cards, was captured by the United States bark Restless, Edward Conroy, Esquire, acting Lieutenant, commanding, at about half past eight o'clock on the morning of October 1, 1862, in Bull's Bay, South Carolina, near the inlet that leads to Charleston, at a point variously stated by the examinants, from two to three or from three to six miles within the limits of the squadron blockading the approches to Charleston.

The vessel and cargo were sent by the captors to Philadelphia for adjudication, and on the 7th of November, 1862, the same were libeled as prize of war by the United States Attorney for the Eastern District of Pennsylvania. Claims were thereupon presented and allowed to be filed, subject to all legal exceptions, by the alleged owners of the vessel and cargo, for their respective interests in the subjects of capture.

The vessel was claimed by John Simonson, her master, an alleged resident of Staten Island, State of New York, on the 15th of November, 1862.

Portions of the cargo on board were, on the 29th of January, 1863, respectively claimed by Ames & Barnes, Leeds & Co., J. T. Grant & Son, all alleged residents and merchants of the City of New York-Edward S. A. Chichester, of Norwalk, Connecticut, and Marinus H. Van Dyke,of the City of New York," as alleged in his claim.

Alexander Muir, of the City of New York, claimed also a portion of the merchandise on board, on the 9th of May, 1863.

The examinations in prepatorio and the papers and documents found on board at the time of capture having been duly returned by the prize commissioners, the court permitted the claimants to introduce, without limit, further proof of all the points of the case.

After the introduction of such proof, the cause came on to be heard before the learned district judge, assisted by two experienced nautical assessors, Captain John H. Young, one of the Prize Commissioners of the Court, and Captain Enoch Brooks, who had been ex amined as a witness on behalf of the claimants upon the question of breach of blockade.

The proofs having been read, and the arguments of the respective counsel having been heard, the learned judge submitted to the assessors, as a merely nautical inquiry, the question whether the facts of the voyage on which the vessel was captured, were consistent with a destination in good faith for New York (from Port Royal, S. C.), continuing without willful deviation until the time of capture; and whether if a willful deviation occurred, it was under circumstances reasonably consistent with innocence of intention and reference to the blockade.

The assessors thereupon presented very fully to the court, in writing, their views, under the whole evidence on the points submitted, and announced their belief that willful deviation under both the propositions quoted above, was made by the master, with fraudulent intent to run the blockade at Bull's Bay.'

The learned judge of the district court then said:

"If the views of these nautical experts had been different from my own, I would not have

decided this case without further consideration; but it is, upon the report of these gentlemen, a case of no difficulty. Let a decree condemning the vessel and cargo be entered."

A general decree condemning both vessel and cargo as the property of enemies of the United States, or as otherwise confiscable as prize of war, was accordingly entered. The specific ground of the decree was the one found by the nautical assessors-breach of the blockade of Charleston and its approaches, as appears by the proceedings thus set forth.

This decree is now brought by the present appeals before this court for review.

Messrs. M. P. Henry and R. H. Gillet, for claimants:

First. The offense, if any was committed by the master of The Elmira Cornelius, consisted in the violation of the provisions of the Act of Congress of July 13, 1861, section 5, forbidding commercial intercourse with citizens of an insurrectionary State.

12 U. S., 257.

Second. The question is one of innocent or guilty intention on the part of the master of the schooner. The question as to what constitutes a violation of a blockade as between a neutral and a belligerent, is not involved in the case. The Fortuna, 5 C. Rob., 27.

Third. That the voluntary stranding of The Elmira Cornelius for the purpose of saving vessel and cargo, at a point where the schooner lay within reach of an armed vessel of the United States, so as to enable such vessel either to render assistance to or destroy the schooner in case of an enemy approaching, will not subject the vessel to forfeiture, either under the laws of war or the Act of Congress of July 19, 1861. 12 U. S., sec. 257.

Fourth. That in no event will the owner of cargo be affected by a wrongful act of the master, done without authority of such owner.

The Mercurius, 1 C. Rob., 82; The Neptune, 3 C. Rob., 173; The Ann Green, 1 Gall., 284; The San José Indiana, 2 Gall., 268; The Nereide, 9 Cranch, 388.

Mr. James Speed, Atty-Gen., and Mr. J. Hubley Ashton, Assistant Atty-Gen., for the United States:

Lord Langdale has said that in an admiralty cause involving a mere question of fact, the privy counsel of England will not differ from the judge of the High Court of Admiralty and reverse his judgment, unless they can clearly come to a contrary conclusion.

The Christina, 6 Moore, P. C., 381.

The same rule has been announced and repeatedly acted upon by this court in that class of cases.

If sufficient evidence can be found in the record to support the judgment rendered below, the decree must be affirmed. It will not be reversed upon the showing that there is a theory supported by some evidence in the cause, on which a different decree might have been rendered.

The Marcellus, 1 Black, 417 (66 U. S., XVII., 218): The Waterwitch, 1 Black, 500 (66 U.S., XVII., 157).

We invoke this principle and ask the court to apply it in the present cases.

That this vessel had deviated from the line of the voyage that she was professedly pursuing,

this is the only injury suffered by the complainant, and that the City of Philadelphia, the defendant, is able to respond in damages for such injury.

The answer further alleges that the proposed bridge is a necessity for public convenience.

Suits in chancery had been brought by wharf owners in Newark, against the New Jersey Railroad, for constructing a bridge which would obstruct the navigation of that river. This case had been decided by Mr. Justice Grier, in the same circuit at a prior term, adversely to the plaintiffs, and the grounds for that decision were mutually understood by court and counsel to be the same for the dismissal of the bill in this case. It is therefore proper here to consider the position taken by the complainant in the former case, as well as the opinions of the court therein.

The complainants in that suit alleged that the bridge would work a special injury to them by depreciating the value of their wharf property, and by causing inconvenience, delay and expense to vessels engaged in navigating the river. They also contended that it was a special injury to the owners of property by an obstruction to navigation, and entitled them to maintain a suit in equity for an injunction prior to the erection of the bridge, or for a decree of abatement if the bridge should have been erected, and that that had been so decided in the case of Pennsylvania v. Wheeling Bridge, 13 How., 562, to which, and to the authorities there collected, reference was made; that the condition of complainants, so far as the ownership of wharf property is concerned, was almost identical with that of the State of Pennsylvania in the former

case.

The learned Justice, in dismissing the bill, beld:

1. That the question, whether the power to regulate bridges over navigable rivers wholly within the bounds of a State could be exercised by it below a port of entry, was not in The Wheeling Bridge case.

2. That while Congress has exclusive power to regulate commerce, that has never been construed to include the means by which it is carried on within a State.

3. "I see no reason (said the learned Justice) why the State, in the exercise of her absolute Sovereignty over the river, may not stop it up altogether, and establish the harbors and wharves at the mouth of the river. It would affect the rights of no State."

4. The learned Justice also said: "Assuming the right (which I neither affirm or deny) of Congress to regulate bridges over rivers below ports of entry, yet not having done so, the courts cannot assume to themselves such power."

5. "The case of Wilson v. The Black Bird Creek, etc., governs this, while it has nothing in common with that of The Wheeling Bridge. Mr. Harding, for appellants:

The "navigable rivers" in which the tide ebbs and flows, which connect the ocean with the ports of the United States, were held to be arms of the sea, by the common law, at the time of the adoption of the Constitution; and to such rivers, therefore, the jus pulicum of the citizens of the United States was attached, by reason of this fact, in the same manner as it attached to the high seas.

See 3 WALL.

U. S., Book 18.

Hargrave, Tracts, p. 12; The Genesee Chief v. Fitzhugh, 12 How., 454; City of Mobile v. Eslava, 16 Pet., 252; Pollard's Lessee v. Hagan, 3 How., 228; Wheeling Bridge case, 13 How., 585.

The commerce which begins or ends at the United States ports located on these arms of the sea or navigable rivers, and which is carried on between foreign nations and the several States, is wholly independent of state jurisdictional lines. Gibbons v. Ogden, 9 Wheat., 194; Passenger Cases, 7 How., 414.

No State can interfere with the free navigation of any "navigable river" or arm of the sea, leading from the high sea to any declared port of the United States, by interfering with either of the essentials required in navigating said waters, viz.: the vessel, the impelling agent, the water or the navigators.

The citizens of the United States and of foreign nations, having thus, under the Constitution and Acts of Congress, acquired a right to navigate the Schuykill River to and from the Port of Philadelphia, an obstruction to such navigation, under the Act of State Legislature, is unconstitutional and a public nuisance that may be enjoined or abated on complaint of an injured party.

It is immaterial whether the building of a bridge across a navigable river, in pursuance of State Legislature, is appropriately denominated a municipal regulation, a police regulation, or a regulation of commerce. The only question to be now discussed is, whether the bridge so built under authority of a State Legislature, would, as a matter of fact, interfere with the exercise of a jus publicum recognized in a citizen of the United States by Congress or any jurisdiction that has been assumed or asserted by Congress over such a navigable river of the United States, or any regulation of commerce in reference thereto.

Gibbons v. Ogden, 9 Wheat., 209; Acts of 25 Feb., 1799, sec. 1, 1 Stat., 619.

The equitable powers of the Court of the United States are adequate to grant relief, either by injunction or decree of abatement, at the suit of an injured party.

Pa. v. Wheeling Bridge Co., 13 How., 567; 3 Mylne & K., 169.

An indictment at common law could not be sustained in the Federal Courts by the United States against the bridge as a nuisance, as no such procedure had been authorized by Congress; but a proceeding on the ground of a private and irreparable injury may be sustained against it (the bridge) by an individual or a corporation. Such a proceeding is common to the federal courts and also to the courts of the State. The injury makes the obstruction a private nuisance to the injured party, and the doctrine of nuisance applies to the case where the jurisdiction is made out, the same as in a public prosecution.

The powers of a Court of Chancery are as well adapted and as effectual for relief in the case of a private nuisance as in either of the cases named, and in regard to the exercise of these powers, it is of no importance whether the eastern channel, over which the bridge is thrown, is wholly within the limits of the State of Virginia.

That the courts of the United States, in exercising this power, may enjoin absolutely against 7 97

the erection of any bridge across “a navigable river," or decree an absolute abatement, or may grant a conditional injunction against the particular form or extent of obstruction; that courts of the United States can take cognizance of, and determine the alleged facts and extent of nuisance, or can refer the same to a master, or to a jury.

Pa. v. Wheeling Bridge Co., 13 How., 518; Devoe v. Penrose Ferry Bridge Co., 3 Law Reg. 80; see Ang. Wat. ; also, 4 Barn. & C., 602; see, also, comments of court on case of Black Bird Creek, 2 Pet., 245.

Messrs. Sellers and Brewster, for appellee:

As complainants are not specially interested in navigation, they cannot intervene for its protection,

Public rights are protected by public tribunals upon the intervention of public officers. If they may intervene on their ownership of land for the protection of navigation; yet with out any Act of Congress regulating commerce among the several States, which would operate on all navigable rivers, federal courts have no jurisdiction to decree as prayed by this bill.

Gibbons v. Ogden, 9 Wheat., 196; Wilson v. Black Bird Creek Co., 2 Pet., 251; Commonwealth v. Breed, 4 Pick., 462; Kellogg v. Union Co., 12 Conn., 17; N. Y. v. Miln, 11 Pet., 103; Col. Ins. Co. v. Bridge Co., 6 McLean, 70; Jolly v. Terre Haute Bridge Co., 6 McLean, 237; U. S. v. R. R. Bridge, 6 McLean, 517; Works v. Junction R. R., 5 McLean, 426; People v. Saratoga R. R., 15 Wend., 133.

These cases discuss the question involved, and concede that it is for the Legislature, and for it alone, to judge of the expediency of bridging navigable streams; that the power to con struct bridges over navigable waters within a State must exist somewhere, and that it is not pretended that such power has been delegated to Congress, or, if so, that they have legislated in pursuance to such power.

Pa. v. Wheeling Bridge, 13 How., 519; Veazie v. Moor, 14 How., 569; U. S. v. Bedford Bridge, 1 Wood. & M., 407.

Mr. Justice Swayne delivered the opinion of the court:

This is a case in equity, brought here by appeal from the decree of the Circuit Court of the United States for the Eastern District of Pennsylvania.

The bill seeks to enjoin the defendants from erecting a bridge without a draw over the Schuylkill River, from the foot of Chestnut Street, in the City of Philadelphia.

There is no contest between the parties about the facts upon which they respectively rely.

The defendants are proceeding to build the bridge under the authority of an Act of the Legislature of Pennsylvania. The Schuylkill River is entirely within her limits, and is "an ancient river and common highway of the State." For many years it has been navigable for masted vessels for the distance of about seven and a half miles only, from its mouth. At Market Street, about five hundred feet aboveChestnut, there is a permanent bridge without a draw over the same river, and no higher above the water than it is intended to elevate the bridge about to be built. The bridge at Market Street was erected prior to the year 1809. It rendered the passage of masted vessels above that point impossible, and since that time comparatively few have appeared above the foot of Chestnut Street. The river there has since been used chiefly as a highway for canal boats.

The injury to the property of the complainants will be entirely consequential. A largecity is rising up on the opposite side of the river. The new bridge is called for by public convenience.

The case resolves itself into questions of law. At the threshold of the investigation we are met by the objection from the defendants, that the complainants, "not being specially interested in navigation, cannot intervene for its protection." It is said, "that they are not the owners of licensed coasting vessels, and are not pilots nor navigators.'

As regards this objection, the case is not essentially different in principle from the Wheeling Bridge case, 13 How., 553.

The further objection was also taken in that case, that if a nuisance existed, it was of a public nature, and was an offense against the sovereignty whose laws were violated, and that the sovereign only could intervene for the correction of the evil.

It was answered by the court, that wherever a public nuisance is productive of a specific injury to an individual, he may make it the foundation of an action at law, and if the injury would be irreparable, that a court of equity will interpose by injunction. The decision was not put in anywise upon the ground of the trustee character of the complainant. The State alleged that she had lines of improvements for the transportation of freight and passengers extending from the east to Pittsburg, and that by reason of the bridge about to be erected across the river at Wheeling, and the obstruction which it would cause to the navigation of that stream, business would be diverted from her works to other channels, and that the income from her works would thereby be greatly lessened, and their value diminished or destroyed. The court said:

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