river, was submitted after the action to enjoin was begun. The court, however, suggested that another application could be presented, embodying plans which would come within the law. 16

17

§ 72. Post Roads Act Commerce Cable or submarine telegraph — Generally. As we have seen, the Post Roads Act also authorizes the laying of telegraph lines under or across navigable streams or waters of the United States, but the navigation of such streams or waters must not be obstructed thereby. Navigation is included in the term "commerce," and the power to determine what is an obstruction to navigation is vested in Congress.18 This express inhibition in the Post Roads Act must be governed by certain principles involved in the power of Congress to regulate commerce, the extent of that power, the power of the several States over commerce and navigable rivers or waters, and also the point what constitutes hostile legislation. These questions have been considered in connection with other subjects in this work, and it is unnecessary to do more than refer to them here, except to state that temporary and slight obstructions to navigation have been held not unlawful in numerous cases. But navigation must not be so obstructed as to materially interfere with

Submarine cables, see Act. Feb. 29, 1888, c. 17, 25 Stat. at L. 41, U. S. Comp. Stat. 1901, p. 3586.

18 Gibbons v. Ogden, 9 Wheat. (22 U. S.) 1, 6 L. Ed. 23; United States v. Coal Dealers' Assoc., 85 Fed. 252, 265. (Where it is declared that commerce among the States consists of intercourse and traffic between their citizens and includes the transportation of persons and property, and the navi

gation of public waters for that purpose.) Gilman v. Philadelphia, 3 Wall. (70 U. S.) 713, 18 L. Ed. 96; Pennsylvania V. Wheeling Bridge Co., 18 How. (59 Ú. S.) 421, 15 L. Ed. 435; South Carolina v. Georgia, 93 U. S. 4, 23 L. Ed. 782; United States v. Moline (D. C., N. D. III.), 82 Fed. 592. Examine United States v. Bellingham Bay Boom Co., 48 U. S. App. 443, 26 U. S. C. C. A. 547, 81 Fed. 658; same case, 176 U. S. 211, 214. The Canadian Parliament also has power to declare what shall be deemed an interference with navigation. Re Provincial Fisheries, 26 Can. S. C. 444.

the paramount right to the free and uninterrupted use of navigable streams. This has been a constant rule of law. In some cases, however, the general commerce of the country has been deemed a predominant controlling factor in determining whether a certain obstruction to navigation is unlawful. These statements are illustrated by cases of railroad bridges and drawbridges constructed by lawful authority over navigable waters, or structures erected over such bodies of the same, as are infrequently navigated, or used as a commercial highway.19 But it is held in a Canadian case that no matter how slight the obstruction, or how great the public benefit, the latter does not justify an obstruction to navigation.20

Prima

§ 73. Commerce Cables or submarine telegraph facie nuisance-Navigation.- We have shown the relation of navigation to commerce, and the general principles applicable.

19 Blanchard V. Western Un. Teleg. Co., 60 N. Y. 510, 1 Am. Elec. Cas. 176, 177, per Allen, J., cited with approval in (The City of Richmond) Western Un. Teleg. Co. v. Inman & I. SS. Co. Lim., 43 Fed. 85, 3 Am. Elec. Cas. 556, 560, 561, per Brown, J. This case affd., 8 C. C. A. 152, 59 Fed. 365, 4 Am. Elec. Cas. 641; considered in The William H. Bailey, 100 Fed. 115, 177 (a case of injury to an ocean cable and the cutting thereof by a vessel). See also Stephens & Condit Trans. Co. v. Western Un. Teleg. Co., 8 Ben. (U. S. Dist. Ct.) 502; Works v. Junction Railroad, 5 McLean (U. S. C. C.), 425; Tennessee & Co. R. Co. v. Danforth, 112 Ala. 80, 20 So. 502; Wheeling Bridge Case, 13 How. (U. S.) 518; United States v. ioline, 82 Fed. 592; Hickok v. Hunt, 23 Ohio St. 523; Cardwell v. American Bridge Co., 113 U. S. 205, 5 Sup. Ct. 423; Georgetown v. Alexandria Canal Co., 12 Pet. (U. S.) 91; People v. Vanderbilt, 38 Barb. (N. Y.) 282,

24 How. (N. Y.) 301, affd., 26 N. Y. 287, 25 How. (N. Y.) 139; Williamette Iron Bridge Co. v. Hatch, 125 U. S. 1, Sup. Ct. 811; Sweeney v. Chicago, etc., Ry. Co., 60 Wis. 60, 19 N. W. 46; Gilman v. Philadelphia, 3 Wall. (U. S.) 713; Mississippi, etc., R. R. Co. v. Ward, 2 Black (U. S.), 485; Hamilton v. Vicksburg, etc., R. Co., 119 U. S. 280, 7 Sup. Ct. 206; Davis v. Winslow, 51 Me. 264; Delaware, etc., Canal Co. v. Lawrence, 2 Hun (N. Y.), 163; affd., 56 N. Y. 612; Escanaba Co. v. Chicago, 107 U. S. 678, 2 Sup. Ct. 185; State v. Portland & Kennebec R. Co., 57 Me. 402; Jolly v. Terre Haute Drawbridge Co., 6 McLean (U. S. C. C.), 237; Silliman v. Hudson R. Bridge Co., 11 Blatchf. (U. S. C. C.) 395, 1 Black (U. S.) 582, 2 Wall. (U. S.) 403; Piscataqua Nav. Co. v. New York, N. H. & H. R. Co., 89 Fed. 362.

20 Reg. v. Moss, 26 Can. S. C. 322.

Another principle is this, that everyone using a navigable stream as a highway for the navigation of vessels for commercial purposes (and this includes vessels exclusively employed in carrying passengers),21 has the primary and paramount right to the use of said stream. It is, therefore, prima facie a nuisance to interfere with, hinder, or obstruct the navigation of such waters or the passage of vessels thereon. This rule applies to telegraph lines or cables laid under navigable streams or waters in such a manner as to come in contact with vessels lawfully navigating the same, there being no contributory negligence and the vessel being well adapted and fitted for the navigation of the particular body of water or locality, and being well manned, properly cared for and equipped.22 It is true that the decision herein relied on in support of the above rule, was one wherein the cables were run under the Hudson river by State legislative permission, subject to the limitation, that they should not be laid so as to "injuriously interrupt the navigation of said waters." But this restriction is similar to that of the Post Roads Act, and the principles involved are the same, so far as commerce and the right to lay cables or telegraph lines under navigable waters are concerned.23 In England the placing of telegraphic cables at the bottom of the sea is authorized by statute, and, therefore, may lawfully be placed there, and vessels have the undoubted right to navigate the high sea and to drop anchor wherever the safety and convenience of the ship so require, and each party must exercise his right so as, if possible, to avoid a conflict with the right of the other.24

21 Gibbons v. Ogden, 9 Wheat. (22 U. S.) 1, 6 L. Ed. 23, cited in City of New York v. Miln, 11 Pet. (36 U. S.) 102, 154, 155, 9 L. Ed. 669, in dissenting opinion of Mr. Justice Story; Passenger Cases, 7 How. (48 U. S.) 283, 401 (in Mr. Justice McLean's opinion), 479 (in Mr. Chief Justice Taney's opinion), 12 L. Ed. 751, 784; Hall v. De Cuir, 95 U. S. 485, 491, 24 L. Ed. 547, 549, in concurring opinion of Mr. Justice Clifford.

22 Blanchard V. Western Un. Teleg. Co., 60 N. Y. 510, 1 Am. Elec. Cas. 176-178, per Allen, J.

23 See next section herein. See also Doboy & Union Island Teleg. Co. v. De Magathias, 25 Fed. 697, as to the relative powers of the State and Federal Governments to authorize the obstruction of the State's navigable streams.

24 The Clara Killam, Law Rep., 3 Adm. & Eccl. 161, Allen's Teleg. Cas. 557, 561, 562, per Sir Robert

8 74.

Commerce

Post Roads Act Cables, when "under water Obstruction to navigation - Navigable mud. The doctrines set forth in the last section were approved and followed in a Federal case where the telegraph company, claiming the right so to do under the Post Roads Act, had laid its cables in the silt or mud at the bottom of the Hudson river, a navigable stream. This mud is of varying consistency, changing from time to time and being dredged out on different occasions. It differs from the solid bed of the stream and admits of navigation through it; in fact, such navigation, or the ability of a ship to plow through it, is the practical test of the true line of division between it and the true bottom of the river. It is, therefore, navigable mud and a part of the stream to such extent as vessels or ships are able to plow through it in mancuvres in and about the docks. The cables were so attached to the end of the wharf as to be raised several feet above the mud and were not allowed to sink to such depth as their weight might otherwise have forced them, nor were any pains taken to sink them below the navigable mud line. A steamship drawing twenty-four feet of water, and having the right to navigate this mud, such being the ordinary practice of vessels of deep draught, backed into the cables and caught her keel and propeller blades and became so entangled therein that a large number of the cables were broken and the propeller and shaft became so firmly wound with them that it was necessary to dock the steamer to repair the damage thereto. There was no sign or notice to indicate the presence of the cables, nor did the pilot have any notice of their position. The question of notice was, however, eliminated. The place was one where steamers were accustomed to dock, and it was found that there was no necessity for the cables being where they were. The court, in addition to approving the principles enunciated in the case considered in the last section herein, held, that the cables were an obstruction to navigation; that the Post Roads Act did not confer the absolute right to lay cables even upon the solid bottom of a river, for they would be in the water and not "under" it; that they might even be required to be laid,

Phillimore; The Submarine Teleg.
Co. v. Dickson, 15 C. B. (N. S.)

759, 10 Jur. (N. S.) 211, Allen's Teleg. Cas. 229, per Erle, C. J.

if practicable, below the surface of even a solid bottom; and that what the statute permitted was a laying of submarine cables so as not to obstruct navigation. It was also said that "no doubt complaint cannot lawfully be made of inconveniences that arise necessarily from the laying of cables, pursuant to the act of Congress." 25 This decision was affirmed on appeal to the United States Circuit Court of Appeals.20

$75. Post Roads Act-Degree of obstruction to navigation -Cables Special conditions. Where some peculiar mode or special and extraordinary conditions of operation in navigating a vessel are exactly those to be expected at the place selected. for laying submarine cables, greater precautions are required in maintaining them than would be were they laid in some other place where the conditions of navigation are not so peculiar. What constitutes an obstruction to navigation rests upon the facts in each particular case. The degree of obstruction must vary with the character and extent of the navigation at the place selected. This is illustrated by the case of cables. laid in navigable mud near a pier where steamships of deep draught are accustomed to manoeuvre in making anchor.27

§ 76. Navigation Submarine cables-No distinction between obstruction and interference. It is declared in a Federal case that there is no distinction, as applied to navigation, between an obstruction and an interference by cables laid under navigable waters; and that any interference must be deemed permanent, since whatever the exact position of cables, that position must be deemed permanent. And any 66 permanent interference which prevents a vessel from going where she ordinarily has a right to go, and where, in her manœuvres, she may find it necessary to go, whether that necessity be constant

25 (The City of Richmond) Western Un. Teleg. Co. v. Inman & I. SS. Co., Lim., 43 Fed. 85, 3 Am. Elec. Cas. 556. See Stephens & Condit Transp. Co. v. Western Un. Teleg. Co., 8 Ben. (U. S. Dist. Ct.) 502, 22 Fed. 1301.

26 Western Un. Teleg. Co. v. Inman & I. SS. Co., 59 Fed. 365, 4

Am. Elec. Cas. 641. See also sections next following herein.

27 Western Un. Teleg. Co. v. Inman & I SS. Co., 59 Fed. 365, 4 Am. Elec. Cas. 641, 644-646, affg. S. C., 43 Fed. 85, 3 Am. Elec. Cas. 556. For additional facts see last preceding section.