Page:Federal Reporter, 1st Series, Volume 6.djvu/796

 784 FBDEHAIi EEPOBTBB. �mission to bridge the river, these conflicting interests can be considered and adjusted as may be thought best for the pub- lie good, �But this court must simply ascertain whether the bridge ■will be a material obstruction to the navigation of the river. It eannot balance these conflicting interests and determine that the one will be more benefited by the bridge than the other will be injured thereby. Its power is confined to the determination of the question whether it will be a material obstruction to navigation or not. �In the Wheeling Bridge Case the obstruction caused by the bridge, as compared with the benefit, was exceedingly small, That suit was commenced in 1849, when the commerce on the Ohio was more limited than now, and the bridge was a Connecting link in a great public highway by rail and other- wise. The referee reported that, of ail the steam-boats then running on the river, only nine were prevented from passing the bridge on account of the great height — from 63|- to 80 feet — of their "chimneys," andtheyfor only a f ew days in the year. And although these chimneys might have been short- ened or lowered, when passing the bridge, by means of hinges, and although the benelit resulting to navigation in the increased draft given by such tall chimneys must have been small in comparison to the benefit to commerce result- ing from the bridge, yet the latter was determined to be a violation of the act of congress deelaring the navigation of the river "free and common to the citizens of the United States," and the court ordered it abated as a nuisance. As I said during the hearing, it appears from the evidence that the draw is too narrow to admit the passage of the larger vessels that come here, and on that account the bridge is an obstruction to navigation ; and I am satisfied that the f urther investigation of the subject will make this more apparent. But I am also satisfied that this bridge, whatever the width of the draw, will be an obstruction if ereoted in the midst of this harbor. �In the course of the argument the question was asked of counsel : Would not even these piers, without a bridge upon ��� �