catawba Lumber Co., 116 N. C. 731 ; Little Rock M. & T. R. R. Co. v. Brooks, 39 Ark 403 . The doctrine of the