by act of Parliament to construct a swing bridge across a navigable stream, and the act provided that it should not be lawful to keep the bridge closed so as to obstruct the navigation for a longer time than was sufficient to enable those ready to use the bridge to cross it, and for opening it to admit vessels, it was held that the company was liable in damages to the owner of a vessel detained by reason of a defective construction of the bridge, which prevented it being opened, and that the company was not relieved of the duty to preserve the navigation by the fact that it had employed a contractor to build the bridge in conformity with the provisions of the act. Where a way was authorized to be located across a tidal creek, by a statute of the State of Maine, which provided that it should be a bridge with a suitable draw, and subject to the approval of the harbor commissioners of Portland, a location which made no mention of a bridge or draw and was not approved by the harbor commissioners, was held to be unauthorized and void.2

§ 135. Statutes providing for the erection of drawbridges, or of dams with shutes or locks, over navigable waters, are construed strictly, like all public grants, and in favor of the pre-existing right of navigation. If the act provides for a

150; State v. Dibble, 4 Jones (N. C.) 107, 115; State v. Parrott, 71 N. C. 311; Healy v. Joliet Railroad Co., 2 Brad. (Ill.) 435; Hickok v. Hine, 23 Ohio St. 523; Hogg v. Zanesville Canal Co., 5 Ohio, 410; State v. Bell, 5 Porter, 365; Newark Plank Road Co. v. Elmer, 1 Stock. 790. See White v. King, 5 Leigh, 726; Ottawa v. People, 48 Ill. 233; Korah v. Ottawa, 32 Ill. 121; Harlem v. Emmert, 41 Ill. 319; Van Wagenen . Newark Plank Road Co., 1 Stock. 754; 4 Hal. Ch. 586; Allen v. Monmouth Co., 2 Beas. 68; Attorney General v. New York Railroad Co., 9 C. E. Green, 59. If the location of a bridge over a navigable stream be changed without authority, it becomes a public nuisance. Allen v. Monmouth, 2 Beas. 68, 73.

1 Hole v. Sittingbourne Railway Co., 6 H. & N. 488; Wiggins v. Boddington, 3 C. & P. 544; Attorney General v. Mid Kent Railway Co., L. R. 3 Ch. 100; Attorney General v. Furness Railway Co., 38 L. T. N. s. 555. See Terre Haute Drawbridge Co. v. Halliday, 4 Ind. 36; Patterson v. Proprietors, 40 Maine, 404; Cuff r. Newark Railroad Co., 6 Vroom, 17, 574; Jones v. Chantry, 1 Hun, 613; 4 Sup. Ct. 63; Davis v. Jenkins, 5 Jones (N. C.) 290.

draw but does not designate its size, it will not be held that the legislature intended the draw to be insufficient for the convenience of the navigation. One who is authorized to erect a bridge over navigable water, with a draw not less than fifteen feet wide, is not required to make the draw wider than fifteen feet, although vessels of a greater breadth have been accustomed to sail in such water.2 But under an

act of incorporation authorizing the building of a bridge across a navigable river, "with two suitable draws which shall be at least thirty feet wide," the company is bound not only to make the draws sufficiently wide to accommodate navigation at the time of their construction, but, if rendered necessary by an increase in the size of vessels, or a difference in their mode of construction, or from any other cause, to so enlarge the draws from time to time as to permit the passage of any vessels having occasion to pass the bridge.3 So a provision in an act authorizing a dam across a navigable

531; State v. Godfrey, 12 Maine, 361; Mason v. Boom Co., 3 Wall. Jr. 252; Newark Plank Road Co. v. Elmer, 9 N. J. Eq. 754; Dugan v. Bridge Co., 27 Penn. St. 303; Selman v. Wolfe, 27 Texas, 68; Minturn r. Lisle, 4 Cal. 181; Barnes v. Racine, 4 Wis 454; United States v. New Bedford Bridge, 1 Wood. & M. 401; Healy v. Joliet Railroad Co., 2 Brad. (Ill.) 435; Nelson v. St. Croix Boom Co., 52 Wis 647. Power given to a railroad company to construct the road "along" a river will not be extended by implication to authorize its construction in or upon the river, or below high-water mark of tide water. Stevens v. Erie Railway Co., 21 N. J. Eq. 259; Stevens v. Paterson R. Co., 34 N. J. L. 532. See Abraham v. Great Northern Railway Co., 16 Q. B. 586; Van Wagenen v. Newark Plank Road Co., 4 Hal. Ch. 586; 1 Stock. 754; Attorney General v. Stevens, Sax. 570. So authority to construct a boom along the banks or across a branch of a river does not give the right to maintain booms across the

entire river. Stevens Point Boom Co. r. Reilly, 46 Wis. 237; 44 Wis. 295; Plummer v. Penobscot Lumber Association, 67 Maine, 363.

1 Baltimore v. Stoll, 5 Md. 435.

2 Commonwealth v. Breed, 4 Pick. 460. A corporation empowered by the legislature to maintain a mill-dam on their own land" across the head of a harbor, with flood-gates thereto at least fifteen feet wide, so as to admit the passage of gondolas and boats at high water, may erect the dam below high-water mark at the head of the harbor, and across a part of the channel where the tide ebbs and flows; and the words "on their own land" merely exclude the inference that the lands of others may be taken. Parker v. Cutler Mill-dam Co., 20 Maine, 353.

3 Commonwealth v. New Bedford Bridge, 2 Gray, 339, 352; Dugan . Bridge Co., 27 Penn. St. 303. See New Haven Toll Bridge Co. v. Bunnell, 4 Conn. 54; Middlesex Railroad Co. v. Wakefield, 103 Mass. 261; Dow v. Wakefield, Id. 267.

river, which required "a good and sufficient slide, that will admit the passage of all such rafts as may navigate said river," was construed as referring to such rafts as might navigate the river after its condition was improved by the dam.1 Where the charter of a railroad company authorized it to bridge a navigable stream, provided that the navigation of the stream should not be thereby obstructed, a temporary obstruction, caused by the necessary framework and scaffolding used in erecting the bridge, was held to be an obstruction within the meaning of the proviso, for which the company was liable to any person injured thereby.2 A charter granted to a bridge company, requiring a "convenient draw" in the bridge, is violated if the draw cannot be passed without danger or vexatious delay. A charter which authorizes the building of a dam across a navigable channel, with the proviso that it be "so constructed as to leave the channel of the river as safe and convenient for the descent of rafts as it now is," has been construed to mean the least obstruction of navigation consistent with the uses of the dam for the purpose contemplated by the charter. Where the draw of a bridge across navigable waters is required to be of a certain width, the measurement cannot be made along the line of the bridge if it is built diagonally across the river.5 If a statute authorizes the erection of a bridge with piers, in such manner as not "to injure, stop, or interrupt the navigation," but does not fix the number and location of the piers, the State may complain if the piers are so injudiciously located as to obstruct

1 Volk v. Eldred, 23 Wis. 410. This was an action for injuries to a raft caused by obstructions at a dam. It was held no defence that the raft could not have navigated the river at all before the dam was built.

2 Memphis & Ohio Railroad Co. v. Hicks, 5 Sneed, 427. So, of repairs. Lister v. Newark Plank Road Co., 36 N. J. Eq. 477.

Jolly v. Terre Haute Drawbridge Co., 6 McLean, 237; Attorney General v. New York Railroad Co., 9 C. E. Green, 49; Proprietors v. Hoboken Land Co., 2 Beas. 504; New Haven

Toll Bridge Co. v. Bunnell, 4 Conn. 58. A city which is required by statute to maintain a bridge as a public highway, is not liable for the detention of a vessel caused by the draw of the bridge not being of the prescribed width, or by the neglect of the superintendent of the bridge, unless such liability is expressly created by statute. French v. Boston, 129 Mass. 592.

4 Whitaker v. Delaware Canal Co., 87 Penn. St. 34.

5 Missouri River Packet Co. v. Hannibal Railroad Co., 1 McCrary, 281.

the navigation, but the owner of a vessel which is injured thereby, although entitled to recover damages for a wanton abuse or negligent exercise of the discretion thus confided to the builders of the bridge, cannot maintain an action for a mere error of judgment in locating the piers. In general, the erection of a bridge over navigable waters, with or without a draw, by authority of the legislature, is a regulation of a public right, and not the deprivation of any private right, which can be a ground for damages to individuals.2

§ 136. Corporate charters, so far as they contain unqualified grants, are contracts which the State cannot constitutionally impair, alter, or repeal; and it is incompetent for the legislature, having once empowered persons or corporations to maintain a bridge which necessarily causes an obstruction to the navigation, to amend the act by making such persons or corporations liable for the obstruction.3 Even where a charter reserved to the legislature the right. of modification after the corporators should be repaid their expenses in building the bridge, an amendment before such payment, requiring the construction of a draw fifty feet wide,

1 Monongahela Bridge Co. v. Kirk, 46 Penn. St. 112; Flanagan . Philadelphia, 42 Penn. St. 219; Clarke v. Birmingham Bridge Co., 41 Penn. St. 147; Dugan v. Monongahela Bridge Co., 27 Penn. St. 303; 1 Pitts. 404; Coon . Monongahela Navigation Co., 6 Penn. St. 382; Board of Wardens v. Philadelphia, 43 Penn. St. 209; Bacon r. Arthur, 4 Watts, 437; Plummer v. Alexander, 2 Jones, 81; Chestnut Hill Turnpike Co. v. Rutter, 4 S. & R. 4; Henry v. Bridge Co., 8 Watts & S. 27; Delaware Canal Co. v. Torrey, 33 Penn. St. 150; Stephens Transportation Co. v. Central Railroad Co., 34 N. J. L. 280; 33 Id. 229; Attorney General v. New York Railroad Co., 24 N. J. Eq. 49; Attorney General v. Hudson River Railroad Co., 1 Stock. 526; Sewall's Falls Bridge v. Fisk, 23 N. H. 171; Turnpike Road Co. v. Campbell, 44 Cal. 89.

2 Ibid.; Davidson v. Boston Railroad, 3 Cush. 91, 106; Blackwell v. Old Colony Railroad, 122 Mass. 1; Thayer v. New Bedford Railroad, 125 Mass. 253; Ely v. Rochester, 26 Barb. 133; Sugar Refining Co. v. Jersey City, 26 N. J. Eq. 247; Pound v. Turck, 95 U. S. 459; Kearns v. Cordwainers' Co., 6 C. B. N. s. 388.

3 Bailey v. Philadelphia Railroad Co., 4 Harr. (Del.) 389; Commonwealth. Pennsylvania Canal Co., 66 Penn. St. 41; Angell & Ames on Corporations, §§ 31, 767; Enfield Toll Bridge Co. v. Connecticut River Co., 7 Conn. 48; Derby Turnpike Co. v. Parks, 10 Conn. 541; Hartford Bridge Co. v. East Hartford, 16 Conn. 173; Enfield Toll Bridge Co. v. Hartford Railroad Co., 17 Conn. 55; Bronson v. Taylor, 33 Conn. 116.

in place of one thirty-two feet wide, was held to be unconstitutional and void. If the legislature authorizes a dam or other obstruction to be erected across a navigable stream situated within the State, the person erecting the structure under such authority is not subject to a prosecution for maintaining a public nuisance, nor can the obstruction be abated as such by reason of the fact that the health of the neighborhood is thereby impaired, or that other injuries, not involving the direct appropriation of property, result to persons residing in the vicinity.2 Nor does the fact that a bridge or dam, which is built with draws or locks in strict compliance with its charter, becomes at a subsequent period impassable to vessels, from causes not attributable to the proprietor, such as low water, or sand-bars across the channel, or fallen trees or wrecks, -render the proprietor liable, at least before there has been time to repair, for the loss of the navigation or injuries sustained from these causes, in the space to which he has limited the navigation. If the legislature authorizes a dam across a navigable river, with the proviso that it shall be so constructed as not to substantially obstruct the navigation, an injunction will not be granted by the courts, in advance of the construction of the dam, on the ground that the proposed structure must necessarily obstruct the navigation. As against the riparian owners, a charter which authorizes the erection of a toll

1 Washington Bridge Co. v. State, stagnant and noisome pools on the 18 Conn. 53.

2 Neaderhauser v. State, 28 Ind. 257; Depew v. Board of Trustees, 5 Ind. 8; Butler v. State, 6 Ind. 165; Stoughton v. State, 5 Wis. 291; Barnes v. Racine, 4 Wis. 494; Harris v. Thompson, 9 Barb. 350; People v. Law, 34 Barb. 514; Williams v. New York Central Railroad Co., 18 Barb. 222; Clark v. Syracuse, 13 Barb. 32. A public improvement, like a canal, erected under authority from the State, is not a public or private nuisance, because it renders the neighborhood unhealthy, except where the water is permitted to escape and form

adjoining lands. Commonwealth v.
Reed, 34 Penn. St. 275; Delaware
Canal Co. v. Commonwealth, 60 Penn.
St. 367; Steele v. Western Inland
Lock Navigation, 2 Johns. 283.

3 Board of Commissioners v. Pidge, 5 Ind. 13; Pennsylvania v. Wheeling Bridge Co., 13 How. 625; Roush r. Walter, 10 Watts, 86; Plumer Alexander, 12 Penn. St. 81.

4 Wisconsin v. Eau Claire, 40 Wis. 533; Attorney General v. Eau Claire, 37 Wis. 400; Woodman v. Kilbourn Manuf. Co., 1 Abb. (U. S.) 158; United States v. Ruggles, 5 Blatch. 35.