
    No. 1052.
    James Hamilton vs. Vicksburg, Shreveport & Pacific Railroad Company.
    The State legislature has unlimited power to erect bridges and railways, and make any other public works across navigable waters, subject only to the paramount authority of tbe national government.
    The power granted by the legislature to a railway company to build a road between two points, carries authority to cross navigable waters and to build necessary draw bridges, and this authority implies the right and imposes the duty to maintain and repair or rebuild such bridges. A railway company having authority to build or rebuild a bridge across a navigable stream, is not responsible in damages for temporary obstructions of*the stream by scaffolding, or by the construction of a temporary stationary bridge, and for unavoidable delay in the completion of tbe bridge.
    APPEAL from the Fifth District Court, Parish of Ouachita. Bicliardson, J.
    
      John T. Budding, for Plaintiff and Appellant,
    
      F. F. Stubbs and Boatner & Liddell, for Defendant and Appellant:
    1. The charter of tbe Vicksburg, Shreveport and Texas Railroad, authorizing theconstruction and maintenance of a railroad from Vicksburg to Texas, through Monroe and Shreveport, gave the permission to bridge tbe streams on tbe route, and in case of navigable streams, the right to use tbe moans necessary to build and maintain drawbridges, and if necessary to obstruct the streams temporarily, it was legal. Act 228,1853 ; Redheld, 322; Fall River Iron Works vs. Old Colony Railway, 5 Allen, 221; Work’s Injunction, 4 McL. 425; Columbus vs. Pioneer Bridge Company, G McL. 70.
    
      2. State legislatures have unlimited power to erect bridges and railways and make any other works across navigable rivers, subject only to the paramount authority of the national government. Redfield, 323; 15 Waid, 113; 4 Hairing, 389; 5 Gilmar, 351; 1 McLean C. C. 337; 2 Peters, 245; 1 Stockton, 526; 21 Barb. 617.
    3. In respect to the purely internal streams of a State, the public right of navigation is exchi* sively under the control and regulation of the legislature, and the Statute authorizing the building and maintaining the railroad was clearly within the scope of its authority, and the structure, though it bo an impediment to navigation, is lawful. 18 Howard, 432; 5 Wend. 448; 15 Wend. 113; 17 T. R. 195; 20 X. R. 90,101; 5 Cow. 165; 6 Law Reg. 6; 3 Wall. 725.
    4. That being in the exercise of a lawful right in the rebuilding of its bridge, any damage resulting theiefrom is damnum absque injuria. Week’s Sedgwick, 111; Broom Maxims 1, 13 d. Ill; 11 An. 711; 13 An. 426; 15 An. 559; 27 An. 442; 30 An. 30; 13 Moore 209; 17 John 100; 2 Wheat. 358; 36 Mo. 202; 57 M. 433.
    5. That having o\excised prudence and more than ordinary precaution to prevent delay in the work of rebuilding, and using all means in its power to expedite the work, not being guilty of laches or negligence, the damage, if any, resulting from an unforeseen, unusual and providential cause, defendant is not responsible therefor. C. C. 6613, 3556,151933,2533, 2697, 2899, 2911, 2946; 2 Hue 1052; Oblg; Ransom vs. Labranche, 16 An. 121; Wharton on -134; 70 Penn 86; 7 Vt. 62; 3 East. 599; 2 Keys, 169 ; 2 Jones, 205; 6 Mon. 337.
    6. That if any damage resulted to plaintiff when he carried his boat, in the faceof information that it could not get through and there was nothing in the river, or to carry there, that would pay, thus not only contributing but causing it liimself, is not entitled to Tecover. Laclier vs. Jackson R. R., 26 An. 520; 13 111. 585; 19 111 510; 5 Barb. 337; 15 Ark. 118; 40 H. Y. 34.
   The opinion of the Court was delivered by

Pociié, J.

Plaintiff’s object is to recover damages exceeding $12,000, alleged to have been caused him by the defendant corporation, in consequence of an unlawful obstruction on the Boeuf river, a navigable stream, on which plaintiff was running a steamboat.

The answer is a general denial, coupled with the special averment that defendant, incorporated under the laws of this State, had .the right of building, repairing and rebuilding necessary bridges overall streams along its line.

The case was tried by a jury, who found a verdict of one thousand dollars in favor of plaintiff, and both parties have appealed.

Our attention is called to numerous bills of exceptions taken by counsel on both sides, many of which can hardly be considered as serious, and are overruled in globo.

The objection to the introduction of J. W. Green’s testimony, on the ground that the certificate of the Governor of Georgia to the magistrate’s signature and capacity, had not been signed by him, but by his private secretary, was not well taken. The original document, which is annexed to the transcript, purports to have been signed by the Governor, under the seal of the State, and is conclusive as to its veracity and authenticity.

The objection to the right of Green and Preston, shown to be experienced railroad men, to express opinions as to the time necessary to the building of a bridge, and other matters connected therewith, was prop- • erly overruled, the witnesses, being experts, were competent to give tlieir opinions on the subject matter of their examination.

Some irrelevant evidence was admitted, but it will not be considered by us.

As the whole case is to be reviewed, both on the law and on the facts, we deem it unnecessary to express a formal opinion on the exception urged by defendant to the Judge’s charge to the jury, as it will be virtually disposed of in our statement of the law governing the case.

The testimony is somewhat conflicting, but after a careful examination Of the record, we find the following facts to be fully established under the evidence.

A drawbridge of the Company, crossing Bosuf river, a navigable stream, having been, on inspection, found decayed, rotten and unsafe for the use of a railroad, the Company determined to rebuild the bridge in the summer of 1880.

The superintendent of the road then entered into a contract with an experienced bridge builder, who undertook to build the bridge during the summer months, when Boouf river was usually too low for purposes of navigation.

Owing to an overflow of the surrounding country, caused by inundations from the Mississippi river, lasting until the end of April, the work could not be begun before July, after the complete subsidence of the high water.

In order to accelerate the structure, and to avoid any obstruction to navigation, the Company stipulated with the contractor for the preparation of the necessary materials at their workshops in Monroe, 'and for their transportation to the spot as soon as the stage of the water would permit the structure of the bridge.

In order not to suspend travel and through trains, and acting on long experience which' taught the fact that the navigable season on that river usually began at the end of December of each year, and ended in July following, and that the construction of a temporary stationary bridge immediately adjoining the bridge under progress of construction, would not interfere with navigation, the. Company built such a temiiorary structure, on which they ran their trains. But, beginning in August, and ending only in December following, a very rainy season set in, and swelled the waters of the liver to almost an unprecedented height for the summer season, and materially impeded the progress of the work, which was, in consequence thereof, not completed till late in December, when, under ordinary circumstances, it should and would have been terminated in September or early in October, long before the resumption of navigation on the river as a channel of commerce.

By reason of the incessant rains which impeded the work, an unusually early stage of navigable water on the river, was'obtained in November, when plaintiff undertook to run his boat, in liis accustomed trade, which was mainly above the. bridge, and the passage was obstructed by the temporary stationary bridge of the defendant, and •this obstruction lasted during a time iff which he could have made four trips between New Orleans and the head of navigation on Bceuf river.

Under this state of things, the Company did everything in its power to accelerate the construction of its bridge, and to remove the obstructions to navigation, by adding to the constructor’s force a gang of its own bridge laborers, by working on Sunday, and by trying oven to do night work.

Now, we hold that under its charter, by which it was empowered and authorized to construct, make- and maintain a railroad from a point on the Mississipi>i river opposite Vicksburg, thence west to the line of the State of Texas, via Monroe and Shreveport, the Company had the undoubted right to build all the necessary bridges across any navigable stream in the course of its line, and that the legislature had the power to confer such right.

The grant of power to construct a railway between two points, carries authority to cross navigable waters, if that is reasonably necessary in the construction of the works.” Redñeld, p. 322, Note; 5 Allen, 221. ' ' .

It is also unquestioned, that the State legislatures have unlimited power to erect bridges and railways, and make any other public works across navigable waters, subject only to the paramount authority of the national government.” Redfield, 323; People vs. Renssalaer & Saratoga R. R. Co., 15 Wendell, N. Y., 113; Gilman vs. Philadelphia, 3 Wall. 713; The Wheeling Bridge case, 18 Howard, 432 ; The Blackbird Creek Marsh Company’s case, 2 Peters, 245; Worth vs. Junction R. R. Co., 5 McLean, 425.

These principles, resting on foundations of reason, as well as of law and authority, giving the right to build necessary bridges, necessarily imply not only the right, but the duty of the Company to keep and maintain them in such repair as the public safety may require, Hence, the legal right of the defendant Company, to rebuild the bridge in question, which had been pronounced unsafe by competent authority.

We shall now consider whether, under the circumstances disclosed by the record, the Company can be held .responsible for the damages occasioned by it to the plaintiff, through the delay which it met in the construction of that bridge, which delay became unavoidable, under the unexpected, unforeseen and unprecedented rains which prevailed during the months of August, September, October, November and December of that year.

This proposition involves the consideration of the question of a party’s responsibility in damages for injury done to another, in the pursuit of a legal right, or in the performance pf a lawful act. And both on reason and authority the inquiry must be answered in the negative.

The Company had the right to build the temporary bridge, in order to facilitate the structure of the new bridge, and for the purpose of continuing its through trains. If the bridge had been completed, and the obstruction to navigation removed before the resumption of trade on the river, as had been contemplated, and as it was reasonably expected, no one could have complained, as no one could have been injured or damaged. The delay was caused by accidents and circumstances over which the Company had no possible control, and for which it cannot be held responsible in justice or in law.

In the case of the Memphis & Ohio R. R. Co. vs. Hicks, 5 Sneed Tennessee, p. 427, it was held, “that the provision in the charter of a railway company, authorizing it to bridge a navigable stream, provided that the navigation of the stream shall not be obstructed, is not violated by a temporary obstruction of the stream by scaffolding, etc., in the construction of the bridge.”

The present case presents circumstances clearly entitling the defendant to the protection of the rule of “ damnum absque injuria,” and we are, therefore, compelled to exonerate it from any responsibility for the dam ages resulting from the temporary obstruction to the navigation' of Boeuf river, in its attempt to rebuild a necessary bridge. Ransom vs. Labranche, 16 An. 121; 11 An. 711; 15 An. 559; 27 An. 442; Week’s Absque Injuria, Pars. 48, 49.

This conclusion eliminates from discussion the question of the damages, which plaintiff majr or not have suffered from the obstruction of the river, which is thus shown not to have been unlawful.

It is, therefore, ordered, adjudged and decreed, that the verdict of the jury be set aside, and the judgment of the lower court annulled, avoided and reversed; and it is now ordered, that plaintiff’s demand be rejected, and his action dismissed at his costs in both Courts.

On Application por Rehearing.

Fenner, J.

It is proper to state that, in this case, the evidence establishes that Boeuf river, the stream across which the bridge was built, lies, as a navigable stream, wholly within the limits of the State of Louisiana. Although the upper portion of the stream itself lies in Arkansas, it is not navigable, and has never been navigated as high up as the Arkansas line.

The authority of Congress over navigable streams is an incident of the power to regulate commerce among the States, and only affects rivers which are highways of commerce between different States.' As to streams which are navigable only within the limits of a single State, the authority of its legislature is complete. Penn. vs. Wheeling Bridge Co. 18 How. 432; 1 Redfield on Railways, § 78, notes and authorities cited.

This makes it clear, that in the instant case, the authority derived from the legislative action of the State did not conflict, under any view, with any paramount authority of the federal government. '

Rehearing refused.  