Georgetown v. Alexandria Canal Company

by Philip Pendleton Barbour

United States Supreme Court

37 U.S. 91

Georgetown  v.  Alexandria Canal Company

ON appeal from the circuit court of the United States, for the county of Washington, in the District of Columbia.

The appellants filed their bill in the court below, in July, 1836, stating, in substance, that they were deeply interested in the trade and navigation of the Potomac river, a common highway; the unobstructed use of which is secured by a compact in 1786, between the states of Virginia and Marryland. That the appellees, under the alleged authority of an act of congress of the 26th of May, 1830, are engaged at Georgetown, and within its corporate limits, in constructing an aqueduct over the said river. That the said aqueduct is designed to rest on massive stone piers, having their foundation on the solid rock at the bottom of said river. That to build said piers coffer dams are used around the site of them, with a double row of piling, the inner and outer rows of piling twelve or thirteen feet apart. That the appellees have finished one pier. That in building it, they filled up the space between the inner and outer rows of piling with clay and earth. The appellants expressed fears, that the clay so used, would injure the harbour of the town and channel of the river; but they were assured by the appellees that the clay so used, on completing the pier, should be taken away, and not permitted to be swept into the harbour and river. The bill further states, that, in the construction of the second pier, then in progress, the appellees not only used clay between said rows of piling, but threw large masses of clay and earth into the open river, outside the outer row of piles; that the current of said river and freshets, to which it was subject, had swept and would sweep said clay and earth into the channel and harbour; and had materially injured and would injure said channel and harbour. That the appellants had expended large sums of money, (in part granted to them by congress,) in deepening the channel of the river below the town; and that the depth of water had been materially lessened, caused in part, and materially, by the said works of the appellees.

The bill further states, that the appellants, before filing their bill remonstrated against the use of said clay and earth in the open river, outside the dams, to the officer in charge of the work; but he asserted his right so to use it, and would use it when the safety of his works in his judgment, required; and was so instructed by his principals.

The bill further stated that the appellants had reason to believe, and did believe, that the said operation would be renewed, in the construction of the six or more remaining piers of the aqueduct, if not arrested by the order of the court; to the manifest injury, if not ruin, of their harbour and channel. The bill further averred that the appellees were without sufficient means to complete the work, and called for a statement of their funds. The bill also averred the charter of the appellees, of May, 1830, to be unconstitutional, because it obstructed navigation. It prayed a perpetual injunction against the appellees in the use of clay and earth, inside or outside the dams; and against the progress of the work so conducted, in which they were engaged; and for further relief, &c. &c.

The answer denied the right of the appellants to sue, and the jurisdiction of the court, to enjoin for a public nuisance; and to give the relief prayed: denied that there was any injury, or damage; and if any, that it was within the corporate limits of Georgetown; and averred the validity of the act of congress, of 26th May, 1830, and their right to proceed under it. The answer avers that the said charter was granted with the knowledge and acquiescence of Georgetown; that a large amount of money had been obtained and expended on the work; and that appellees confidently believed, an ample amount had been, and would be furnished to complete it. They further averred, that they had employed skilful and scientific engineers; that they had adopted the most approved plan, (as set forth in the bill;) and that if any injury had occurred, or should occur to the river or harbour of Georgetown, which they denied, it was the necessary and inevitable result of the work itself. The answer admits, that, in building the second pier, in consequence of a freshet in June, 1836, alleged to have swept off the original deposite at the bottom of the river round the pier, and thereby loosening the outer piles of the dam, they did throw in clay outside the outer rows of piles, to replace said deposite; that it was necessary to do so, and the only practicable means to save their work: that it was an emergency not likely again to arise; and that it did not and could not produce the mischiefs alleged, and apprehended by the complainants. To so much of the bill as averred the financial inability of appellees to complete the work, and called for a development of their resources, they demurred. Proof was taken on both sides, and filed with the bill and answer; the general replication filed, and the cause by consent set for final hearing. The court below refused to grant the injunction, and the relief prayed, and dismissed the bill: and the appellants thereupon appealed to this Court.

The case was argued by Mr. Key, for the appellants; and by Coxe and Mr. Jones, for the appellees.

For the appellants, it was contended: 1. That the court erred in refusing to grant the relief prayed for.

2. Because a wanton and irreparable injury to the navigation of the river, results from the manner of the defendants' construction of their work.

3. Because, by the compact between Maryland and Virginia, of 1786, and by the act of cession, of 1791; the free navigation of the river Potomac, and the rights of the citizens of Maryland and Virginia, and of the district, were secured.

4. If the charter authorizes the erection of works which destroy the rights and property of the complainants, it is void, as against the constitution of the United States; no compensation being provided for such injuries by the charter.

Mr. Justice BARBOUR delivered the opinion of the Court.

Notes