Lead Opinion
announced that the court had passed the following interlocutory order.
The court having heard the counsel bn the part of the complainant, and also on the part of the respondents, on ,the motion for an injunction in this cause to remove the obstruction of the navigation of the Ohio River, as charged in the original, amended, and supplemental bills of the complainant, by means of the erection of the suspension bridge in said bills mentioned, and which said obstruction is denied in the answers put in thereto by the respondents; and on due deliberation being had thereon,
1. Upon the question, whether or not the' bridge aforesaid, mentioned in the pleadings aforesaid, is or is not an obstruction of the free navigation of the said Ohio River at the place where it is erected across the same, by vessels propelled by steam or sails, engaged, or which may be engaged, in the commerce or navigation of said riv,er; and if an obstruction,^as aforesaid, shall 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 by the vessels aforesaid, engaged in the commerce and navigation of said river as aforesaid; .and,
2. That the said commissioner shall report to this court by the-first day of the next stated term thereof, upon the "questions hereby referred to him, together with the proofs which shall ,have been produced before him by the respective parties. And that all other questions in the-said cause shall be reserved' until the coming in of the said report of the commissioner, and the further hearing of counsel upon the matters therein; and,
3. That the said commissioner shall have the power, if deemed necessary by him in the course of the hearing of the said cause, to appoint a competent engineer, whose duty it shall be to take the measurement of said bridge, its appendages and appurtenances and localities in connection therewith, under the direction and instructions' of -said commissioner, and tp make a report to him on the same, which report shall be annexed to the report of the said commissioner to this court.
The said commissioner is hereby authorized to appoint a clerk to assist him in the execution of this commission.
The compensation to be allowed to the said commissioner for his time and services, for his clerk.and engineer that may be appointed, and all other necessary expenses by him incurred in said commission, upon the coming in of the report of the commissioner, will be ascertained and fixed and' awarded against the parties, as the court may -deem right and prdper, .upon the principles of-equity and justice.
The clerk will send a certified copy of this order to the commissioner.
Dissenting Opinion
To this order
dissents. It is his opinion, that the case is not presented to this court between such parties in interest as can give jurisdiction to this court. The only legitimate. ground of jurisdiction in this case, under the Constitution, would be the fact of such a direct interest or right on the part of Pennsylvania as a State as would authorize her to become a party in this controversy. The interest of the State of Pennsylvania in this case, if indeed any such is shown, is that which she may have in the competition which may or which does exist between works of public improvement ’erected by herself, and rival works erected by other States within their own territory. No direct interest on the part of the State of Pennsylvania is shown in the vessels or steamboats which navigate the rivers Ohio and Mississippi, nor in any question connected with the rights of that State separate and apart from the individual interests of the owners of steamboats, or other private citizens of the State of Pennsylvania. Again, the. question of nuisance or. ho nuisance is one proper for the cognizance of a court of law, to be determined by a jury upon the testimony of witnesses confronted and cross-examined before a jury in open court, and under its supervision. In this view of the question, it would seem to be irregular to determine it upon affidavits and by a court of equity, and without the interposition of a'jury, and in the absence of the witnesses. The • order now made in. this cause seeming to lead to the latter mode of settling the question of nuisance, it is therefore hereby formally objected' to.