dissenting.
In entering upon the consideration of the case before us, the mind is at.once impressed with the belief that there never, has been, that there perhaps never can be brought before this tribunal, for its decision, a case of higher importance or of deeper interest than the present. The subjects which it presses upon our examination, nay, upon which the judgment of this court has been demanded, and has inevitably determined, are nothing less than —
1st. The jurisdiction or authority of this court, under one of the heads of Original Jurisdiction, enumerated in the Constitution.
■ 2d. The correct interpretation, of the power of commercial regulation vested in the federal government, either exerted simply as such by that government, or as affecting the power of internal improvement in the States.
3d. The policy or influence of particular regulations with respect to commerce,- as these may tend 'to restrict it within circumscribed channels, or to promote, its general activity and diffusion, by facilities óperating a reasonable and just equality of right, of competition, and advantage to all.
4th. The character of the proceeding complained of as a nuisance, the regularity of the proposed mode of .redress, and the right of the complainant to claim the interference asked for in any mode.
The magnitude of these topics would seem, in some degree to excuse, in treating them, the hazard óf prolixity, and at any rate, lying as’they do in the direct path to the proper survey of this case, they cannot-with propriétybe overstepped, without pausing upon their examination.
When, at a former period, this cause was before this court, the several topics just enumerated were cursorily adverted to by me as, necessarily involved in its adjudication; and the course then adopted by the court was formally objected to, because that course seemed a premature and foregone conclusion upon facts and legal positions entering essentially into the nature of the controversy; facts and legal positions not then maturely examined and ascertained, as'the order of the court at that time made, necessarily implies; and which could not, according to established precedent, and the highest adjudications, be properly investigated in the mode proposed.' The subsequent .proceedings upon the order of the court at the January term, 1850, have *594greatly strengthened the objections assigned by me on that occasion. These proceedings have, at an almost incalculable expense to the parties, brought hither an immense mass of matter, much of which on the one hand is not “within the inquiries directed by:the court, whilst on the other, inquiries strictly pertinent seem to have been wholly excluded. .It has placed before us a long and very learned report, to be sure, in part upon subjects entirely dehors the order of the court, and in other aspects of the same report,'{I spe,ak it with all respect for the highly intelligent and respectable author of that report,) palpably opposed, in my opinion, to the rational and just preponderarme of the facts stated by the witnesses; a report, in fine, which leaves in all its weight and force,, tfie mischief of withdrawing the trial of the question of nuisance from its proper forum, in which the witnesses could have been confronted and cross-examined; and imposes upon the court the task of passing upon the credibility of those whom they have never heard nor seen. Even in matters of minor concernment, I have always been unwilling, whenever the credibility of witnesses was to be tested, to interpose between such persons and the scrutiny of a jury, awakened, as it is sure to be, by the vigilance of the advocate; where the essential rights and interests of great communities are at stake, I never will do so, unless constrained by irresistible authority.
■ Reeurring now to the first head of inquiry, I contend that the complainant can have no standing here, on the ground that this court cannot, as is shown, both upon the face of the pleadings and upon the proofs, take jurisdiction of this cause. If this court can take- cognizance of the cause before us, it must be in virtue of the 2d section of the 3d article of the Constitution, which declares that “ in all cases affecting ambassadors, other ■ public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction.” There is. no other provision of the Constitution under which original cognizance of this cause by the Supreme Court can be assumed. Now, to arrive at the just interpretation of this clause of the Constitution, as fixing that position or interest of the State as a party,- which alone creates original jurisdiction, in the Supreme Court, ii; is necessary to settle the import of the word party, as connected with legal or equitable .proceedings. By all correct legal intendment, this term party is. applicable only to persons sustaining a direct or real interest or right in any pending litigation; an- interest or right immediately affected or bound by the issues such litigation involves, This term cannot be extended to persons who may be arbitrarily- and irregularly named in proceedings either -at law or in equity, the very description of whose relation to the case shall evince a total absence of legal or equi*595■table claims upon the subject of litigation; a total absence, too, of reciprocal duty or obligation with reference to those whose property and whose possession and enjoyment of that property, are sought tó be affected. Whilst courts of justice, therefore, will enforce the conventing of all whose interest can properly be adjudged, they will repel and even rebuke attempts to assail, or even to canvass, the rights and interests of others, by those who in effect concede the want of a legal or equitable title in themselves. Courts of justice take no cognizance of imperfect rights* or such as may be termed merely moral' or incidental, as distinguishable from legal or equitable, even when the existence of the former may be clearly shown. In this controversy, the State of Pennsylvania, admitted to have no property in or title to the River Ohio within the limits of Virginia, and no property in or title to the steamboats which ply upon that river, is confessedly made use of as a mean, under the shelter of her name, of redressing grievances, which, if they ever had existence, are injuries to her citizens and to individuals, and the proper and efficient remedy for which is to be found at the suit of those citizens in the courts of the State or of the United States. The alleged right of Pennsylvania to sue in this case, for a diminution of profits from her canals and other works of internal improvement within her own territory, and many miles remote from the Wheeling Bridge, had it not been cast into'shade by a still greater extravagance disclosed by the record, (her right of ship navigation with top.-gallant royals all standing,) might have awakened some surprise; but even this tamer and less lofty .pretension should fail of the end it has been designed to effect, for it cannot be pretended, and is not even intimated in the pleadings in this cause, that those canals and other public works .have been obstructed or rendered in any respect less fitted for transportation, or in any way impaired by the etection of the Wheeling Bridge beyond her territory, and within th^t of a-separate and independent State. And if the mere rivalry of works of internal improvement in other States, by holding out the temptation of greater despatch, greater safety, or any other inducement to preference for those works over the Pennsylvania canals, be a wrofig, and a ground for jurisdiction here, the argument and the rule sought to be deduced therefrom should operate equally. The State of Virginia, who is constructing a railroad from the seaboard to the Ohio River at Point Pleasant, much farther down that river tha.n either Pittsburg or Wheeling, and at the cost of the longest tunnel in the world, piercing the base of the Blue Ridge Mountain, should have the right by original suit in this court against the canal, compánies of Pennsylvania, or against that State-herself, to recover compensation for diverting any portion of the *596commerce which might seek the ocean by this shortest transit to the mouths of her canals on the Ohio, or to the city of Pitts-burg ; and on the like principle, the Stsfte of Pennsylvania has a just cause of action against the Baltimore & Ohio Railroad, for intercepting at Wheeling, the commerce which might otherwise be constrained to seek the city of Pittsburg. The State of Pennsylvania cannot be a party to this suit on the grounds stated in the bills filed in her name, for the reason, still more cogent than any yet assigned, viz. that to permit this, would be to render the clause in the Constitution, relied on in her behalf, utterly useless, and even ridiculous; would destroy every restriction intended by the enumeration of instances of original jurisdiction ; and would confound this clause with another provision of the Constitution, designed to cover cases precisely like the one now before the court. If in all instances in which tiie citizens of one State have cause of action against a citizen or a corporation of a different State, the action can be prosecuted the name'of the State in which the claimant resides, although no peculiar or legal right or cause of action can be shown in such State sustaining the character of a private suitor, then the restriction as to cases of original jurisdiction is entirely abolished; the defending party, too, must be entitled to the same right of substitution, and all suits between' citizens of different States might, by this process, be transformed into suits between States, or suits to which States are parties; cases of original jurisdiction in this court. That provision of' the Constitution designed to e.mbrace controversies between citizens of different States is thus annulled, and the jurisdiction of the District and Circuit Courts transferred, as falling within its original cognizance, to the Supreme Court. Such, to my apprehension, appears to be the inevitable result of asserting what are essentially and clearly private rights or interests, in the name of a State, or the prosecution of remote, contingent, and imperfect interests not amounting to property, though claimed-on behalf of a State. I conclude, therefore, that to constitute a State a party in that sense which brings her within the meaning of the Constitution, and indeed within the import of the term party to a cause by all correct legal intendment, there must be averred and proved on her behalf, a certain and direct interest, or an injury, or a right of property — a perfect right — a right which a court of justice can define, adjudge, and enforce; and that on the part of the State of Pennsylvania no such right having been ■ averred even, much less established in proof, nothing is shown which can maintain the jurisdiction of this court in this cause. The shadowy pretext of an interest or injury, from the nature of things not susceptible of calculation or estimate, can never be the *597foundation of a right, legal or equitable. And, indeed, so far as any light can be reflected by facts on-this pretended or incidental interest of Pennsylvania, resulting from any supposed effect upon the tolls on her canals, an actual increase instead of a diminution of those tolls since the erection of the Wheeling Bridge, is proved.
Passing from this subject of jurisdiction, and supposing it for the present to be vested here, I proceed to examine the pretensions of the complainant, as being deducible from, and as guaranteed by, the power delegated to Congress to regulate commerce between-the several States. The existence of that power, in its fullest extent, and for every purpose -for which it has been delegated to Congress, need not be questioned, in order to expose and to repel the pretensions advanced for the complainant. On the contrary, the assertion of that power in its greatest latitudé, so far- as it was ever contemplated by those who gave it, or so far as it can be exercised for useful purposes, carries with it necessarily, the condemnation of those pretensions. The power to regulate commerce was given' to the federal government, whose functions and objects were designed to be general and coextensive with the entire confederacy, because its duties embrace the equal rights and interests of all the members of the confederacy, and as a mean of the widest diffusion of commercial facilities and intercourse within the powers vested by the Constitution. It cannot be rationally concluded that, by a provision palpably intended to protect commerce from unequal or invidious restrictions, the power was given to Congress to advance so fair towards restriction ór monopoly as to limit commerce to particular, channels; thereby crippling oí wholly preventing its diffusion and activity, and, by the, same process, conferring upon particular points or sections of the country, arbitrary and unjust advantages, and riveting, upon all those. portions affected by such a procedure, loss and even ruin. Admitting, then, that Congress had made any regulation affecting the subjects, of this controversy, (and it will hereafter be shown that they have not done so,) admitting, moreover, that their acts or regulations might fall within the broad language of the power vested by the Constitution, it remains still a just and fair inquiry, whether those acts which are arbitrary or oppressive, which defeat the great ends for which the power, thus perverted, may have been within the legitimate scope of the powers alleged in excuse, for their performance. In other words, whether Congress, as a regulation of commerce, would, be justifiable in breaking down works of internal improvement within the States, though calculated in their character and tendencies for the diffusion of commerce, and by such destruction limit commerce to particular local points or *598interests ? ■ Common sense and common justice would promptly answer in the negative, and would decide- that a' rational arid proper, nay, the only rational and proper, exercise of the regulating power in Congress, demands the promotion and protection of such modes and facilities of commercial intercourse, (so far as Congress have this, power,) as will insure equality to all, and the widest diffusion of commercial advantage. ' Surely, then, in the absence of all action on the part ,of Congress, this court should imply no policy or design in that body to fetter or cripple great interests which they are charged with the power and duty to protect. But Congress have enacted no regulation whatever in relation to the subject of this controversy; they have not said that bridges should nowhere be erected over the River Ohio, or,_ if erected, what should be their elevation above the water; neither have they declared, upon scientific calculations or upon experiments, or on any data, what shall be the height of the chimteys of steamboats on that river, nor to what degrees, either from, their own calculations of improvement in speed, or from fancy or local rivalry, the owners or masters of steamboats on that river may elongate the chimneys of those steamboats. Upon all these matters Congress have thus far been perfectly silent.
Admitting, then, that the State .of Pennsylvania can be regularly before us in the character of a party in interest, this controversy presents to us, in truth, simply a comparison-between -the will and the acts of the parties thereto; and an appeal to this court, in the absence of all action by Congress, — by some rule which it must deduce from the common law of nuisance, to decide upon the comparative merits or demerits of the parties, — to-decide whether the benefits produced by the'Wheeling- Bridge to the surrounding country, and by its connection with extended lines of travel and commerce, can save it from the character of a nuisance. Or whether its interference, in certain stages of water, With the chimneys of seven steamboats, owned by private individuals, the height of whose chimneys is a subject of .much contrariety of opinion, both amongst scientific men and practical builders and captains of steamboats, — can so constitute it a public nuisance, and a cause of such direct injury to the legal rights arid interests of Pennsylvania, as to. justify its abatement by this, court. In the absence of all action by Congress in relation ¡to this matter, in the only legitimate mode in which Congress could affect it, viz., by commercial regulation, or 'by some express statutory declaration, the act of one of these parties in the prosecution' of their interests must claim intrinsically equal authority with the acts of the other, except so far .as they may have -some common arbiter by whom • both may be controlled. In this cáse, that arbiter would seem to be-either the. local sove*599reignty, (the State of Virginia,) within whose territory the alleged nuisance is situated, or the United States, through some enactment for the regulation of commerce; but neither of these authorities is invoked in this controversy. We have here a suit in the name of Pennsylvania, occupying the position of every private suitor, asking the action of this court upon general common-law jurisdiction over the subject of nuisances, which jurisdiction the courts of the United States do not- possess. Nor is it enough to' draw within our cognizance the subject of this cause, to affirm merely the competency of Congress to legislate upon it, and to refer its decision, if they choose, to the federal courts. I ask upon what foundation the courts of the United States, limited and circumscribed as they are by the Constitution, and by the laws which have created them and defined their jurisdiction, can, upon any speculations of public poliay, assume to themselves the authority and functions of the legislative department of the government, alone clothed with those functions by the Constitution and laws, and undertake, of their mere will, to supply the omissions of that department ? Is it either in the language or theory of the Constitution, that this court shall exercise such an auxiliary or rather guardian and paramount authority? Cannot the legislative department of the government be intrusted with the fulfilment of its . peculiar duties ? Such an act as this court has been called upon, to perform; such an act as it has just announced as its own, is, in my opinion, virtually an act of legislation, or, in stricter propriety, (I say it not in an offensive sense,) an act of usurpation. To rest our authority to adjudicate this matter on the naked proposition just stated, would be to reject the doctrine by this court heretofore most expressly ruled. The case of Wilson v. The Blackbird Marsh Creek Company, (2 Peters, 245,) "seems to be conclusive upon this point. This case presented an instance of an absolute obstruction by a dam of a watercourse navigable by vessels of considerable size, and in which the tide ebbed and flowed. The person who' undertook to destroy or injure the dam constructed across this navigable water,"was the master of a vessel regularly licensed and enrolled according to the navigation laws of the United States ; and being sued for a trespass committed in breaking or injuring the dam, he pléaded, in justification of his act, the character of the navigable water as a public and common highway, for all the citizens of the particular State, and of the United States, to sail, pass, and repass over, through and upon, at all times of the year, at their own free will and pleasure. Upon comparing this case with the one before us, it is impossible not tof perceive that in many of their capital features they are strikingly similar— may, indeed, be regarded as identical. In the. *600..former case, as in this, the watercourse said to be obstructed was a navigable water; in that case, as in this, the locus in quo was within the jurisdiction of a State; and the alleged obstruction, in each instance,' an act of State legislation in exercising the power of internal improvement; in each instance, the right- of passage to the extent and in the manner claimed, freely and at will usquf ad ccelum, was in virtue solely of license and enrolment, according to the navigation laws of the United States. Now, what said this court upon the aforegoing state of the pleadings and evidence ? “ If Congress,” said they, “ had passed any act which bore upon the case; any act in execution of the power to regulate commerce, the object of which was to control State legislation^ over those small navigable creeks into which the-tide flows, and which abound throughout the lower country, of the middle and southern States, we should feel not much difficulty in saying, that a State law, coming in conflict with such act, would be void. But Congress has passed no such act. The repugnancy of the State law to the Constitution, is placed entirely on its repugnancy to the power to regulate commerce with'foreign nations and among the several States; a power which has not been- so .exercised as to affect the question. We do not think that the act empowering the Blackbird Marsh Creek Company to place, a dam across -the creek, can, under the circumstances of the-case, be repugnant to the power to regulate commerce in f” 3 dormant state, or as being in conflict with any.law passed on e subject.” This decision at once puts to flight the pretext for terference here to protect and enforce the duties and functions pf Congress, and equally exposes the fallacy that the grant of a. /coasting license, of a mere certificate of the domicibof the vessel bearing it, of evidence primd facie, of her capacity or tonnage, or of her exemption from suspicion of smuggling or piracy, is a regulation of commerce' over every inch’of the waters over which, in her various excursions, she may pass. Just as cogent and tenable-is the argument, if argument it deserves to be called, which affirms that the establishment of Pittsburg as a port of entry, its mere designation as a. point at which merchandise may be landed subjeet to the revenue laws of the United States, is a positive declaration by Congress, prescribing the modes of the transportation of such merchandise thither, and defining'what shall be held to be an interference with such transportation. Equally, or rather more unsound and untrue,, is the position that, by the -same designation of Pittsburg, Congress have declared that vessels propelled by wind or steam, vessels of the greatest capacity, carrying masts or. chimneys of illimitable height, shall navigate a river whose ordinary regimen, to adopt a term in this-record, scarcely affords a channel broad or deep *601enough for. the tacking of a shallop, and for long periods of a few inches only in depth. This attempt, from the-mere designátion of a port of entry, to bring, home to Congress the absurd? ities the'argument implies, would ascribe to them a practical wisdom much'upon a parallel with that of the despot, who attempted to confine. the Hellespont in fetters, or of him who forbade the-approach to him of the ocean-tide. -But Congress have in truth enacted nothing in relation to the partícula? subject in issue in this controversy; and we have seen* in the" explicit declaration of this court, in the case from 2 Peters, that not only must there be some positive enactment by Congress, but an enactment.“ the object of which was to control- State legislation over those navigable creeks into -which the tide flows.” But again: it has been asserted, in justification of the power claimed by the' majority of the court, that Gongress, by adopting the act of the Virginia Legislature, of December 18th, 1789, authorizing' the erection of Kentucky into a State, have fully regulated the navigation of the Qhio River. ' And how is this position- sustained by fact? By the 7 th section of her act of 1789, Virginia declares that, so far as her-own territory and that of the proposed State shall extend upon the Ohio, the navigation of that river shall .be free for all the citizens of the United States.-. Congress, by an act. passed February 4th, 1791, containing two sections only,, (vide 1 Stat. at Large, 189,) consents, by the 1st-section,-to the proffer of Virginia of the creation of the new State ; and, by the '2d section, declares, that on the 1st day of . June following, the new State, by . the name of' Kentucky, shall be admitted á member of the Union. These two sections comprise the entire action of Congress, from which the .position that has been asserted by the majority, of the court is deduced. Let us try the integrity of this position by reducing it-to the form of a syllogism. Tfae major of that syllogism will consist of the fact, that Virginia, by her law of 1789, has agreed that she and the newly proposed State will permit; the navigation of the Ohio within their respectivo limits, to all citizens’ of the United States. Its minor is this, — that Congress have assented to the permission so declared; the conclusion attempted to be deduced is, ergo• Congress by that assent -have completely regulated the navigaticjn of the Ohio, and by inevitable implica^ tion ordained that bridges shall never be thrown across that river, except in absolute subordination, to the interests or the will of the owners of steamboats upon that river. This may possibly be -Iqgic, irrefragable logic; and the failure to comprehend its consistency may arise from the infirmity of my own perceptions ; but I cannot help suspepting,that an acumen, far surpassing any to which T will lay claim, would be .puzzled to reconcile this pro*602cess with the laws of induction, as prescribed by Watts, by Duncan, or by Kaims.
The next inquiry, naturally arising in this case, an inquiry inseparably connected with the alleged obstruction by the Wheeling Bridge, as constituting it a nuisance or otherwise, an inquiry equal in magnitude of interest, with , any other involved, relates to the policy and effects of commercial regulations, as these may tend either to the restriction óf commerce within particular channels, or to supplying auxiliaries for its prosecution, or for the promotion of its activity and diffusion by increased facilities, operating a just equality of right and competition and advantage to all. And here it may be premised, that throughout the discussion of this cause, a reigning fallacy has been assumed and urged upon the court, a fallacy, which, if successful, may subserve the grasping pretensions Of the plaintiff, but which, by an enlightened view of this case, must be condemned as destructive to the extended, commercial prosperity of the country. The error assumed as the basis of the plaintiff’s pretensions is this, that commerce can be prosecuted with advantage to the country, only by the channels of rivers, and in all the country intersected by the western rivers, only through the agency of steamboats; and hence is’’ attempted the deduction in favor of the paramount privileges of steamboats, and the right claimed for this species of commercial vehicles for exemption from any limit upon the interests or the fancies of those who may own or manage them. It has been a curious and somewhat amusing incident, in the argument of this cause, that whenever any restraint upon the management of steamboats (on the Ohio) was intimated, (as necessary for the protection of other essential rights, both public ¿nd private,) the fixed réply of the advocate in opposition. has ■been, that commerce demands these peculiar privileges in the owners and masters of steamboats. An obvious and stricter propriety of. argument would have suggested for that reply the following language: Steamboat proprietors; local ■ monopoly, and the peculiar views of interest,.real or imaginary, of the plain-tiff, supply the t*ue origin and character of the pretensions here urged; commerce, enlightened, extended, fair, equal, prosperous, •and beneficial, conde nns all such pretensions ; she demands that freedom, fairness, competition, and equality, which are the true, and only true causes of her prosperity; and which the equalizing power vested by the Constitution, was designed to insure.
Commerce, in its infancy, is of necessity chiefly confined to the channels of watercourses. Weakness, poverty,, or the absence of art' or science, are unable, ip the earlier stages of society, to supply moré eligible or efficient modes for its prosecution, or. to overcome the difficulties attendant on transportation off the *603•watér. Hence we see tbe rude essays of commercé commencing with' the raft, the canoe, or the bateau; but, as wealth and population, science and art advance, we trace her operations to the magnificent, ship or steamboat; each adapted to-its proper' theatre. Does not this very progress, and the advantages which are their' concomitants, glaringly expose the folly and injustice of all attempts at the restriction of commerce to particular localities, or to particular interests, or means of circulation ? Are her operations to be. confined to a passage up and down the channels of watercourses, impracticable for navigation'for protracted» •periods, and whose capacity is always dependent on the contri-, butions of the clouds, avidita.s cedi mt'nimius imber ? Would not such a narrow policy be a proclamation to commerce, inhibiting her advancement; and to the hundreds .of thousands situated without her permitted track, that the wealth, the luxuries, and comforts of civilization and improvement, if-tó, be enjoyed by them at all, are to be obtained only at far greater expense and labor, aád in an inferior degree, than they are enjoyed by more favored classes ? These positions are strikingly illustrated by the experience of our own times, and indeed of a very brief space. Thus, notwithstanding the high improvement in navigation by steam and by sails, which seems-to have carried it to its. greatest perfection, wé' see the railroad in situations where no deficiency of water and no artificial or natural obstruction to vessels exist, or áre complained of, stretching its parallel course with the track of ,the vessel, tying together as it were., iri close contiguity, and connecting, in .habit and sympathy and interest, remote sections of our extended country, which, for any aid that the navigation on our rivers could afford, must ever remain morally and physically remote. The obvious superiority of the railroad, from its unequalled «peed,, its greater safety, its-exemption from dependencé upon, wind or on depth of water, but above all,-its po-wer of linking, together tlie distant and extended regions interplosed between the rivers of the country, spaces which navigation never can approach, must, give it á decided preference, in many respects, to every other commercial facility, and cause it to penetrate,, longitudinally and latitudiBally, longe ei late, the entire surface • of the country, ^unless arrested in its progress by the fiat of this court;. for, once let it be proclaimed that the rivers of this country shall, under no circumstances of advantage to the country, be spanned by bridges, at the trivial, inconvenience and cost of adapting to their elevation-the chimneys of a few steamboats, even if the height of those chimneys had been clearly shown to be necessary, or certainly advantageous, (a problem nowhere solved in this record); let this, I say, be proclaimed, and the effect above mentioned is *604at-once accomplished; the rapidly increasing and beneficial system of railroad communication is broken up, and- a' system of narrow local monopoly and inequality sustained. Whether these things shall now be done; whether, for these purposes, the citizens of this country shall be restrained in their social and business relations, and so restrained under the abused and perverted name of commerce, — are the questions which this court have been called on to decide, and which, in my view, they have affirmatively ruled. ~ They are questions too grave, too pregnant with vital consequences, to have been decided upon the speculations of any one man living.
. It was with the view, doubtless, of giving plausibility to the conclusion of the commissioner, or to the strange idea sought to be enforced .in the argument for the complainant, that commerce signified only a passage up and down the Ohio, that so large a portion of the commissioner’s report is taken up in treating, in learned phrase, of the dynamic and static capabilities of the Wheeling Bridge; or, translated into plain English, the capability of that bridge to sustain heavy bodies in motion and at rest. It does not seem very easy to reconcile this part of the report Avith the order appointing-the commissioner, and prescribing -his duties. That' order directed the commissioner to ascertain and report whether the Wheeling Bridge was, in his opinion,: an obstruction to commerce upon the Ohio; and in the event that he should so regard it, to suggest any alterations by which such obstruction might be remedied. The dynamic or static capabilities of the bridge, introduced to our notice with some parade .of learning, whether it could support any weight, either in motion or at rest, were'subjects altogether dehors the order of this court, and without the warrant and powers of the .commissioner. And. this difficulty is in-no degree lessened by the fact, disclosed ..in the. record, that whilst the commissioner wandered beyond’his commission to pronounce upon the capabilities of the bridge for railroad transit, he- rejected all the evidence, tendered by the defendants, to prove the usefulness and importance of the bridge, either to the-local population or as a public and commercial facility. - This irregularity in the commissioner is of no small significance, as it betrays a bias on his part, however honest, which led him to throw the weight of his opinion against the usefulness. of the bridge; a fact entering essentially into its character, as- being a' nuisance or otherwise, and to withhold from this court evidence by which the value of his opinion might have been tested with precision. This same irregularity should have had its effect in warning this court to 'scrutinize the opinions of the commissioner, on matters falling re.guJ.arly within the scope of his commission. The evidence re*605ceived, and that rejected on-this particular point, were, perhaps, both inadmissible under the terms of the order of this court; but surely it should have been either wholly admitted or rejected on both sides.
And this brings me to. the last branch of inquiry, which I have proposed to treat, namely — The character of the erection complained of; the regularity of the mode of redress proposed, and the right of the complainant to-claim the interference asked for in any mode. First, .then, can the Wheeling Bridge, according to any correct acceptation of, the term, be regarded as - a nuisance? This inquiry is answered by the solution of another, which is simply this : is that bridge injurious to the rights and interests, of the public, or of individuals, beyond the benefits that its erection confers on both ? . Common sense and consistency assure us, that to pronounce that to be a wrong and an injury which is in reality beneficial, involves a plain absurdity; and the language of legal definition fully sustains this conclusion of common, sense; for, according to such definition, there must be the hurt, the nocumentum, the commune nocumentum, 'the injury to the public right, to constitute it a public nuisance; for, admitting the fact of injury by any act, still if, in its origin, character, and extent, it is essentially private, it may be trespass or some other form of injury, but not the public offence of nuisance. This position implies no denial of the right to show a private injury resulting from a public nuisance; it insists only Upon the necessity of showing where special or private injury is alleged as flowing from .a nuisance, that nuisance in reality exists. This forces back upon us the inquiries into the .nature of the offence of nuisance; and-when ascertained, against-what public authority it has been committed ? I have said, that upon the plainest principles of common sense, no act in reference to the public, by which a public benefit is conferred, can be denominated a nuisance ; and I insist that the rules and conclusions of the law are in accordance with this proposition., These are forcibly stated in. the case of the King v. Russell, 6 Barn. & Cress., particularly by Bayley, J., beginning at page 593 of the volume. That was the case of an indictment for a nuisance by the erection, in the River Tyne, of a peculiar wharf or staging, called giers or staiths, for the purpose of loading coal on board ships in the Newcastle trade. The questions before the King’s Bench arose upon the charge of Bayley, J., who tried the case at nisi prius, where his charge concluded in the following terms: “ Thus, gentlemen, I apprehend I have- pointed out to you the true ground on which your verdict is to be founded. If you think this (that is the wharf or staith,) is placed not' on a reasonable part of the river, that it does an unnecessary damage tó *606the navigation, or that this is not of any public benefit, or that the public benefit resulting from it is not equal to the public inconvenience arising from it, then you will, find a verdict for the crown; if on these points you are of a different opinion, then for the defendants.” This charge of Sir John Bayley was sustained in bank. The reasoning in support of that charge by that able judge, is given more at length than can be convehiently inserted here; but it presents a commentary upon this question so lucid, so entirely conclusive, that I cannot forbear to extract a portion of it, as illustrating, much better than I have power to do, the doctrines for which I contend.- “ I submitted,” says- Sir John Bayley,- (page 594,) to the consideration of the jury, that if, by means of these staiths; an article of great public’ use found its way to the public at a lower price, and in a better state than it otherwise would, ■ I thought these were circumstances, of public -benefit, and points they might takq into their consideration upon that head; and upon the best attention that I have been able to give the subject, I am bound to say I continue of that opinion. ' ¿The right of the public upon the waters of . a port or navigable river is not confined to the purposes of passage ; trade and commerce are .the chief objects, and the right of passage is chiefly subservient thereto. Unless there are ¿facilities for-loading and unloading, of shipping and landing, much of the public benefit of a port is lost. In the infancy of a port, when it is first applied to the purposes of trade and commerce, unless the water by the shore be deep, the articles must-be shipped in shallow water from the shore, and landed in shallow water on the- shore. Breakage, and pilferage, and waste, besides the expense of boating, are some of the concomitants of such a mode. As trade advances, the inconvenience and mischief of thismode are superseded by the erection of wharves and quays, and what is perhaps an improved species of loading wharf, a staith. But upon what principle can the erection of a wharf or staith be supported ? It narrows the right of passage. It occupies a space where boats before had navigated. It turns part of the waterway into solid ground; but it advances some of the purposes of a port, its trade and commerce. Is there any other legal principle upon which they can be allowed ? Make an erection for pleasure, for whim, for caprice, and if it interfere in the least degree with the public-right of passage, it is a nuisance'. Erect it, for the purposes of trade and commerce, and keep it applied to the purposes of. trade and commerce, and subject to the guards with which this case-was presented to the jury, the interests iof commerce give-it protection, and it is .a- justifiable erection, and not a nuisance.” • In accordance with this doctrine, has the law been propounded by the Supreme Court of New York, in the case of the People v. *607The Rensselaef and Saratoga Railroad Company, reported in the 15th of- Wendell, page 113. That was a prosecution against the company for placing abutments and piers in the bed of the Hudson River, and erecting a bridge across it, being a public navigable river. In delivering the opinion of the court, the law of the case is thus stated by- Savage, Chief Justice, pp. 132, 133, of the volume above mentioned. “ Í think I may safely say, that the power exists somewhere to erect bridges over waters ■-which are navigable, if the wants of society require them, provided such bridges do not essentially injure the navigation of the waters they cross. • Such power' certainly did exist in the State legislatures before the delegation of power to the federal government by the federal Constitution. It is not pretended that such a power has been delegated to the general government, or is conveyed under the power to regulate commerce and navigation ; it remains then in the State legislatures, or it exists nowhere. It-does exist, because it has not been surrendered any further than such surrender may be qualifiedly implied, that is, the power to erect bridges over navigable streams must be so far surrendered as may be necessary for a free navigation upon those streams. By a free navigation must “not be understood a navigation free from such partial obstacles and impediments as the best interests of society may render necessary.”
In- conformity with- the doctrines above quoted; and in support of the views here Contended for, I might confidently appeal to the language .of the judge, by' whom the decision of' this court has just been announced, on another occasion most explicitly and emphatically declared. • Thus, in the case of Palmer v. The Commissioners of Cayuga County, which was an application'for an injunction to prevent the construction of a draw-bridge over the Cayúga River, upon the ground that it would obstruct the navigation of the river, that judge, in refusing the ¿implication, announces the following, as I conceive, unanswerable conclusions: “Atoll charged for the improvement of th.e navigation, would riot be a tax for the use of the river in its natural state, but for the increased commercial facilities. • A draw-bridge across a navigable water is not an obstruction. . As this would not be a work connected with the navigation of the river, no toll, it -is supposed, could be charged for the passage of boats. But the obstruction would be only momentary, to raise the dravv; and as such a work may be very important in the general intercourse of the -community, no doubt is entertained, as to the power of the State to make the bridge. It is one of those general powers ‘possessed by a State, for the public Convenience, and may. be exercised, provided it does not infringe upon the federal powers.” These positions require no comment *608from me; they commend .themselves by their obvious propriety and reasonableness. - I would simply remark, in connection with these positions, and as warranted by them, that any obstruction by the Wheeling Bridge is of course contingent and not certain; that even were it certain, under'the present elevation of the bridge, this difficulty might be prevented át a comparatively small expense and inconvenience by lowering, .when necessary, the chimneys of a few steamboats for the purpose of' safe and-speedy passage; that this operation, like the raising of a draw, would be only momentary; and as, to use the language of the judge, the Wheeling Bridge “ may be a work of great importance in a general intercourse, no doubt, is entertained, as to the power of the State to make the.bridge.” It will be admitted, I presume, that the Ohio can claim no higher privileges than those appertaining to other navigable rivers.
It follows, then, from these adjudications, not less than from the principles of common sense, that the' conclusion, nuisance or no nuisance, is dependent solely upon the character of the act complained of as being noxious or beneficial to the public, and that the ascertainment of that character, where it is doubtful upon the circumstances, or where it is positively denied, is regularly an investigation of fact to be , made and settled, except under circumstances of peculiar urgency, by the established proceeding of'the common law in relation to all questions of fact,' a trial-by jury. This is the doctrine of Lord Hale in reference to this very subject of obstructions in navigable waters, as quoted from his Treatise De Portubus, where it is said by that venerable judge, “the case, of building into the water where ships or vessels might formerly have ridden, whether it be nuisance or not nuisance, is a question of fact.” I will not here deny, nor is it necessary in any view to deny, that a court of equity will, prevent by injunction the creation of a. private injury in the nature of a nuisance, or the continuation of such an injury in a case proper for its .jurisdiction. Thus, where an individual or private person is about to perform an act, or has performed an act which is palpably and notoriously in its character a nuisance, from which private and irreparable injury will ensue to others, or has accrued to others, and will continue, a court of equity, upon the admitted or notorious character of the act from which the private injury is shown to proceed, and from the irreparable character of that injury, will interpose by injunction to relieve the party injured. Such is the principle ruled by Lord Eldon, in the case of the Attorney-General v. Cleaver, 18 Vesey, 211, which was upon an information by private persons for private injury, though in the name of the attorney-general; and by the same judge in the case of Crowder v. Tinkler, in the *60919 Vesey, 616; Such, also, I understand to be'the rule laid, down by this court, in the case of the city of Georgetown v. The Alexandria Canal Company. These cases all proceed upon the grounds of the ascertained character of the. act complained of on the one hand, and of the private and irreparable nature of the injury shown on the other. This is as far, it is believed, as-the courts of equity have ever proceeded. They have never said, that where the act complained of was dubious in its character, as being a nuisance, or ’ otherwise, and where that fact was a matter of contestation, they would assume .jurisdiction a priori, or-without' sending the question of nuisance to be tried at law, but have ruled the reverse of this; and in the cases just quoted from Vesey, Lord Eldon' declared that he would not decide those cases until the equivocal -or contested fact was settled at law. Again, it is ruled in the cases above quoted, and . in many others which might be adduced, that although the courts of equity will, in order to prevent irreparable private injury, interpose by way of injunction, that where the abatement of a public nuisance is the purpose in view, as that is an offence against the government, the attorney-general must be a party to any proceeding for such a purpose. In -this case the act complained of, if a nuisance, is a public nuisance, and is so. denominated upon the record, and by the decision of the majority. Its character, however, as a nuisance ih any sense is denied; and much testimony has been taken by both parties upon this contested question. The interests of Pennsylvania, who stands here in the relation of a private suitor, and the alleged injury to her private interests, are the sole foundation on which she has sought here the abatement of what she has asserted to be a public nuisance. And without the participation of any representative of the sovereignty either of the State or the federal government’, without the agency of the attorney-general of the State, or of the United States, without the reference to a jury of any of the contested facts of this case, this court, in the professed exercise of original equity jurisdiction,.upon affidavits, and upon the opinion of a single individual, who has been, by this court, constituted the arbiter of all questions of public policy, of law, of science, and of art, and of the competency and credibility of all the testimony in the case, have decided upon the act complained of with reference to its influence upon the rights and powers both- of the United States and of the local sovereignty; upon the rights and interests of the complainant in the matter in controversy,' and upon the extent of the injury, if any, done to those interests. They have, upon the same grounds, and in the like absence of the legal representative of either the State or federal sovereignity, directed a great public work, disapproved by neither of *610those sovereignties, and by one of them expressly authorized and approved, to be, in effect, demolished.
I do not deem it necessary,-if it were practicable, to examine here, in detail, the cumbrous mass of statement and speculation heaped together on this record. Such a task is not requisite in order to test the accuracy of the decision pronounced in this case, or to sustain the objections to which that decision is believed to be palpably obnoxious; both these objects appear to me to be attained by regarding the character of the case as described by the plaintiff herself, and the nature arid manner of the proceeding adopted by the court as a remedy for the case so presented. I will give, succinctly, however, the results to which, in my view, the court should have been led by thé facts of the case, and to which an industrious examination, at least, of the testimony, has conducted my mind. Before this, however, I must be permitted to point out a striking inconsistency between the alleged ground of jurisdiction in this cause, as set forth in the pleadings, and the conclusion to which the court has been carried, and the reasons they have assigned for their conclusion. It will be remembered, that the ground of jurisdiction insisted upon in this case, is the injury alleged to have been done to the State of Pennsylvania, as a private suitor — her peculiar interest alone and none other — for none other could give jurisdiction to this court under the Constitution; yet nothing is more obvious, than that the whole argument of the court is founded upon the injury inflicted by the bridge upon the owners of certain steam-packets, and upon the trade of Pittsburg. Calculations are gone into, at length, to show what number of passengers and what amount of freight are carried by' these particular packets ; how much they would lose by being deprived of,this business, or by being subjected to the inconvenience and cost of lowering their chimneys, and how muck the business of Pittsburg would be injured by- the obstruction complained of. Thus the true character of this causé is betrayed in the very argument and conclusions of the court. The name and alleged interests df Pennsylvania, as a private suitor, are used to draw to this court jurisdiction of this cause; but no sooner is that jurisdiction allowed in the name of Pennsylvania, than she, and any peculiar- or corporate interests she was said to possess, are, at once lost sight of, and-those of the steamboat owners, and the local interests of Pittsburg alone are enforced.
The results, above alluded to, are as follows: 1st. That the conflicting opinions of those who- have been called, as men of science, to testify in this cause, establish nothing conclusively, much less ascertain the theory contended for, that, for purposes *611of economy, of rapid combustion of fuel, or for the generation and escape of steam, an extraordinary height of chimney is necessary ; but leave- it doubtful whether the elongation of chimneys beyond á certain altitude is not calculated to retard the escape of heated air and smoke, and also.to eau'se inconvenience and danger to the boats that carry them. 2d. That, amongst the practical men, consisting, of those who have experience in constructing boats, and boilers, and^other steamboat machinery, and also in commanding steamboats on ■ the western rivers and elsewhere, the preponderance, for several reasons mentioned by them, is against the extraordinary height of chimneys. 3dl That the cost incident to such a construction of chimneys, (supposing this great altitude to be advantageous,) as .to admit pf their being lowered, and the" delay and hazard of lowering them, are subjects of minor import; have been greatly exaggerated in the statements of some of the witnesses, and should not be weighed in competition with an important public improvement, itself a valuable, and necessary commercial facility, and cannot convert such a work into a public nuisance, or, in any correct sense, an obstruction to navigation. 4th. That the commissioner erred in yielding to speculation and théory, rather than to practical knowledge and experience, and to, the statements of witnesses, in some instances, whose local position was calculated, though it may have been honestly and unconsciously, to influence their feelings and their judgments. With regard to the right of the plaintiff t"o ask the abatement of the Wheeling Bridge, as a nuisance, by any mode of proceeding, I will' here add another remark, which has in some degree been anticipated in preceding views in this opinion; and it is this: A nuisance, to exist at all, and emphatically a' public nuisance, must be an offence against the public, or more properly against the government or sovereignty within whose jurisdiction it is committed. In the case before us, that sovereignty and that jurisdiction reside either in the commonwealth of Virginia, or in the federal government. If in the former, she has expressly sanctioned the act complained of; consequently, no nuisance has been commit-; ted with respect to her. If the sovereignty and jurisdiction be in the United States, if is a limited and delegated sovereignty, to be exerted in the modes and to the extent which the delegating power has prescribed. There can be no other in the government of the United States, — none resulting from the principles of the common law, as inherent in an original and perfect sovereignty. There then can bé no nuisance with respeqt to the United States, except what .Congress shall, in the exercise of some constitutional power, declarer',to be such; and Congress have not declared an act like that here complained of to be a *612nuisance. Upon the whole case, then, believing that Pennsylvania cannot maintain this suit, as a party, by any just interpretation of the 2d section., of the 3d article of the Constitution, vesting this court.with original jurisdiction: Believing that the power which the majority of the court have assumed cannot, in this case, be correctly1- derived to them from the competency of Congress to regulate commerce between the several States: Believing that the question of nuisance or no nuisance is intrinsically a question of fact, which, when contested, ought to be. tried at law upon the circumstances of each case, and that, before the ascertainment of that fact, a court of equity cannot take cognizance either for enjoining or abating an act alleged, but not proven, to be nuisance: Seeing that the commonwealth of Virginia, within whose territory and jurisdiction the Wheeling Bridge has been erected, has authorized and approv'ed the erection of that bridge; and the United States, under the pretext of whose authority this suit has been instituted, have by no act of theirs forbidden its erection, and do not now claim to 'have it abated; — my opinion, upon the best lights.I have been able to bring to this case, is, that the bill of the complainant should be dismissed. From these convictions, and from the serse11 entertain of the almost incalculable importance of the decision of the majority of the court in this case, I find myself constrained solemnly to dissent from that decision.
Motion for another Reference.
On the above opinion being pronounced, and the two dissenting opinions, Mr. Johnson, of counsel for defendants, suggested to the court, that the engineer of the bridge had informed him that the obstruction, to the navigation of the Ohio might be avoided by- making a draw in the suspension-bridge, or in some other manner, far less expensive to the Bridge Company, and equally convenient to the public, than by elevating the bridge, as required in the opinion..
On this suggestion, the court .observed that, as they were desirous .of having the obstruction removed in a manner that shall be most convenient and least expensive to the Bridge Company, they requested the counsel to file, in writing, his suggestions, and give notice to the other side, that both jpartigs may be heard in regard to them.
In pursuance of the above suggestion from the court, the counsel for-the Bridge Company filed their suggestions in writing, • and an argument took place. Afterwards, Mr. Justice McLEAN delivered the following opinion of the court.
*613 Order of Reference.
In pursuance of the intimation of the court, the counsel for the defendants filed, in writing, five plans for'the removal of the obstruction to navigation occasioned by the bridge.
1. To elevate it, as required by the opinion of the court.
2. To remove the wooden bridge over the western channel of the river.
3. To remove the flooring of the suspension-bridge, so that the tallest chimneys may pass under the cables.
4. To construct a draw in the wooden bridge over the western channel.
5. To make a draw in the suspension-bridge.
It is objected by the complainant’s counsel that, after a case has been argued upon the evidence, and the opinion of the court pronounced, it is not within any known rules of chancery proceeding- to hear additional evidence, with the view of modifying, in any respect, the decree. That some of the plans now proposed were not embraced by the pleadings or evidence -in the case, and that the effect must be to open the case,for additional evidence and a new argument.'
The bill alleged the bridge to be an obstruction to the navigation of the Ohio, and prayed that it might be abated as a nuisance. • The answer denied that it was an obstruction to navigation.
The commissioner was directed to inquire,-“if an obstruction 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.”
In the opinion "of the court, the bridge is an obstruction to the navigation of the river, and they held that an elevation of it one hundred and eleven feet from .low-water mark, the width of three hundred feet across the channel of the river, would remove the obstruction. Except the elevation of the bridge, no mode was proposed by the commissioner, for the removal of the obstruction. His instructions limited him to a “change or alteration in the bridge,” which should effectuate that object. Several of' the plans now'proposed, were not within the scope of his inquiry,' and-of course were not embraced by-his report.
In giving relief, the court are not bound to abate the nuisance, as prayed for in the bill, nor to adopt the report of the commissioner, if the obstruction can be removed and the public right maintained with less expense to the bridge company. This is a matter within’the judgment of the court, and does- not necessarily constitute a part of the pleadings.
*614It is suggested that the elevation of the bridge, as required in the opinion of the' court, must result in its abatement, as the stocknolders have -not. the- pecuniary means of elevating'it. Whatever, may be the consequences to the stockholders, a great public right cannot be made 'subservient to their interests. Subject to that right, the court will regard and protect their interests.
• The second plan, which proposed to remove the bridge over the western channel of the river, we shall refer to the engineer who acted .under the commissioner, and who is familiar with all the facts, and having his surveys before him, can give promptly to the court the information they desire.
To remove the flooring of the bridge, as proposed in' the third plan, leaving the cables in their present position, seems to have no other practical result than the sale of the cables.
The third and fourth plans propose to construct a draw for the passage of boats, in the suspension or the western bridge.'
Draws aré Common in bridges across arms of the sea where the tide ebbs and flows, for the passage of sea vessels, and also in bridges over rivers with a sluggish current; but we entertain great doubts-whether a draw in either of the bridges, as proposed,' can be constructed so as to afford “ a convenient and .safe passage” for the steamboats that ply upon, the Ohio. Some of them are about two hundred and fifty feet long, and from fifty to sixty feet in width. The current in the Ohio, at high .water, is from five to six miles an hqur. A steamboat, to be under the command -ofthe helm, must have a pressure of steam, which, with the current, would give it a considerable velocity in passing the draw, and any deviation from the direct line'by.the wind, the eddies and. currents of the river, in high water, might throw the boat against the bridge on either side. This might be fatal to the boat and to the lives of its passengers; and the danger ■would be greatly increased by attempting to. pass the draw at night', especially when the weather is unfavorable to navigation.
Jonathan Knight, an engineer-called by. the defendants, before the commissioner, said, “my opinion is, decidedly, it would be better to pass under, (the bridge) by lowering chimneys, than to have a draw; that it would be less dangerous and take less time.” And he further-states, “where there is a. draw, the space is necessarily contracted, and it might strike on the one side or the other, or the wind might be adverse.”
The .report of the. commissioner contains a report of Charles Ellet, “ on' a railway suspension-bridge across the Connecticut (River)! at Middletown,” in which he says, “the flooring (ofthe bridge) is to be placed one hundred and forty feet above the river, and the navigation left entirely unobstructed.” And he recommends “ a high level to avoid ” “ the injury tó the public con*615sequent on delays at the draw.” In the sama.rfeport he observes, “ no party would now be so idle as to ask to place a draw-bridge across the Ohio or Mississippi; no law could be obtained for such an obstruction, and nothing is hazarded by the assertion that such a nuisance would be immediately overthrown,' if placed there under the color of any law. The .bridges that are established on those streams, must be placed high enough to clear the steamboats, and must leave the channel open.”
We shall direct the decree drawn up in pursuance of the opinion of the court, which affords to the stockholders of the bridge the alternative of elevating it, and thereby removing the obstruction to the navigation of the river, to be tiled but not recorded, until the engineer or the commissioner shall report upon the second, third, fourth, and fifth plans proposed bjt defendants? counsel. Notwithstanding the above intimations in regard to a draw, w.e are desirous of -having the report of a practical and scientific engineer on that subject, as well as in relation to the other plans.
It is therefore ordered, that the clerk of this court transmit to William J. MeAlpine, Esquire, a copy of this opinion, with a request that he make a report to this court, on or before the second Monday of May next,—
1st. Whether a draw can be constructed in the suspension-bridge, that shall afford a safe and convenient passage for the largest class of steamboats which ply to Pittsburg, having chimneys eighty feet high, at a depth of water thirty feet from the ground, and if such a draw be practicable, that he give a' particular description in what manner and of what dimensions it must be constructed.
2d. Whether such a draw may be constructed in the wooden bridge over the western channel of the river.
3d. Whether the removal of the western bridge will open an unobstructed channel for the packetg which now pass Wheeling, having chimneys eighty feet high, at all times when they shall not be able to pass under the suspension-bridge.
4th. Whether the removal of the flooring of the bridge, as proposed, will enable packets to pass having chimneys eighty feet high.
In obedience to this order of the court, Mr. MeAlpine filed the following report.
To the honorable Roger B. Taney, chief justice; John McLean, James M. Wayne, John Cation, John McKinley, Peter . V. Daniel, Samuel Nelson, Robert C. Grier, and Benjamin R. Curtis, associate justices of the Supreme Court of the United States.
In pursuance of the order of the Supreme Court of the Uni*616ted States, dated the first day of March, 1852, a copy of which has been furnished by the clerk of-the said court, dated the third day of March, 1852,. I, William j. McAlpine, do make the following report on the several matters directed in the said order, as follows:
1st. Whether a draw can be constructed in the suspension-bridge that shall afford, a safe and convenient passage for the largest class of.steamboats which ply to Pittsburg, having chimneys eighty feet high, at a depth of water thirty feet from the ground; and if such a draw be practicable, that he give a particular, description in what manner, and of what dimensions, it must be constructed.
2d.- Whether such a draw may be constructed, in the wooden bridge over the western channel of the river.
3d. Whether the removal of the western bridge will open an unobstructed channel for the packets which now pass Wheeling, having chimneys eighty feet high, at all. times, when they shall not be able to pass under the- suspension-bridge.
4th. Whether the removal of the flooring of the bridge, as proposed, will enable packets to' pass having chimneys eighty feet high.
The largest class of steamboats which ply to Pittsburg are the daily packets, which- are from fifty-four to fifty-eight feet in width, and from two hundred and fifteen’ to two hundred and sixty-four feet in length.
In a direct channel, with a moderate current, and in favorable .weather, a draw of one hundred feet.in width would, with skilful navigation,,be sufficient for the safe and convenient passage of such vessels.
In the high stages of water in the Ohio River at Wheeling, the velocity of the current is from five to six miles an hour. A steamboat, in passing, down the river, must have an additional velocity'to keep her under-the command of the helm,, so that she must pass the draw with a velocity of from, eight to ten miles per hour; and this speed would be less than the ordinary velocity of the vessel in other parts of the river.
In stormy weather, with the-wind blowing across .the current of the river, it would be difficult for a steamboat, of the size above stated, to pass without considerably more .allowance than would be provided for in a draw of one hundred feet in width.
At such times, the danger of passing the draw at night would be much increased, and it would be necessary to maintain lights on each side of the draw to guide the pilots in the proper direction to pass it.
•Under the ordinary circumstances of high water, a draw of at least one hundred and fifty feet in width would be necessary, *617and one of two hundred feet in width to pass at night with safety. ,
In dark, stormy nights, and with a rapid current in the river, the hazard of a passage would be so great that vessels would probably-be laid by, rather than risk the dangers of the passage of a draw of less than three hundred feet in width.
From the accompanying drawing of the present suspension-bridge at Wheeling, it will be seen that-a draw cannot be placed in the eastern end of the bridge which will give a clear passageway, beneath the cables, for steamboats having chimneys eighty feét high, at a depth of water thirty feet above the ground, of one hundred feet in width.-
At the'western end of the bridge, adjoining the western abutment, a draw may be placed, which will give a passage for such vessels in a thirty feet stage of water, of nearly ode hundred feet in width:
In reply,, therefore, to the first question of the court, I have to state, that a draw of sufficient width for the safe' and convenient passage of steamboats of the dimensions stated, cannot be constructed in the present bridge.
In a five feet stage of water, such a vessel would have a space of ninety-six feet in width, adjoining the eastern shore, to pass beneath the flooring of the present bridge,-and. in a six feet stage a width of one hundred and twelve feet.
At any stage of water higher than six feet, the width of passage would be reduced in consequence of the steep inclination of the eastern bank' of the river.
In a five feet stage of water, vessels drawing four feet would strike the bed- of the river on the western shore, at a point eight hundred and eighty feet from the face of the eastern abutfnent.
A steamboat with a chimney eighty feet high would, (allowing two feet for clearance,) on a five feet stage of water, in extremely warm weamer, dear the cable at a point six hundred and seventy-one feet from the face of the eastern abutment, which leaves a clear passage-way of two hundred and nine feet in width.
In a six feet stage. of water, the vessel, would strike the bed of the river at nine hundred feet, and the chimney would clear at six hundred and eighty-five feet;,which leaves a clear passage of two hundred and fifteen feet in width.
In a seven feet stage of water, the vessel would, strike the bed at nine hundred and eighteen feet, and the chimney would clear at six hundred and ninety-seven feet, leaving a passage-way of two. hundred and twenty-one feet in width.
In an eight feet stage of water, the vessel would strike the bed *618of the river at nine hundred and twenty-two feet, and the chimney would clear at seven hundred and nine feet, leaving a passage of two hundred and thirteen feet.
In a nine feet stage of water, the vessel, would strike the bed of the river at nine hundred and twenty-six feet, and the chimney would clear at seven hundred and nineteen feet, leaving a passage of two hundred and seven feet.
In a ten feet stage of water, the vessel would strike the bed of the river at nine hundred and thirty feet, and the chimney would clear at seven hundred and twenty-nine feet, leaving a passage of two hundred and one feet.
In an eleven feet stage of water, the vessel would strike the bed of the river at nine hundred and thirty-four feet, and the chimney would clear at seven hundred and thirty-nine feet, leaving a passage of one hundred and ninety-five feet.
In a twelve feet stage of water, the vessel would strike ..a bed of the river at nine hundred and thirty-eight feet, and the chimney would clear at seven hundred and forty-nine feet, leaving a passage of one hundred and eighty-nine feet.
In a thirteen feet stage of water, the vessel would strike .the bed of the fiver at nine hundred and forty-two feet, and the chimney would clear at seven hundred "and fifty-nine feet, leaving a passage of one hundred and eighty-three feet. .
■ From the accompanying chart, it will be seen that the shoal which makes into the river from the west shore above the bridge, would render it difficult for a vessel to enter the draw on a six feet stage of water, unless its eastern end were located at least three hundred feet from the'western abutment, and then the passage-way under t-he bridge, clear of the bottom of the river and cable, would be two hundred and fifteen feet in width.
It is necessary that the draw should be arranged for this stage of water, because a vessel could not then pass under the flooring of the eastern end of the bridge, with a sufficient width of clear space.
For each foot that the water rises, the passage-way is thrown about ten feet to the west, and its width is diminished about six feet.
In an eighteen feet stage of water, the chimney would clear the cables at a point seven hundred .and eighty-three feet from the face of the eastern abutment, which would leave a clear space of one hundred and ninety-three feet in width.
In a thirty feet stage, the chimney would clear at eight hundred and sixty-six' feet, leaving a space of one hundred and ten feet.
The draw would, therefore, require to be made at least three hundred feet long-, from the face of the western abutment, to *619allow the passage of steamboats of the dimensions stated, in the several stages of water, from six to thirty feet in depth.
It is, in my opinion, impracticable to construct so large a draw in a suspension-bridge, because from its flexible character, and.' the constant change of position of its cables, which would be caused by the movement of a mass of so great weight as the draw, it would not admit of the adaptation of machinery for' its movement.
A draw of this length might be constructed in the Wheeling Suspension-Bridge, by erecting a pier in the river at the eastern end of the draw, and carrying .the cables over the top of it, in the manner suggested by Colonel Long, in his testimony before the commissioner, and suspending the draw from a strong permanent bridge, elevated on the top of the new pier and abutment of the present bridge, similay to the tubular bridges recently constructed across the Conway and Menai straits, in Great Britain. The cost of constructing such a draw, arid of the necessary alterations of the bridge, would exceed the cost of elevating it to the height stated in the order of the court.
The inconvenience of the, approach to a . draw placed in this position,- and the. uncertainty of its successful operation and-maintenance under all circumstances of weather, exposed to winds, and with its machinery liable to be deranged by frost, or by the- accidental encounter with passing vessels, render the'utility of the plan, in my opinion, so doubtful, that any further detail of its arrangement is deemed unnecessary.
A draw can. be constructed in thé wooden bridge over the western channel' of the river, which will, under ordinary circumstances, offer a safe and convenient passage for the largest class of steamboats which ply to Pittsburg. This bridge consists of three spans, eách o’f two hundred feet in length. A drawing is herewith sent, which exhibits a plan of a draw placed in the centre span of the- bridge, which opens- a clear space of two hundred feet.
The plan of this draw is similar to one which has been constructed on the London and Brighton railroad, -which has a single draw, moving in one direction, of sixty-six feet in length.
The plan proposed for the Wheeling Bridge, is in two parts, opening in the centre,, and moving back on the floor of the pre-' sent bridge. Each draw will open one hundred feet, (being thirty-four feetmore than the single draw above mentioned,) and making the whole opening two hundred feet, equal to the space between the centre piers.
The plan proposed will require the removal of the roof, and the centre trusses of the end spans cf the present bridge, to allow the draws to move back on the floors. The draws to be *620timber; truss frames, each' two hundred feet long, the ends supported by timber suspenders from the top of a well-braced centre frame; the land ends of the draws to be loaded sufficiently to balance the projecting portion of the same. When the draws are closed, the ends are. to be' secured together with iron pins passing through iron straps, and the' land ends fastened to .the end s.pans of the permanent bridge in. a similar manner. When the bridge is thus closed and secured, it will form a perfect suspension-bridge of two hundred feet span.
The draws will be moved on wheels moving on iron rails, laid on the floor of the end spans, which will require to be strengthened by additional timbers. The trusses should also be strengthened with arch ribs and timbers to support the additional weight of the draws.
The draws to be moved by gearing placed in the piers, working into a rack on the underside of the draw-bridge frame; the gearings moved by a capstan placed on the side of the bridge over the piers. The capstan may be worked by man or horse power.
The floor of the draw will be two and a half feet above the floor of the permanent bridge, which may be overcome by a light platform attached to the end of the draw, that would move with the draw when opening or closing.
The cost of removing the centre span of the permanent bridge, strengthening the side or end spans, and constructing the draw-bridge, is estimated at thirty-three thousand and twenty-three dollars and sixty cents, ($33,023.60.)
It is proper that I should state that there would be some-difficulty experienced in the opening of this, or any other practicable draw, during very strong gales of wind, and at such times some delays would unavoidably occur in the passage of vessels.
The present bridge over the western channel would not admit of the construction of a draw of more than two hundred feet in width, without the expenditure of a sum nearly as great as that required for the construction of a new bridge.
A draw of three hundred feet in width may be constructed, either in the present bridge, or in a new bridge over the western channel, in the same manner as before stated, at the western end of the suspension-bridge.
The expense of the construction of such a draw would ex-, ceed the cost of elevating the' suspension-bridge to the height stated in the order of the court, and thére would be the same difficulties in operating and maintaining it as have béen before stated.
In my opinion, no draw can be constructed in either of the bridges at Wheeling, which would produce no delay, and pre*621sent no obstruction to the safe and convenient passage, at all times,, of the largest class of steamboats which' navigate the Ohio River at Wheeling.
In reply to the third question of the court, I have to state, that the removal of the western bridge will open an unobstructed channel for the packets which now pass Wheeling, when the water is six feet deep on the Wheeling bar.
' It .has been previously stated that steamboats, with chimneys eighty feet high, will have a passage-way uiider the flooring of the suspension-bridge of ninety-six feet in width in a five feet stage of water* and of one hundred and twelve feet in-a six feet stage. :
By removing the obstructions in .the western channel, which are now caused by a bar at the north end of Zane’s. Island, an unobstructed channel can be obtained for such vessels at all times when they cannot pass under the suspension-bridge.
A chart is herewith sent, which exhibits the obstructions Of the western channel. 1
• In reply to the fourth question of the court, it is proper to state, that from the preceding report it will be seen thakthe removal of the flooring of the suspension-bridge will enable packets to pass under the cables, having chimneys eighty feet high, the clear width of the passage being, .as before stated, from one hundred ten to two hundred and twenty-one feet in width, depending upon the stage of water in the river.
The naked cables would afford no guide to direct the passage of vessels to the point at which the chimneys would clear the cables on the one side, and not strike the bottom of the river on the other side.
■ It would bfe necessary to suspend lights on the cables during the night to indicate the passage.
In high stages of the water, and during the night, the passage of vessels of the size stated would be attended with difficulty and danger, in consequence of the narrowness of the space, and of its being out of the main channel of the river. Respectfully snbmitted, ■ "William J. McAlpine.
Albany, May 8,-1852.
This report was made the subject of another argument, in consequence of exceptions to it being filed by Mr. Campbell, the Attorney- GenerJ. of Pennsylvania, and Mr. Stanton, also of counsel for the complainant. The report of the case has already been extended to such an unusual length, that the reporter cannot find’ room to notice the arguments of the respective counsel upon the exceptions.
*622Mr. Justice. McLEANdelivered the opinion.of the court.
The plans lately proposed, through defendant’scounsel, to’obviate the obstructions to the navigation of the Ohio River, by reason of the Wheeling-Bridge, complained of by the plaintiff, having been referred to William J. McAlpine, Esquire, civil engineer, he reports —
That a draw cannot be made m the suspension-bridge which shall- afford a safe and convenient passage for the largest class of steamboats, which ply from Pittsburg, having chimneys -eighty feet high, on a depth of water thirty feet from the ground. And he reports that a draw can be constructed in the wooden bridge over the western channel of the river, which will, under ordinary circumstances, óffer a safe and convenient passage for such boats.
That bridge,' he .states, consists of three spans, each of.two hundred feet in length; and he proposes -that the draw shall be placed in the centre span of the bridge, which will open a clear space-of two hundred feet. He also reports, in answer to the third question of the court, “ that the removal of the Western Bridge will open an obstructed channel for the packets which now pass Wheeling, when the water is six féet deep on the Wheeling bar.”
On this report the parties have been heard.
The counsel for the defendants complain that no notice was given to them, of the late action of the engineer. A notice was unnecessary. The proposed plans were submitted by the defendants, and they were referred to the engineer, who acted under-the commissioner; and who, having made the surveys and reports, was in possession of" all the evidence necessary to give the required information to the court. He had only to look into his .own work for the data to make the additional report in regard to both'bridges and the two channels of the river, over which they have been constructed. His opinion as to a draw and the other matters referred to him, were strictly within the line of his profession. • No act done under the late reference was open for investigation by proof, or subject to be influenced by argument. The presence of the, parties by their counsel -was neither necessary nor desirable, and notice to the defendant was not, therefore, required to be given.
By the reference the court did not intend to make the opinion of the engineer the immediate basis of 'a final decree. They were desirous of ascertaining all the facts which could' have a bearing-iii the decision of the case. They were fully impressed with its high importance to the public and to the defendants.* And, whilst a high sense of duty required them to maintain the public right, they were solicitous, as expressed in their former opinion, to do so, with the least possible expense to the defendants.
*623' In their former opinion nothing was said, from which an inference could be drawn; that the right of crossing the Ohio River by bridges, was incompatible with its navigation. Had this bridge been constructed, in the language of its charter, so “ as not to obstruct the navigation of the .Ohio in the usual manner, by steamboats and other crafts, as are now commonly accustomed’ to navigate the same, when the fiver shall be as high as the highest floods hereinbefore known,” this suit could never have been instituted. The charter was granted in 1847, long after the great floods in 183.2, and in subsequent years.
The right of navigating the Ohio River, or any other river in our country, does not necessarily conflict with the right of bridging it. But these rights can only be maintained when they are so exercised as not to be incompatible with each other. It is in their improper exercise, and not in their nature, that any incompatibility exists.
We can derive but little instruction on this subject, from European experience and practice. The rivers on that continent are generally diminutive, and of no very great length.- They do not compare with the great rivers of the West. The bridges on the Rhine are numerous, and most,if not all.of them, have draws, through which boats are continually passing. But' their boats are small, with low and light chimneys, and some, if not many of the bridges, rest upon the surface of the water. A boat of two hundred and ninety-five feet in. length, as the Pittsburg, it is believed, is not to be found engaged in inland river navigation in Europe.
The report now before us, in its outlines, is not objected to by the defendants. On the contrary, they ask the court to sanction it, leaving open its details. In their former opinion, after stating the elevation which must be given to the suspension-bridge tó remove the obstruction, the court say, “ if this, or some other plan, shall not be adopted, which shall relieve the navigation from obstruction, on or before the first day of February next, the bridge must be abated.” It was supposed that some plan might be suggested to remove the obstruction, at less expense than the elevation or abatement of the bridge. The court had before them only the general plan for relief reported by the commissioner. Under such circumstances) they felt themselves bound to receive and refer the propositions submitted by the defendants’ counsel. The affirmative action on these propositions belong to the defendants; and also the eventual responsibility.
The court think that the report of the engineer, in its general aspect, without examining its details, affords such probability of success as to entitle the defendants to the proposed experi*624ment. We look to the desired results, and not to the practicability and efficiency of the plan. Of these the defendants must judge. They have the means of ascertaining, with the utmost accuracy, whether' a channel can be opened, in the western branch of the river, so as to afford a safe and an unobstructed navigation for the largest class of boats, having chimneys eighty feet high, when they cannot pass under the suspension-bridge. This is-the object desired, and any thing short of this would not be, satisfactory.
When the subject of a draw was first suggested to the court, it was' intimated that no draw was known which exceeded seventy feet in width, but it was supposed'that one of" eighty feet might be constructed. And the, court then said, “ we entertain great doubts whether a draw in either of the bridges, as proposed, can be constructed so as to afford a convenient passage for the steamboats that ply upon the. Ohio River.*’ A draw of two hundred feet in the clear is now proposed, and one less than that, would not answer the public demand.
The court will not now examine, whether there be not in the western channel other obstruetionsffhan the bridge. If such obstruction exist, of whatsoever' nature, they must be known to the defendants, and must be removed.
With these general remarks, the court will leave the defendants free in the matter, to act as their o\vn judgments shall dictate.
■ The elevation of the bridge, in pursuance of the report of the commissioner, was ordered by the court, as the best mode of removing the obstruction, suggested by- the evidence. The abatement of the nuisance was the most direct and ordinary mode for giving relief in' such cases. The alternative of elevating the bridge was adopted, from considerations connected with the interests of the defendants, and the'accommodation of thé public. The same views have influenced us, in relation to the proposition now before us. We do not sanction them farthef than to leave them to the defendants, to work out and secure, if they shall think proper, the required results, as stated in this opinion. The inconsiderable delay of two or three minutes in passing the draw, and running' the increased distance of the western channel,, does not constitute a material objection. From the statement made the increase of time would bo less than is ordinarily consumed in the landing or receiving a passenger at the shore.
The objection, .that the navigation of the eastern channel of the river has been improved by the government, and that the plaintiff has a right to its unobstructed, use, is admitted to have much force.
*625In the multitudinous concerns of- commerce, we must view things practically, and cannot deal in abstractions. It iá not always in the discretion of a'court to measure, justice by doing or requiring to be done, the exact<thing which would seem to be most appropriate. Cases may arise in which great interests are involved, that may have-had. their origin in wrongful acts., yfet connécted with circumstances which render it extremely difficult, if not impracticable, to' do the thing, or cause it to be done', which is most fit and proper. In such cases, as in ' the law of mechanics,' equivalents are of necessity substituted. And if the thing done be all that justice can require, it may suffice. Such, is not unfrequently the necessary action of á court of chancery.
If the western channel of the river shall be made to afford an. equally safe and unobstructed passage for boats, as- .the eastern channel, before, the structure of the 'suspension-bridge, excepting the mere passage of the draw, and the increased distance, no appreciable injury is done to commerce.
.The court will direct "the decree which has been filed, and which required the bridge to be elevated, as therein specified, on or béfore the first day of February next to be recorded, and that it shall stand as the order of- this court, unless before that time the western channel of the river shall be' made by the defendants, to afford an unobstructed passage to boats' of the largest class which ply to Pittsburg, agreeably to' this opinion ; and leave is given to either party to move the court in relation to this matter, on the first Monday of February next.
The costs-of this suit are ordered to be paid by the defendants.
Decree.
This cause having been heard in February last, and the opinion' of the court pronounced; on the suggestions of the defendants’ counsel-a reference on certain points was made to William'J. McAlpine, whose report having been made and arguments heard from the counsel on both sides ■ at the adjourned term, in May, 1852, the cause stands for a final decree, on the original bill, the amendments thereto, the answers of respondents, and replications to said answers ; and on the proofs in the cause, together with the. report of the commissioner appointed by this court to examine the premises, and on the exceptions to said report: — when it appeared —■ that the respondents, in the year 1849, had erected a suspension-bridge supported by iron-wire cables across that portion of the Rivér Ohio lying between 'the city of Wheeling and Zane!s Island, by virtue, of a charter granted by the commonwealth of Virginia, the span of said bridge being over one thousand.feet long; .and it also appeared that across the *626other channel of the river west of Zane’s Island, there is a truss-bridge so constructed as altogether to prevent the passage of steamboats through that channel, which bridge is qwned and maintained by the defendants. And it further appeared that the suspension-bridge over the channel of the river east of the island,, is so near the flow of the water in its ordinary stages, as seriously to hinder and obstruct the largest class of steamboats from passing and repassing under-said bridge, in going to and returning from the pdrt of Pittsburg, -in the State of Pennsylvania; that large and expensive public improvements made by, and the property of, that State, consisting of canals connecting railroads, turnpike-roads, and slack-water navigation in said State, constructed years before the said suspension-bridge was erected, all of which improvements terminate at Pittsburg, on the Ohio River, and extend throughout the State of Pennsylvania, to the east and-north, connecting the city of Philadelphia,'in said State, and Lake Erie with the River Ohio. That a large commerce for-several years has been and now is carried on over these public works of internal improvement, on which Pennsylvania levies reasonable, tolls to maintain said works, and to compensate her for their erection. That said bridge imposes serious obstructions to the largest class of vessels propelled by steam, and which bring freight and passengers from below said bridge, and which freight and passehgers are intended to pass east and north over the canals and railroads of Pennsylvania, or to be conveyed down the Ohio River, having been transported on the public works of Pennsylvania, a portion of which commerce hag been hindered and -prevented, and hereafter must ‘be hindered and prevented from passing over the public works of that State, because of obstructions to navigation interposed by said bridge. That the said Ohio River is a navigable stream, the navigation whereof by law is free to all citizens of the United States, arid ought to retaain unobstructed; and that the said suspension-bridge not only obstructs and hinders navigation on said river but by means of such'obstructions does occasion a special damage to the said State of Pennsylvania as aforesaid, for which there is not a plain and an adequaté remedy at law, but on the contrary thereof, such injury is irreparable by an action or. actions at common law.
It is, therefore, decreed and adjudged, that, said suspensionDridge is an .obstruction and nuisance, and that the complainant has a just and legal right to have the navigation of the said river made .free, either by the abatement or elevation of the bridge, so that it will cease to be an obstruction, in ordinary stages of high water, to the largest class of steam-vessels now navigating the Ohio River, and. which alteration is hereby declared *627to be an elevation of said suspension-bridge, to the height'of one hundfed and eleven' feet at least, in its Undermost parts, above' thp low-water mark, by the Wheeling gauge of the Ohio’s water; and that the height of said one hundred and eleven feet shall be maintained to the extent of three hundred feet' on a level headway over the channel of the said river. And that, from the respective ends of said headway, of three hundred feet, to the abutments - of each end' of the bridge,"'the descent shall not exceed at the rate of four feet fall to every hundred feet of ex-, tension on the line of the bridge; and that the same shall be removed by respondents, or altered, as above stated, on or before the first day of February, 1853.
. Since the above decree was drawn, certain propositions having been made by the defendants to open an unobstructed navigation for boats of the largest class, which ply to Pittsburg, through the western channel of the river, as is more particularly stated in the last opinion of the court in this case,, which may avoid the obstructions by reason of- the bridge complained of by the plaintiffs; and, as time has been given, to the first Monday of February next, for the defendants, should they .deem proper, to carry, out their propositions, by removing all obstructions in the western channel, on which day the plaintiff may move the court on the subject of the decree, and of the proposed alter-, ations in ■ the western channel, which, being before the court, Will enable them to act in the premises as the law and the equity of tho case may require.
The court order the costs to -be paid by defendants.
Mr. Chief Justice TANEY and Mr. Justice DANIEL dissented.Opinion of Mr. Justice Daniel and Mr. Chief Justice Taney.
When this case was .formerly before - us, my opinion was expressed at length -against , thé right of this court to take jurisdiction thereof. My opinion upon this question rerfiains unchanged ; but the court having taken jurisdiction, I do not conceive that my objection to 'the cognizance by the court of this controversy forbids my-concurrence in any modification of the deeree originally proposed in this case, calculated to relieve the defendants from .the operation of exactions, believed by me to'be unwarranted by law. I therefore concur iii. the proposed modification of the former decree, by which a draw is authorized in the bridgé over the western branch of the River Ohio. I-think, however, that the length prescribed by this court for tlie draw is greater than the public exigencies require, and *628that a draw of one hundred feet, at the utmost, would be ample to meet those exigencies. It is also my opinion, that the costs in this cause should-be equally borne by the parties.
Mr. Chief Justice TANEY also dissented, concurring in the opinion of Mr. Justice Daniel.