Miller v. Mayor of the City of New York

On the sixteenth of April, 1867, the legislature of New York passed an act creating a corporation by the name of the New York Bridge Company, for the purpose of constructing and maintaining a permanent bridge over East river, between the cities of New York and Brooklyn. Laws 1867, c. 399. The act, among other things, authorized the corporation to acquire and hold so much real estate as might be necessary for the site of the bridge, and of all piers, abutments, walls, toll-houses, and other structures proper to it, and for the opening of suitable avenues of approach, but no land under water beyond the pier lines established by law. It declared that the bridge at the middle of the river should not be at a less elevation than 130 feet above high tide, and should not be so constructed as to obstruct 'the free and common navigation of the river;' that it should not obstruct any street it might cross, but span such street by an arch or suspended platform of suitable height to afford passage under it for all purposes of public travel and transportation; and that no street running on the line of the bridge should be closed without full compensation to the owners of the property upon it; and designated the points of the commencement and termination of the bridge.

On the twentieth of February, 1869, the legislature passed an act amending the act of incorporation, and providing for the representation of the two cities of New York and Brooklyn in the board of directors of the bridge company, and directing that the company should proceed without delay to construct the bridge, authorizing it, for that purpose, to use and occupy so much of the lands under the water of the river, not exceeding a front on either side of 250 feet, nor extending beyond the pier lines, as might be necessary for the construction of the towers of the bridge.

On the third of March of the same year congress passed an act entitled 'An act to establish a bridge across East river between the cities of Brooklyn and New York, in the state of New York, [as] a post-road.' In it the acts of the legislature of New York are referred to, and the bridge to be constructed under them was declared to be 'a lawful structure and post-road for the conveyance of the mails of the United States,' provided the bridge should be so constructed and built as 'not to obstruct, impair, or injuriously modify the navigation of the river.' To secure a compliance with this condition the company was required, previous to commencing the construction of the bridge, to submit to the secretary of war a plan of it, with a detailed map of the river at its proposed site, and for the distance of a mile above and below, exhibiting the depths and currents of the stream, together with such other information as might be deemed requisite by the secretary to determine whether the bridge, when built, would conform to the prescribed conditions of the act 'not to obstruct, impair, or injuriously modify the navigation of the river.'

The secretary of war was, by the act, authorized and directed, upon receiving the plan and map, and other information, and upon being satisfied that a bridge built on such plan and at said locality would conform to these conditions, to notify the company that he approved the same; and, upon receiving such notification, the act declared that such company might proceed to the erection of the bridge, conforming strictly to the approved plan and location. But until the secretary spproved the plan and location, and notified the company of the same in writing, the bridge should not be built or commenced.

Soon after the passage of this act the company had the required plan and maps prepared and submitted to the secretary of war. It is conceded that in this respect the provisions of the act were complied with. The secretary then appointed a commission of engineers, consisting of three officers of the army, two of them having the rank of lieutenant colonel of engineers, and the third a captain of engineers, to examine and report upon the proposed bridge, its height, strength, plan, location, and practicability, the effect of its piers and foundations and abutments upon the navigation of the river and the approaches to the harbor, and to what extent the bridge might obstruct or interrupt the passage of vessels and the free access to the United States navy-yard at Brooklyn. The commission heard all parties interested, and made an elaborate report upon the subject to the chief engineer of the United States army, at Washington, and through him the report was submitted to the secretary of war. A majority of the commission was of opinion that the height of the center of the main span of the bridge above high water should be increased from 130 to 135 feet. They also made various recommendations with reference to the dimensions and strength of various parts of the structure, to the projection of the pier or tower foundations of the bridge, and to the attachment of guys or stays to its main span. They reported as their conclusions:

(1) That there was no doubt of the entire practicability of     the structure, nor of its stability when completed; (2) that      no sensible effect would be produced by the pier or tower      foundations and abutments upon the navigation of the river,      or upon the approaches to the harbor of New York; (3) that the bridge would not offer any important impediment      to the free access of naval vessels to the United States      navy-yard at Brooklyn, nor any obstruction or interruption to      the passage of merchant vessels under it, further than      requiring the larger class of ships to send down or house      their royals, and in some cases their top-gallant masts; (4)      that the bridge, as projected, would conform to the      prescribed conditions of the act of congress relating to it,      unless it be decided that the words 'obstruct or impair'      implied that it should not necessitate any such preparation      for passing it, on the part of vessels of the larger class,      as is involved in housing or sending down of top-gallant,      royal, or sky-sail masts.

On the nineteenth of June, 1869, the secretary of war approved the report of the commission, with the views and recommendations it contained, provided that the height of the center of the main span of the bridge should not be less than 135 feet in the clear at mean high water of the spring tides, and that the structure should conform in all other respects to the conditions recommended by the commission. The secretary also directed the chief of engineers to furnish the bridge company with a copy of the act of congress establishing the bridge, a copy of the report of the commission and of his own report, and to notify the company that the span and location of the bridge were approved subject to the conditions mentioned. This action of the secretary was indorsed on the report. In accordance with his direction, the chief engineer notified the company of the approval of the secretary and of the conditions which accompanied it. construction of the bridge and prosecuted the same until the year 1875, when the legislature of the state passed an act dissolving the company and declaring the bridge to be a public work of the cities of New York and Brooklyn, and providing for its completion by them. It is conceded by stipulation of the parties that the provisions of this act were complied with, and that the management of the work was devolved upon trustees to be appointed by the two cities. When this suit was commenced, the work had progressed so far that the towers and anchorages on both sides of the river had been completed, and upwards of $6,000,000 had been expended; and, as already said, since that time the bridge has been completed and opened to the public.

''Wm. H. Arnoux'', for appellant.

[Argument of Counsel from pages 390-391 intentionally omitted]

''Jos. H. Choate'', for appellee.

FIELD, J.