author: The Chancellor. Haines, J.,

text:
    Richard P. Thompson, Attorney-General, David J. Anderson and John B. Aycrigg, appellants, and The Paterson and Hudson River Railroad and others, respondents.
    1. The right of navigation is a pre-existing public right, and he who claims authority to impair or obstruct this right by legislative grant, must show it by the clear and explicit terms of the grant itself, or at least by necessary implication.
    2. The erection of bridges over rivers, with proper draws, so constructed and placed as to do the least possible injury to navigation, has never been held to be a nuisance. ’ The slight but unavoidable obstruction which such bridges occasion is a necessary evil which must be borne for the sake of the public good, which demands it.
    3. Although it is said “that courts of equity will grant an injunction to restrain a nuisance only in cases where the fact is clearly made out upon determinate and satisfactory evidence, and that if the evidence be conflicting and the injury to the public doubtful, that alone will constitute a ground for withholding this extraordinary interposition,” the cases go no further than the familiar doctrine that equity will not ordinarily interfere in case of nuisance when the complainant has a perfect remedy at law. It is important in cases where obstructions to public’navigation are about to be erected, and which, when erected, can only be removed at great expense and sacrifice, that the court should exercise a preventive remedy by injunction.
    4. So where the defendants were about to erect a permanent railroad bridge on a line of great and increasing travel, and were required to place it in such a position as to do the least possible injury to navigation; and the complainants alleged that the position in which it was contemplated to place the piers and draw was not the one which would do the least injury to navigation, and asked a temporary injunction until the question as to whether the piers and draw were in the right position, could be examined and settled; and it appeared that the defendants were placing the draws in an unusual and unnatural position; and the charges in the bill were supported by affidavits, conclusively showing what, in the judgments' of persons best able to form an opinion, the effect of the proposed erection would be — the injunction was decreed to extend no further than to restrain the defendants from erecting their proposed piers and draws in the position proposed, until the question whether that was the proper position was determined.
    The appellants filed their bill of complaint in the Court of Chancery, on the 16th day of November, 1852, in the following words, to wit

      In Chancery, New Jersey.

      To the Honorable Benjamin Williamson, Chancellor of the State of New Jersey:

    Informing, showeth unto your Honor, Richard P. Thompson, Esquire, Attorney-General of the State of New Jersey, in behalf of said state, and by and at the relation of David J. Anderson and John B. Aycrigg, in behalf of themselves, and of the other owners of the docks and wharves, storehouses, lumber and coal yards, at the township of Lodi, in the county of Bergen, and at the township of Acquackanonck, in the county of Passaic, on the Passaic river, and north of the bridge hereinafter mentioned, and of other real estate above the said bridge, on the shores of said river, and other owners of vessels navigating said river to and from the said township of Acquackanonck to the city of New York, and intermediate places, and using the said river for the purposes of trade, commerce and navigation therein.
    And also humbly complaining, show unto your Honor, your orators, David J. Anderson, of the said township of Lodi, and John B. Aycrigg, of the said township of Acquackanonck, in behalf of themselves and others as aforesaid, that by an act of the legislature of the State of New Jersey, passed the twenty-first day of January, A. D. eighteen hundred and thirty-one, entitled “An act to incorporate the Paterson and Hudson River Railroad Company,” John Colt, Robert Car-rick, Abraham Godwin, Jr., Richard R. Morris, William T. Buckner, Elias B. D. Ogden and Andrew P. Hopper, and such other person or persons as might thereafter be associated with them, were constituted a body corporate and politic in law, by the name of the “ President and Directors of the Paterson and Hudson River Railroad Company,” with power, among other things, in and by the said act, for the president and directors of the said company to survey, lay out and construct a railroad from the town of Paterson, and crossing the rivers Passaic and Hackensack to the Hudson river, and for that purpose the said president and directors of the said company were further authorized to enter upon all lands and waters, for the purpose of exploring, survey-

      ing, and laying out said road and locating the same, and when the same was thus located and the survey deposited in the office of the secretary of state, to enter upon and take possession of such lands, and all other things suitable and necessary to the completion of the said road. And in and by the said act it was further provided that the said company should have the privilege and authority to erect, build and maintain on the rivers Passaic and Hackensack respectively, such wharves, piers, bridges and other facilities as they might think expedient and necessary for the full enjoyment of all the benefits conferred by the said act, subject to the restrictions therein named, and for the safety of the navigation, one or more lamps, it was directed, should be placed at one side of the draw of said bridge, and continued to be lighted before it grew dark, every evening, until daylight, at the expense of the said company, and that the said company should keep at the said bridge a careful person to open, the draws for the free passage of vessels with standing masts; and for each neglect to light the said lamps, a penalty was imposed on the said directors. And it was by the said act further declared, that said act should be deemed and taken to be a public act, and should at all times be recognized as such, in all courts and places whatsoever, as in and by the said act of the legislature to which the attorney-general aforesaid and your orators beg leave to refer, may and will more fully and at large appear. And the attorney-general at the relation aforesaid and your orators further show, that since the passage of the said act there have been passed by the legislature of the State of New Jersey, supplements to the same, to which they pray leave to refer for the contents and provisions thereof.
    And the attorney-general at the relation aforesaid and your orators further show, that after the passage of the said act the said railroad company became duly organized, and have constructed a railroad from the town of Paterson to the Hudson river, with bridges across the rivers Passaic and Hackensack, crossing the said river Passaic at a short distance below, and southerly from and near to the town of Acquackanonck, in the county of Passaic, and which road has been in use many years last past.
    And the attorney-general, at the relation aforesaid, and your orators further show unto your Honor, that the Passaic river in this state now is, aiid from time immemorial has been, a public navigable river; that the tide ebbs aod flows therein, from the water commonly called Newark bay, formed by the junction of the Passaic and Hackensack rivers, to and from the said township of Acquackanonck, and between one and two miles beyond and above the bridge hereinafter mentioned, and about to be built by the said company or their lessees or assigns; and that all the citizens and inhabitants of this state always have had, and of right now have and ought at all times to have, free use of the navigatio® of said river, and liberty at all times to pass and repass, and navigate up and down the said river, without any let, obstruction or hindrance whatsoever • that the said Passaic river is narrow and crooked, and in many places shallow and of difficult navigation, admitting of vessels drawing not to exceed in many places seven feet of water; that a very considerable navigation and commerce is carried on upon said river, up to the said town of Acquackanonck, and above the bridge hereinafter mentioned; that vessels now daily navigate said river, of various dimensions, between the cities of New York and Newark and the said town of Acquackanonck, and one vessel sails regularly between said town and Troy, in the State of New York; that vessels are now engaged in running between the said town of Acquackanonck and the city of New York, which are of great advantage to the country thereabouts; that vessels have been in the habit of running on the said river for very many years to the like advantage, aud that at the present time three vessels are running on the said river up to Acquackanonck, in two of which your orator, David J. Anderson, is part owner • and your orator, David J. Anderson, has recently launched a steamboat thirty-three feet wide and one hundred and ten feet long, which is intended and was built expressly to run between the said town of Acquackanonck and the city of New York.

      And the attorney-general, at the relation aforesaid, and' your orators further show, that your orators, or one of them, are the owners of docks and wharves, storehouses, lumber and coal yards, and other real estate, on the said Passaic river, and above the said contemplated bridge, and the owners or interested in vessels engaged in commerce and navigating the said river to and from the said town of Acquackanonck, above the said bridge, to the city of New York, to a considerable extent; and your orator, David J. Anderson, is carrying on merchandise, and is a dealer in lumber, coal, and divers other articles, for the transportation of which he depends on the navigation of said river, and that the keeping of the navigation of said river free and unobstructed is of vital importance to their interests, and to the business and convenience of the said town of Acquackanonck and its neighborhood.
    And the said attorney-general, at the relation aforesaid, and your orators further show unto your Honor, that the said the president and directors of the Paterson and Hudson River Railroad Company, at some time on or about the fifteenth day of September last, leased or conveyed all the chartered rights, of the said company and the said road to “ The Union Railroad Company,” and which last-named company, at or about the said time, also assigned and conveyed all their' rights in the said lease to “The New York and Erie Railroad Company,” who now claim to have the entire control of the said road, and, as your orators are informed, the said right under the said lease continues down to the expiration of the said charter of the Paterson and Hudson River Railroad Company.
    And the said attorney-general, at the relation aforesaid, and your orators further show, that the said the New York and Erie Railroad Company propose to alter the position of the draw of the bridge over the river Passaic, which crosses south of the town of Acquackanonck as aforesaid, and to place under the same a new set of stone piers, near the centre of the river, the draw to be placed between the said stone piers; that the said piers are intended to be each from seven to eight feet broad, and of the width of the bridge, as the same shall be widened, to the extent of several feet beyond that of the present bridge; that the said the New York and Erie Railroad Company propose to place the said piers diagonally across the river, and at right angles with the bridge, and not with the current of the stream ; that, heretofore, there has been no stone piers to the said bridge, but the same is supported by wooden piles and shore abutments of stone; that the placing of the said stone piers would materially impede the navigation of the said river, and not being placed in the line of the current of the river, must render extremely dangerous, if not impracticable, the navigation of the river, with the vessels now navigating the same, and especially with the steamboat of your orator, David J. Anderson.
    And the said attorney-general and your orators state that, by reason of the obstructions in the said river, a short delay in getting through the said draw, may, and no doubt often will occasion a much larger hindrance in preventing the said vessels from passing the said obstructions at the high tide, and that the stone piers will, of necessity, prevent all vessels coming into the draw from having the advantage of the wind to carry them through, which is essential to their progress, and will necessarily produce eddies in the wind. And, as it seems to your orators, it will not be in the power of the said steamboat to tow any vessel through the said draw, which is designed to constitute a part of its regular business.
    And the said attorney-general, at the relation aforesaid, and your orators further show unto your Honor, that the said the president and directors of the Paterson and Hudson River Railroad Company, and their said lessees, the New York and Erie Railroad Company, disregarding the rights of the citizens of this state, and of your orators who own property on the Passaic river, above the said bridge, and of those navigating the said river with vessels, and seeking to promote their own interest and convenience, at the expense of the public, and especially to the great damage and inconvenience of your orators, and others similarly situated, and to the damage of all the good citizens of this state residing at Acquackanonck aforesaid, and its neighborhood, and of all those having occasion to navigate-said river, or who are in any wise interested in the commerce of this state, have caused, or planned to be devised for construction, as herein-before stated, their bridge and piers, at and across the said river Passaic, near and below the said town of Acquackanonck, as aforesaid, and lower down said stream than the point to which vessels are accustomed to navigate, and through the draw of which they are obliged to pass to reach the premises of your orators, and in such manner as greatly to obstruct and injure the navigation of the said river, and altogether to prevent the free and uninterrupted navigation thereof, and will, as your orators believe, go on and complete the said bridge with the said piers, on the said plan, unless restrained from so doing by.the order of this court; that your orators, David J. Anderson and John - B. Aycrigg, with others interested therein, caused a written notice to be served on Thomas Addis Emmet, esquire, the superintendent of the said work, on the twenty-fifth day of October last, which he promised to lay before the board, and which notice was of the following tenor and purport, to wit:
    The undersigned boat-owners on the Passaic river, above the railroad bridge you are now about re-building, have understood that the draw in said bridge, for the passage of-vessels, is to be constructed at right angles with the line of the bridge ; if that be so, of our protest against it. We
    respectfully suggest the propriety of constructing the draw to meet the wishes and requirements of the boat-owners, who are the parties most immediately interested, and would meet with you at any time to state those re'quirements. The line of the draw should be in a line with the tide, and any deviation from it will be contested.
    D. J. Anderson,
    John A. Post,
    John B. Aycrigg,
    William S. Anderson,
    William Kip,
    Nicholas Kip.

      And which notice your orators hoped would have been sufficient to have induced the said company and their lessees to have altered their plan for the construction of the said piers and bridge, and your orators, under that belief, suspended all proceedings against the said company and their said lessees until it became manifest that it was the intention of the said company and their said lessees to disregard the said notice, and the interests and wishes of your orators, and to go on and complete said piers and bridge in manner aforesaid.
    And the said attorney-general, at the relation aforesaid, and your orators, further show unto your Honor, that the said company, or their said lessees, by their agents, workmen and servants are now actively engaged in building two piers or bulkheads of stone for the said bridge over the river Passaic, on the plan aforesaid, and that the same is now in process of completion; that within a day or two the said the Hew York and Erie Railroad Company have been engaged upon, and have now in part completed, two cofferdams, for the purpose of erecting the said piers, and are quarrying and dressing stone for the purposes of the said piers; that they have engaged a number of hands — twenty or more in number — and have, by their agents, as your orators are informed and believe, declared their intentions to build the said piers in manner aforesaid, and that with promptness and despatch. And that Thomas Addis Emmet, esquire, has been there directing the said works, but by what authority your orators are not informed ; that the erection of said bridge, and the piers or bulkheads, in manner aforesaid, will form an obstruction to the freshets and currents of said river, and that all vessels passing through the draw of said bridge will be greatly delayed and hindered, and their safety much endangered by reason of the peculiar manner in which the piers of said bridge are constructed ; that the erection of the said piers or bulkheads as aforesaid will be a great nuisance to all the citizens of Acquackanonck and the surrounding country, especially those above the said bridge, and will greatly impede the commerce and business thereof, and its growth and prosperity; that the value of all the docks and wharves, storehouses, lumber and coal-yards erected and located upon and along the river, especially those above the said bridge, and depending on the free navigation thereof, will be depreciated, and also that other lands lying on said river, which are susceptible of being used for wharves and commercial purposes, and which derive their principal value therefrom, will also be greatly damaged.
    And the attorney-general, at the relation aforesaid, and your orators, further show unto your Honor, that the erection of the said piers and bulkheads and bridge in manner aforesaid, are not at all necessary for the purpose of the said road or bridge, but that the same may be constructed without causing so serious an obstruction to the navigation thereof.
    And the said attorney-general, in behalf of the state, insists and submits that the said company or their directors, or their said lessees or their agents, workmen or servants, have no right or authority to carry their said plan into effect, or to place piers or bulkheads or a bridge over the said Passaic in manner aforesaid, or in any other manner which shall in any way interfere with or obstruct the free navigation of the said river, or whereby the free and uninterrupted navigation of vessels in said river can or may be obstructed in any manner whatever.
    And now so it is, may it please your Honor, that the said the. president and directors of the Paterson and Hudson River Railroad Company, and the New York and Erie Railroad Company, Thomas Addis Emmet, esquire, and others confederating with them, persist in continuing to construct the said piers, bulkheads and bridge on the river Passaic, in manner aforesaid, and contemn the authority of the State of New Jersey, and the well-defined common rights of the citizens thereof to the free and uninterrupted navigation of the said Passaic river, and reckless of the great, immediate and irreparable damages and injury which your orators will be subjected to and sustain thereby. And they claim the right so to do, and persist in their determination to erect the said piers or bulkheads and bridge, in manner aforesaid, and continue the work of actually erecting and constructing the same, and pretend to give out that they have authority and are warranted in so doing; the contrary whereof the said attorney-general, at the relation aforesaid, and your orators charge to be true • all which actings and doings and pretences are contrary to equity and good conscience, and tend to the manifest wrong, injury and oppression' of your relators and orators, and to the public wrong and nuisance of all the citizens of the State of New Jersey navigating the said Passaic river, or interested in the navigation thereof. To the end, therefore, that the said the president and directors of the Paterson and Hudson River Railroad Company, the New York and Erie Railroad Company, and the said Thomas Addis Emmet, esquire, and their confederates may, in such manner as is required by law and the practice of this court, full, true and perfect answer make to all and singular the premises, as fully as if the same were herein again repeated, and they thereto particularly interrogated, with all the attendant circumstances and incidental transactions, and that it may be decreed that the said the president and directors of the Paterson and Hudson River Railroad Company, the New York and Erie Railroad Company, and the said Thomas Addis Emmet, esquire, the defendants herein, have no right, title or authority to construct the said piers or bulkheads and bridge in manner aforesaid; that they have no right to place in the said river piers of stone at all of the dimensions aforesaid, or any other dimensions, and that if they have that right, the same must be so placed as to do the least injury to the navigation of the river, and with the current of the said river, in a line of the stream, and not at right angles with the said bridge, and that the said the Paterson and Hudson River Railroad Company, the New York and Erie Railroad Company and Thomas Addis Emmet, esquire, and each and every of them, their agents, engineers, workmen and servants may be restrained by the order and decree and writ of injunction of this court, from carrying into effect the plan devised and agreed upon, and determined to be carried into effect, as aforesaid, for building the said piers or bulkheads and bridge across the said river Passaic as aforesaid, in the manner hereinbefore set forth and described, and as they are now proceeding to do, and are actually engaged in doing, and from building any stone piers in the said river under the said bridge, and that your Honor may grant such further and other relief as the nature of the case may require, and shall be agreeable to law and equity.
    May it please your Honor, the premises considered, to'grant unto th.e said attorney-general and your orators a writ or writs of injunction, issuing out of and under the seal of this honorable court, to be directed to the said the president and directors of the Paterson and Hudson River Railroad Company, the New York and Erie Railroad Company,' and Thomas Addis Emmet, Esq., and their confederates when discovered, their agents, engineers, workmen and servants, restraining and enjoining them and every of' them, in manner aforesaid ; and also a writ of subpoena issuing out of and under the seal of this honorable court, to be directed to the said defendants and their confederates, when discovered, commanding them and every of thém, on a certain day, and under a certain penalty therein to be inserted, to be and appear before your Honor in this honorable court, then and there to answer all and singular the said premises, and to stand to and abide by such order and decree therein as to your Honor shall seem meet, and shall be agreeable to equity and good conscience.
    Richard P. Thompson, Attorney-General of New Jersey.

    "Wm. Pennington,
    ' Solicitor and of counsel with relators and complainants.

      State of New Jersey, County of Passaic, ss.:

    David J. Anderson and John B. Aycrigg, complainants in the foregoing bill named, being duly severally sworn according to law, on their oaths do say that those facts, matters and things in the said bill mentioned and set forth, which relate to the acts and deeds of any other person or persons than the complainants in the said bill named, they verily believe to be true, and that all other facts, matters and things in said bill mentioned and set forth are true.
    D. J. Anderson,
    John B. Aycrtgg.
    Sworn and subscribed before me, the 13th day of November, 1852.
    Corn’s G. Van Riper, Master in Chancery.

      State of New Jersey, ss.:

    Zackariah Keasler, of Acquackanonck, of full age, being duly sworn according to law, on his oath saith: That he is master of the vessel called the Julia Morrell, of Acquackanonck, owned by Messrs. Anderson, Post & Co.; that he has been engaged in boating on the Passaic river upwards of twenty years; that he has been master of a vessel some fifteen years last passed; that he has examined the works irt progress of erection for a draw in the railroad bridge across the Passaic river, immediately below Acquackanonck; that the position of the draw being diagonal to the current, and not in the line of the stream, will make the passage of vessels through the said draw difficult and dangerous at most times; that in time of freshets, which are of frequent occurrence, and with certain winds, the passage will be impracticable; that the draw should be in a line with the current and course of the river, and not at right angles to the bridge.
    Zackariah Keasler.
    Sworn and subscribed before me, the 13th day of November, A. D. 1852.
    Corn’s G. Van Riper, Master in Chancery.

      State of New Jersey, Passaic County, ss.:

    The undersigned, Thomas Pettit, on his oath saith: That he is master of the schooner Clara Post, belonging to and owned by Messrs. Anderson, Post & Co., lumber dealers at Acquackanonck, having examined the location of the draw for the passage of vessels in the railroad bridge just below this village, over the navigable waters of the Passaic, about to be and now in active progress of construction by the Erie Railroad Company; the location of that draw being at right angles with the line of the bridge, and consequently crossways with the current and line of said river, will make the passage through said draw dangerous and hazardous at all times, and under certain and frequent circumstances, such as freshets and certain winds, impracticable without sustaining serious damage. The line of the draw should be in a line with the river and the current of the river, and the fact of its present construction being placed as above stated, I consider the greatest obstruction to the navigation of said river that can be conceived or imagined, and entirely unnecessary.
    Thomas Pettit.
    Sworn and subscribed before me, this 11th day of November, 1852..
    Corn’s G. Van Riper, Master in Chancery.

      State of New Jersey, Passaic County, ss.:

    The undersigned, Henry Crawford, master of the schooner Eliza Jane, belonging to and owned by the Messrs. Kip, merchants at Acquackanonck, being duly sworn, on his oath says: That having carefully and deliberately examined the location of the draw for the passage of vessels, about to be constructed in the railroad bridge that crosses the navigable waters of the Passaic, just below the village of Acquackanonck; that the placing of the said draw in' the middle of the bridge and said river, at right angles with the line of the bridge, and consequently the line of said draw for the passage of vessels, across the line of current of said river, would be not only a very serious obstruction, but in many respects ruinous to the navigation of said river, dangerous and hazardous for vessls to pass at all times and under favorable circumstances; and when the water is high, under the influence of freshets, which we are subject to very frequently throughout every season, and when the current by means of such freshets is running at an increased rate of rapidity, and very often for several days in succession, it would be to a very great extent impracticable, and decidedly imprudent, to attempt a passage through said draw at all, under any circumstances.
    H. Crawford.
    Taken and sworn, before me, this 9th day of November, 1852.
    Corn’s G. Van Hiper, Master in Chancery.

      New Jersey, ss.:

    Benjamin Avcrigg, of full age, maketh oath and saith— That the map marked A was made by this deponent from actual surveys made by him since the morning of the 17th instant, and shows the true position of the shores of the river near Acquackanonck, in the county of Passaic, as found by him at the time of survey (mostly low water); also the line of six feet soundings, at low water, above and near the bridge of Paterson and Hudson Eiver Eailroad; also the position of the railroad and of the bridge over the Passaic river, with the present draw, and the now draw proposed to be built, as indicated by the ranges of piles within the cofferdams (although this width, being forty feet, does not correspond with the present reported width of the proposed draw); also the direction of the current above the draw, indicated by the arrow, at the position where taken, at the last of the ebb tide, this being the only experiment that time has allowed; also a cross section of the valley at the railroad, showing the part dammed up by the works of the company, and the level of the water as found by taking the level from the gully (marked thirty) pointed out to deponent by John V. S. Van Winkle, as a place just inundated by a freshet; also the position of the black walnut tree (marked twenty-six) to which he tied his boat, the ground being one foot five inches above the gully ; also the bars (marked twenty-seven) found to be at ground five feet nine inches below the gully, and the place at which the horse was drowned; also the barracks (marked thirty-one) five inches above the level of the gully. These four points having been shown to deponent by said Van Winkle and having been referred to by the same in his testimony. Said map also shows the position of the elm tree (marked thirty-two) on the west shore below the bridge, and the only tree of that description, the crotch of which is ten feet nine inches below the rail of the road, or one foot three inches higher than the freshet height shown by the above Van Winkle; said crotch, from appearances, may have closed a few inches. Likewise deponent has added (on a scale of twenty feet to one inch) at the south end of the map, the plan of part of the bridge, showing the position of the draws at right angles to the bridge, and consequently south, forty-six degrees forty minutes west; also the broken .line south, twenty-five degrees west, being the direction of the current at the position indicated by the arrow on the larger map; also the broken line south, twenty-nine degrees west, being the general direction of the river near the bridge, and the course that a vessel would usually take if unembarrassed; also the actual reported dimensions of a small steamboat preparing for use on this river, with her position when in the direction of the river, and the interference of the draw, showing that a forty feet draw, forty-five feet long, placed at right angles to the bridge, affords but about twenty-four feet six inches clear width, to a boat keeping the course of the river.
    Deponent further states that he believes the said map and plan (marked A) to be correct in all respects, but from the haste with which the map has been prepared, it may contain some slight errors; still, from his familiarity with this kind of work, he can say with confidence that, for all the purposes intended, it is substantially correct.
    B. Aycrigg.
    Sworn and subscribed, before me, this 20th day of November, a. d. 1852.
    Corn’s G. Van Riper, Master in Chancery.

      AFFIDAVITS OF DEFENDANTS.
    Henry Petingale, being duly sworn according to law, deposeth and saith — He is in the employ of the New York and Erie Railroad Company, as assistant engineer; deponent has laid out all the work for the construction of the piers for the draw in the railroad bridge at Acquackanonck, from plans furnished by Mr. Emmet; two coffer-dams have been commenced, one nearly completed, and the other nearly half done; the foundation piles for the piers to rest upon have nearly all been driven ; a large quantity of stone has been delivered and some of it has been dressed to meet the present plans; that about the 12fh or 13th óf October, 1852, they commenced laying out the work for the coffer-dams, and the foundations for the piers; and deponent further saith that the new draw to be made in said bridge is to be forty-five feet wide at low water, and at the top of the draw it will be forty-seven feet wide; the new draw is to be placed in the middle of the river; the map marked A, he says, is a copy from a survey made by him, and as he believes is a correct map of the river and bridge as made by him ; the map marked B, is the map made by him from actual survey; in the plan proposed, all the piers on map B, except the two in red lines, are to be removed, leaving the bridge to rest on the abutments and the stone piers on each side of the draw; those within black lines on map B are the present pile piers, which are to he removed; the dotted line on both maps is the line of deepest water, as ascertained by this deponent from actual soundings, and the figures on said maps indicate the depth of water at which they are placed as ascertained by this deponent from actual soundings; the depth of water as taken at low water this morning, is seven feet in the proposed draw, and six feet throe inches in the present draw; and this deponent further saith that from the bend of the river at Acquackanonck, the current sets from Acquackanonck towards the Bergen county side, above the railroad bridge, and below the railroad bridge it sets upon the Passaic side of the river; and this deponent believes that the draw as proposed will be placed so as to receive the full force or current of the river.
    Henry Petingale.
    Sworn and subscribed, before me, this 17th of November, 1852.
    S. D. Canfield, Master in Chancery.

    Philip Van Bussum, of Paterson, in the county of Passaic, being duly sworn according to law, deposeth and saith — That he has known the railroad from Pátersón to Jersey City ever since they commenced building it, and has been in the employ of the Paterson and Hudson River Railroad Company for about eighteen years; deponent further says that the railroad bridge erected at Acquackanonck was built in 1832 or 1833, and that the draw in said bridge as first made was in the same place as it now is except that it has been widened; that the bridge crosses the Passaic river at that place diagonally, and that the draw was built at right angles to the bridge; that said draw was built near the Passaic shore; that deponent worked on said bridge when the draw was widened — he helped drive the piles; that this deponent has never heard any complaint of said draw except that it was too near the shore, and that the railroad company built a fender to keep the boats from running on the shore; that this deponent never heard of any complaint of the angle at which the draw was made in the Passaic river; deponent has been all the time he has been in the employ of the company engaged in the repairs of the road and bridges, and for the last three years has had the entire charge of the bridges, and from his position in the company he thinks he would naturally hear of any complaints against the draw; and this deponent further saith that at the time application was made to the legisture lature to compel thé widening the draws of bridges over the Passaic, he never heard of any complaint of the angle of the draw.
    Philip Van Bussum.
    Sworn and subscribed, November 17th, 1852, before me.
    S. D. Canfield, Master in Chancery.

      Silas D. Canfield, being duly sworn according to law, deposetli and saith — That he was employed by Cornelius C. Zabriskie to procure from the legislature a law for widening the bridges on the Passaic river, and that he attended the legislature as counsel, and finally procured the passage of the law entitled “An act regulating the draws of the bridges now erected or to be erected over the Passaic river,” passed February 24th, 1843.
    That the principal object they had in view was to compel the widening the draw's of bridges on said river; that there was an objection to the draw on the railroad bridge at Acquackanonck being so near the bank, and it was then deemed best for the purposes of navigation that the draw should be in the middle of the river, but the great object was to have the draws widened. And this deponent further saith that no objection was made to the draw being made at right angles to the bridge.
    Silas D. Canfield.
    Sworn and subscribed, this 17th day of November, A. D. 1852.
    William Gledhill, Master in Chancery.

    Thomas Addis Emmet, being duly sworn according to law, deposeth and saith — He is superintending engineer and superintendent for the New York and Erie Railroad Company, of the road between Jersey City and Sufferns. Deponent has charge of preparing the plans and of constructing the road, bridges and works connected therewith; that at Passaic bridge deponent made a contract in writing, for the Erie Railroad Company, with Campbell & Moody, of New York, for building the coffer-dams and driving the foundation piles for the piers proposed to be built in the Passaic river; that this contract was made about the 10th day of October last, and before deponent heard of any objection to the proposed draw; and said Campbell & Moody have proceeded under their contract, and have driven most of the foundation piles, and have nearly completed one coffer-dam, and have nearly half completed the other j and the company has made a contract, in September last, with F. C. Beckwith, to furnish the stone and build the masonry of the ■ piers in the Passaic river, and under this contract he has delivered a good deal of stone, and some of it has been dressed according to the plans of the proposed piers ; the plan proposed is to make the opening for the draw fortj'-five feet wide at low water mark, and forty-seven feet wide at the grade line of the rails ; the piers for draw proposed are at right angles to the bridge as it now stands, and in a parallel line with the present draw, and with the present abutments; that if the piers proposed should be built at a different angle from those now proposed, the abutments will have to be taken down and built at an angle to correspond with the piers ; that the expense already incurred, if the work should be changed, is between two and three thousand dollars, exclusive of damages which might be claimed by the contractors, and exclusive of the cost of taking down and re-building the abutments; that the bridge is to rest upon the abutments and the two stone piers proposed to be built; that the bridge is now in a bad condition, and any alteration in the building of these piers would delay the re-building longer than it would to carry out the present plans; that the first objection he heard to the plan proposed was on the 25th October last, when considerable work had been done at driving the piles and making the coffer-dams; that the company have offered, and are willing, to make fenders at each end of the piers, and to place them at such an angle, and in such a way, as the complainants may desire.
    Thomas A. Emmet.
    Sworn and subscribed, before me, this 17th day of November;, A. D. 1852.
    S. D. Canfield, Master in Chancery.

      The argument for an injunction was heard before the Chancellor, at Trenton, on the 22d November, 1852.

      William, Pennington and Joseph P. Bradley, counsel for the complainants.

      Aaron S. Pennington, counsel for the defendants.
   The Chancellor.

I have no doubt of the power of the court to interpose in this case by injunction, nor of the propriety of its exercising that peculiar jurisdiction, if, as is alleged, the defendants, under and by virtue of the power of the legislature, conferred upon “ The Paterson and Hudson Eiver Eailroad Company to bridge the river Passaic, are obstructing the navigation of that river, in violation of the provisions of the act from which they derive their authority.

The location of the bridge in question is several miles below the head of navigation, where the tide ebbs and flows, and where the' river is navigable for sailing vessels of tons burthen, and for small steamboats.

The power of the legislature to grant the right of constructing the bridge is admitted. The only issue is, whether the defendants are exercising the right, within the limits prescribed by the legislature; and, if they are not, whether this court can and ought to interfere.

“ The Paterson and Hudson Eiver Eailroad Company ” is a creature of the legislature. If it is exercising its franchises in a manner not authorized by the law which gives it existence, and so as to destroy or impair the common rights of the citizens in this navigable river, it is the duty of this court — the only court of the state which can apply an adequate remedy for the mischief — to restrain the defendants in the commission of the injury.

On behalf of the defendants it is insisted that, if the construction in the river for the purpose of the bridge is not in conformity to the law, then it is a question of nuisance — a question which should be either referred to the courts of common law or submitted to a jury, under the direction of this court, as a matter of fact.

If the ground upon which the interférence of the court is invoked depends upon facts, of dispute and doubt, involving the credit of witnesses conflicting in their testimony, the weight due to opposing opinions, and the exercise of a discriminating judgment as to facts and circumstances, and the opinions of witnesses, this court o.ught not, and especially in cases of magnitude, to conclude the rights of a party without the intervention of a jury.

In this case, the complainants have sought the jurisdiction of the court, and submitted to its decision the law and facts. As for the defendants, with the view I have taken of the facts, they require no other tribunal for their protection.

I shall decide the case upon the bill, with the affidavits accompanying it, and the affidavits read in reply, on behalf of the defendants. No question was made on the argument, as to the manner in which the case is presented on either side, and, in that respect, I am free from embarrassment.

The complainants allege that the defendants are about reconstructing their bridge over the Passaic river, near Acquackanonck; that, in doing so, they propose to alter the position of the draw in the present bridge, and to place under the same a new set of stone piers near the centre of the river — the draw to be placed between the said stone piers; that the piers are intended to be each from seven to eight feet broad, and of the width of the bridge, as the-same shall be ^widened, to the extent of several feet beyond that of the present bridge j that it is proposed to place the said piers diagonally across the river, and at right angles with the bridge, and not with the current of the stream; that these stone piers are substituted for the wooden piles heretofore used, and that placing the same in the position intended, will materially impede navigation, and not being in the line of the current of the river, must render extremely dangerous, if not impracticable, the navigation of the river with vessels navigating the same. They deny the right of the defendants to place the stone piers in the river, or to build the bridge with the draw in the manner contemplated, on account of the same being unnecessary obstructions, not contemplated b'y the charter of “The Paterson and Hudson River Railroad Company.” The complainants pray that this court may decree that the defendants have no right to place the stone piers and draw in the river in the manner proposed, and that they may be enjoined from carrying out their plans as contemplated.

By the act incorporating “The Paterson and Hudson River Railroad Company,” passed the 21st day of January, 1831, it is enacted “that the company shall have the privilege and authority to erect, build and maintain, on the rivers Passaic and Hackensack, respectively, such wharves, piers, bridges and other facilities as they may think expedient and necessary for the full enjoyment of all the benefits conferred by their act of incorporation.” The dimensions of the draws, or the manner of constructing them in the bridges, are not prescribed by the act; but provision is made for keeping lighted lamps at the draws for the safety of vessels navigating the river.

By a supplement passed January 21st, 1831, the width of the draw in the bridge over the Haelcensach river is prescribed, with directions that it shall be placed in a line with the course of the river.

Under the provisions of these acts the company constructed their road from Paterson to the Hudson river, and in the years 1832 and 1833, erected bridges over the rivers Passaic and Hackensack. In the bridge over the Passaic they placed, near the western shore of the river, a draw, at right angles with the bridge, and twenty-six feet in width.

On the 10th of March, 1842, an act was passed, entitled “An act for the better protection of the navigation of the Passaic river,” by which it was enacted “that each and every bridge or viaduct, hereafter to be erected over the Passaic river between the head of navigation and the Newark bay, shall be so constructed as to contain a draw for the free passage of vessels navigating the said river, the opening of which draw shall be at least thirty-five feet wide in the narrowest part, and shall be placed in such position as to do the least possible injury to the navigation thereof.”

This last act was repealed by an act of the 24th of February, 1843 ; but, at the same time, the act of 1842 was reenacted, with some additional provisions, not necessary, for our purpose, to mention.

The company widened their draw, in conformity to the requirements of this act, to thirty-five feet or more. Its position in the river, or as to the bridge, was not changed.

The draw now contemplated is to be forty-five feet in width. 1't is to be placed in the middle of the river, and, like the present draw, is to be at right angles to the bridge. The change of its position from the side to the middle of the river and bridge, is not objected to. The position proposed, it is admitted, is more advantageous than the old one. The water is deeper at the new location, and it obviates difficulties which vessels have had to encounter at the present draw, in consequence of its proximity to the shore.

But it is insisted that the contemplated draw should be placed in a line with the course of the river, and not diagonally to it; and that if it is not,' its position will not be such as is required by the law of 1843, “so as to do the least possible injury to the navigation thereof.”

It will be observed that the act does not, in terms, require the draw to be placed in a line with the course of the river. But if that position is the one to do the least possible injury to navigation, the draw must be so placed in order to answer the requirement of the last-mentioned act.

The language of the act differs from that of the act of the 21st of January, 1831, in reference to the bridge over the Hackensack, which requires, in terms, the bridge on the latter river to be placed “in a line with the course of the river.”

Is there such evidence before the court as proves, with any reasonable certainty, that the position of the draw, as contemplated, is not such as will do the least possible injury to the navigation of the river, and such as will justify the court in interfering with the works of the defendants ?

The affidavit annexed to the bill is that of Zackariah Keasler, who swears that he is the captain of a vessel plying on the river, and that he has been engaged in boating on the Passaic for upwards of twenty years ; that he has examined the works in progress of erection for a draw; that the position of the draw being diagonal to the current, and not in the line of the stream, will make the passage of vessels through the said draw difficult and dangerous at most times; that in time of freshets, which are of frequent occurrence, and with certain winds, the passage will be impracticable, and that the draw should be on a line with the current and course of the river, and not at right angles to the bridge.

Thomas Pettit is the master of a schooner navigating the river. He testifies that the location of the draw being at right angles with the line of the bridge, and consequently crossways with the current and line of the river, will make the passage through it dangerous and hazardous at all times; and, under certain and frequent circumstances, such as freshets and certain winds, impracticable without sustaining serious damage; that the line of the draw should be in a line with the river and the current of the river. He adds, the fact of its present construction being placed as above stated, I consider the greatest obstruction to the navigation of the said river that could be conceived or imagined, and entirely unnecessary.”

Henry Crawford is master of a schooner navigating the river. His affidavit is very much in the language of Pettit’s, and corroborates his statements.

It is thus seen, that in the opinion of these witnesses, the position of the proposed draw is very far from being such “ as to do the least possible injury to the navigation of the river.”

Is this opinion well founded ? Is it based upon such reasonable considerations, and upon such facts, as to entitle it to the weight of evidence which ought to influence the judgment of the court and govern its decision.

It is important to notice that these witnesses speak of the “ current of the river,” the “line of the river,” the “ current of the stream,” and the “course of the river,” as synonymous.

The “course of the river” is a line parallel with its banks. The “ current of the stream ” will vary from the general “course of the river,” depending upon a variety of circumstances. Short bends in the river will drive the current diagonally from one bank to the opposite bank. Exposure to the winds on one side, and the protection afforded by high banks on the other, will produce the same effect. The character of the bed of the river must necessarily greatly affect its current. The map exhibited in this case illustrates this. The channel of the river, its current, and its general course, are all in different directions; and if the map is to be relied on it shows conclusively that no draw could be constructed at right angles with any two of them.

Benjamin B. Aycrigg, a witness on behalf of the complainants, gives us the results of his observation and experiments. The position of the draw is south, forty-six degrees forty minutes west; the direction of the current is south, twenty-five degrees west; but this was fixed with some uncertainty at a low tide, and by an experiment not very satisfactory. The general course of the river is south, twenty-nine degrees west. The channel, for the distance of half a mile in the ^vicinity of the bridge, varies very considerably from the general course of the river, and from the current, as indicated by the experiment made by Mr. Aycrigg.

It is manifest from these observations and experiments, that it is impossible to place the draw in a line at right angles with the current and course of the river. As the witnesses treat “the course of the river” and “the current of the stream ” as the same, and as the bridge cannot be placed at right angles with both, their opinion as to what is the proper position for the draw, is very uncertain.

Keasler thinks the draw should be “ in a line with the current and course of the river.”

Pettit, that it should be in a line with the river and the current of the river, and “ the draw not being so is the greatest obstruction to the navigation of the river that could be conceived or imagined.” These witnesses require impossibilities.

It was the opinion of one of the complainant’s counsel, on the argument, that it was more important to have the draw at right angles with the general course of the river, than at right angles with the current, and yet the complaint in the bill is that it is not at right angles with the current.

But on what do the witnesses found the opinions they have advanced ? They are navigators, and have been engaged as such on this river for a number of years. Are their opinions mere matters of speculation ? What has been the teaching of their experience ?

Eor the last eighteen years there has been a draw on this very bridge. Its position, as to the current and course of the river, is precisely similar to the one in contemplation. For a portion of the time it has been ten feet narrower, and the residue of the time nearly twenty feet narrower than the one proposed. Its position has been so near the west bank of the river as to require fenders to protect boats passing through from being driven against the adjoining bank.

The witnesses of the complainants, who must of necessity have passed frequently through the present draw, in order to reach Acquackanonck, the point to which they were navigating, could tell us with certainty what difficulties must needs be encountered with a draw in such a position. What effect has the present draw' had for the last eighteen years on the navigation of the river ? How have vessels in passing through been affected by the current crossing diagonally? How do actual experience and daily experiments correspond with (he opinion of the witness who says, “that the passage through the contemplated draw will be dangerous and hazardous, and under certain and frequent circumstances, such as freshets and certain winds, impracticable without sustaining serious injury ?” Such cannot be the consequences as to the contemplated draw, so much more favorable in every respect both as to location and dimensions, unless they have been experienced in the present draw.

It'may be said that the opinions advanced are the results of experience. The witnesses do not say so. They express them as mere speculative opinions. If "their opinions are correct, they might have proved them. Facts might have been and ought to have been substituted for opinions. A reference to the dangers and difficulties encountered at the present draw ; to the disasters that must have been frequent if their opinions are correct; to facts, as to the effect produced by the current upon vessels passing it — would be more reliable than the mere opinions of a hundred witnesses.

The present draw is a test of the'most satisfactory and conclusive kind, as to the effect of a draw placed at right angles with the bridge.

What does that test prove ? It ought to govern us.

Silas D. Canfield, a witness of the defendants, was the counsel who appeared on behalf of the navigators, to procure the act of the 24th of February, 1843. He says: “ The principal object they had in view was to compel the widening of the draw of bridges on said river ; that there was an objection to the draw on the railroad bridge at Acquackanonck being so near the bank, and it was then deemed best for the purposes of navigation that the draw should be in the middle of the river, but the great object was to have the draws widened, and no objection was made to the draw being made at right angles to the bridge.”

Philip Van Bussum, another witness, says : “ That he has known the railroad from Paterson to Jersey City ever since they commenced building it; and has been in the employ of the Paterson and Hudson Biver Eailroad Company for about, eighteen years; that the railroad bridge erected at Acquackanonck was built in 1832 or 1833, and that the draw in said bridge, as first made, was at the same place as it now is, except that it has been widened; that the bridge crosses the river at that place diagonally, and that the draw was built at right angles to the bridge; that it was built near the Passaic shore; that he worked on the bridge when the draw was widened, and helped to drive the piles; that he has never heard any complaint of the draw except that it was too near the shore, and the company built a fender to keep the boats from running on the shore; that he never heard any complaint of the angle at which the draw was made in the river ; that he has been all the time in the employ of the company, engaged in the repairs of the road and bridges, and for the last three years has had the entire charge of the bridges, and from his position in the company he thinks he would naturally hear of any complaints against the draw; that at the time of the application to the legislature to compel the widening the draws of bridges over the Passaic, he never heard of any complaint of the angle of' the draw.”

With this evidence, and in the absence of all testimony of inconvenience, even in the present draw, am I not bound to conclude that the opinions of the complainants’ witnesses are proved to be incorrect by this test and experience of eighteen years ?

Can it be doubted that, if the company had attempted to erect a draw in any other position than the present one, it would have been considered an experiment which this court would be bound to prevent ?

But the bill further alleges that the stone piers will be obstructions to the navigation ; that they are unnecessary, either as sides to the draw or as supports for the bridge; and the court is asked to interpose and prevent their erection in the river.

Not a witness ventures the opinion that they are unnecessary or will do any injury to navigation. They are not mentioned or alluded to in auy of the affidavits produced by the complainants.

It may be they are unnecessary; it may be they will greatly obstruct the navigation. But I cannot act upon assumptions. The fact that no allusion is made to these piers by the witnesses examined shows either that the complainants did not consider them of sufficient consequence for serious notice, or that the witnesses were unwilling to say that they were obstructions or were unnecessary.

If an injunction is granted to restrain the erection of the piers, it must be done upon the mere allegations of the complainants as to their injurious tendency. It is reasonable to conclude that the piers will add very much to the safety and permanency of the bridge. It would be assuming a. great responsibility for this court to interfere with their erection, and to compel the defendants to support their bridge by wooden piles.

Upon a careful review of the whole case as it is before me, I have come to the conclusion that the complainants have failed to establish the case presented by their bill.

The injunction is refused, but without costs. The order is made without costs, because the subject matter of the bill is one in which the public is interested, and because I am satisfied that the complainants filed their bill in good faith, and not for the purpose of harassing the defendants. The suit has been conducted with a commendable spirit on both sides, and with a disposition to have the questions involved presented and decided without unnecessary embarrassment.

Potts, J. The bill in this case was filed at the relation of persons interested in the navigation of the Passaic river, in the counties of Bergen and Passaic. The complaint against the defendants is that they propose to alter the position of the draw of the bridge over the Passaic, which crosses jsouth of the town of Acquackanonck, and to place under the same a new set of stone piers near the centre of the river, the draw to be placed between the said stone piers; that the said piers are intended to be each from seven to eight feet broad, and of the width of the bridge, as the same shall be widened to the extent of several feet beyond that of the present bridge; and that they propose to place the said piers diagonally across the river and at right angles with the bridge, and not with the current of the stream; that heretofore there has been no stone piers to the said bridge, but the same is supported by wooden piles and shore abutments of stone; that the placing of the said stone piers would materially impede the navigation of the said river, and not being placed in the line of the current of the river, must render extremely dangerous, if not impracticable, the navigation of the river with the vessels now navigating the same, Ac.; and they say that, by reason of the obstructions in the said river, a short delay in getting through the said draw may, and no doubt often will occasion a much longer hindrance in preventing vessels from passing the said obstructions at the high tide, and that the stone piers will, of necessity, prevent all vessels coming into the draw from having the advantage of the wind to carry them through, which is essential to their progress, and will necessarily produce eddies in the wind; and that it seems to the relators that it will not be in the power of the steam towboat (which one of them is building) to tow any vessel through the said draw, which is designed to constitute a part of its regular business. And the bill therefore prays an injunction, Ac.

Appended to the bill are several affidavits, besides that of the relators.

Zaehariah Keasler testifies that he is the master of a vessel; has been engaged in boating on the Passaic river upwards of twenty years; that he has been master of a vessel some fifteen years last past; that he has examined the works in progress of erection for a draw in the railroad bridge across the Passaic river immediately below Acquaekauonck ; that the position of the draw being diagonal to the current, and not in the line of the stream, will make the passage of vessels through the said draw difficult and dangerous at most times; that, in time of freshets, which are of frequent occurrence, and with certain winds, the passage will be impracticable.

Thomas Pettit, another master of a vessel trading on the Passaic, says — “ The location of that draw being at right angles with the line of the bridge, and consequently crossways with the current and line of said river, will make the passage through said draw dangerous and hazardous at all times, and under certain and frequent circumstances, such as freshets and certain winds, impracticable, without sustaining serious damage. The line of the draw should be in a line with the river and the current of the river, and the fact of its present construction being placed as above stated, I consider the greatest obstruction to the navigation of said river that can be conceived or imagined, and entirely unnecessary.”

Henry Crawford, also the master of a vessel running on the river, says — “ The placing of the said draw in the middle of the bridge and said river, at right angles with the line of the bridge, and consequently the line of said draw for the passage of vessels across the line of current of said river, would be not only a very serious obstruction, but, in many respects, ruinous to the navigation of said river, dangerous and hazardous for vessels to pass at all times and under favorable circumstances ; and when the water is high, under the influence of freshets, which we are subject to very frequently throughout every season, and when the current, by means of such freshets, is running at an increased rate of rapidity,, and very often for several days in succession, it would be, to a very great extent, impracticable and decidedly imprudent to attempt a passage through said draw, under any circumstances.”

A map is exhibited, showing the course of the river and the position of the bridge and draw, as contemplated to be erected, from which it appears that, although the draw is proposed to be forty-five feet in width, yet, as the bridge crosses the river diagonally, and the draw is tó be at right angles with the bridge, it affords but about twenty-four feet six inches clear width, to a boat keeping the course of the river as indicated by its banks.

This is substantially the case made by the relators.

The defendants, on the other hand, read affidavits to show that, ever since the bridge was originally erected in 1'832 or 1833, the draw has been at right angles with the bridge, and much nearer the shore, and of less dimensions; that they never heard any complaints of the old draw, except that it was too near the shore; and that, taking the line of the deepest water in the river as indicating the course of the current, the proposed draw will be in a line with the actual current of the river.

It appears on the part of the complainants, then — First. That the defendants have erected their bridge in a diagonal line across the Passaic river, and propose to construct the piers for their new draw at right angles with the bridge. Second. That the place where the bridge crosses is below the head of navigation. And, Third.. That, in the opinion of the witnesses most intimately acquainted with the navigation, the proposed mode of constructing the piers and draw will seriously obstruct the navigation. And the object sought by the relators is to obtain a temporary injunction to restrain the company from proceeding until the question can be fully inquired into and satisfactorily settled.

In the first place, let us see what are the terms and extent of the legislative grant to the defendants, under which they claim the right to construct and maintain this bridge and draw.

By the thirteenth section of the charter of the company, (1 Har. Comp. 324,) they are authorized to build and maintain, on the rivers Passaic and Hackensack, wharves, piers, bridges, <&c., and they are to keep the same properly lighted, and cause to be kept at the bridge over the Hackensack a careful person to open the draw for the free passage of vessels with standing masts. The seventh section of the act had already provided that they might cross the Hackensach river upon or adjoining the bridge belonging to the Now Barbadoes Toll Bridge Company, with their consent; but if such consent could not be obtained, then as near the said bridge as practicable, with a draw in a line and corresponding with the present one, and of equal or greater width.

It seems that the company did not propose, at the time they obtained the charter, to cross the Passaic below tide water, and therefore no provision was made for a draw in that bridge, but the proposed route having been changed by a supplement of the 18th November, 1831, making it necessary to cross that river below tide, the provisions and requisitions of the thirteenth section of the original charter were made applicable as well to the bridge to be constructed over the Passaic as to that over the Hackensack, and, at the same time, more particular provisions were made in reference to the Hackensack bridge, which it is unnecessary here to notice.

Subsequently, in 1842, (Pamp. L. 139,) an act was passed for the better protection of the navigation of the Passaie river, which was repealed and supplied by another act passed in 1843. Pamp. L. 117. This last act directed “ that each and every bridge or viaduct hereafter to be erected over the Passaic river, between the head of navigation and Newark bay, shall be so constructed as to contain a draw for the free passage of vessels navigating the said river, the opening of which draw shall be at least thirty-five feet wide in the narrowest part, and shall be placed in such position as to do the. least possible injury to the navigation thereofand “ that every bridge now erected over said river, not having a draw at least thirty-five feet wide, shall, by the first day of May next, be so altered as to contain a draw of the dimension and description ” above specified.

It is admitted that the defendants complied with the directions of the act last mentioned, so far as to make their old draw of the width prescribed, and so far acquiesced in it. But whether they had done so or not, there can be no doubt that the act is binding upon the company. It violates no-vested rights granted them by their charter, as originally passed, or by the supplement of 1831. They had no authority, by virtue of those acts, to interfere unnecessarily with the navigation of the river. A grant in general terms-, to an incorporated company, of authority to build a draw bridge over a navigable river, always implies that the bridge shall be so constructed, and the draw so placed, as to do the least possible injury to the navigation. The right'of navigation is a pre-existing public right, and all grants of special privileges are to be construed strictly against the grantees and liberally in favor of the public, and he who claims authority to impair or obstruct this right by legislative grant, must show it hy the clear and explicit terms of the grant itself, or at least by necessary implication. Att’y-General v. Stevens et al., Saxton 383; 4 Mass. R. 145. The act of 1843 only declares what shall be deemed a sufficient width of draw, and prohibits in effect any unnecessary interference wdth the navigation.

I cannot see, therefore, that the grave question, whettier the legislature of a state has the power to authorize an obstruction to be placed in a navigable river within its own limits, is involved in this case. The legislature have exercised no such power. When that question comes up it will be time enough to settle it. The erection of bridges over rivers, with proper draws, so constructed and placed as to do the least possible injury to the navigation has never been held to be a nuisance. The slight, but unavoidable obstruction which such bridges occasion is a necessary evil which must be borne for the sake of the public good, which demands it. It belongs to the same class of inconveniences as those to which the traveling public are everywhere subjected in the crossing of public highways by canals and railroads. The relators do not complain of the bridge or the draw; but only of the position in which the draw is proposed to be placed. Jíor do I understand that any serious complaint is made that the piers are to be of stone, provided the objection as to their position in the river is obviated.

It is clear, then, that the whole extent of the company’s right is to maintain a bridge with a draw at least thirty-five feet wide in the narrowest part, and placed in such position as to do the least possible injury to the navigation of the river. And the complaint is that they are about to construct the piers, not in a line with the course of the river as indicated by its banks, but diagonally across the same, so that they will be at right angles with the line of the bridge; and that placing the piers and draw in the proposed position will render the navigation extremely dangerous, if not impracticable, with the vessels now navigating the river.

Xovy, there is no dispute about the fact that the company do propose to place the piers and the draw of the bridge in the position mentioned; and the whole question in the cause is, whether or not that is the position which will do the least possible injury to the navigation. The complainants allege it is not — the defendants insist it is.

The difficulty in the mind of the Chancellor, and which induced him to deny the injunction prayed for, was, that the case of the relators was based upon opinions rather than facts deduced from actual experience; and that opposed to these opinions evidence was produced, as before mentioned, that the first draw erected by the company near the shore, was constructed in the same diagonal position to the' course of the river as indicated by its banks, as was proposed for the contemplated new draw; that no complaints had been made of that, except that it was too near the shore: and that the position of the new draw, as proposed, would be actually at right angles with the current of the river, as indicated by the bed or deepest channel of the same.

But, with great respect for the j udgment of the learned Chancellor, I think a sufficient case is made for a preliminary injunction.

I know it is said that courts of equity will grant an injunction to restrain a nuisance only in cases where the fact is clearly made out, upon determinate and satisfactory evidence, and that if the evidence be conflicting, and the injury to the public doubtful, that alone will constitute a ground for withholding their extraordinary interposition. 2 Story’s Eq. Jur., § 924. But it is often necessary, in order to ascertain the extent and application of a principle, to look to the cases from which it is derived; and in this instance not one of those cited by Mr. Justice Story bears the slightest analogy to the case now before the court. The Earl of Ripon v. Hobert, 3 Mylne & Keene 169, was a bill to restrain certain parties from using steam-engines in draining low lands under their management by throwing the water into the river Witham. The drainage had been formerly managed by wind-mills, and it was apprehended that the rapid process of the steam-power application would endanger the banks of the river. Voluminous affidavits were taken on both sides, extending to seven sets, and containing the representations of opinions, with the facts or alleged facts and reasons on which they rested, found by skillful professional men as well as other persons chiefly directed to determine the question whether any use that could be made of the engine proposed to be erected would prove detrimental to the banks, &c. And the Chancellor said that in the conflict of opinions in the case it was impossible for any one to tell beforehand whether damage would ensue or not. The defendant was making an untried experiment, and the Chancellor left him to prosecute it at his peril. The anonymous case cited from 1 Vesey, Jr., 140, was an application to restrain the defendant from prosecuting further the digging of a ditch, and the Chancellor did restrain him from proceeding further until he answered. The Att’y-Gen’l v. Doughty, 2 Vesey, Sr., 453, was a bill for an injunction against stopping the complainant’s prospect, and the court said that it was very doubtful whether the bill could be maintained for trial, and at any rate he would not interpose before answer. The Att’y-Gen’l v. Nichol, 16 Vesey 338, was a question of stopping ancient lights, for which an action at law had been commenced, and the court refused to interfere until that suit was tried. The Att’y-Gen’l v. Cleaver, 18 Vesey 211, was a bill to restrain a defendant from manufacturing soap, and a preliminary injunction was granted, but subsequently dissolved on the hearing, as the complainant had sought his remedy at law. And Mack v. Wyatt, 3 Merivale 688, was a bill to restrain defendant from digging near the complainant’s bank, and the injunction granted on the ground that the question as to the right had been established at law. Here are the English cases cited; and they go no further than the perfectly familiar doctrine that equity will not ordinarily interfere in cases of nuisance where the complainant has a perfect remedy at law. Att'y-Gen’l v. N. J. R. R. Co., 2 Green’s Ch. 140.

In regard to public nuisances, says Justice Story, the jurisdiction of courts of equity seems to be of very ancient date, and has been distinctly traced back to the reign of Queen Elizabeth. The jurisdiction is applicable not only to public nuisances, strictly so called, but also to purprestures upon public rights and property, as public rivers, &c. 2 Story’s Eq., § 921. And the State of Pennsylvania v. Wheeling Bridge Co., 13 Howard 518, is a memorable case not only in support of the authority of the court to interfere, but to show the importance of its early exercise, as a preventive remedy, in cases where obstructions to a public navigation are about to be erected, which, when erected, can only be removed at very great expense and sacrifice. Indeed, the case in 2 Green’s Ch. 140, above referred to, goes so far as to hold that, when the obstruction has been completed, the thing.complained of is done, the remedy by injunction, which is in its nature preventive merely, is gone.

Now the defendants here are about to erect stone piers in the middle of the Passaic river to support their draw. It is intended to be a permanent structure and to be erected at great expense. The bridge is a railroad bridge on a line of great and increasing travel. If the position in which it is contemplated to place these piers and this draw is not the one which will do the least possible injury to the navigation, nothing is clearer than that it is of the last importance, even to the defendants, that they should know it now ; and it is scarcely less certain that just in proportion to the expense of the work, the difficulty of removing it after it is finished, and the inconvenience, perhaps danger, to the traveling public, which would ensue from the process of removal, will be the delay and vexatious litigation to which the navigation of the river will be subjected in effecting it.

The object of the relators is to anticipate the mischief by stopping the work in limine. They ask a temporary injunction until the question as to whether this is the right position for the piers and draw can be examined and settled, either by the Chancellor or by a reference to a master, to commissioners, or to a jury.

In the first place, it strikes me as a strong fact in this case that the defendants are about to place this draw in an unusual and unnatural position. The natural position of the piers would be on a parallel line, and the draw at right angles, with the course of the river as indicated by its banks; and it requires no science or experience to determine that however the river may wind about in its bed at very low water, as a general rule when it is high the course of the banks is the surest indication of the course of the stream. The proposed position is that which is most convenient to the bridge company, being at right angles with the bridge, which crosses the river diagonally. If the bridge had crossed the river at right angles, it is hardly probable the company would have thought of placing the draw diagonally.

Then in the second place, not only are the charges of the bill explicit, but they are supported by affidavits conclusively showing what, in the judgments of persons best able to form an opinion, the effect of the proposed erection will be. True, we have only their opinions, but they are the opinions of experts; men thoroughly acquainted with the practical business of navigating this river. Questions of this character must always depend upon such evidence. The proposed piers and draw have no actual existence — there can be no experience in reference to that which has no existence ; and consequently we could not, in the nature of things, have the evidence of facts deduced from experience in support of the complainant’s case. To lay down the rule that such evidence is indispensable, would be to say that no injunction could ever issue to stop a party from erecting an obstruction of this character in a navigable river, because until the thing was done there could be no experience of its effects, and when the thing was done, according to the case in 2 Green’s Ch. 140, it would be too late.

These opinions go to the very point of the question in controversy. If these practical navigators are right, the defendants’ proposed piers and draw would be a nuisance— an invasion of the relators’ rights, and without color of justification under the charter of the railroad company. But the defendants had an opportunity afforded them of meeting this testimony and overcoming or shaking it if they could. They have not done so. Not a single practical navigator was called by them — not a single conflicting opinion adduced of any man having any practical acquaintance with the navigation of this river. A fair inference therefore is, that none such could be had; and if this be so, then the whole mass of practical opinion is against the defendants.

I do not attach much weight to the fact, if it be so, that no complaint was ever made of the position of the old draw, except that it was too near the shore. Its location on one side of the river was complained of, and that location may have been the very reason why the present objection did not apply to it. Here is a new draw proposed in a different location, in the middle of the river, and to be constructed with stone piers — and these considerations I think make it a new question. Nor is it a satisfactory answer to the difficulties suggested by the relators in regard to the diagonal position of the new draw, that the line of deepest water corresponds with it. The principal danger in the navigation by reason of the proposed piers, it is alleged, will be in times of high tide and freshets, and the depth of the channel will not control the course of the current on such occasions, but the stream will pursue the course of the banks.

There is no hardship in this case. The defendants had early notice that their right to place their piers and draw as proposed by them would be contested. The question to be ascertained is, in what position these works should be placed to do the least possible injury to the navigation, and the relators manifest every disposition to speed the cause so as to have the question settled without delay.

I think the order of the Chancellor, refusing the injunction, should be reversed; and that the cause be remitted, to be proceeded on in conformity with the opinion of this court. But I think the injunction asked for should extend no further than to restrain the defendants from erecting their proposed piers and draw in the position proposed by them, until the question whether that is the proper position can be determined.

Haines, J.,

concurred in the above opinion.

The decree of the Chancellor was reversed by the following vote:

For affirmance—Green, C. J., Elmer, J., and Risley, Judge—3.

For reversal—Justices Haines and Potts, and Judges Arrowsmith, Huyler, Valentine, and Wills—6.

Cited in Att’y-Gen. v. City of Paterson. 1 Stockt. 632; Att’y-Gen. v. Heishon, 3 C. E. Gr. 413; Stevens v. Pat. & Newark R. R. Co., 5 C. E. Gr.; Easton & McMahon v. N. Y. & Long Branch R. R. Co., 9 C. E. Gr. 57.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Ralph V. M. Cooper, appellant, and William M. Cooper, respondent.
    1. A testator by his will appointed his cousin and the defendant, his son, the guardians of the complainant, with directions to educate and maintain him out of the estate given to the complainant by the will. On the complainant’s arriving at the age of twenty-one years, the defendant and his sister were to pay to the complainant, out of their own estate, the sum of one hundred dollars each. The complainant claimed that sum, with interest from the time he arrived at' the requisite age. The defendant alleged that since that time the complainant, for a valuable consideration, had executed a release under seal, by which he released and discharged the defendant of and from all actions, suits, demands and claims whatsoever, which the said complainant then had, ever had, or could have against the defendant as his guardian.

    2. Held, that the release did not cover the claims.
    3. That although the defendant set up in his answer, that he took the benefit of the bankrupt law, and had received his discharge from the District Court of the United-States, he could not avail himself of this defence, because he had not proved it. It was unnecessary, therefore, to decide the question discussed on the argument, whether the character of the debt was such as to exclude it from the operation of the bankrupt law.
    4. The complainant and defendant, with their sister, were tenants in common of the lands in question, each entitled to an equal third part of the same. The land had been in the possession of tenants and had been impoverished by improper cultivation — the fences were dilapidated, and the buildings had been permitted to go to decay. In this situation of the premises the defendant went into possession of them, rebuilt the houses, renewed the fences and renovated the land. The sister then conveyed her interest'to the complainant. A division was made between the complainant and defendant by agreement, and releases exchanged. Held, that the complainant was entitled to one-third of the rents and profits from the time the defendant entered into possession up to the time when the sister made Ihe conveyance, and from that period until the defendant delivered up possession, to two-thirds of the rent. And that a proper allowance should be made to the defendant for the permanent improvements put by him on the premises.

      The bill was filed December 24th, 1849. A demurrer to the bill was overruled, for not having been set down for hearing according to law.
    An answer was filed, December 17th, 1850, and a replication, December 24th, 1850. Proofs were taken on both sides.
    The bill calls for the defendant to account for one hundred dollars, and interest on that sum from the time the complainant arrived at the age of twenty-one years, and which, by the will of the father of the complainant and defendant, (they being brothers,) the defendant was charged to pay him as a condition of the devises and bequests in the will made to him.
    The bill also calls upon the defendant to account for the rents and profits of the real estate mentioned in the bill, charged as having been in the occupation of the defendant.
    That the said land was held by the complainant and the defendant, together with their sister, Sarah Ann Lee, as tenants in common, and holding in fee one equal undivided third part; that, on the 25th July, 1848, Sarah Ann conveyed her interest to the complainant; that, on the 20th March, 1847, and before the sale of Sarah Ann aforesaid, the defendant took possession of the land in question ; that, on or about the 13th day of October, 1848, the complainant and defendant entered into a written agreement, by which they appointed three persons commissioners to divide the said lands by metes and bounds, according to a line, or divisions thereof, agreed upon by the parties thereto, and to value and appraise the respective shares, and to settle to whom and how the difference in the valuation of said shares was to be paid, as in and by the said agreement expressed; that, on the 1st day of November, 1848, the said commissioners, by writing under hand and seal, did make the division, and did determine that the defendant should pay to the complainant two thousand one hundred and fifty dollars, on or before the 10th of January then next, and that then, mutually, releases should be exchanged ; that, in pursuance of said report, releases were exchanged on the 16th of March, 1849, but that, notwithstanding the defendant continued to hold the possession of the said premises up to the 7th day of November, 1849.
    An account of the rents and profits is prayed.
    No objection was made to the form of the bill, either in the pleadings or at the hearing.

      Mr. Dudley, for complainant.

      Mr. Mulford, for defendant.
   The Chancellor.

The complainant and defendant are brothers. Their father, who died in 1835, by his will directed that .the defendant, as a condition of certain devises and bequests made to him in the will, should pay to the complainant, then a minor, on his arriving at the age of twenty-one years, the sum of one hundred dollars.

The complainant was twenty-one years of age on the 4th of December, 1844. He claims the one hundred dollars, and the interest from that date.

The defendant resists payment upon two grounds..

First. He alleges that, on the 23d of August, 1847, he, as the guardian of the complainant, by virtue of such appointment by the will of their father, had a final settlement with the complainant, and that, in consideration of two hundred and twenty-five dollars then paid him, the complainant executed a release under seal, by which he released and discharged the defendant of and from all actions, suits, demands and claims whatsoever, which the said complainant then had, ever had, or‘could have against the defendant, as his guardian.

The release does not cover this claim.

Benjamin B. Cooper, by his will, appointed one Benjamin Cooper, his cousin, and the defendant, his son, the guardians of the complainant, with directions to educate and maintain him out of the estate given to the complainant by the will. On the complainant’s arriving at the age of twenty-one years, the defendant and his sister, Sarah Ann, were to pay the complainant, out of their own estate, the sum of one hundred dollars each.

The release does not embrace technically, nor in its spirit, the claim in question. There is nothing in the pleadings or proofs to show that it was the intention of the parties to the release that it should embrace any other claims between them, or claims in any other right than the legal technical construction of the instrument warrants. There is no allegation in the answer that it was the understanding or intention of the parties, or of the defendant himself, that the release should embrace this claim. The release is set up as a legal defence, and the defendant claims no benefit from it except what, upon the face of it, the strict rule of law will give him.

Second. The defendant sets up in his answer that he took the benefit of the bankrupt law, and on the 16th day of August, 1842, received his discharge from the District Court of the United States for the district of New Jersey.

It is unnecessary to decide the question discussed on the argument, whether the character of this debt is such as to exclude it from the operation of the bankrupt law. The defendant cannot avail himself of the defence unless he -proves it. This he has not done, and his answer, in this respect, cannot avail him.

The defendant must account for the one hundred dollars, and interest thereon, from the 4th of December, 1844.

The bill also prays an account of the rents and profits of certain lands and premises, in the bill described, from the 20th of March, 1847, up to the 7th of November, 1849.

The complainant and defendant, with their sister, were tenants in common of the lands in question, each entitled to one equal third part of the same.

There are three tracts of land lying adjacent to each other. On one of them is an apple orchard and several cider-mills and distilleries. The other tracts have been cultivated as farms.

All three of the tracts were occupied by tenants, under rent, for a number of years.

The distilleries, dwelling-house and other buildings had been permitted to go to decay. The fences were dilapidated, and the lands impoverished by improper cultivation. In this situation of the premises the defendant went into the jmssession of them. He rebuilt part of the dwelling-house, which had fallen down, put the cider-mills in repair, renewed the fences, and, by proper cultivation, renovated -the farming land. In the following month of March, after the defendant took possession, the sister conveyed her interest to the complainant, who thus became seized of two equal undivided third parts of the lands and premises.

On the 13th of October, 1848, the complainant and defendant agreed to a division, and for this purpose entered into writings, under seal, by which they named and appointed three persons to divide the lands by metes and bounds, according to a 'line, or division thereof, agreed upon by. the parties, and to value and appraise the respective shares, and to settle to whom, and how, the difference in the valuation of the shares should be paid. A division was made in pursuance of the agreement, and it was determined that the defendant should pay the complainant two thousand one hundred and fifty dollars on the 10th day of January then following, when the parties should mutually release to each other their respective allotments. Releases were exchanged on the 16th of March, 1849, but the defendant did not deliver up the possession of the part allotted to the complainant until the 7th of November, 1849. The complainant claims one-third of the rents from the 20th of March, 1847, the time when the defendant entered into possession, up to the 25th of July, 1848, when his sister made the conveyance to him of her interest; and from that period up to the 7th of November, 1849, he claims two-thirds of the rent.

The defendant denies that he had possession of the three tracts, but admits that he occupied the buildings and a part of the land, and he claims that the improvements made by him should be allowed him as a set-off to the rent.

I think the evidence sufficiently proves that the defendant had the possession of all the land. There is proof that he exercised a control over the whole of it, and that he dedared he had the possession, and would hold it until the difficulties between himself and brother should be settled

A proper allowance should be made to the defendant for the permanent improvements put by him on the premises. It is shown that the repairs and improvements were absolutely necessary to make the buildings and premises tenant-able, and to prevent their total dilapidation. The defendant had the benefit of the improvements in the division and valuation made by the individuals who made the partition between the parties; and it is equitable, under these circumstances, that in accounting for the rents and profits, the improvements should be taken into the account. For the repair of fences, and the manure put upon the land, the defendant can have no allowance in the shape of improvements. The impoverished state of the land, and the general condition as to fences and other particulars essential to its enjoyment, will, of course, enter into the calculation in fixing an estimate of the value of the premises for the purposes for which they were adapted. The defendant is not entitled to a more liberal rule in taking the accounts, considering the circumstances of the whole case. By this mode of taking the accounts he will get a fair allowance for the manure and fences.

Let a reference be made to a master, with directions to charge the defendant with the one equal third part of the yearly rent and value of the premises from the 20th March, 1847, to the 25th July, 1848, and with two equal third parts of their yearly rent and value from the 25th July, 1848, to the 7th November, 1849. Let an allowance be made to the defendant for the one-third of the value of the permanent improvements put by him on the premises between the first-named period, and for the value of two-thirds of such improvements from the 25th of July, 1848, to the 1st of November, 1848, when the partition was made.

The decree of the Chancellor was affirmed unanimously.