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.1 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 v. 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 v. Monongahela Navigation Co., 6 Penn. St. 382; Board of Wardens v. Philadelphia, 43 Penn. St. 209; Bacon v. 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 e. 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.1 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 v. Walter, 10 Watts, 86; Plumer Alexander, 12 Penn. St. 81.

v.

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.

bridge across a river, does not authorize taking the land of such owners at the side of the bridge for the purpose of a toll-house; and in the land which is covered by the bridge it creates only an easement.1 An act of the legislature, giving an unqualified authority to construct a bridge or dam across a stream, is a justification only with respect to public interests. It gives, by implication, authority to appropriate, without compensation, such portion as is necessary for the purpose of the lands belonging to the State, under water.2 But it affords no protection for a private injury, such as the overflow of lands belonging to the riparian owners, or the building of piers and abutments on lands under water belonging to individuals, without payment or tender of compensation. If one railroad corporation constructs its road across the track of another railroad' corporation, the latter is entitled to damages, although its track is laid upon piles over tide water.5

§ 137. It is not necessary for the legislature to give a special and direct sanction to the erection or continuance of every bridge across navigable water, but such authority may

1 Thompson v. Androscoggin Bridge, Co., 16 Conn. 103; Crittenden v. Wil5 Greenl. 62.

2 Pennsylvania Railroad Co. v. New York Railroad Co., 23 N. J. Eq. 157; Attorney General Hudson Tunnel Co., 27 N. J. Eq. 176, 573; Stevens v. Paterson Railroad Co., 34 N. J. L. 532. See Commonwealth v. Boston & Maine Rallroad, 3 Cush. 25.

3 Trenton Water Power Co. v. Raff, 7 Vroom, 335; Delaware Canal Co. v. Lee, 22 N. J. L. 243; Sinnickson v. Johnson, 17 N. J. L. 129; Ten Eyck v. Delaware Canal Co., 18 N. J. L. 200; Brown v. Cayuga Railroad Co., 12 N. Y. 486; Cott v. Lewiston Railroad Co., 36 N. Y. 214; Turner v. Blodgett, 5 Met. 210; Cogswell . Essex Mill Co., 6 Pick. 94; Thatcher v. Dartmouth Bridge, 18 Pick. 501; Eastman v. Amoskeag Manf. Co., 44 N. H. 143; Hooker v. New Haven Co., 14 Conn. 147; Denslow v. New Haven

son, 5 Cowen, 165; Gardner v. Newburgh, 2 Johns. Ch. 162; Baltimore Railroad Co. v. Reaney, 42 Md. 117; Thien v. Voegtlander, 3 Wis. 461. See Dodd v. Williams, 3 Mo. App. 278.

4 Morris Canal Co. v. Jersey City, 26 N. J. Eq. 294; Gunter v. Geary, 1 Cal. 462; State v. Glenn, 7 Jones (N. C.) 321; Cornelius v. Glenn, Id. 512. The owner may maintain trespass quare clausum for an unlawful invasion of land covered by water. Ibid. Smith v. Ingraham, 7 Ired. (N. C.) 175; Champlain Railroad Co. v. Valentine, 19 Barb. 484; People v. Mauran, 5 Denio, 389; Walker v. Shepardson, 4 Wis. 486.

5 Grand Junction Railroad Co. v. Middlesex Commissioners, 14 Gray, 553; Fitchburg Railroad v. Boston & Maine Railroad, 3 Cush. 58.

be granted by implication. An act, for example, which authorizes a town to purchase and maintain an existing bridge over a navigable stream, is a legislative recognition of the legality of the bridge, and of the right of the town to maintain it. If the charter of a railroad corporation contains a general authority to erect bridges and all other works necessary for the construction of the road, it includes, by implication, the power to bridge a navigable river on the route of such road. The same is true of an unrestricted grant of authority to construct a railroad from one designated point to another, when the road cannot be reasonably constructed without crossing a navigable stream.1

§ 138. It is competent for the State legislature to establish wharf or harbor lines, and to empower commissioners to license wharves and piers extending to such lines.5 Such statutes do not conflict with the commercial power of Congress, so long as the latter remains unexercised; they do not impair the right to maintain wharves lawfully erected before their passage, nor are they unconstitutional, as appropriating private property to public uses without compensation, even in those States in which the shores of tide waters to lowwater mark are the private property of the riparian owners.8

1 Fall River Iron Works v. Old Colony Railroad, 5 Allen, 221; Boston Water Power Co. v. Boston Railroad, 23 Pick. 360.

2 Castello v. Landwehr, 28 Wis. 522; Saugatuck Bridge Co. v. Westport, 39 Conn. 337.

3 Attorney General v. Stevens, Sax. (N. J.) 370; Union Pacific Railroad Co. v. Hall, 91 U. S. 343, 350; People v. Saratoga Railroad Co., 15 Wend. 130; Mohawk Bridge Co. v. Utica Railroad Co., 6 Paige, 554; Springfield v. Connecticut River Railroad Co., 4 Cush. 63; Miller v. Prairie du Chien Railway Co., 34 Wis. 533.

7 Commonwealth v. Alger, 7 Cush. 53; Garey v. Ellis, 1 Cush. 306; Attorney General v. Boston & Lowell Railroad Co., 118 Mass. 345. See Yates v. Milwaukee, 10 Wall. 497; Martin v. Evansville, 32 Ind. 85; Martin v. O'Brien, 34 Miss. 21.

8 Commonwealth v. Alger, 7 Cush. 53; Garey v. Ellis, 1 Cush. 306; State v. Sargent, 45 Conn. 358. But see Walker v. Shepardson, 4 Wis. 486. A city authorized by the legislature to establish dock and wharf lines in a river, and to prevent obstructions to the navigation thereof, cannot by ordinance declare a private wharf a

4 Fall River Iron Works v. Old nuisance and order its abatement as

Colony Railroad, 5 Allen, 221.

5 State v. Sargent, 45 Conn. 358. 6 Savannah v. State, 4 Ga. 26.

obstructing the navigation, if in fact it is not a nuisance. Yates v. Milwaukee, 10 Wall. 497.

2

The mere establishment of a harbor line is not an abandonment of the title of the State to the tide waters within the line. The statutes of some of the States establishing these lines restrain the littoral proprietors from extending wharves beyond high-water mark without the authority of the legislature, or a license from the harbor commissioners, while those of other States expressly grant the privilege to occupy and fill out to the prescribed limits,3 — a privilege which has been held to accrue to the ownership of the upland, however such ownership has been acquired, but not to divest the title of the State to the space within the lines, until it has been actually occupied or filled. The case of levees located upon the margin of a river, or as near the river as is practicable for the purpose of reclaiming the adjoining lands, is governed

1 Weber v. Harbor Commissioners, 18 Wall. 57; Aborn v. Smith, 12 R. I. 370; Engs v. Peckham, 11 R. I. 210; Hardy v. McCullough, 23 Gratt. 251; Wetmore v. Brooklyn Gaslight Co., 42 N. Y. 384; Attorney General v. Hudson Tunnel Co., 27 N. J. Eq. 176, 573; Wilson v. Ingloes, 11 Gill & J. 351; Boston Steamboat Co. r. Munson, 117 Mass. 34; Yates v. Judd, 18 Wis. 118; People v. Broadway Wharf Co., 31 Cal. 33; Dana v. Jackson Street Wharf Co., 31 Cal. 118; Kisling v. Johnson, 13 Cal. 56; Guy v. Harmance, 5 Cal. 73; Eldridge v. Cowell, 4 Cal. 80; Stone v. Elkins, 24 Cal. 127; Holladay v. Frisbie, 15 Cal. 630; Knight v. Haight, 51 Cal. 169.

2 Commonwealth r. Alger, 7 Cush. 53; Attorney General v. Woods, 108 Mass. 436; Attorney General v. Boston & Lowell Railroad Co., 118 Mass. 345; Attorney General v. Cambridge, 119 Mass. 518; Weber v. Harbor Commissioners, 18 Wall. 57. If harbor commissioners, in letting a contract for the construction of a wharf, do not comply with the provisions of the statute from which their authority is derived, the contract is void. Cowell v. Martin, 43 Cal. 665; People v. San

Francisco Railroad Co., 35 Cal. 606;
People v. Klumpke, 41 Cal. 263.

3 Bailey v. Burges, 11 R. I. 330; Engs v. Peckham, 11 R. I. 210; Manchester v. Hudson, cited 11 R. I. 224; Providence Steam Engine Co. v. Providence Steamship Co., 12 R. I. 348; Aborn v. Smith, 12 R. I. 370; 11 R. I. 594; Clark v. Peckham, 9 R. I. 455, 473; 10 R. I: 35; Simmons v. Mumford, 2 R. I. 172. See People v. New York Ferry Co., 68 N. Y. 71; In re City of Brooklyn, 73 N. Y. 179; People v. Vanderbilt, 26 N. Y. 287; Hart v. Albany, 9 Wend. 571; Hecker v. New York Balance Dock Co., 24 Barb. 215; Bay City Gaslight Co. v. Industrial Works, 28 Mich. 182, 184; Winpenny v. Philadelphia, 65 Penn. St. 135; Norfolk City v. Cooke, 29 Gratt. 430.

4 Aborn v. Smith, 12 R. I. 370; Engs v. Peckham, 11 R. I. 210. Under the New York statute of 1848, the owners of lands on the East River have not only the right to construct bulkheads and wharves to the water line established in 1836, but also title to the land under water to that line. Wetmore v. Atlantic White Lead Co., 37 Barb. 70; People v. Kelley, 38 Barb. 269; 14 Abb. Pr. 372.