announced that the court had passed the following interlocutory order.
The court having heard the counsel bn the part of the complainant, and also on the part of the respondents, on ,the motion for an injunction in this cause to remove the obstruction of the navigation of the Ohio River, as charged in the original, amended, and supplemental bills of the complainant, by means of the erection of the suspension bridge in said bills mentioned, and which said obstruction is denied in the answers put in thereto by the respondents; and on due deliberation being had thereon, *658and upon the pleadings and the proofs before us, it is ordered, that the cause be referred to the Honorable R. Hyde Walworth, late Chancellor of- the State of- New York, as a commissioner of the court, hereby appointed, to take' such further' proofs in the cause as the counsel for the respective' parties may see fit to produce before him, at such time or times, and at such place or places, as he may appoint, on the application of the counsel of either party; due notice being given of the time and place of the taking of the said proofs.
1. Upon the question, whether or not the' bridge aforesaid, mentioned in the pleadings aforesaid, is or is not an obstruction of the free navigation of the said Ohio River at the place where it is erected across the same, by vessels propelled by steam or sails, engaged, or which may be engaged, in the commerce or navigation of said riv,er; and if an obstruction,^as aforesaid, shall be made to appear, what change or alteration in the construction and existing condition of the said bridge, if any, can be made, consistent with the continuance of the same across said river, that will remove the obstruction to the free navigation by the vessels aforesaid, engaged in the commerce and navigation of said river as aforesaid; .and,
2. That the said commissioner shall report to this court by the-first day of the next stated term thereof, upon the "questions hereby referred to him, together with the proofs which shall ,have been produced before him by the respective parties. And that all other questions in the-said cause shall be reserved' until the coming in of the said report of the commissioner, and the further hearing of counsel upon the matters therein; and,
3. That the said commissioner shall have the power, if deemed necessary by him in the course of the hearing of the said cause, to appoint a competent engineer, whose duty it shall be to take the measurement of said bridge, its appendages and appurtenances and localities in connection therewith, under the direction and instructions' of -said commissioner, and tp make a report to him on the same, which report shall be annexed to the report of the said commissioner to this court.
The said commissioner is hereby authorized to appoint a clerk to assist him in the execution of this commission.
The compensation to be allowed to the said commissioner for his time and services, for his clerk.and engineer that may be appointed, and all other necessary expenses by him incurred in said commission, upon the coming in of the report of the commissioner, will be ascertained and fixed and' awarded against the parties, as the court may -deem right and prdper, .upon the principles of-equity and justice.
*659And that the parties shall each advance to the said commissioner two hundred and fifty dollars, before or at the time he enters upon the execution of . the commission.
The clerk will send a certified copy of this order to the commissioner.