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tained, is only such as is common to all persons engaged in commerce on the river and doing business on its banks, and therefore not the subject of judicial cognizance. These conclusions will clearly appear by a reference to the legislation under which the work was commenced and prosecuted.
On the sixteenth of April, 1867, the legislature of New York passed an act creating a corporation by the name of the New York Bridge Company, for the purpose of constructing and maintaining a permanent bridge over East river, between the cities of New York and Brooklyn. Laws 1867, c. 399. The act, among other things, authorized the corporation to acquire and hold so much real estate as might be necessary for the site of the bridge, and of all piers, abutments, walls, toll-houses, and other structures proper to it, and for the opening of suitable avenues of approach, but no land under water beyond the pier lines established by law. It declared that the bridge at the middle of the river should not be at a less elevation than 130 feet above high tide, and should not be so constructed as to obstruct “the free and common navigation of the river;" that it should not obstruct any street it might cross, but span such street by an arch or suspended platform of suitable height to afford passage under it for all purposes of public travel and transportation; and that no street running on the line of the bridge should be closed without full compensation to the owners of the property upon it; and designated the points of the commencement and termination of the bridge.
On the twentieth of February, 1869, the legislature passed an act amending the act of incorporation, and providing for the representation of the two cities of New York and Brooklyn in the board of directors of the bridge company, and directing that the company should proceed without delay to construct the bridge, authorizing it, for that purpose, to use and occupy so much of the lands under the water of The river, not exceeding a front on either side of 250 feet, nor extend. ing beyond the pier lines, as might be necessary for the construction of the towers of the bridge.
On the third of March of the same year congress passed an act entitled "An act to establish a bridge across East river between the cities of Brooklyn and New York, in the state of New York, [as] a post-road." In it the acts of the legislature of New York are referred to, and the bridge to be constructed under them was declared to be “a lawful structure and post-road for the conveyance of the mails of the United States,” provided the bridge should be so constructed and built as "not to obstruct, impair, or injuriously modify the navigation of the river.” To secure a compliance with this condition the company was required, previous to commencing the construction of the bridge, to submit to the secretary of war a plan of it, with a detailed map of the river at its proposed site, and for the distance of a mile above and below, exhibiting the depths and currents of the stream, together with such other information as might be deemed requisite by the secretary to determine whether the bridge, when built, would conform to the prescribed conditions of the act "not to obstruct, impair, or injuriously modify the navigation of the river.”
The secretary of war was, by the act, authorized and directed, upon receiving the plan and map, and other information, and upon being satisfied that a bridge built on such plan and at said locality would conform to these conditions, to notify the company that he approved the same; and, upon receiving such notification, the act declared that such company might proceed to the erection of the bridge, conforming strictly to the approved plan and location. But until the secretary approved the plan and location, and notified the company of the same in writing, the bridge should not be built or commenced.
Soon after the passage of this act the company had the required plan and maps prepared and submitted to the secretary of war. It is conceded that in this respect the provisions of the act were complied with. The secretary then appointed a commission of engineers, consisting of three officers of the army, two of them having the rank of lieutenant colonel of engineers, and the third a captain of engineers, to examine and report upon the proposed bridge, its height, strength, plan, location, and practicability, the effect of its piers and foundations and abutments upon the navigation of the river and the approaches to the harbor, and to what extent the bridge might obstruct or interrupt the passage of vessels and the free access to the United States navy-yard at Brooklyn. The commission heard all parties interested, and made an elaborate report upon the subject to the chief engineer of the United States army, at Washington, and through him the report was submitted to the secretary of war. A majority of the commission was of opinion that the height of the center of the main span of the bridge above high water should be increased from 130 to 135 feet. They also made various recommendations with reference to the dimensions and strength of various parts of the structure, to the projection of the pier or tower foundations of the bridge, and to the attachment of guys or stays to its main span. They reported as their conclusions :
(1) That there was no doubt of the entire practicability of the structure, nor of its stability when completed; (2) that no sensible effect would be produced by the pier or tower foundations and abutments upon the navigation of the river, or upon the approaches to the harbor of New York; (3) that the bridge would not offer any important impediment to the free access of naval vessels to the United States navy-yard at Brooklyn, nor any obstruction or interruption to the passage of merchant vessels under it, further than requiring the larger class of ships to send down or house their royals, and in some cases their top-gallant masts; (4) that the bridge, as projected, would conform to the prescribed conditions of the act of congress relating to it, unless it be decided that the words “ obstruct or impair” implied that it should not necessitate any such preparation for passing it, on the part of vessels of the larger class, as is involved in housing or sending down of top-gallant, royal, or sky-sail masts.
On the nineteenth of June, 1869, the secretary of war approved the report of the commission, with the views and recommendations it contained, provided that the height of the center of the main span of the bridge should not be less than 135 feet in the clear at mean high water of the spring tides, and that the structure should conform in all other respects to the conditions recommended by the commission. The secretary also directed the chief of engineers to furnish the bridge company with a copy of the act of congress establishing the bridge, a copy of the report of the commission and of bis own report, and to notify the company that the span and location of the bridge were approved subject to the conditions mentioned. This action of the secretary was indorsed on the report. In accordance with his direction, the chief engineer notified the company of the approval of the secretary and of the conditions which accompanied it. Upon receiving the notification the company commenced the construction of the bridge and prosecuted the same until the year 1875, when the legislature of the state passed an act dissolving the company and declaring the bridge to be a public work of the cities of New York and Brooklyn, and providing for its completion by them. It is conceded by stipulation of the parties that the provisions of this act were complied with, and that the management of the work was devolved upon trustees to be appointed by the two cities. When this suit was commenced, the work had progressed so far that the towers and anchorages on both sides of the river had been completed, and upwards of $6,000,000 had been expended; and, as already said, since that time the bridge has been completed and opened to the public.
* It is contended by the plaintiff with much earnestness that the approval of the secretary of war of the plan and location of the bridge was not conclusive as to its character and effect upon the navigation of the river, and that it was still open to him to show that if constructed as proposed it would be an obstruction to such navigation as fully as though such approval had not been had. It is argued that congress could not give any such effect to the action of the secretary, it being judicial in its character. There is in this position a misaprehension of the purport of the act. By submitting the matter to the secretary, congress did not abdicate any of its authority to determine what should or should not be deemed an obstruction to the navigation of the river. It simply declared that, upon a certain fact being established, the bridge should be deemed a lawful structure, and employed the secretary of war as an agent to ascertain that fact. Having power to regulate commerce with foreign nations and among the several states, and navigation being a branch of that commerce, it has the control of all navigable waters between the states or* connecting with the ocean, so as to preserve and protect their free navigation. Its power, therefore, to determine what shall not be deemed, so far as that commerce is concerned, an obstruction, is necessarily paramount and conclusive. It may in direct terms declare absolutely, or on conditions, that a bridge of a particular height shall not be deemed such an obstruction; and, in the latter case, make its declaration take effect when those conditions are complied with. The act in question, in requiring the approval of the secretary before the construction of the bridge was permitted, was not essentially different from a great mass of legislation, directing certain measures to be taken upon the happening of particular contingencies, or the ascertainment of particular information. The execution of a vast number of measures authorized by congress, and carried out under the direction of heads of departments, would be defeated if such were not the case. The efficiency of an act as a declaration of legislative will must, of course, come from congress, but the ascertainment of the contingency upon which the act shall take effect may be left to such agencies as it may designate. South Carolina v. Georgia, 93 U. S. 13.
It is also objected that the notice given by the chief engineer to the company was not a compliance with the requirement that notification should be given by the secretary; but there is no force in the objection. When a secretary of the government is required to give information on any subject, he may act, and generally does act, through officers under him.
He is not expected to make over his own signature all the communications required from the department of which he is the head. It would be impracticable for him to do so. The official communication is deemed made by him when it is made under his sanction and direction.
The bridge being constructed in accordance with the legislation of both the state and federal governments, must be deemed a lawful structure. It cannot, after such legislation, be treated as a public nuisance; and however much it may interfere with the public right of navigation in the East river, and thereby affect the profits or business of private persons, it cannot, on that ground, be the subject of complaint before the courts. The plaintiff is not deprived of his property nor of the enjoyment of it; nor does he from that cause suffer any damage different in character from the rest of the public. He alleges that his business of a warehouse-keeper on the banks of the river above the bridge will be in some degree lessened by the delay attending the passage under it of vessels with high masts. The inconvenience and possible loss of business from this cause are not different from that which others on the banks of the river above the bridge may suffer. Every public improvement, while adding to the convenience of the people at large, affects more or less injuriously the interests of some. A new channel of commerce opened, turning trade into it from other courses, may affect the business and interests of persons who live on the old routes. A new mode of transportation may render of little value old conveyances. Every railway in a new country interferes with the business of stage coaches and side-way taverns; and it would not be more absurd for their owners to coin
plain of and object to its construction than for parties on the banks of the East river to complain of and object to the improvement which connects the two great cities on the harbor of New York.
Several cases have been before this court relating to bridges over navigable waters of the United States in which questions were raised as to the authority by which the bridges could be constructed, the extent to which they could be permitted to obstruct the free navigation of the waters, and the right of private parties to interfere with their construction or continuance. In these cases all the questions presented in the case at bar have been considered and determined, and what we hereafter say in this opinion will be little more than a condensation of what was there declared. The power vested in congress to regulate commerce with foreign nations and among the several states includes the control of the navigable waters of the United States so far as may be necessary to insure their free navigation; and by “navigable waters of the United States” are meant such as are navi. gable in fact, and which, by themselves or their connection with other waters, form a continuous channel for commerce with foreign countries or among the states. The Daniel Ball, 10 Wall. 557.
The Daniel Ball, 10 Wall. 557. East river is such a navigable water. It enters the harbor of New York and connects it with Long Island sound. Whatever, therefore, may be necessary to preserve or improve its navigation the general government may direct; and to that end it can determine what shall and what shall not be deemed an interference with or an obstruction to such navi. gation.
In the Wheeling Bridge Case, a bridge erected over the Ohio river at Wheeling, under an act of the legislature of Virginia, which prevented the passage of steam-boats with high chimneys, was adjudged to be an unlawful structure; and the court ordered that it should be raised so as to afford a free passage to the steamers, or that some other plan should be adopted by a day designated which would relieve the navigation from the obstruction, or that the bridge should be abated. Congress thereupon interfered, and declared the bridge, as it was built at its existing elevation, to be a lawful structure. The court then held that the objection to the bridge as an obstruction to the navigation of the river was removed; that although it might still be an obstruction in fact, it was not so in contemplation of law, and the decree of the court for the abatement of the bridge could not be enforced. “There was no longer,” said the court, “any interference with the enjoyment of the public right, inconsistent with the law, no more than there would be where the plaintiff himself had consented to it after the rendition of the decree." For its interference with the public use of the stream no individual could complain, as the power which could control and regulate that use had made the structure creating the interference a lawful one. 18 How. 430.
The case of Gilman v. Philadelphia, 3 Wall. 713, is much stronger than the Wheeling Bridge Case, and is conclusive against the preten.