Union Bridge Company v. United States
This is a proceeding in the nature of a criminal information in the district court of the United States for the western district of Pennsylvania against the Union Bridge Company, a corporation of Pennsylvania, owning and controlling a bridge across the Allegheny river near where it joins the Monongahela river to form the Ohio river,-the Allegheny river being a navigable waterway of the United States, having its source in New York and being navigable in both New York and Pennsylvania.

Stating the matter generally, the Secretary of War found the bridge to be an unreasonable obstruction to the free navigation of the Allegheny river, and required the Bridge Company to make certain changes or alterations in order that navigation be rendered reasonably free, easy, and unobstructed. These alterations, it was charged, the company wilfully failed and refused to make. Hence the present information against it. There was a verdict of guilty, followed by a motion in arrest of judgment, which motion being overruled, the company was sentenced to pay a fine of $5,000. To review that order this writ of error is prosecuted.

The information was based on § 18 of the river and harbor act of March 3d, 1899, which provides: 'That whenever the Secretary of War shall have good reason to believe that any railroad or other bridge now constructed, or which may hereafter be constructed, over any of the navigable water ways of the United States, is an unreasonable obstruction to the free navigation of such waters on account of insufficient height, width of span, or otherwise, or where there is difficulty in passing the draw opening or the draw span of such bridge by rafts, steamboats, or other water craft, it shall be the duty of the said Secretary, first giving the parties reasonable opportunity to be heard, to give notice to the persons or corporations owning or controlling such bridge, so to alter the same as to render navigation through or under it reasonably free, easy, and unobstructed; and in giving such notice he shall specify the changes, recommended by Chief of Engineers, that are required to be made, and shall prescribe in each case a reasonable time in which to make them. If, at the end of such time, the alteration has not been made, the Secretary of War shall forthwith notify the United States district attorney for the district in which such bridge is situated, to the end that the criminal proceedings hereinafter mentioned may be taken. If the persons, corporation, or association owning or controlling any railroad or other bridge shall, after receiving notice to that effect, as hereinbefore required, from the Secretary of War, and within the time prescribed by him, wilfully fail or refuse to remove the same or to comply with the lawful order of the Secretary of War in the premises, such persons, corporation, or association shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five thousand dollars; and every month such persons, corporation, or association shall remain in default in respect to the removal or alteration of such bridge shall be deemed a new offense, and subject the persons, corporation, or association so offending to the penalties above prescribed: Provided, That in any case arising under the provisions of this section an appeal or writ of error may be taken from the district courts or from the existing circuit courts direct to the Supreme Court, either by the United States or by the defendants.' 30 Stat. at L. 1121, 1153, chap. 425, U.S.C.omp. Stat. 1901, p. 3545.

Legislation similar in its general character can be found in river and harbor acts passed at previous sessions of Congress. Act of 1884 (23 Stat. at L. 133, 148, chap. 229, U.S.C.omp. Stat. 1901, p. 3532); act of April 11th, 1888 (25 Stat. at L. 400, 424, 425, chap. 860, §§ 9, 10); and act of September 19th, 1890 (26 Stat. at L. 426, 453, chap. 907, §§ 4, 5). Finally, we have the act of March 23d, 1906 (34 Stat. at L. 84, chap. 1130, §§ 4, 5), which covers the same ground as the act of 1899 under which the present information was filed.

It appears that the Bridge Company was incorporated by an act of the Pennsylvania legislature, approved March 13th, 1873, with authority to construct a bridge over the Allegheny river, in the city of Allegheny. That act contains this proviso: 'That the erection of said bridge shall not obstruct the navigation of said river, so as to endanger the passage of rafts, steamboats, or other water crafts; and the piers shall not be so placed as to interfere with towboats proceeding out with their tows made up, and shall be constructed in such manner as to meet the requisitions of the law in regard to the obstructions of navigation.'

The bridge was constructed in 1874 and 1875, and has been in use since 1875.

In 1902 a petition was sent to the Secretary of War by persons, corporations, and companies in and about Pittsburg, which contained, among other things, these statements: 'There can be no doubt whatever that this bridge is an unreasonable obstruction to the free navigation of the Ohio, Monongahela, and Allegheny rivers on account of insufficient height and the filling in of the river or rivers over which it passes in order to provide approaches for it. We respectfully request that you will investigate this matter, having full confidence that, after making such investigation, you will find it to be your duty to take action against its owners, the Union Bridge Company, under the provisions of § 18 of the river and harbor act, approved March 3, A. D. 1899. . . . It was built of such a low height above the water as to cause the almost complete obstruction of all the packet and tow-boat trade passing from the Allegheny river into the Ohio and Monongahela rivers, and from these rivers into the Allegheny. In building it the width of the river was very materially narrowed, as already stated, by the fills made for the approaches. The river commerce of Pittsburg, as you are aware, is of very great magnitude and importance, and is rapidly increasing in volume. For the last calendar year it amounted to 10,916,489 tons, being about equal to that of the harbor of New York. The extension of the manufacturing industries of Pittsburg up the Allegheny river is making it of much greater importance than heretofore that the navigation to and from that river should not be obstructed. The present time is peculiarly appropriate for action by you. The Union bridge is an old, wooden structure, and will soon need-in fact, it already needs-extensive repairs to make it safe for public use. Therefore, as the bridge in question deprives the community of a reasonable use of the Allegheny river in connection with the river business of this great harbor, we appeal to you to exercise the powers committed to you to abate, or to at least mitigate, this great public nuisance, as you shall find yourself justified by the law and the facts of the case.'

The matter was referred by the Secretary of War to the proper officers of the Engineer Corps of the Army for examination and report. Such examination was had upon notice to the Bridge Company, and, under date of December 8th, 1902, Capt. Sibert, cap tain of engineers, who conducted the examination, reported and recommended to the Chief of Engineers that the company be given notice to make certain alterations in its bridge.

On December 16th, 1902, the Chief of Engineers transmitted that report to the Secretary of War, saying: 'As required by the law and the instructions of the War Department, a public hearing has been held, after due advertisement, and all interested parties have been afforded an opportunity to present their views. Attention is respectfully invited to the accompanying report on the subject, dated the 8th instant, by Captain Sibert, and to its accompanying papers. In this report Captain Sibert fully discusses all phases of the question, and shows that, without reference to the use of the Allegheny river for through navigation, the bridge in question is an unreasonable obstruction, and practically a bar to the use of that portion of Pittsburg harbor situated on the river. He states that none of the boats engaged in interstate commerce from Pittsburg, south and west, can reach, at low water, a single manufacuring plant or wharf in the cities of Pittsburg and Allegheny on the Allegheny river. He submits a photograph to show that the portion of Pittsburg harbor in the Monongahela river is crowded with shipping, while that portion in the Allegheny has none, all due to the existence of the Union bridge. It is also shown by the evidence that the lower portion of the Allegheny river would be of great importance as a harbor of refuge when ice is running out of the Monongahela river, if it were not obstructed by the Union bridge. He reaches the conclusion, based on the facts developed at the hearing, that, in order to give the shipping at Pittsburg increased harbor room, and to enable it to connect with wharves and manufacturing plants in that part of the harbor located on the Allegheny river the Union bridge should be so raised as to provide a channel-span with a clear height of 70 feet, the same as exists under the bridge known as the 'Point bridge' on the Monongahela river, and the same that will exist under the Wabash Railroad bridge just being built, immediately above the Point bridge. It appears that this bridge was built in 1873, 1874 by the Union Bridge Company, incorporated under authority of an act of the Pennsylvania legislature of March 13, 1873, and that it has been the subject of complaint on the part of the navigation interests practically ever since its completion. Numerous investigations have been made by different engineer officers, who have held public hearings on the bubject, and who have concurred in expressing the opinion that the bridge was an unreasonable obstruction to navigation, and that it should be raised so as to give a headroom equal, at least, to that of the aforesaid Point bridge at the mouth of the Monongahela river. The Union bridge is situated at the mouth of the Allegheny river, and there seems to be no room for doubt that the alteration of the bridge is essential to the reasonable use for navigation and commercial purposes of that portion of the river forming a part of Pittsburg harbor. Captain Sibert recommends that the bridge in question be so altered as to give two navigable spans extending riverwards from the left abutment, of not less than 394 feet clear width each; the second span from the Pittsburg shore to give a clear headroom over the Davis Island pool of not less than 70 feet; and the first span from the same shore to give a headroom of not less than 70 feet at the pier and 62 feet at the abutment; also that the piers of the altered structure shall have no riprapping or other pier protection above an elevation of 10 feet below the surface of Davis Island pool, and that all parts of the old structure not comprised in the new construction, and in conformity with the above requirements, shall be wholly removed. The period of eighteen months is considered by him ample time within which to make these alterations. I concur in his views and recommend that notice be served on the Bridge Company, requiring the alterations to be made and completed as specified by him.'

Under date of 20th of January, 1903, Mr. Root, then Secretary of War, issued a formal notice to the Bridge Company, stating that he had good reason to believe that its bridge was an unreasonable obstruction to free navigation. The notice informed the company of the alterations of its bridge recommended by the Chief of Engineers as necessary, and concluded: 'And whereas, eighteen months from the date of service of this notice is a reasonable time in which to alter the said bridge as described above; Now, therefore, in obedience to, and by virtue of, § 18 of an act of the Congress of the United States entitled 'An Act Making Appropriations for the Construction, Repair, and Preservation of Certain Public Works on Rivers and Harbors, and for Other Purposes,' approved March 3, 1899, I, Elihu Root, Secretary of War, do hereby notify the said Union Bridge Company to alter the said bridge as described above, and prescribe that said alterations shall be made and completed on or before the expiration of eighteen months from the date of service hereof.'

At the request of the Bridge Company, the time fixed by Secretary Root for altering, changing, and elevating the bridge was extended by his successor, Secretary Taft, to December 1st, 1904. By order of the latter officer the time was extended to January 1st, 1905.

Subsequently, a rehearing was asked for by the Bridge Company, but the rehearing was refused and Secretary Taft made the following order: 'The Union bridge is an unreasonable obstruction to commerce of the Allegheny river. If the bridge were not there, the winter refuge which the stretch of the Allegheny river up to the next bridge would offer for the fleet of boats which usually are moored in the Monongahela would be a very great advantage for navigation and commerce on the Ohio river and its tributaries. The two rivers, the Allegheny and the Monongahela, because they rise in different sections of the country, have their ice breaks at different times in the early spring. The mouth of the one offers very desirable refuge to the vessels that are exposed to danger from the breaking up of ice in the headwaters of the other. The Union bridge, at the mouth of the Allegheny, was erected at a time when the Secretary of War was not given specific control over navigable streams, and was not authorized to inhibit the construction of bridges which were likely to obstruct navigation; but it appears that an army engineer, Colonel Merrill, in charge of the district, publicly announced that this bridge was an obstruction to navigation when it was erected. It was erected, therefore, in the face of the information given by the best authority that could be consulted in that matter in the government. These are the facts that I find independently of any previous adjudication; but, added to this is the finding of my predecessor, Mr. Root, to exactly the same effect, upon which he based an order that the bridge, as an obstruction to navigation, be abated. This matter is now before me on a petition for rehearing of Mr. Root's order. As an original question I should have ruled as Mr. Root ruled, and a fortiori because the orders of this Department are not to be lightly set aside, and are to be treated as a decree in equity would be, and be set aside only upon a showing of a palpable error or mistake. The petition for rehearing is denied, and the order suspending the operation of Mr. Root's order is now revoked. The order will be put in full force and executed by the proper officers, and the Union Bridge will be notified accordingly.'

In the opinion of the district court, delivered on a motion in arrest of judgment, it was said: 'The obstruction here involved consists of a bridge over the Allegheny river just above its junction with the Monongahela at Pittsburgh. The Allegheny river rises in Pennsylvania, flows north into New York state, and thence back into Pennsylvania. The latter state, by act of March 21, 1798 (3 Smith's Laws, p. 320), enacted the Allegheny, from the New York state line to its mouth, a navigable stream, and the state of New York, by act of March 31, 1807, did likewise in its counties of Genesee and Allegheny. The Allegheny is the principal branch of the Ohio, its volume being six times greater than that of the Monongahela. It is included in the general plan for the improvement by the national government of local interstate waterways and the harbor of Pittsburg. The government has built, or has now in process of construction, a system of locks and dams on the Allegheny which will slackwater the stream for 27 miles from its mouth. The Davis Island dam, situate 5 miles below Pittsburg, on the Ohio river, raises the water in the Allegheny and Monongahela at their junction 6 feet above their normal depths, and backs its water to the first dams of the Allegheny and Monongahela slackwater systems respectively. These waters form the harhor of Pittsburg, the importance of which harbor will be appreciated from the fact that the tonnage in water transportation passing from it the past year exceeded that of the Suez canal for the same period. From its size, interstate relation, and its being a part of this really great harbor, it will be seen that the Allegheny answers the requirement of a navigable stream (The Montello [United States v. The Montello], 11 Wall. 411, 20 L. ed. 191), and is also one over which the national government has assumed jurisdiction. The Union bridge is a pier-supported, wooden structure; it crosses from Pittsburg to Allegheny City; and is the first bridge on the Allegheny.' [143 Fed. 378.]

Messrs. D. T. Watson, Johns McCleave, John S. Wendt, and W. B. Rodgers for plaintiff in error.

[Argument of Counsel from pages 373-375 intentionally omitted]

Assistant to the Attorney General Purdy for defendant in error.

Mr. Justice Harlan delivered the opinion of the court: 

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