# Mississippi and Missouri Railroad Company v. Ward

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## Dissenting Opinion

    Nelson
United States Supreme Court
67 U.S. 485
Mississippi and Missouri Railroad Company v. Ward
Appeal from the District Court of the United States for the District of Iowa.
On the 7th of May, 1858, James Ward filed his bill in the District Court, praying for an abatement of the Rock Island Bridge over the Mississippi river, averring it to be a public nuisance, specially injurious to him as an owner and navigator of steamboats to and from St. Louis, Missouri, to St. Paul, Min nesota. The bill alleged that the Mississippi river is a navigable stream, the boundary line, in whole or in part, of ten States; that it is used as a channel of commerce and navigated by boats, vessels, rafts, and flat-boats. That steamboats, with other craft in tow, require a space from 120 to 140 feet in width, and, where the bridge is, require the entire width of the river for transit, with at least 60 feet of clear space above for masts and chimneys. Lumber is one of the largest items of transportation, and, by reason of the winds and currents, rafts require the entire unobstructed bed of the river. The navigation of the river is a necessity of trade, and almost the only means of transportation between Wisconsin, Northern Iowa, Minnesota, and the upper Mississippi. The complainant is part owner of certain steamboats plying between St. Louis and St. Paul, and his profits depend upon the safety of the navigation. He avers that he has, by the treaties with France in 1803, the Acts of Congress, and the universal principle recognized by the common law, a right to the free and unobstructed navigation of the river, in all parts of it. He further asserts that the navigation has been interrupted, and rendered dangerous and difficult, by the erection of a bridge from Rock Island, in the State of Illinois, to Davenport, in the State of Iowa; that the river at that point is only about 1,300 feet wide; that it is at the lower end of the Rock Island Rapids, which Rapids are eighteen miles in extent above the bridge, with a fall of twenty-five or thirty feet in that distance; that the current is unusually rapid at that point and difficult of navigation, and that anything in the bed of the river greatly injures the safety of boats, especially in high winds. The bill sets out at length the manner in which the construction of the piers and abutments of the bridge has imperiled navigation and obstructed the stream. The complainant alleges special damage to his own boats, occasioned by the obstruction, the amount, in the instance of one boat, reaching a thousand dollars. Owing to the danger of navigation, he has been compelled to pay largely increased premiums for insurance, occasioned solely by the bridge. The bridge and obstructions were placed in the river by the Mississippi and Missouri Railroad Company, who are made defendants, with the aid and assistance of the Chicago and Rock Island Railroad Company, and a Bridge Company, created for the purpose of its erection by the State of Illinois, and by the aid of other persons, to the complainant unknown. The Mississippi and Missouri Railroad Company have been hitherto and still are maintaining the said bridge as their own possession, and for their own use and benefit. The said Company, by themselves, or in combination with the other companies named, (which are not within the jurisdiction of the Court,) are about to increase the obstruction in the river, by greatly enlarging the piers of teh bridge. The said bridge is a common nuisance now, and the increase of the size of the piers will increase the danger and obstruction, and further hinder and delay complainant's boats in their passage. From the number of disasters, the difficulty of procuring evidence, the expense of preparing for trial, and the peculiarity and diversity of the injuries sustained, suits at law would not compensate for the damage.
The prayer of complainant was: 'That on the final hearing of this bill, the Court will order, adjudge and decree, that said bridge was erected in violation of law, and is an obstruction to the navigation of said river, and that the same is a nuisance, and particularly to your orator, and that the said bridge, and the piers thereof, and all material used therein, which injures and obstructs the free navigation of said river, be abated and removed, and the said river be restored to its original capacity for all purposes of navigation.'
The defendant in his answer admits that the Mississippi is a channel of commerce, navigated by boats, vessels, &c., and that steamboats sometimes have barges in tow; but denies that they require the space alleged, and avers that the width of boats with their barges does not usually exceed seventy feet, so that the whole width of the river is not necessary to the safe transit of such boats. Denies that sail vessels ever navigate the river. Admits that the amount of lumber rafted down the river is great, but avers that rafts do not usually exceed seventy feet in width, while the piers of the bridge are two hundred and fifty feet apart.
Defendant neither admits or denies the ownership of said bridge, and avers that if it is so, the joint owners with defendant ought to be made parties defendant herein, and claims the same benefit as though objection had been taken by demurrer for want of proper parties herein; that he has no knowledge or information as to purpose for which said boats were built or the business of complainant; denies that complainant has the right as claimed in all parts of said river; and avers that the right to build a bridge is as sacred as the right of navigation, where no material obstruction is created, and denies that the treaties, Acts of Congress and principles of law prevent the construction of a bridge; denies that the navigation has been obstructed or rendered dangerous and difficult by the erection of a bridge, as alleged; that the water way is one thousand three hundred and twenty-two feet; that the current through the draw in high water is about five miles per hour; that in time of high winds boats were not accustomed to go over the rapids.
The answer describes the bridge minutely, and avers that since its completion in 1856, there have been more than one thousand seven hundred passages of steamboats through the draw, many of them with barges in tow, one with six barges. Defendant admits that the interruption in the flow of water caused by the bridge increases the current flowing past said bridge, but avers that such increase does not exceed the rate of one half mile per hour.
Defendant has no knowledge or information as to any injury to the steamboats of said complainant as alleged, but if either have been so injured they were out of the steamboat channel and negligently and improperly navigated and managed, as the current is straight and direct through the draw on the Illinois side of the draw pier, and if the boats had been put in their proper positions they would have passed through safely.
Defendant has no knowledge or information as to increased rates of insurance.
Admits that the defendant and the Railroad Bridge Company, a body corporate and politic, created by and existing under and within the State of Illinois, by an Act of the Legislature of the State of Illinois, jointly erected said bridge at the joint and equal cost of said compaines, and are the owners thereof, and that the same was permitted and authorized by the laws of the respective States of Iowa and Illinois, and that said parties are using the same as their joint possession and property, and not separated, and for the use and benefit of the passage of the trains of cars of this defendant and the Chicago and Rock Island Railroad Company; and this defendant insists that the said Railroad Bridge Company is a necessary party hereto, and that no decree granting relief as prayed in said bill can be given without materially affecting and destroying the property and interest of said Railroad Bridge Company, and defendant claims the same benefit for want of proper parties as though it had demurred thereto for that cause.
Defendant further alleges, that on the 11th day of June, in the year 1855, the said Railroad Bridge Company, with the assent of this defendant, conveyed by deed of trust or mortgage to Azariah C. Flagg the said railroad bridge and its appurtenances, to secure the payment of four hundred bonds of $1,000 each, made and issued by the said Railroad Bridge Company for the construction of said bridge, and that such deed of trust or mortgage was duly recorded in the Recorder's office of Rock Island County, in the State of Illinois, and in the office of the Recorder of Deeds, in Scott County, Iowa; that such deed for trust is outstanding and in full force; that a decree abating the bridge would entirely destroy the interest held by said Flagg under such mortgage, and this defendant says that said Flagg is a necessary and proper party to this suit, and that a decree as prayed for cannot be made without destroying the interest and property of said Azariah C. Flagg.
Defendant admits that it and the Railroad Bridge Company intended to repair pier No. 4 by adding four feet on one side and five feet on the other; this has been found necessary by reason of cracks in it and the danger of its yielding to the pressure of the ice at the breaking up of the river in the spring, the such structure has cost nearly $500,000 and would be in danger unless said repairs and addition to the pier were made. Defendant admits that it has built a railroad to Iowa City as charged, that the eastern terminus of said railroad is the eastern boundary of the State of Iowa as prescribed in its articles of association.
Defendant denies the increased obstruction or hindrance or delay and damage from the enlargement and repairs; and avers that complainant has an adequate remedy at law.
As to the refusal of persons to ship freight on complainant's boats by reason of the danger of passing the bridge, defendant does not believe it.
A large body of conflicting testimony was taken to establish the respective allegations of the bill and answer. After several preliminary hearings, the cause was submitted upon the bill, answer and evidence. The Court rendered a decree in favor of the complainant, and ordered that so much of the bridge as was in Iowa should be abated. From this decree defendant appealed to the Supreme Court of the United States.
Mr. Cook, of Illinois, and Mr. Reverdy Johnson, of Maryland, for appellants.
Mr. Lincoln, of Ohio, for Appellee.
Mr. Justice CATRON.

## Notes

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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