18 F. Cas. 1026 | U.S. Circuit Court for the District of Ohio | 1843
OPINION OF
This is an application for an injunction to prevent the construction of a draw-briuge over the Cuya-hoga river, by the defendants, on the ground that it will obstruct the navigation of the river, and will be injurious to the real property of the complainant in the vicinity of the bridge. This application is made under the fourth article of the compact in the ordinance of 1787, which declares, “that the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of said territory as to the citizens of the United States, and those of any other states, that may be admitted into the confederacy, without any tax, impost or duty therefor.”
As this provision of the ordinance was somewhat elaborately considered, in the case of Spooner v. McConnell [Case No. 13,245],
A state, by virtue of its sovereignty may exercise certain rights over its navigable waters, subject, however, to the paramount power in congress to regulate commerce among the several states. These powers are not concurrent, but are separate, and independent of each other. And in regard to the exercise of this power by a state, there is no ether limit than the boundaries of the federal power. It would be difficult to maintain the power in any state, to obstruct any of its navigable waters which extend through other states, or are connected with the sea, or with waters falling into the sea. And it might be more curious than useful to inquire in what the powers of the states generally differ, in this respect, from the powers of the states bound by the ordinance.
A toll charged for the improvement of the navigation of a river, is not within the ordinance. In such a case the tax would not be, for the use of the river in its natural state, but for the increased commercial facilities. A drawbridge 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 draw; and as such a work may be very important in a 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 on the federal powers, or violate the limitations in the ordinance.
In the argument, the defendants’ counsel insist that the Cuyahoga river being within “that territory called the Western Reserve of Connecticut, and which was excepted by the state of Connecticut, out of the cession made by it to the United States, In 17SC, is not subject to the ordinance. That neither the right of soil or jurisdiction in the reserve was ever vested in the United States, until the deed of cession by Connecticut to the United States, which was long after the date of the ordinance.” That this reserve was, to some extent, subject to the legislation of Connecticut, for several years after the date of the ordinance, is admitted. But, when this territory and the jurisdiction over it were ceded to the United States, it became subject to the ordinance, the same as every other part of the northwestern territory. Rights acquired under the former laws are governed by those laws. But on its cession to the Union, all the laws of the territory, and especially its fundamental law, became the law of the reserve. By consenting to come under the jurisdiction of the federal government, they became parties to the articles of compact contained in the ordinance.
The injunction is refused.