
    JOHN W. DAVIS, Adm'r., v. ALONZO JERKINS et al.
    
    The right of navigation, being of most importance to the public weal, is paramount to all conflicting rights.
    The Act of Assembly, Kev. Code, chapter 101, section 28, requires of the owner of a toll-bridge, not only to erect and keep in good repair a draw sufficient for the purposes of a free navigation of the stream, but also to provide the means of raising it, and to have it raised whenever steamboats and other vessels are passing it.
    This was an action of trespass quare clcmsvmi fregit, tried before SauNdees, J., at tlie Special Term, February, 1858, of Wayne Superior Court.
    The suit was brought for damages for striking and carrying away a part of the toll-bridge over the Neuse river, belonging to the plaintiff’s testator. The intestate, and those under whom .he claimed, had for forty years owned a public ferry across the river, at the point where the bridge in question was located, (owning also the land on either side of the stream,) which, for the last ten years before the injury complained of, had been under the privilege accorded by the act of Assembly, supplied by a toll-bridge erected in lieu thereof.
    The defendant Jerkins was the owner of a steamboat, which usually navigated the river Neuse, between New-Berne and Smithfleld, on a part of which, the bridge in question was situated.
    It was in evidence, that the bridge had a “ a draw” in it, which was intended to allow boats to pass; that this draw was difficult to be worked; that it was not supplied with machinery of any kind to raise and lower it, but that this had tobe done by getting on the bridge, taking up a part of the flooring and pushing down with poles the parts of the sections of the draw which lapped under the bridge, which had the effect to raise the other ends of the section ; that at high water this opening could be but partially effected, the water not permitting the descent of the end under the bridge, so as to make an entire opening; .that when entirely opened, the sections composing the draw would be at right angles with the line of the bridge, but on this occasion such was not their position, and that only about ten feet of the space was opened; that there were no hands at the bridge to raise the draw, nor were any usually kept there for that purpose ; that this was always left for the boat hands to do, and that it required four or more hands to do it; and detained each boat from fifteen minutes to half an hour, and sometimes even longer; that on the occasion complained of, there was a high freshet in the river, and the boat of the defendant Jerkins, under the charge of the defendant Pittman as captain, on a downward trip was stopped at this point by the bridge; that she laid to and put her hands on the bridge to open the draw, which was done as far as its condition would admit; that the boat endeavored to take distance up the stream, so as to take the centre of the opening, but, either from the want of due caution, or from a defect in the power of the boat, she was not able to do so, but in passing struck the bridge and carried a part of it away ; that this was not done wilfully, but from accident, and the question was, whether there was such negligence as to make the defendants liable.
    His Honor left it to the jury to say whether there was a proper and sufficient draw in the bridge, and if there was, whether the defendants were guilty of negligence in passing it. To this instruction, defendants excepted.
    Yerdict and judgment for the plaintiff. Appeal by the defendants.
    
      Strong, Fowls and McRae, for plaintiff.
    
      Ilaughton, Dortch and Stevenson, for defendants.
   Battle, J.

The river Neuse, at the place where plaintiff’s toll-bridge spans it, is a navigable stream, and being so, the defendants bad the right to navigate it with their boats, at all times, without obstruction from any person, unless such obstruction were authorised by the sovereign power; this sovereign power would have been the General Government, had the congress of the United States passed any act in relation to this river, in execution of the power “ to regulate commerce with foreign nations and among the several States;” Con. of U. S. Art. 1, sec. 8 ; Wilson v. Blackbird Creek Marsh Company, 2 Peters’ Rep. 248, (8 Curtis, 105). But as no such act was ever passed by congress, the legislature of this State is the only sovereign under whose authority a bridge, or any any thing else, could be erected, whereby -any impediment to the free navigation of the river could be created; State v. Dibble, 4 Jones’ Rep. 107; The State of Pennsylvania v. The Wheeling and Belmont Bridge Company, 18 Howard’s Rep. at p. 432.

It cannot be doubted that the toll-bridge, owned by the plaintiff’s intestate, was, in the condition in which it was proved to be at the trial, a serious obstruction to the passage •of steam, and other boats, up and down the fiver. The question then is, whether the owner had any authority from the Legislature to put it there, and keep it up in the condition described.® He contends' that he had .-such authority under the 28th section of the 101st chapter of the Revised Code, which enacts that “in all cases where the proprietor of a ferry shall prefer building a good and substantial bridge over any water-course, instead of keeping a ferry, he may do so, and may claim and hold such bridge under the same rights, and in the same manner, by which the ferry is claimed and held, <&c.,” with a proviso, however, “ that on all such bridges the proprietor shall erect a draw where the free navigation of the stream may require it.” The erection of .the bridge is undoubtedly-authorised by this act, and it is equally clear that the owner was bound to erect, and keep in good repair, -a draw sufficient to allow of the free navigation -of the river. The Legislature, in requiring the draw, recognises the superior .claims of the right ef navigation, which, by the general law, is a right paramount to all others. Thus it was held in Lewis v. Keeling, 1 Jones’ Rep. 299, “ that the right of navigation is paramount, because it is of most importance to the public weal.” In that case the superiority of the right of navigation was asserted over that of fishing, but the same principle •“ that it is of the most importance to the public weal,” will give it the preference over all other conflicting rights.

This being established, we think that a fair construction of the act, according to its spirit and intent, requires us to hold that it was imposed upon the owner of the bridge, not only to erect, and keep in ¡good repair, a draw sufficient for the purposes of a free navigation of the stream, but also to provide the means for raising it, and to have it raised, when steam-boats and other vessels were passing. It is manifestly putting the right of the owner of the bridge above that of the navigators of the river, to subject the latter to the necessity of stopping their boats and raising the draw with their own hands, thereby causing them much delay, and oftentimes exposing them to danger; and we are surprised that they have submitted patiently to the inconvenience so long.

But perhaps it may be said that this construction of the act will very much impair, if it do not destroy, the value of toll-bridges across navigable streams, by requiring the owners of them to keep hands to raise the draw when boats are passing. If so, it must be submitted to as the necessary result of enforcing the paramount right of navigation, which, as we have seen, is for the public weal. But we do not believe that it will necessarily produce that effect. The owner of a toll-bridge must have a keeper attending at the bridge for the purpose of collecting his tolls. If we are not much mistaken, the draw may be constructed in such a manner as, by the aid of proper machinery, to be easily raised by the keeper; or at least by him with very little other assistance. But whether this is so or not, the paramount right of navigation must be maintained, even though it may be at the expense of other rights.

This view of the case makes it unnecessary for us to decide _ any other question raised in the argument.

Pee Cukiam, Judgment reversed, and a venire ele novo awarded.  