105 Tenn. 552 | Tenn. | 1900
The defendant in error was the owner of a steamboat built for the purpose of and used by him in plying the ITiwassee river when there was sufficient depth of water.
In his declaration filed in this cause it is averred that plaintiff in error maintained a. bridge over this stream so low as greatly to interfere with its navigation, and that by reason of such improper construction his seamboat wras “wrong
The railway company first demurred to the declaration. This demurrer was overruled by the Court, but as no complaint is made of the action of the trial Judge in this respect, it is unnecessary to set out the grounds of demurrer. Pleas —six in number- — -were then filed. The first of these was the plea of not guilty. The second, third, and fourth, and fifth pleas set up as a bar to the action, in one form or another, a prescriptive right to maintain the bridge, because the railway company and its predecessors in .title had built and maintained it or similar structures in the same position for more than twenty years, and more than fifty years before the injury complained of. The sixth plea was that of the .three-years statute of limitations. The pleas referred to above as raising the prescriptive right of the defendant to maintain the bridge in its then altitude were demurred to and the demurrer was sustained. So the cause proceeded to trial upon the two pleas, one of not guilty and the other the statute of limitations, and resulted in a verdict and judgment for the plaint-ifc.
Prom the agreed statement of facts it appears that the original right to erect and maintain a
It also appears “that in the spring season and winter, when there is a good tide in the river, a light draught steamboat now and then runs up the river to the mouth of the Ocoee river, in Polk County, Tennessee, some fifteen or twenty miles by river above Charleston,” and that at high tide such a boat can run up to a point .some twenty-five or thirty-miles above Charleston.
On this record it is clear that the Iiiwassee was a navigable river within the definition of such a stream, • as frequently repeated by this Court. Elder v. Burrus, 6 Hum., 367; Stuart v. Clark, 2 Swan, 9; Sigler v. State, 7 Bax., 406.
The fact that it has never been declared a navigable river is immaterial, as it does not require. legislative sanction of either Congress or of the State to give a stream navigable status. Little Rock Railroad v. Burke, 39 Ark., 403.
The stream is entirely within the territorial limits of Tennessee and it was within the power of the Legislature of the State to authorize the construction of this bridge, notwithstanding it 'might work inconvenience to the right of navigation. Commonwealth v. Breed, 4 Pickering, 460; Depew v. Trustees of W. & E. Canal, 5 Ind., 8.
The rule as laid down hy Judge Cooley in his work on Constitutional Limitations, p. 592, is that £iif the stream is not one which is sub-
The question, therefore, in such a case is, Has the Legislature, while giving authority to build a bridge, made it lawful for the company so to construct it as to prove, either all the time or at recurring periods, an obstruction to craft adapted to its navigation? ' This question’ plaintiff in error insists is answered by its charter. Upon referring to that, however, ' it is found that the authority thus given is simply, “to build bridges.’'' The character of such bridges is not defined nor are the names of the streams mentioned to which this authority is to be applied. Can there, then, be implied from this general authority “to build bridges” the power to so construct them as either to destroy or else to interfere seriously with the passage of water craft upon such internal streams as may be crossed by the company in the extension of its line of road ? We think not. The State is interested in the preservation of the natural ways of communication between its different and separated communities, which may greatly serve their convenience and' comfort, as well as in the building and operation of new and artificial
In Hamilton v. Vicksburg, Shreveport & Pacific R. R. Co., 119 U. S., 280, it is said: “In the case at bar no specific directions as to the form and character of the bridges over the streams on the line of the railroad were prescribed by the Legislature of the State. The authority of the company to construct them was only an implied one, from the fact that such structures were essential to the continuous construction of the line. Two conditions, however, must be deemed to be embraced within this implied power; one that the bridges should be so constructed as to insure safety to the crossing of the trains, and the other that they should not interfere unnecessarily with the navigation of the streams.”
The charter right on which plaintiff in error rests for its defense in this case is not higher or greater than was that of the corporations involved in these last two cases; in this the right “to build bridges” is expressly given, while 'in those it arose by necessary implication. In neither was the form or character of such bridges prescribed. But as the “authority to throw a bridge over a navigable stream is an exception from the general law, by .which it is forbidden, granted by the .Legislature in view of the greater advantages to the public which are expected to result from the improvement,” this, authority “must be confined to the limits and conditions of the grant” (M. & O. R. R. v. Hicks, 5 Sneed, 427), and it will not be extended to cover a structure that is any respect a public nuisance.” Under such granted power, if a bridge is erected over a
Under the facts of the case, and in view of the rule as announced by these authorities, we have no hesitancy in saying that the railway company cannot protect itself against the present claim of the plaintiff below by an appeal to its charter.
It is insisted, however, by the company that the continued maintenance of this bridge “for twenty years and fifty years,” though it be an impediment to navigation, gives it a prescriptive right which is a conclusive defense to this action. Even should it be conceded that a right to obstruct a navigable stream could, be created by prescription, yet it is not relied upon by plea, so as now to be of avail to the plaintiff in error. As was said in the preliminary statement of the case, there were filed four pleas setting up in various forms the right of prescription, but on. demurrer they were stricken out by the trial Judge. No assignment of error is made on this .action. The case therefore stands, in this Court,
But it is plainly inferable from the record that the learned counsel for the railway company abandoned their special pleas because satisfied that they tendered issues not maintainable in law. Eor the rule seems to be universally accepted that a right to obstruct a public highway cannot rest on prescription. Such an obstruction is a common nuisance. Elkins v. State, 2 Hum., 542; Elliott on Roads and Streets, p. 668; Gould on Waters, Sec. 532; Arundel v. McCulloch, 10 Mass., 70; Miles v. Hall, 9 Wend., 315; Morton v. Moore, 15 Gray, 573.
It is also contended by the railway company that the trial J udge improperly gave in charge to the jury §§ 1808 and 6869 of the (Shannon’s) Code. There was no error in this. They were pertinent to the controversy. Even if they had not been they worked no harm to tiró company. Eor when it is once determined that the ITiwassee is a navigable river, it did not require the aid of § 1808 to make it a public highway; the common law, in the absence of § 6869, forbade its obstruction to the detriment of navigation.
Other questions arising in the case are disposed of orally.
The judgment of the lower Court is affirmed.