Statement of Facts.

same, or said company has built such a bridge across said Pearl River, for its said railroad, as shall be in accordance with this section, and also with any authority or power granted to said company by the said State of Louisiana in the premises, and such drawbridge may be built in the centre of the channel of said Pearl River, or in that portion of the same within the territory of the State of Louisiana or of this State, as most convenient for public use." Laws of Miss. 1867, pp. 332, 335, 336. II. The following clauses in an act of the Legislature of Louisiana, approved August 19th, 1868, in reference to the same company:

"And it is also provided that said company is authorized and empowered to construct and maintain its said railroad over and across the waters of the State of Louisiana, known as the Pass Chef Menteur, Little Rigolet, Great Rigolet, or that part of Lake Pontchartrain east of the west line of Point aux Herebs, and the West Pearl River, and other streams and bayous between Lake Pontchartrain and Pearl River, and Pearl River, by bridges; Provided, however, That in the channel of that part of Lake Pontchartrain hereinbefore named there shall be constructed and maintained by said company a drawbridge, which, when open, shall give a clear space for the passage of vessels of not less than one hundred feet in width; and in the channel of the Pearl River the said company shall construct and maintain a drawbridge, which, when open, shall give clear space for the passage of vessels of not less than sixty feet in width, except in case the company shall locate their road across the Great Rigolet at a point south of (or below) the principal entrance of Pearl River into the Great Rigolet, when the company shall only be required to construct one drawbridge, which shall be in the channel of the Great Rigolet, as hereinbefore named; and said company, after the construction of the said drawbridges or drawbridge, shall at all times thereafter, provide that said drawbridges or drawbridge shall be opened for the passage of any and all vessels through the same without unnecessary delay. It is also provided, That such part of this section as relates to Pearl River, if the line of the road shall be located across the said river at a point where it constitutes

Statement of Facts.

the boundary line between the State of Louisiana and the State of Mississippi, shall not take effect until the State of Mississippi has consented to and authorized the same, or said company has built such a bridge across said Pearl River for its said railroad as shall be in accordance with this section and also with any authority or power granted to said company by the State of Mississippi in the premises; and such drawbridge may be built in the centre of the channel of said Pearl River, or in that portion of the same within the territory of the State of Mississippi or of this State, as most convenient for public use." Acts of La. 1868, No. 28, p. 32.

III. The following clause in the act of Congress of March 2d, 1868:

"That the New Orleans, Mobile & Chattanooga Railroad Company is hereby authorized and empowered to construct, build and maintain bridges over and across the navigablewaters of the United States on the route of said railroad between New Orleans and Mobile for the use of said company, the passage of its trains of cars, passengers, and mail and merchandise thereon. And said Railroad Company, and its bridges aforesaid, when constructed, completed and in use in accordance with this act and the laws of the several States through whose territory the same shall pass, shall be deemed, recognized and known as lawful structures and a post-road, and are hereby declared as such. Provided, however, That the said company, in the construction of its bridges over and across the waters known as the Pascagoula River, the Bay of Biloxi, and the Bay of St. Louis, shall construct and maintain drawbridges in the channels thereof, which, when open, shall give a clear space for the passage of vessels of not less than eighty feet in the channels of the East Pascagoula River and of the Bay of Biloxi and of the Bay of St. Louis, and of not less than one hundred feet in the channel of the Great Rigolet; and said company shall at all times open the said drawbridges, and shall provide reasonable and necessary facilities for the passage of all vessels requiring the same, except during and for ten minutes prior to and after the time of the passage of the mail and passenger trains of said company." 15 Stat. 38.

Opinion of the Court.

The Circuit Court overruled the demurrer of the defendant below, and sustained the demurrer of the plaintiff below, and gave judgment accordingly. This writ of error was sued out to review that judgment.

Mr. Gaylord B. Clark and Mr. Thomas L. Bayne for plaintiff in error cited Miller v. Mayor of New York, 109 U. S. 385, and cases there cited; Pennsylvania v. Wheeling Bridge Co., 13 How. 518; 18 How. 421; Clinton Bridge Case, 10 Wall. 454; Escanaba Co. v. Chicago, 107 U. S. 678; South Carolina v. Georgia, 93 U. S. 4; Ex parte Yarbrough, 110 U. S. 651, 654; Rev. Code Miss. 1880, $$ 2542, 2551; Bouvier Law Dict. Tit. Mandamus; High Extraordinary Remedies, §§ 1, 431, 539, 548; State v. Zanesville & Maysville Turnpike Co., 16 Ohio St. 308; United States v. McDaniel, 7 Pet. 15; Edwards v. Darby, 12 Wheat. 207, 210; Burgess v. Seligman, 107 U. S. 20, 34, 35; Carroll County v. Smith, 111 U. S. 556, 562, 563.

Mr. J. Z. George for defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court. This case has been heretofore in this court upon a question of jurisdiction, and is reported as Railroad Co. v. Mississippi, 102 U. S. 135. The Supreme Court of Mississippi, in accordance with our decision, reversed the judgment of the inferior State court, with directions to set aside all orders made subsequent to the presentation of the company's petition and bond for the removal of the cause, and to proceed no further. The case was thereafter tried in the Circuit Court of the United States. The object of the suit is, by mandamus, to compel the railroad company, whose line extends from Mobile to New Orleans, to construct and maintain in the channel of Pearl River, where that stream is crossed by the company's road, on the line between Mississippi and Louisiana, a drawbridge, which, when open, will give a clear space of not less than sixty feet in width for the passage of vessels. It would seem from the uncontroverted allegations of the petition that the bridge originally constructed by the company across Pearl River had no draw, although the channel, at that point, according to the

Opinion of the Court.

Coast Chart, has about forty-five feet depth of water, and the river is nearly three hundred yards in width. But, in the answer filed in the Circuit Court, it was averred, and the demurrer to it admitted, that there was, at that time, a draw which gave a clear space, for the passage of vessels, of thirtyfour to thirty-six feet in width.

By the final judgment, a peremptory mandamus was awarded requiring the company to remove the present bridge, and in lieu thereof construct and maintain one, giving a clear space of not less than sixty feet in width. It is provided in the judgment that such drawbridge may be built "either in the centre of the channel of Pearl River, or in that portion of the same within the territory of the State of Louisiana," or of Mississippi, as "may be most convenient for public use."

The controlling question is, whether the railroad company is under any legal obligation to construct and maintain a drawbridge of the kind specified in the judgment of the Circuit Court.

The company was incorporated by an act of the General Assembly of Alabama, approved November 24th, 1866, with authority to construct a railroad from the city of Mobile to any point on the line between Alabama and Mississippi; and also, in continuation thereof, a railroad through Mississippi and Louisiana, with such rights, privileges and franchises as might be granted to the corporation by the latter States. Laws of Ala. 1866-7, p. 6. Its existence as a corporation was recognized and approved by an act of the Legislature of Mississippi, approved February 7th, 1867, by which it was permitted. to have, exercise, and enjoy, within that State, the rights, powers, privileges and franchises granted to it by the State of Alabama, subject to the conditions, provisions and restrictions presented in said act and by the general laws of Mississippi. By the same act the company was authorized to construct and maintain a railroad from any point on the line between Mississippi and Louisiana, thence towards and to any point on the line between Mississippi and Alabama, and extend the same, as contemplated in its act of incorporation, from the western boundary of the State to New Orleans, and from its eastern

VOL. CXII.-2

Opinion of the Court.

boundary to Mobile. It was given a right of way across the waters, water-courses, rivers, bays, inlets, streets, highways, turnpikes or canals within Mississippi, subject, however, to the condition thatthe said company shall preserve any water-course, street, highway, turnpike or canal which its said railroad may so pass upon, along, intersect, touch or cross, so as not to impair its usefulness to the public unnecessarily; or if temporarily impaired in and during the construction of said railroad, the said company shall restore the same to its former state, or to such state that its usefulness and convenience to the public shall not be unnecessarily or materially impaired or injured.”

But that part of the act which has special reference to the issues in this case, and upon the construction and effect of which depend the rights of the parties, is given in the statement preceding this opinion.

It will be observed that reference is made to "the central portion of the channel of the Pearl River,” and, also, to “the principal entrance of Pearl River into the Rigolet." It was not disputed in argument that two distinct localities are here described. Pearl River is about 375 miles in length. It rises in the centre of Mississippi, and is navigable, by small craft, in good stages of water, as far as Jackson, the capital of the State. Running southwardly, it empties by one of its mouths into Lake Borgne, and by other mouths into the Rigolet-commonly called the Great Rigolet. The main or eastern branch of the Pearl, emptying into Lake Borgne, constitutes, for about one hundred miles above its mouth, to the 31° of north latitude, the dividing line between Mississippi and Louisiana. 3 Stat. 348. The other branch, constituting a water-way between the main river and the Great Rigolet, is wholly within the State of Louisiana. It is clear that the words "in the central portion of the channel of the Pearl River" have reference to the main or eastern branch, which constitutes the dividing line between Mississippi and Louisiana, and consequently, that it was in the channel of that branch (if the road was located across it) that the company was required to construct and maintain a drawbridge, giving a clear space of not less than sixty feet in width.