# Gilman v. Philadelphia

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## Dissenting Opinion

    Clifford
United States Supreme Court
70 U.S. 713
Gilman v. Philadelphia
THE Constitution gives to Congress power to 'regulate commerce between the States;' and this case was one relating to the respective jurisdiction of a State and of the United States over tide and navigable waters. The case was thus:
The city of Philadelphia, as originally laid out by Mr. Penn, was situated between the Delaware and Schuylkill Rivers; the former a wide river, on the east of the city; the latter a small and narrow stream, on the west, which, making a curve below the city, falls into the far larger water, about six miles below the town.
This river Schuylkill is tidal from its mouth, seven and a half miles upwards-that is to say, completely past every part of the rear of the city-and though narrow, muddy, and shallow, is navigable for vessels drawing from eighteen to twenty feet of water. It is wholly within the State of Pennsylvania. No large vessels of any kind are seen upon it. Being one outlet of the coal regions of Pennsylvania, the principal, almost the sole commerce of the river is coal. But this is a very large commerce, and one of importance to this country generally. Great numbers of persons, from many States, are engaged in it; and many small steamers, barges, and other vessels concerned in it, are properly enrolled and licensed as vessels of the United States. Millions of dollars have been invested in property on the Schuylkill front of the built city, meant to assist the coal trade. The coal above spoken of as the subject of this river's commerce, is brought by canal-boats into the river, just at or above Philadelphia. The canal-boats are then towed by small steam-tugs along the river.
So important, indeed, was this trade, in connection with the Schuylkill, considered in 1853, that in that year or thereabouts, when the legislature of the State proposed to allow the Penrose Ferry bridge-a bridge some distance below any ever previously erected, and over deeper and broader parts of the stream-the city of Philadelphia, by its councils, then largely, perhaps, influenced by traders in a great staple of the city, remonstrated against any legislative license for the new means of crossing; declaring that, by 'this dangerous obstruction, trade amounting to more than a million of tons annually would be seriously impaired, and driven from that portion of the port; and that the large investments of the city in her gas-works, and other property on the Schuylkill, and a large proportion of all the wharffront, would be greatly injured by any further bridge below Gray's Ferry, now the lowest bridge upon the Schuylkill.' The bridge, however, was authorized.
The space from river to river-the width of the neck of land, that is to say, on which 'Philadelphia' stands-may be about two miles.
Notwithstanding, however, the separating river, residents of Philadelphia, more than fifty years ago, had their rural homes on the west side of the Schuylkill. Here was Lansdowne, the Woodlands, and Belmont, and Solitude; well-known places in the local history of Philadelphia. Little villages, also, Mantuaville, Hamiltonville, &c., grew up there. From necessity, the great roads from the interior, including that from the State capital, came to the city in this direction. Still the region was without the city limits.
In 1854, the old charter of Philadelphia was abrogated. 'Consolidation' was thought advisable. What had been the county of Philadelphia was made the city, and the region west of the Schuylkill was placed under the same government completely as the region east. Lighting, paying, police, penny-postage, and such like things as had before belonged to the 'city,' now were imparted to the new region. Mantuaville, Hamiltonville, &c., became forgotten titles; and 'West Philadelphia' usurped, in common talk, their place. The streets running from east to west, in 'Philadelphia,' were carried, by name, and continuous line of survey, so far as practicable, west of the Schuylkill; and the numbers which, beginning in the old city on the Delaware with Front Street, and running westward to the Schuylkill, in progressive numbers up to Thirtieth, reappeared across the river in Thirty-first Street, running to a number not yet practically familiar to the citizens. From its cheaper ground and fresher air, in connection with street cars found west of the river as east, 'West Philadelphia'-a sort, as yet, of urbs in rure, or rus in urbe-had become a residence for many hundreds of persons who passed more or less of every day in the walks of business in the older parts of the town.
So too of later years, the citizens had laid out various cemeteries, the Woodlands and others, on the western side of the river; and had here fixed numerous institutions closely connected with the city corporation, itself, or with churches, &c., in the city; the vast Blockley Hospital, the Burd Orphan Asylum, Christ Church Hospital, and other like establishments of charity.
From an early date the river at and just above and below the city, that is to say within its tidal and navigable parts, had been treated by the State of Pennsylvania as more or less within her jurisdiction.
Thus in 1798, what was then called the Permanent Bridge, a bridge across the river at Market Street, was authorized, and in 1799 a lot granted by the State for its purposes. This bridge was begun in 1801 and finished in 1805, Judge Peters, the district judge of the Federal court of Pennsylvania, himself distinguished as an admiralty lawyer, who was the proprietor of Belmont, near one end of it, having been chiefly instrumental in the erection. In 1806, a bridge at Gray's Ferry (permanent) was authorized; 75 feet high. In the same year the State regulated 'the upper and lower ferries' opposite the city. In 1811 another bridge was authorized, at the upper ferry, which was afterward built, burnt down, and rebuilt. In 1815 a large canal, the Schuylkill Navigation Company, was authorized, which drains the river immediately above the city. It was completed in 1826. In 1822 the Fairmount Water-works, which dam the river and supply the old city of Philadelphia with water out of the river, were completed. In 1837 a bridge was authorized to be built by the Philadelphia, Wilmington, and Baltimore Railroad Company, with a draw of 33 feet, and was afterwards built below the town. In 1838 the West Philadelphia Railroad Company was authorized to build a bridge at Market or Callowhill Street. In 1839 a free bridge was authorized at Arch Street. In 1852 free bridges were authorized at Chestnut Street and at Girard Avenue. None of these last four bridges were ever built.
Over one of these bridges runs the great Central Railroad of Pennsylvania; and over another, below the built city, the Gray's Ferry bridge already mentioned, runs the railway from Philadelphia to Baltimore, which leads from the North to Washington City and the South. This railroad bridge-which has a draw, however-was built in 1838; though a draw-bridge had been there from a time long before the Revolution.
The right of the State to authorize these bridges had not been seriously questioned by any one, while undoubtedly the river from its mouth to and beyond the port of Philadelphia is and has been considered as an ancient, navigable, public river and common highway, free to be used and navigated by all citizens of the United States.
The only legislation, apparently, which Congress had made about the river was in 1789 and in 1790, in both which years Philadelphia was declared a port of entry; in 1793, when the coasting laws were applied to it; in 1799, when two districts were created in Pennsylvania; in 1822, when Philadelphia was made the sole port of entry for the Philadelphia district; and in 1834, when the limits of the port were enlarged on the Delaware front. The important acts seemed to be those of 1799 and 1834. The former is in these words:
'The district of Philadelphia shall include all the shores and waters of the River Delaware, and the rivers and waters connected therewith lying within the State of Pennsylvania; and the City of Philadelphia shall be the sole port of entry and delivery of the same.'
The subsequent act (that of 1834) thus reads:
'The port of entry and delivery for the district of Philadelphia shall be bounded by the Navy Yard on the south, and Gunner's Run on the north, anything in any former law to the contrary notwithstanding.'
No act spoke of the Schuylkill as within the port: though undoubtedly by its charter the city extended to the Schuylkill. The soundings of the Coast Survey, authorized by the United States, do not come into the Schuylkill.
The 'Navy Yard' is on the Delaware. 'Gunner's Run' was a stream in the north of the city, falling into the Delaware; but nowhere touching or feeding the Schuylkill.
Notwithstanding, however, the numerous bridges authorized by the State and the two or three that had been built, but one principal connection existed practically, between the two parts of the built and populous city; and this was the old Permanent or Market Street Bridge: a bridge running from the western end of one great east and west thoroughfare of the city-perhaps the greatest across the stream; and connecting West Philadelphia with the more populous 'city' as a short and narrow isthmus might connect two continents. There was, indeed, the Wire or Suspension Bridge, at Fairmount; rather above the city at its north extremity; and Gray's Ferry, sometimes called Baltimore Railroad Bridge, at its southern end, and below the populous districts. But, as already said, the old bridge was the great line of transit-artery and ligament at once-between the districts.
In this state of things, not much set out in the pleadings, but being matters of common notoriety, and as such spoken of at the bar, the Commonwealth of Pennsylvania in 1857 authorized the City of Philadelphia to erect a permanent bridge over the Schuylkill at Chestnut Street. This street was about five hundred feet below Market Street, where was the other and older bridge. The contemplated erection would be, of course, over a part of the Schuylkill that was tidal wholly, and navigable. Chestnut Street now had an existence on both sides of the river. On the eastern, it is one of the chief thoroughfares of Philadelphia, and in West Philadelphia, in anticipation of connection with Chestnut Street on the east, was daily assuming importance. The contemplated bridge would in fact connect parts of one street, municipally speaking; a street having one part on the east and one part on the west of the stream; here about four hundred feet across.
The city being about to begin the erection, Gilman, of New Hampshire, owning valuable coal wharves on the west side of the river, just below the old bridge, and which by the erection of the proposed bridge at Chestnut Street would be shut up between the two erections, now filed his bill in the Circuit Court for Pennsylvania to prevent the structure. It was conceded that he was neither a navigator nor a pilot, nor the owner of a licensed coasting vessel; and this was objected to him. His title to ask relief rested on his ownership of coal wharves, as mentioned, and his citizenship in New Hampshire.
His bill charged that a bridge at that point without suitable draws would be an unlawful obstruction to the navigation of the river, and an illegal interference with his rights, and was a public nuisance producing to him a special damage; that it was not competent for the legislature of Pennsylvania to sanction such an erection, and that he was entitled to be protected by an injunction to stay further progress on the work, or to a decree of abatement, if it should have been proceeded with to completion.
The answer admitted the erection of the bridge complained of, justified such erection under the act of the legislature of Pennsylvania, and alleged that other obstructions of a similar or greater extent had theretofore been placed across the stream at a higher point of the river, or beyond the complainant's wharves, by virtue of other acts of the same legislature. The answer conceded that the bridge would prevent masted vessels from approaching to or unloading at the complainant's wharves, and insisted that this was the only injury suffered by the complainant, and that for it the City of Philadelphia, the defendant, was able to respond in damages. The answer further alleged that the proposed bridge was a necessity for public convenience.
The bridge, it was admitted, would be not more than thirty feet high-the same height as the old one above, at Market Street. Being an erection of the city it was built in the best style of science, and with the greatest practicable regard to the navigation and general interests of commerce; but it necessarily somewhat impeded navigation. The navigation at that point required a wide channel. One pier was indispensable. Vessels with masts could not pass, and the property of the complainant was rendered less valuable.
Mr. Justice Grier dismissed the bill. The same question nearly had been then recently considered by him very fully, in an application made, in New Jersey, to restrain the erection of a railroad bridge over the Passaic, at Newark. The matter had been there fully argued and deliberately considered; an opinion being delivered from the bench, dismissing the appeal. That decree had, by the judgment. of this court, been affirmed; though the case was not reported, the judgment of affirmance having been by an equally divided bench. His honor, in accordance with what was declared in Queen v. Willis, considering that an affirmance of a decree was binding irrespective of the number of judges who were in favor of such judgment; and that the obligation, in point of mere precedent, was the same, whether the court was full and unanimous, or partial and divided, hardly conceived the question open for discussion before him. The case was, therefore, not argued below.
In this court it was elaborately and well discussed by Messrs. George Harding and Courtland Parker, for the appellant Gilman; and by Messrs. F. C. Brewster and D. W. Sellers, contra, for the City of Philadelphia.
Mr. Justice SWAYNE delivered the opinion of the court.

## Notes

* ↑ 3 Smith's Laws, 312.
* ↑ Id. 362.
* ↑ 4 Sm. Laws, 297.
* ↑ Id. 347.
* ↑ 5 Id. 221.
* ↑ 6 Id. 257.
* ↑ Pamphlet Laws of 1836-7, p. 20.
* ↑ Pamphlet Laws of 1837-8, p. 697.
* ↑ Pamphlet Laws of 1838-9, p. 100.
* ↑ Pamphlet Laws of 1852.
* ↑ 1 Stat. at Large, 32, 148.
* ↑ Id. 305.
* ↑ Id. 632.
* ↑ 3 Id. 662.
* ↑ 4 Id. 715.
* ↑ 10 Clark & Finnelly's Appeal Cases, 534. See Krebs v. Carlisle Bank, 2 Wallace, Jr., note, 49.
* ↑ As part of the judicial history of an interesting question, as well as for the value which the opinion itself has, a report of the case referred to above and decided by Grier, J., will be found in a note.-See Appendix, No. III.
* ↑ Nelson, J., not having sat, and taking no part in the decision.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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