MR. JUSTICE BRADLEY.
I dissent from the judgment of the court in this case, and will briefly state my reasons. The central reason is, that the bridge, as it stood, nearly completed when the act of March 3, 1871, c. 121, directing it to be taken down or altered, was passed, was a lawful structure, and in the lawful possession of the appellants as their private property; and, being such, I think that Congress could not constitutionally require its demolition, or reconstruction, without providing for compensation to the owners. By virtue of its plenary power to regulate commerce among the several States, as well as with foreign nations, Congress may undoubtedly require the removal of all muisances and unlawful obstructions in the navigable rivers of the United States, without giving compensation to any persons who may be incidentally affected. It also has the power to improve the navigation of such rivers; but in making or authorizing improvements, other than the removal of unlawful obstructions, it cannot take private property without complying with that clause of the Fifth Amendment to the Constitution which declares, 'Nor shall private property be taken for public use without just compensation.' This proposition would be conceded where property taken for that purpose consists of lands, houses, buildings, or other structures standing on the natural banks of a river; but I think that it is equally true where erections are made on the margin of a river, or where a bridge is constructed across it, in accordance with the laws of the State and with the consent of Congress. Such structures are lawful and are private property, entitled to the constitutional protection. That which is lawful is not a nuisance, and cannot be prostrated or removed as such without compensation.
I should not have much difficulty in holding, if it were necessary to the decision of the case, that such structures made in conformity with the laws of the State, if not prohibited by any act of Congress, and not materially interfering with navigation, would be equally lawful, and entitled to the protection of the Constitution. There is a vast amount of property of this sort in this country. The wharves which have been extended below low-water mark, the flats covered by shallow water which have been reclaimed, and the many bridges which have been erected over navi able streams, are nearly all of this class. Navigation has rarely been materially interfered with in these works, the States themselves being deeply interested in preserving it free from obstruction. It would be strange if Congress could destroy this species of property without any compensation whatever.
But the bridge in question had not only the sanction of the States of Kentucky and Ohio, which it was intended to connect, but it had also the sanction of an act of Congress. If that of the States was not sufficient to make it a lawful structure, that of Congress, in addition, certainly made it so. I cannot yield to the argument that the reservation in the resolution of 1869 made the bridge any the less lawful than it would have been if no such reservation had been made. After authorizing the bridge to be erected in the manner it was, the resolution went on to say 'that the said bridge, when completed in the manner specified in this resolution, shall be deemed and taken to be a legal structure, and shall be a post-road for the transmission of the mails of the United States;' then comes the reservation referred to, as follows: 'But Congress reserves the right to withdraw the assent hereby given in case the free navigation of said river shall at any time be substantially and materially obstructed by an bridge to be erected under the authority of this resolution, or to direct the necessary modifications and alterations of said bridge.' The power thus reserved was merely declaratory of the power which Congress would have had without reserving it; but there is no stipulation or condition that it might be exercised without providing for compensation to the proprietors of the bridge; and inasmuch as the bridge became a lawful structure,-was, in fact, expressly declared such by the resolution of 1869,-it cannot be presumed that this reserved power was to be exercised in any other than the constitutional mode. Hence, when the act of 1871 required the bridge to be taken down, and constructed on a different plan, if constructed at all, we should expect what we find was done, that provision would be made in the same law for ascertaining the damages to which the appellants would be put by the alteration, and for the payment thereof out of the treasury of the United States. It is true that the law required the tribunal to which the matter was referred to ascertain the liability of the United States, 'if any there be;' thus qualifying the provision for compensation by a preliminary inquiry as to the government's liability. This inquiry was probably directed to be made from the fact that doubts may have existed in the minds of some members of the legislative body whether the reservation referred to did not exonerate the United States from any obligation to make compensation. In my opinion it did not. I think, therefore, that the appellant was entitled to a decree in its favor, and that the decree of the Circuit Court dismissing the bill should be reversed.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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