Attorney-General v. Delaware and Bound Brook R. R. Co. bridge had been rebuilt, and the abutment did not project so far into the stream. obstruction to navigation will There are above and below at Trenton, thirteen bridges. What injury, impediment or be occasioned by this viaduct? it, between Easton and the falls The height of piers and the space between piers of each of them are less than those of this structure. The greatest height of piers in any of those bridges is thirty-eight feet, while the height of the piers of this is forty. The greatest space between piers in those bridges is one hundred and ninety-two feet. In this the space is one hundred and ninetythree. The answer states that, in the erection of the viaduct, scrupulous care has been exercised against impairing the little navigation of which the river is at that point susceptible, and also in reference to all other public rights of the river; that it is constructed as nearly as may be at right angles to the river and its current there; and that the piers are so shaped and constructed as to occasion the least possible impediment to the passage of ice, rafts, scows, boats and other vessels that do now, or may by possibility in the future, navigate the river there. That the navigability of the river is limited, appears by the qualification in the statement of the information on the subject, that the river is navigable "for many purposes of trade and commerce" at the point where the viaduct is. It appears from the affidavits annexed to the answer, that the river at that point is floatable for rafts only at high stages of the water when the river is swollen by freshets or rains, and that then and at other times it is navigable by craft drawing only from six to eighteen inches of water, and that this navigation is now, and for from fifteen to twenty years past has been, confined to small scows employed in gathering cobble or paving stones, and small batteaux, skiffs, and other small boats. To none of this navigation have the existing bridges proved any obstruction. Obviously, the viaduct which affords more room for passage under it than any of them, cannot be regarded as a nuisance in fact. It adds no impediment to the navigation, nor does it create or increase any difficulty therein. Attorney-General v. Delaware and Bound Brook R. R. Co. It is insisted on behalf of the state that the viaduct has been erected without authority, and that the use of it, and taking tolls or fares for the use of it, are a usurpation of franchise which it is the duty of this court to restrain. The viaduct will occasion no injury to the public, and the application is on behalf of the state alone. It is not alleged by the state that any private interest whatever, under any franchise granted by the state, is involved. It may well be left to the courts of law to determine whether, in building the viaduct, the defendants have been guilty of usurpation or not. But, are they, in fact, guilty of usurpation? Their viaduct is not a toll bridge. It is merely the railroad connection of two railroads; a highway by railroad over the river. The Proprietors of the Bridges over the Rivers Passaic and Hackensack v. The Hoboken Land and Improvement Co., 2 Beas. 81; S. C., on appeal, Ib. 503. As was said by Chancellor Green in his opinion in that case, (2 Beas. 94): The defendants' structure is not a toll bridge. They have no franchise of taking tolls. They have no right to charge for crossing the river any more than if it were not in existence. The structure which they are erecting is not a mere connection between the opposite shores; it is part of an extended line of railway connecting distant points, over which the defendants are to transport passengers at a stipulated rate. Its character and purpose are, in fact, essentially different from those of a bridge used merely as a connecting link for the transfer of passengers between the opposite shores of the river. See, also, S. C., 1 Wall. 116. The defendants cannot, therefore, be chargeable with the usurpation of a franchise to take tolls. Is the viaduct unauthorized? They are duly incorporated under the general railroad law. That law provides (§ 23), that companies whose roads shall be constructed under the provisions of that act, shall have the right to connect their roads with any railroad within this or any other state, and (§ 36), that it shall be lawful for any company incorporated under that act to build viaducts over any navigable or other river, stream or bay of water which such railroad may cross. It provides Attorney-General v. Delaware and Bound Brook R. R. Co. also that the second section of the "act to prevent accidents on railways" shall not be considered to extend to or affect in any way or manner corporations which may be formed under the general railroad act. The second section of the act to prevent accidents on railways is (Pamph. L., 1869, p. 807): "That hereafter no railroad shall be laid upon any bridgeacross the Delaware river intended for public travel, unless special authority for that purpose be given by legislative act,. particularly designating the bridge to be subjected to such use." That the legislature did not intend to except from the powers conferred upon the corporations organized under the general railroad law the power to make connection with railroads across the Delaware by means of bridging the river, is evident from the fact that no such exception is made from the general grant of power to connect with railroads in other states, and to bridge any navigable or other river, stream or bay in this state. It also appears from the fact of the repeal, so far as corporations under the general railroad law are concerned, of the second section of the act to prevent accidents on railways, which has reference only to bridges across the Delaware. That this second section might not prove an impediment to a connection with a railway in Pennsylvania by preventing the acquisition of a turnpike bridge already in existence by a railroad company organized under the general law, the legislature repealed it, so far as such companies are concerned. That they contemplated the connection of railroads under the general law, with railroads in Pennsylvania, by viaducts across the Delaware, is too clear for question. But it is argued that the power to build a viaduct "across any navigable or other river, stream or bay in this state," does not confer the power to build one in the river on the New Jersey side, to the boundary line between the states. I do not concur in that view. The act gives the power to cross the river; impliedly provided the consent of Pennsylvania be obtained; for, unless such consent be obtained, inasmuch as this state cannot authorize the occupation of soil belonging to Pennsylvania, the grant is of no practical use. The grant, Attorney-General v. Delaware and Bound Brook R. R. Co. therefore, does not differ practically from those made by the legislature of both states in various charters authorizing structures across the river; as for example, the grant to the Morris Canal and Banking Company by this state, (Pamph. L., 1849, p. 35,) by which that company was empowered to erect and construct either a bridge or aqueduct across the Delaware, provided that the erection should be so constructed as not to interfere unnecessarily with the navigation or fisheries, and provided also that the grant should not take effect until a similar power was conferred on the company by Pennsylvania. So, too, the charter of the Alexandria Delaware Bridge Company (Pamph. L., 1841, p. 70,) gives power to bridge the river on the like condition. The states, as before remarked, have not acted upon the doctrine that the consent of both is required to erections on the soil of the river not designed to cross the river or to occupy other soil than their own; as the dams before spoken of erected on each side, with and without the consent of the legislature of the state on whose side of the river they are constructed, and without the consent of the other state, abundantly testify. If the doctrine advanced and contended for in this case on the part of the state is correct, each of those erections was a violation of the compact, but that has never been conceded. When Pennsylvania complained of the wing-dams, in 1817, it was because they interfered, as she insisted, with navigation. If she complained because they were erected without her consent, her claim to consideration and redress on that, as a substantive ground, irrespective of the alleged injury to navigation, was not admitted, as has been already shown. The compact provides for concurrent jurisdiction, not for mutual sovereignty, and the jurisdiction conferred by it is a mutual concession, and does not extend beyond the terms and necessary implications of the agreement. But in the case in hand, I am of opinion that there has been what is equivalent to, and may properly be regarded as concurrent legislation of the states. The State of Pennsylvania, in 1852, granted to the corporation now known as the Attorney-General v. Delaware and Bound Brook R. R. Co. North Pennsylvania Railroad Company, (then called the Philadelphia, Easton, and Water Gap Railroad Company), power to maintain and operate a railroad from a point north. of Vine street, in the county of Philadelphia, by the most expedient and practicable route, to near the borough of Easton, or some other point in Northampton county, and to "connect their railroad, by lateral or branch roads, with any railroad constructed, or to be constructed, in any of the counties through which the same might pass; and also to construct one or more bridges across the river Delaware, and to connect by one or more lateral or branch roads, with any railroad, or other public improvement in the State of New Jersey." Pamph. L. of Penn., 1852, p. 654. This grant, it may be remarked, is evidence of the construction which Pennsylvania put upon the compact. In this, as in the erection of wingdams in the river without the consent of this state, and in like manner withdrawing the water of the river for the purposes of her canal navigation, Pennsylvania has given a practical construction to the compact which conclusively establishes against her the right of this state to do the like acts without her concurrence. This grant does not make concurrent legislation, or any legislation, or any consent on the part of this state, a condition precedent to its operation, but it gives to the company, absolutely, leave to bridge the river, not by one bridge merely, but by one or more. The North Pennsylvania Railroad Company, shortly after the passage of that act, under the power granted to them, constructed, and have ever since maintained and operated a main line or trunk railroad from Philadelphia to Bethlehem; and about the time when the defendants were incorporated, they located a lateral branch railroad, called the Delaware River Branch, from a point in their main road, at the Jenkintown station, in a northerly direction through the counties of Montgomery and Bucks, to the line between this state and Pennsylvania, in the middle of the river, in the township of Lower Makefield, in Bucks county, immediately adjoining the state boundary line in the river where the defendants' road begins; and they pro |