The republic. [volume] (Washington [D.C.]) 1849-1853, 1852-03-31
TIL E REPU BLIC
OPINION
or Chief Justice Taney In the Wheeling
Bridge Cane.
OPINION

I 7
the judgment of the Court, it is my duty to ex-
press my opinion. | shall do SO as briefly as
can.
The first question to be decided is, whether this
bridge is public nuisance not which this court
has right to abate? The State Of Pcnnsy lvania
1t is true, complains Of interruption TO her :
nails, in which. in her character State, che has
proprietary interest analogous to that Of an in
dividual owner. She seeks redress for this injury.
But she proceeds upon the ground that The bridge
ia public nuisance from which the State receives
particular injury to its property beyond that
which the public in general sustain. And the foun-
dation of her claim stated in the bill, is, that
the bridge 10 unlawful obatruction to the nayi-
CATION OF public river, and therefore public nui-
sance. The immense mass OF testimony contained
IN this record s directed almost altogether to that
point. In order, therefore. to maintain the bill, it
Efs incumbent upon tho-Statc to chow that this
bridge ia public nuisance; and if it is public
nuisance, it nust be because it is q violation Of
some law which this Court has a right to admin
ister.
In examining this question it must be borne in
mind that, although the suit is brought in this Court
the law OF the case and the rights of the parties
the same as If it had been brought in the circuit
court OF Virginia, in which the bridge is situated
Pennsylvania. as State, has the right to sue in
this Court. But euit here merely changes the To-
rum, and does not change the law of the case, OF
! the rights of the parties. And If in the circuit
court Of the United States, sitting in Virgil
| MIA; this bridge could not be adjudged nuisance
and abated as such, neither it be done in this
Court. The State in this controversy has the same
rights an individual, and nothing more; and the
Court is bound TO administer to the State here the
same law that would be administered to nd
vidual suitor suing Tor like in circuit
court OF the United States sitting in the State where
the bridge is erected.
Assuming then that il does obstruct a public
navigable river, and would at common law be a
pubic nuisance, proceed to inquire, Whether this
Court is authorized TO declare il to be such, and
order it to be abated?
The Ohio being public navigable stream, Con-
gress have undoubtedly the power TO regulate
commerce upon it, They have the right to pro-
hibt obstructions TO its navigation to declare any
such obstruction public nuisance; to direct the
mode OF proceeding in the courts of the United
States to remove 1t, and To punish any one Tho
may erect or maintain r.; or it may declare what
degree description Of obstruction shall be pub
lie nuisance-as, for example, the height Of a
bridge over the river or the distance to which a
wharf may be extended into its navigable waters
But this power has 10; been exercised. There
Ia no law Of the United States declaring an ob.
struction in the Onio, any other navigable river
TO be public nuisance, and abated such; nor is
there any act of Congress regulating the height
bridges over It, We can derive no jurisdiction,
therefore, over this subject from any law Of the
United States; and i. we exercise il. must de
rive our authority from some other source.
But we cannot derive II from the common law.
For il has been settled since the beginning Of this
Government that the courts Of the United States,
such, have no common law juriediction civil or
criminal, unless conferred upon them by act Of
Congress. IL is true that the courts Of the United
States, when sitting in State, administer the com
mon law, where ii has been adopted by the State.
But IL 10 administered the law of the State un
der the authority and direction of the or Con-
gress, which makes the laws OF the State the rule
of n n o cd hon
sitting in the State; provided such laws nre not
contrary to the Constitution, laws, or treaties OF
the United States. We cannot. under the rule OF
decision thus prescribed adjudge this bridge to be
a nuisa nee, although it may obstruct the naviga
tion OF the river, unless it is a nuisance by the
common law as adopted in Virginia and modified
by Its statutes. But this bridge was built under
the authority OF stntute OF the State The struc-
urc in lite present form has been toned by the
Legislature. Ii lie, therefore, no offence against
the laws Of the State; and circuit court Of the
United States. citing in the State and governed by
its laws. when not in conflict with the Constitution
or laws OF the United States treaties, could not
order it to be abated public nuisance and this
Court has no higher power over this subject, either
at law or in equity, ally other rule guide it,
than circuit court sitting in Virginia. And
the bridge is not nuisance by the laws of that
State, and there is no act OF Congress making the
obstruction OF public river an offence against the
United States, and we have common law to
which the Court may resort for jurisdiction, / do
not understand by what law under what auihori-
ty this Court adjudge IL TO be public nuisance
and proceed to abnte it. either upon proceeding
in chancery or by process at law.
IL 1t isa public nuisance. it is offence either
against the United States or the State of Virginia
for which the persons who erected or who continue
liable be indicted. For we need go no
further than Blackstone's Commentaries q Bl.
Com, l67) for proof that the unauthorized oh.
structon OF a navigable river ia an offence. and
may be punished in criminal proceeding by in
dictment. Can the parties who built or continue
this bridge be indicted for II offence against
the pubc' This appears to me to be the true
test We are inquirng whether there IL any law
which this Court has the power TO administer, un-
der which this bridge may be adjudged public
nuisance purprcsturel Ii there is then the per
sons who erected il may be punished in a criminal
proceeding.
For, il 1t ia public nuisance purpresturc, il
is an offence against the sovereignty whose laws
have been violated Could they be indicto for an
offence against the United Siates2 This will hard
ly be contendcd for, as common-law offences can
not be punished in it's courts unless they arc de-
olsred oflences by act OF Congress. And, as VIC
have no such act Of Congress il ia clear that in.
dictment charging the obstruction IA sn offence
against the United States, could not be maintain
cd. II is equally clear that an indictment cbarg
ing it as offence against the State, could not be
supported, for the law OF the State sanctions it's
construction. IL may be asked in reply to this
view OF the subject, is hs great river, then, liable
to be obstructed by bridges whenever the States
through whose territories il passes choosc to an.
thorizc them? And are the inhabitants above the
obstructons to be shut out from ts nnv CATION and
without redrcssS The Argument ab inconrenisnt
would be entitled to great consideration if there
any foundation for il, although it would not
alter the law. But this opinion leads to no such
result For ] have already said that Congress
have the power TO declare tho obstruction Of navi
gable stream an offence against the United Statos,
and 10 authorize the courts Of tho United States to
abate il ms a nuisance; and any Law OF a State to
the contrary would be unconstitutional and void.
IT., therefore, there be evil, it may easily be
corrected by the legislative authority OF the Gene
raj Government But if Congress have no, thought
proper, or do not think proper, to exercise this
power, and public mischief has arisen or may arise
from it, it does not follow hatthc judicial power Of
the United States may stop in and supply what the
legislative authority has omitted TO perform. IL
docs not by any means follow that the judicial
power may declare an obstruction in a nav
igabe stream an offence against the United States
before the legislative power mas forbidden il, and
conferred authority upon the courts TO punish or
remove IT.
Undoubtedly this Court has original jurisdiction
when a State is party. But IT cannot exercise
that jurisdiction without some law prescribing the
mode OF proceeding, the rule OF decision, and the
evidence by which the right in dispute is TO be
tried. The unskful and careless manner in which
a stcs mboat ia navigatcd may impede the passa ge