Page:Federal Reporter, 1st Series, Volume 10.djvu/526

 514 FEDERAL RBPOETEE. �law and in fact; that it will obstruct, impair, and injuriously mod- ify the navigation of the East river; and that the defendants be en- joined from building it at the height of 135 feet above mean high water, or at any other height that shall obstruct, impair, or inju- riously modify the navigation of said river. The bill alleges that the bridge is being so built that it will, at the center, have a height of 135 feet only above mean spring high-water mark, with an allow- anee of two feet rise and fall by reason of the expansion and con- traction of the suspended cables ; and that, in a large proportion of the vessels which will pass and repass the location of the bridge, the masts exceed 135 feet in height. �This case cornes up now, for final hearing, on pleadings and proofs. It was before this court, on a motion for a preliminary injunction, in August, 1867, (13 Blatchf. 469,) and the motion was denied. The decision of Judge Johnson covers nearly all the points now presented, and the controlling facts are not materially varied from those on which his decision was based. Much testimony has been taken, ad- dressed to the question whether the bridge will in fact obstruct or impair navigation, and to what extent and in what manner. But, in the view on which the case must be decided, such testimony is unim- portant. �Passing by the objection taken by the defendants, that the plaintiff has no standing in court to obtain the relief asked for, because it does not appear that he has sustained, or is about to sustain, any special damage different from that sustained by the rest of the public, and therefore cannot maintain a private action for a public nuisance, and because he is only a lessee of warehouses from year to year, it is clear that as the defendants have the authority of congress, and of the legislature of the state of New York, for the construction of the bridge in the manner in which it is constructed, it is a legal structure, and cannot be held to be a public nuisance. This is fully considered in the decision referred to. In addition to'the authority to build the bridge conferred by the act of the legislature of New York passed April 16, 1867, (Laws of New York, 1867, c. 399, p. 948,) supplemented by subsequent acts of the same legislature to the same effect, congress, by an act approved March 3, 1869, (15 St. at Large, 336,) declared such bridge, when completed in accordance with said state act of 1867, to be "a lawful structure and post road for the conveyance of the mails of the United States." The state act of 1867 contains the following provision : ��� �