dissenting.
As this is a case of much importance to the parties and the public, and I do not concur in the judgment of the court, it is my duty to express my opinion. I shall do so as briefly as I can.
The first question to be decided is, whether this bridge is a public nuisance or not, which this court, has a right to abate. The State of Pennsylvania, it is true, complains of an interruption to her canals, in which, in her character as a State, she has a proprietary interest, analogous to that of an. individual owner. She seeks redress for this injury. But she proceeds upon the ground that the bridge is a public nuisance, from which the State receives a particular injury to its property beyond that which the public in general sustain. And the foundation of her claim, as stated in the bill, is, that the bridge is an unlawful obstruction to the navigation of a public river, and therefore a public nuisance. The immense mass of testimony, contained in this record, is directed almost altogether to that póint. In order, therefore to maintain the bill, it is incumbent upon the State to show that this bridge is a public nuisance.- And, if it is a public nuisance, it must be because it is a violation of some law which this court has a right to administer.
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 are the same as if it had been brought in the Circuit Court of Virginia, in which the bridge is situated. Pennsylvania, as a State, has the right to sue in this court. But a suit here merely, changes the forum, and does not change the law of the case or the rights of the parties. And if, in the Circuit Court of the United States, sitting in Virginia, this bridge could not be adjudged a nuisance, and abated'as such, neither can it be done in this court. The State, in this controversy, has the same rights as an individual, and nothing more. And the court is bound to administer to the State here the same law that would- be administered to an individual suitor, suing for a like cause, in' a Circuit Court of the United.States, sitting in the State where the bridge is erected.
Assuming, then, that it does obstruct a public navigable river, and would,-at common law, be a public nuisance, I proceed to inquire whether this court is authorized to declare it to be such, and order it to be abated.
The Ohio being a public-navigable stream, Congress have undoubtedly the power to regulate commerce upon it. They *580have the right to prohibit obstructions to its navigation ; to decláre any such obstruction a public nuisance; to direct the .mode of proceeding in the courts of .the United States to remove it; and to punish arty one who may erect or maintain it; or it may declare what degree or description of obstruction shall be a public 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 not been e.xercised. There is no law of the United States declaring an obstruction in the Ohio or any other navigable river, to be a public nuisance, and directing it to be abated as such. Nor is there any act of Congress regulating the height of bridges over the river. We can derive no jurisdiction, therefore, upon this subject, from any law of the United States, and if we exercise it we must derive our authority from some other source.
But we cannot derive it' from the common law. For .it has been settled, since the beginning of this government, that the courts of the United States as such, have no common-law jurisdiction,' civil or criminal, unless conferred upon them by act of Congress. . It is trae that the courts of the United ¿otates, when sitting in a State, administer the common law, where it has been adopted by the State. But it .is administered as the law of the State, under the authority and direction of the act of Congress, which makes the laws of the State the rule of decision in a court of the United States, when sitting in the State, provided such laws are not contrary to the Constitution, laws, or treaties, of the United States. We cannot, tinder the rule of decision thus prescribed, adjudge this bridge to be a nuisance, although it may obstruct the navigation 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 a statute of the State. The structure, in its present form, has been sanctioned by the legislature. It is therefore no offence against the laws of the State; and a Circuit Court of the United States, sitting in the State and governed by its laws, when not in conflict with the Constitution or laws of the United States, or treaties, could not order it to be abated as a public nuisance; and this court has no higher power over this subject, either at law or in equity, nor any other riffe to guide it, than a Circuit Court sitting in Virginia... And as the bridge is not a nuisance by the laws of that State, and there is no act of Congress making the obstruction -of a public river an offence against the United States, and we have no common law to which the court may resort for jurisdiction, I do not. understand by what law, or under what authority, this court can adjudge it to be a public nuisance and proceed to *581abate it', either upon a proceeding in chancery or by a process at law.
if it is a publjc nuisance, it is an offence either against the United States or the State of Virginia, for which the persons who erected or who continue it, are liable to be indicted. For we need go no further than-' Blackstone’s Commentaries (4 Bl. Com. 167,) for proof that the unauthorized obstruction of a navigable river is an offence, and may be punished in a criminal proceeding by indictment. Can the parties who built or continue this bridge be indicted for it as an offence against the public ? This appears to me to be the true test. We are inquiring whether there is any law which the court has the power to administer, under which this bridge may be adjudged a public nuisance or purpresture? If there'is, then the persons who erected it maybe punished'in a criminal proceeding.'
For if it is a.public nuisance or purpresture, it is an ‘offence against the sovereignty whose laws have been violated. Could they be indicted for an offence against the United States ? This will hardly be contended for, as common-law offences cannot be punished in its courts, unless they are. declared offences by act of Congress.. And as we have no such act of Congress, it is clear that an indictment charging the obstruction as an offence against' the United States, could not be maintained.' It is equally clear, that an indictment, charging it as an offence against the State, could not be supported, for the law of the State sanctions its construction. It may be asked, in reply to this view of the subject, is this great river then liable to be obstructed by bridges whenever .the States, through whose territories it passes, choose to authorize them ? and are the inhabitants above the obstruc-. tions to be shut out from its 'navigation, and without redress ? The argument ab inconvenienti would be entitled to great consideration, if there was any foundation for it, although it would not alter the law. But this opinion leads to no such result. For I have already said that Congress have the power to declare the obstruction of a navigable stream an offence against the United States, and to authorize the courts of the United States to abate it as a nuisance; and any law of a State to the contrary would be unconstitutional and void.
If, therefore, there be an. evil, it may easily be corrected by the legislative authority of the general government. But if Congress have not 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 that the judicial power of the United States may step in and supply what the legislative authority has omitted to perform. It does not by any means follow that the judicial power may declare an obstruction in or over a navigable stream, *582an offence against the United States before the legislative power has forbidden it, and conferred authority upon the courts to punish or remove it.
Undoubtedly this court has original jurisdiction when a State is a 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 unskilful and careless manner in which a steamboat is navigated may ■impede the passage of other vessels, and sometimes endanger their' safety, yet if Pennsylvania sued here for any injury arising from this cause, we could exercise no jurisdiction and give no redress unless there was some law to guide us. And when a case of this kind is not embraced in any law of the United States, we always resort to the established usages of navigation on the river, and the laws of the State in whose jurisdiction- the injury was sustained.
The cases in which the court has. taken jurisdiction in questions of boundary between States, stand on. different-ground. The- original jurisdiction was conferred by the Constitution. The evidence upon which the right in controversy must be decided, depended upon the laws and usages of nations in, disputes of that kind. Congress had no power over the subject. It could neither give nor take away the right' of either party, nor prescribe the evidence by which it was to be tried. All that Congress was required to do, or .could do, was to authorize the court to issue' the proper process to bring the parties before it, and to conduct the proceedings to final judgment. This was admitted on all hands to be necessary before the.court could exercise the jurisdiction which the Constitution, had conferred. And in the case of New Jersey v. New York, (5 Pet. 287, 288,)-it was held that the acts of 1789 and 1792 had clothed the court with the necessary power.
' The rule as to navigable waters is this: Every independent nation has the exclusive jurisdiction over the navigable waters lying within its territorial limits. It has the right to regulate commerce upon thenq and to determine what bridges may be built over them, or piers or wharves extended into them. And an erection authorized by the legislature cannot be a nuisance, public or private. This was the situation of the old States prior to the adoption of the Constitution. Each was then an independent sovereign State. But by the Constitution of the United States, they surrendered to the general government the power to regulate commerce. And thus, while they retain their absolute territorial jurisdiction over their navigable waters in all other respects, Congress may forbid, the erection of any structure in a navigable, stream, which it deems an obstruction to commerce, *583and may declare it a nuisance, and direct it to be removed. - But all the original authority of the State over the river remains subject to that limitation. For otherwise; until Congress thought proper to legislate, navigation on the river would be under no control. Boats might be run down with impunity, and obstructions of every kind erected in or over it, which the State could not prevent or. punish:
.The bridge in question is entirely within the territory of Virginia. Prior to the adoption of the Constitution of the United States, she had an unquestionable right to authorize its erection. She still possesses the same control over the river, subject to the power of Congress, so far as concerns the regulation of commerce. The United States and Virginia are the only sovereign-ties which can exercise any power over the river where the bridge is erected. Virginia has authorized it, and Congress have acquiesced in it. Congress have made no regulation declaring such a structure unlawful, or authorizing any judicial proceeding against it. If Congress, to whom the power is granted, to regulate commerce, have acquiesced, how can the court, to whom the power is not granted, undertake to regulate it, and declare this bridge an unlawful obstruction, and the law of Virginia unconstitutional and void ? With ail my respect for my brethren, I think it is an error, and I had almost said, a grave one.
If it should be said that the compact between Virginia' and Kentucky makes the river free independently of the Constitution, the answer is obvious. The compact does not deprive Virginia of the power to regulate the police of the river, or .to authorize bridges or piers, or other structures in it; Such a compact between States has always been construed to mean nothing more than that the river shah be as free to the citizens or subjects for which the other party contracts, as it is to the citizens or subjects of the State in which it is situated. But if this compact or any compact should be construed to prohibit the- erection of the bridge, the proceeding should be to enforce the observance of the compact. If erected in violation of a compact, it is still not a nuisance, because there is no law prohibiting it. -It would' be a breach of contract by the State, and' the remedy in a very different mode of proceeding.
This compact between Virginia'and Kentucky, in relation to the navigation of the Ohio, was one of the articles of agreement under'which Virginia consented that Kentucky should become a separate State. Kentucky could not become a separate State without the consent of Congress'. But the act of Congress,, which gave that assent, maíces no reference whatever to the terms of the agreement between the States. It does not make, the United States a party to them, nor guarantee their execution. *584It simply declares its consent that the district of Kentucky should, on the 1st of June, 1792, become a State, according to its actual boundaries, on the 18th of December, 1789. The act of Congress is in 1 Stat. at Large, 189, and contains no allusion whatever, direct or indirect, to the navigation of the Ohio. It leaves the compact as • it was; that is, a. compact between the two States, and nothing more, and to be enforced by a proceeding upon it. Nor is there any difference in the rights of navigation between the. rivers and bays of the Atlantic States and those of the West. The old and the new State's in this respect stand upon, an equal footing. It was so decided in this court in the case of Pollard v. Hagan, (3 How. 212,) and that decision has been sanctioned in subsequent cases, to which it is not now necessary to _refer.
The complainant, however,, insists that the law of the United States'for.enrolling and licensing coasting vessels, gives to the vessel so enrolled and licensed, .the right to navigate the river free from obstructions : that this law, therefore, by necessary implication, forbids the erection of the' bridge which obstructs the navigation; and, consequently, defines the rights of the parties. And if a vessel is obstructed, the law is violated, and the injured. party entitled to his remedy, and to have the obstruction removed. The case of Gibbons v. Ogden is relied on to support this proposition.
This, brings up the question, whether the law of Virginia, sanctioning the erection of this bridge, is or is not repugnant to the-Constitution or laws of the United States. Is it repugnant to the clause of the Constitution which gives Congress the power to regulate commerce ? or to any law passed under it ? If" it is not, then the structure complained of, being within the territory of the State, and authorized by its legislature, cannot be a public nuisance or a private nuisance in the eye of the law. Nor has any one a right to complain" of it as an unlawful obstruction in his way; nor to maintain a suit atiaw or in equity for any inconvenience or loss he may sustain from it. Assuming that we may exercise jurisdiction on the. ground that the complainant claims a right under the above-mentioned act of Congress, neither the point nor the principles decided in Gibbons v. Ogden have, in my judgment, any application to the case before us. In that case, the Legislature of New York passed a law granting to certain persons the exclusive privilege of navigating all the waters within the jurisdiction of that State with boats moved by fire or steam; and authorizing the Chancellor of the State to restrain by injunction any person whatever from navigating these waters with boats of that description. The complainant claimed under the grantees of the monopoly, and sought. *585by his bill to restrain the respondents from navigating the waters embra'ced in it. And this court held, and correctly held, that the law of the State was unconstitutional; that a vessel enrolled and licensed for the coasting trade, under an act of Congress, had a right to navigate any of the navigable waters of the United States; and that no State had a right to forbid it.
There was no question in that case as to the authority of a court of the United States to declare an obstruction in a.river, which a State had authorized, to be a public nuisance, and treat it as an offence against the United States. The waters in question were navigable, and free from impediments of that description ; and the boats of the parties who claimed the exclusive-privilege were daily passing over them. The only question in the case was, whether all vessels, enrolled and licensed by Congress, had not the right to pass over the same waters as freely as the vessels of the monopolists. The court said they had; that they had an equal right, with the complainant to use the navigable waters of New York. But the'court do not say that an obstruction placed in the water, which fenders navigation inconvenient or hazardous, is a violation of the act for licensing and enrolling coasting vessels, or in conflict with it; nor do they say that this act of Congress confers on the court the power to adjudge it a nuisance, and order it to be abated. There was no such question before the court. It was not in the case, nor was the attention of the court in any way called to it by the argument.
Now, in this case, Virginia has passed no law giving exclusive privileges to navigate the Ohio River through her territory. -If the bridge is an obstruction, her own citizens, engaged in the navigation of the Ohio, are equally disabled from passing as the citizens of any other State. . The question, therefore, on which, this case must turn, did not-arise in Gibbons v. Ogden. But it did arise, and was expressly decided in the case of Wilson v. The Blackbird Creek Marsh Company, 2 Pet. 245. It was the point in the case. A dam across a. navigable creek had been authorized by the Legislature of Delaware, as this bridge has been authorized by the Legislature of Virginia. It stopped a navigable creek, and, as the court said, mtist be supposed to abridge the rights of those who were accustomed to use it. So this bridge is supposed to impede the navigation of the Ohio, and abridge the rights of those accustomed to use it. Yet, in the ease referred to, the court said, that as Congress, in the execution of its power to regulate commerce, had passed no law'to control State legislation over these small navigable creeks, the law of Delaware was not repugnant to the Constitution, not being in conflict with -any law of Congress. It will be remem*586bered that the act of Congress for enrolling and licensing vessels, under which Gibbons v. Ogden wTas decided, was still in force, but was regarded by the court as inapplicable to the obstruction occasioned by the dam.' The result of these two cases is this. The act of Congress gives to, vessels enrolled and licensed under it the right to navigate the public waters wherever they find them navigable; and any State law prohibiting it, is unconstitutional and void. And, upon this ground, the judgment of .the State court of New York, which had decided otherwise, was reversed. But this act of Congress has no application to an obstruction created by a dam across the navigable water, and without further legislation by Congress, the law of Delaware, which authorized the dam, was constitutional and valid. And upon that ground, the judgment of the State court of Delaware, which sanctioned the obstruction, was affirmed. I can see no difference in principle between the'last-mentioned case and the case at bar. There has been .no further legislation by Congress on that subject since that case was decided. And as the principle is the same, the decision should be the same; and the case of Wilson v. The Blackbird Creek Marsh Company, should, in my opinion, govern this.
It can hardly be supposed, that the circumstance that a of entry is established on the Ohio River, above the bridge, distinguishes this case from the one referred to. The right which the act of Congress gives to vessels enrolled and licensed for the coasting trade, is certainly not confined to the navigation between ports of entry. They have the right to enter añy navigable creek or river which may suit their convenience, or the business and employment in which they are engaged. And any State, law which forbids them to do so, or attempts to confine the right to particular persons, is unconstitutional. Any vessel enrolled and licensed had a right to proceed up Blackbird Creek as far as she found navigable water; and her right was as perfect as if a port of entry had been established at the head of navigation. Nor can the size of the creek, or the small number of vessels that used it, as .compared with the Ohio, make any difference between the cases. It was the right that was in question ; and that right was the same whether the navigable water was narrow or wide, or used only by a single vessel, or frequented by hundreds.
The case of Wilson v. The Blackbird Creek Marsh Company is entitled to the more weight, because it was decided after the ease of Gibbons v. Ogden, which appears, by the report,- to have been recalled to the attention of the court, and relied upon in the argument; and the.' opinion in the last case was delivered by the same learned judge who delivered the elaborate opinion *587in the former one. It shows that he, and the learned court in which he presided, did not consider the principles on which Gibbons v. Ogden was decided,' applicable to a case where an obstruction was placed in- a navigable water, impeding, generally, the passage of vessels; and were of opinion that -the courts of the United States had no jurisdiction which would authorize them to remove or abate it, or treat it as unlawful, without further legislation by Congress. I think it more safe to follow their own construction of their own opinion in Gibbons 1). Ogden, than to look for a new one.
Indeed, apart from any decisions on the subject, I cannot perceive how the mere grant of power to the legislative department of the government to regulate commerce, can give, to the judicial branch the power to declare what shall', and what shall not, be regarded as an unlawful obstruction; how high a bridge must be. above the stream, and how far a wharf may be extended into the water, when we have no regulation of Congress to guide us. Nor do I see how we can order a bridge or a wharf to. be removed, unless it is in violation of some law which we are authorized to administer. In taking jurisdiction, as the law now stands, we must exercise a broad and undefinable discretion, without any certain and safe rule to guide us. And such a discretion, when men of science differ, when we are to consider the amount and value of trade, and the number of travellers on and across the stream, the interests of communities -and States .sometimes supposed to be conflicting, and the proper height and form of 'steamboat chimneys, such' a discretion appears to me much more appropriately to belong to the Legislature than to the Judiciary.
Besides, I think there is an insuperable objection to this proceeding in equity even if this bridge should be regarded as a nuisance, public or private. And it appears to me to be settled law in ’England, as well as in this country, that chancery will not interfere by injunction where the evidence is conflicting and the injury doubtful. I do not speak of informations in chancery where the attorney-general is a party, for this is not a proceeding of that kind. But I speak of" cases ■ between individual parties, like the present one. And the rule above stated, when there is a conflict of testimony, will be found in 2 Story’s Com. page 201 to 207, where the subject is fully examined, and the cases which have been decided referred to. And a case where there is more conflict in the testimony of men of high character and undoubted skill and knowledge could hardly be imagined, than is presented in the record before us; nor a case where the injury is more doubtful. For, after the experience , of two years, we see how- small the loss, has been compared with the immense *588.trade and the multitude of steamboats, which, during that time, have passed under it.
Neither can the jurisdiction of a court of chancery be supported upon the ground that the injury is immediate and irreparable, or that any serious embarrassments lie in the way of an action at law. The injury, after two years’ experience, has not been found serious .enough to lessen the navigation and commerce of the river. On the contraryCthey have been continually increasing since this bridge was built. And if it be an injury for which the party is entitled to a remedy, he has a plain and adequate remedy at law; and, therefore, upon general principles of equity, and more especially under the express provisions of the act of 1789, he has no right to.come into chancery for relief. And if an action at law were brought by the State in the Circuit Court óf the United States,-sitting in Virginia, the proceeding at law would be as free from embarrassment and difficulty as any action at law for any injury for which the law gives' a remedy. And there is no reason to suppose that the respondents are not- able to answer to any amount of damage, which, upon the evidence in this case, the State of Pennsylvania might recover against them.
If it should be said that as the Legislature of Virginia have sanctioned the. erection of this bridge, prejudices in favor of it might be supposed to influence the jury, the answer is obvious. The law would be decided, by the Circuit Court, subject, to the revision and control of this court; áñd we are bound to presume that a- jury, in a Circuit Court of the United States, would do equal justice between citizens of their own State, and another State or its citizens. The Constitution and laws so presume. And; certainly, this court would never act upon any apprehension that justice would not be done, by a jury in any State, when summoned and impanelled accordin'g to the laws of the United States. And still less could it be induced to assume ■extraordinary and unusual powers from fears or suspicions of that kind,
But Pennsylvania has the right to sue in this court, ,or in the Circuit Court, at her election. She has the same right to sue heye in an action at law as she has to file her bill in equity. And in an action at law brought here by the State of Georgia v. Brailsford et al. (3 Dal. 1,) the case was tried by a jury in the same manner as if the suit had been brought in the Circuit Court. And the jury, brought here -to try this case, would be altogether free from suspicion of bias or prejudice.
It may be said that such a proceeding here would'emoarrass and retard the business of. this court, and would be expensive and onerous- to the complainant, as the witnesses must be *589brought from a distance and detained here for a considerable time. .This is true. But if the State sues in this court, instead of the Circuit Court, it does so by its own choice. And if the remedy, at law in the forum selected is embarrassing arid expensive, it has no right to complain of what is the necessary consequence of its own act; nor to go into equity to avoid difficulties at law, which arise from the nature of the forufn to which the State voluntarily resorts ; and certainly no inconvenience to the court could alter the law, nor give it equity jurisdiction where the law has denied it. In the language of the act of Congress, Pennsylvania has in this case a plain and adequate remedy at law, and has no right, therefore, to. come to the equity jurisdiction of the court, until her legal right has been established.
Indeed this .case, in my view of it, pushes the jurisdiction of chancery further than has heretofore been done in England or in this country.
The bridge has been erected and completed without any previous injunction to restrain the respondents- from proceeding in the work. It is charged to be a public nuisance. But. Pennsylvania has no right to proceed against it solely on that account. She proceeds, and is entitled to proceed,, only for the. private and particular injury to her .property which this public nuisance has occasioned. If the court order it to be demolished, it is not to protect the public or any portion of the community who may be supposed to be injured by it. For the government, which represents the public, and is charged with its interests, is not before the court; and has not complained of this structure, nor sought to have it removed. Pennsylvania is the only party asking for relief; and her damage, as proved in the record, is a’trivial loss of some few dollars - in tolls; and the mere possibility of an annual future loss to some small amount, concerning which the testimony is vague and inconclusive, and at best but conjectural. She has no .concern with the obstruction to boats with high chimneys, nor with the amount of trade from Pittsburg, or any other place, further than such evidence tends to show the bridge to be a public nuisance. The owners of steamboats, and the persons engaged in commerce are not parties to this suit, -and the State of Pennsylvania has no right to prosecute for them,. She must not only, show that boats with high chimneys are more profitable to the owners, and better for commerce, than those with lower, ones, but she must also show that the necessity of reducing them will lessen the profits of her canals. I see no proof in the record by any means sufficient to establish that fact. And we are called upon to demolish a structure which cost more than $200,000 to save the State of' *590Pennsylvania from this speculative, questionable, and at most, inconsiderable loss. It seems to me that if the power and jurisdiction of this court were clear, and supported by precedents, yet, this court, upon settled principles of equity jurisprudence, wbuld refuse to destroy property of so much value, and which the public,' by its proper officer, does not charge to be a nuisance, merely to guard against the possibility of an inconsiderable loss by the State. It is precisely one of those cases in which .the court would, at all events, require the party to establish his right at law before he comes into equity, or to make the attomeygeneral a party, and give the public an opportunity of¡ being heard where its interest is so deeply involved.
I do not doubt the po\Ver of the Court of Chancery to abate a public nuisance, upon an information in chancery, to which, the attorney-general is a party. But even in a case of that kind there must be danger of irreparable mischief before the tardiness of the law can reach it. This is the doctrine of this court in the case of the City of Georgetown v. The Alexandria Canal Company, 12 Pet. 98. But such a case is not now before us. The attorney-general is not a party. Pennsylvania sues as an individual for a private right. And in a case of this description I am not aware of any case entitled to be regarded as an authority in this court, where chancery ever interfered by injunction except.-by way of prevention, that is, to stay the contemplated structure, until it could be decided, in a proceeding to which the public was a party, whether it was a public nuisance or not. We must.be careful not to confound cases of public' nuisance with merely private ones. For, in the former, the public have an. interest to abate it if a nuisance, and to protect it, if it is not, and therefore have a right to be heard, whether the trial be in equity or at law.
This was evidently the opinion of this court in the case of the City of Georgetown v. The Alexandria Canal Company, arid of Lord Eldon, in the case of Crowder v. Tinkler, 19 Ves. 616, therein cited, with approbation. In the last-mentioned ease, where the court interfered for prevention, and not to abate a structure already completed, the chancellor placed the injunction upon the ground that the nuisance about to be erected would be attended with extreme probability of irreparable injury to the property of the plaintiffs, including also danger to their existence,. And that this was clearly established in that case before he awarded the injunction. Such is the rule upon this subject which has been sanctioned by this court. Certainly no one of the material circumstances which existed in Crowder v. Tinkler, can be found in this. And if the principles decided here in the case of the City of Georgetown v. The Alexandria Canal Com*591pany, are recognized as the law of this court, I can see no foundation for the injunction in the case before us. For it not only has none of the circumstances in it, upon which the injunction was granted in Crowder v. Tinkler, but in that case, strongly as it appealed to the preventive power of the Court of' Chancery, the court merely suspended the erection until the question of public nuisance or not could be tried by a jury upon an indictment. It did not grant a pérpetual injunction, and still less did it order what had already been constructed to be abated or removed.
So far I have considered the case upon the assumption-that the bridge, upon common-law -principles, might, upon the evidence, be determined to be a nuisance. -And, admitting that to be the case, I think, for the reasons above stated, that in the .absence of any legislation upon the - subject by Congress, this proceeding cannot be maintained. I shall, therefore, very briefly express my opinion on the evidence.
I am by no means prepared to say, that this bridge would be a public nuisance even at common law. The evidence of the degree in which it obstructs navigation is exceedingly voluminous, and it is impossible to go fully into an examination of its comparative weight, in a mannei that would do justice to the subject,, without making this opinion itself a volume. It is sufficient to say, that in all questions of this kind, the general convenience and interest of the public in the travel and trade across the river, as well as on its waters, must be taken into consideration. For whether it is a public nuisance or not, depends upon whether it is or is not injurious,to the public. The cases in the State Courts, and in the Circuit 'Courts of the United States, referred to in the argument, which I shall not stop, here to examine, in my opinion maintain this doctrine. And upon principle, independently oij adjudications, it cannot be otherwise. A structure which promotes the convenience of the public, cannot be a nuisance to it. And the public, whose interests are to be looked to in this case, is not the public of any particular town or district of country, or State- or States, but the great public of the whole Union. Taking this view of the question, and looking to the testimony as set forth in the.record, and more especially to that unerring test, experience,, which the lapse- of time has afforded, I am convinced that the détrimént and inconvenience to the commerce and travel on the. river, is small and occasional only,‘while the advantages which the public derives from the passage over, are great and constant. And if the courts of the United States had common-law jurisdiction, and the question was legally before us to determine whether this bridge was a uublic nuisance or not, I am of opinion that it is not; and that *592the advantages which the great body of the people of the United States reap from it, outweigh the disadvantages and inconvenience sustained by the commerce and navigation of the riven
Moreover, the jurisdiction exercised in this cáse, is new and without precedent in this court. Bridges have been erected over many navigable rivers, and built so near the water, that vessels can pass only through a draw. Such bridges are unquestionably obstructions, and impede navigation. For where the vessels are propelled by sails, and the wind is unfavorable, they are often detained not only for hours, but for days. The courts • of the United States have never exercised jurisdiction over any of these obstructions, nor declared them to be nuisances.. I should be unwilling, in a case like this, to exercise this high and delicate power without precedents to support me in analogous cases. The demolition of this bridge would occasion a heavy loss to the parties, and much inconvenience to a large portion of the community. The United States are not parties to this proceeding, and the particular injury sustained by the. complainant is exceedingly small. And it is solely for the protection of her small, remote, contingent, and speculative interest in tolls, that this bridge is pulled down. For it must be remembered. that, although we see .in the testimony that' injuries 'are alleged to have been suffered by others, yet the State of Pennsylvania is the- only party to this proceeding, the only one who appears in this court as complainant, and her particular loss is the only ground on which jurisdiction is claimed,- and the only injury which the court is called on to redress; or has a right to consider in this proceeding.
The testimony, too, is conflicting; men of eminence and skill, and well qualified to speak bn the subject, differing widely in their testimony. And I am the more unwilling to assume this questionable jurisdiction, because the legislative department of the géneral government has undoubted power over the whole subject, and may regulate the height of bridges over the Ohio, and of the chimneys of steamboats when passing under them, and may, while it guards the -rights of ñavigation in the stream, at the same time protect the rights of passage and -travel over it. That department of the government has better means, too, of obtaining information, than the narrow scope of judicial proceedings can afford. It may adopt regulations by which courts of justice may be guided in an inquiry like this with some, degree of certainty, instead of leaving them ■ to the undefined discretion which must now be exercised in every ease that may, be brought before, ús, without being able to lay down any certain rule, by which -this discretion may be, limited. It is too near the confines ’ of legislation; and I think the cdurt ought not to assume it.
*593Entertaining this opinion, I must, with all the respect I feel for the judgment of my brethren, with whom it is my misfortund to differ, enter my dissent.