NORTHERN PAC. RY. CO. v. UNITED STATES, 104 F. 691

THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court. It is contended in behalf of the defendant company that the facts above recited do not disclose an actionable wrong on account of which relief cun be afforded under a bill filed by the United States.

The principal reasons-assigned in support of this contention may be stated briefly as follows: It is said that the existence of the bar in the Red River opposite the city of Grand Forks is not the immediate and direct result of any act done or performed by the defendant company, but is the indirect, consequential, and unforeseen result of placing additional weight upon its right of way; and that inasmuch as it was duly authorized by its charter and a city-ordinance to construct its road through the city of Grand Forks on the line where its road is in fact located, and has been guilty of no negligence either in constructing or maintaining the same, ii: cannot he held accountable for an obstruction to navigation which is merely one of the incidental results of its authorized acts.

It accordingly becomes necessary to determine if these several propositions are temible. We have no doubt that the bar in the river was the unforeseen result of placing additional weight on the defendant’s right of way, but no reason exists for saying that the obstruction was merely an indirect, remote, or consequential result of the increased burden. The bed of the river rose, and navigation was thereby obstructed, because the additional weight placed on the defendant's right of way forced the stratum of plastic clay upwards in the bed of the stream, thereby creating a bar.

The relation of cause and effect was as immediate'as if would have been if the defendant had dumped a. mass of silt and earth into the river, and had thereby formed a bar. And, inasmuch as one who places or creates an obstruction in a navigable river without legal sanction thereby creates a public nuisance, the defendant company can only escape liability for its acts by showing that congress has in fact authorized it to create obstructions of the kind now in question.

It is hardly necessary to observe that the city of Grand Forks lias no power, by ordinance or otherwise, to authorize persons or corporations to create obstructions in any of the navigable waters of the United States over which congress exercises jurisdiction. The only authority, therefore, on which the defendant company can rely to justify the obstruction in question, is the act of congress which authorized its predecessor in interest, the Northern Pacific Railroad Company, to build and maintain a transcontinental railroad along a designated route.

But a statute which authorizes a railroad corporation to build its road parallel to a navigable stream, and several hundred feet distant therefrom, does not. by any fair rule of

interpretation, empower it to create an obstruction in ike channel of the stream which will interfere with its navigability. The power to build a highway like a railroad does not carry with it, by implication, the right to destroy or obstruct, a water highway. There is an implied condition attached to all legislative grants, authorizing the construction and operation of railroads or other public improvements, that in the exercise of the authority conferred nuisances shall not be created, and that private property shall not be taken without just compensation. Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U.

S. 317, 332, 333, 2 Sup. Ct. 719, 27 L. Ed. 739; Chicago G. W. Ry. Co. v. First Methodist Episcopal Church (C. C. A.) 102 Fed. 85; Costigan v. Railroad Co., 54 N. J. Law, 233, 23 Atl. 810; Shelfer v. Lighting Co. (1895) 1 Ch. 287, 295, 296.

It may be conceded for present purposes that a right conferred upon a railroád corporation to construct its road along a designated route carries with it by implication, when the power is not expressly given, the right to obstruct navigable streams and public highways to such limited extent as may be necessary to carry its track over and across such streams and highways as it is found necessary to cross.

Express provisions, however, are usually found in legislative acts authorizing the building of railroads to cover cases of the latter kind, and it rarely happens that the power to create even slight obstructions in navigable streams or public highways is left by the legislature to implication. We are of opinion that the right to create an obstruction in a navigable stream like the one involved in the present case cannot be deduced by implication from the fact that congress has authorized the construction of a railroad parallel to the course of the stream, and some distance therefrom.

In the case in hand the fact that the existence of the stratum of plastic clay underneath the surface of the soil was unknown to congress at the time the construction of the defendant’s road was authorized, and that the result which would flow from the making of a heavy embankment at the place in controversy was unforeseen conclusively negatives the inference that the legislature intended to empower it to do and perform acts, either in the construction or maintenance of its road, that would not only obstruct navigation in the Red River of the ISTorth, but would probably damage some private property adjacent to> its roadbed.

It is by no means probable that congress would have authorized the building of the defendant’s railroad at the point in question, without imposing some restrictions as to the method of building it, had it been acquainted with the condition of the soil in that locality, and had it foreseen the unique effect upon the river bed of building a heavy embankment in close proximity thereto. It cannot be presumed that it intended to authorize the creation of a public nuisance, and what it did not intend to do it has not in fact done.

From another point of view we also reach the conclusion that the defendant company was guilty of an unlawful act in placing such an increased burden on its right of way as occasioned an uprising-in the bed of the river and a consequent obstruction to navigation. By the tenth

section of

an act approved September 19, 1890 (26 Stat. 454, c. 907), congress in express terms prohibited “the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity of any waters in respect of which the United States has jurisdiction”; and furthermore declared, in substance, that the creation or continuance of any such unlawful obstruction might be prevented by the injunction of any circuit court exercising jurisdiction in any district in which such obstruction might be threatened, and that proper proceedings to that end might be instituted under the direction of the attorney general of the United States.

The present action appears to have been brought in accordance with the provisions • of that act. The prohibition contained in this statute against creating an obstruction in navigable waters, unless it is af-ñrmatively authorized by law, is general in its terms, and the statute was enacted before the increased burden was imposed on the defendant’s right of way which caused the formation of the bar in the channel of the river.

Neither the defendant company nor its predecessor in interest had a vested right under its charter to improve its roadbed in such a manner as would obstruct navigation in a navigable river, and, having no such right, the acts complained of fall within the prohibition of the aforesaid statute, and are clearly unlawful. .The record contains evidence which tends to show that the defendant’s embankment now in process of construction will shortly settle through the stratum of plastic clay, and rest upon a solid foundation of blue clay, after which time the lateral movement of the plastic stratum will cease.

In view of this fact, and because of the present great depression in the defendant’s track which impedes the movements of its trains, and because it seems evident that the bar which is at present forming may he kept down by dredging, so as not to obstruct navigation, we have concluded to modify the injunction that was granted by the lower court so as to make it plain that the work of raising'the defendant’s embankment may proceed, provided the bar in the river is kept down so as not to obstruct navigation.

With this purpose in view, and to avoid any misapprehension as to the scope of the injunction, the following clause will be added to the decree: “The injunction hereby awarded shall not be so construed as to prevent the defendant company from proceeding- with the work of raising its tracks between Cheyenne and Hill avenues to the proper level, if by dredging or otherwise, as the work progresses, it shall, at its own cost and expense, prevent the formation of any such bar in the channel of the Rod River of the North as will at any time lessen or impair its navigability.” As thus amended, the decree below is affirmed.