121 F. 810 | 6th Cir. | 1903
after making the foregoing statement of the case, delivered "the opinion of the court.
There is no averment that the city either caused or contributed to the creation of the obstruction in the river. If, therefore, it is liable to the libelant, it is because it was under .some positive duty to remove the submerged object when notice was received of its existence. The argument for libelant is that the river within the limits of the city is a “highway,” within the meaning of section 2640, Rev. St. Ohio 1892, defining the duties of Ohio municipalities. It is as follows:
“The council shall have the care, supervision and control of all public highways, streets, avenues, alleys, sidewalks, public grounds and bridges within the corporation, and shall cause the same to be kept open and in repair, and free from nuisance.”
That the river is a highway for the passage of vessels engaged in foreign and interstate commerce, as well as domestic traffic, is true; but that that part of the river Cuyahoga which happens to be within the corporate limits of the city of Cleveland is one of the highways in the sense that its streets and alleys and roads are so as to charge it with the duty of keeping it safe for navigation by removing ob>
“I think we should properly read into the statute the words ‘such as,’ after ‘highways’; the designations following being explanatory of the term ‘highway.’ ”
Neither do the other sections of the Ohio Revised Statutes, concerning the control of the shores and banks of lakes and rivers, and providing for the appointment of harbor masters for the purpose of regulating navigation within the city, impose the duty of regulating the depth of water or removing obstructions.
The river Cuyahoga is a navigable river, and, as such, is subject to the control of Congress, and to its regulations and general supervision. But the interest of the state in its own domestic commerce is such that the regulation of Congress is not necessarily exclusive of all control or authority by the state. It has therefore been held that legislation by the state for the purpose of aiding commerce by the improvement of such streams by providing for the deepening of the channel or the removal of obstructions does not encroach upon the power of Congress, if not in conflict with any system for their improvement provided by the Congress. County of Mobile v. Kimball, 102 U. S. 691, 26 L. Ed. 238. In the case .cited above, a law of Alabama which provided for the deepening of the harbor of Mobile at the expense of the county of Mobile was held valid; the court regarding the state as having authority to impose the duty of improving and caring for such a navigable body of water within the state upon one of its municipal corporations within whose limits the harbor lay. But this duty of providing for the safe navigation of rivers is a duty which rests upon the United States and upon the state. It is not a duty which can be enforced by an individual. It belongs, plainly, to the sphere of the governmental duties of imperfect obligation. The federal government or the state government may voluntarify assume it, or the latter may impose it upon one of its municipalities to the extent that such waters are within the municipal limits. That no such duty is imposed by common law is plain. In Seaman v. Mayor of New York, 80 N. Y. 239, 36 Am. Rep. 612, and Coonley v. City of Albany, 132 N. Y. 145, 30 N. E. 382, it was held that, while a river is a highway for the passage of vessels, that portion of it which happens to' be embraced within the boundaries of a city is not one of its highways, so as to burden it with the duty of removing obstructions and keeping it safe for navigation.
In Coonley v. City of Albany, 132 N. Y. 145, 151, 30 N. E. 382, 383, the court, speaking by Parker, J., said:
“It seems to be clear, however, that in order to charge the municipality with the duty and burden of improvements primarily existing in the general and state governments, which they can perform, or not, as the wisdom of ■Congress or the Legislature may suggest — a determination which could not be directed or interfered with by the courts at the instance of the complaining party — it must appear from the act alleged to contain the requirements that it was the intention of the Legislature to place upon the municipality the burden of doing all that the state should have done, and more than it •could be required to do.”
It follows from the view we have expressed that liability can only result from neglect of a duty plainly imposed, and that the mere voluntary acts of the city in removing obstructions from the river •created no obligation to continue such acts. Being voluntary, the city was free to desist when it saw fit, and no one has the right to maintain any action for failing to do- that which it was under no legal obligation to do. But it is said that, even if the city was under no legal obligation to keep the river clear of obstruction, the fact that the city had theretofore “exercised supervision and control over the said river at the place of disaster, and within its corporate limits, through its public works department,” created a liability to any one injured through its negligence in the execution of the supervision thus voluntarily assumed. In support of this, appellant cites Mayor v. Sheffield, 4 Wall. 189, 18 L. Ed. 416; Manchester v. Ericsson, 105 U. S. 347, 26 L. Ed. 1099; Sewell v. Cohoes, 75 N. Y. 45, 31 Am. Rep. 418; and other cases to same import. The cases cited are all cases in which it is held that if a public municipality treat a place as a street by laying it off as such, or by working upon it, or by doing other acts showing an intent to hold it out as a public street, it will not be permitted to deny liability to one injured by negligence in repair of such a place. Now, in the class of cases referred to, there was imposed by statute upon the city the power or the duty of opening and maintaining public streets. The liability to one injured by the failure to keep the street in repair arises at common law out of the breach of the duty so imposed. Cardington v. Fredericks’
Judgment affirmed.