Page:Federal Reporter, 1st Series, Volume 1.djvu/163

HEFKMAN V. BEEF SLOUGH MANUF'g. CO. 155 �The legislature of Delaware had passed an act authorizing that Company to construct a dam across Blackbird creek, ■which the company proceeded to construct. The defendant, being the owner of a sloop regularly enrolled and licensed under the laws of the United States, broke and injured the dam. The company brought suit for the injury. The de- fendant set up as a defence those facts, and that the creek -was a public navigable stream under the lawa of the United States, etc. The plaintiff demurred, and the demurrer was sustained by the supreme court and court of appeals of Delaware, and on appeal by the supreme court of the United States, Chief Justice Marshall delivering the opinion. Of course the dam was an obstruction to navigation, but it was authorized by the legislature of the state, and such legislation was held not to be repugnant to the constitutional power of congress over the subject, so long as congress had never chosen to exercise that power. �Again, the same doctrine was affirmed in Gilman v. Phtla- delphia, 3 Wall. 713, a very instructive case. And, still later, in Pound v. Turck, 95 U. S. 459, which was a case that went up from this district, and arose out of the construction of a dam across the Chippewa river. Pound, Halbert & Co., under the authority of the legislature of Wisconsin, had erected a dam across the river. Turck, as assignee of French, Leonard & Co., brought an action to recover damages sus- tained by the delay and breaking of a raft of lumber caused by the obstruction of the dam. There was a verdict for the plaintiff, but the cause was reversed in the supreme court, following the authority of the two previously adjudged cases above cited. �So far, then, as the obstructions to steamboat navigation caused by the booms and piers put in the river by the Beef Slough Company at the head of Beef Slough and vicinity are authorized by the state legislature, they are not a nuisance to be abated by a court of equity, even if the plaintiff had shown that he has been especially damaged by them, which he has not. The use of the river as a common highway is clearly a ��� �