by John Marshall

“ The word "full and free navigation," must, therefore, be taken with the qualification attached to them by the legislature; which precludes us from considering such a bridge as they have authorized to be erected, as an obstruction in violation of the law; if the bed of the river is unobstructed, if vessels can freely pass and repass between the piers of the bridge, without injury or interruption, it seems to us, that the public common right of navigation is protected to the extent contemplated by the law. ”

“ The repugnancy of the law of Delaware to the constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several states; a power which has not been so exercised as to affect the question. We do not think that the act empowering the Black Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject. ”

“ Whether they have abused, or misused their privileges, is an inquiry more proper for the legislature to institute, under the provisions of the 20th section of the law, than for this court to make, in an application for a summary injunction; if we could interfere at all, on such an allegation, it would only be on a clear departure from the route, or a palpable abuse of their discretion, in a manner that could admit of no colorable excuse; such a case we think has not been made out by the complainants. ”

“ Laws in relation to roads, bridges, rivers and other public highways, which do not take away private rights to property, may be passed at the discretion of the legislature, howver much they may effect common rights; even private rights, if they are not those of property, may be taken away, if it be deemed necessary consequence of their construction, without making compensation. ”

“ The whole matter resting solely in the discretion of the court, they must be governed, in its exercise, by the particular circumstances of each case; a greater latitude will be allowed in those which affect persons engaged in large and expensive undertakings, expecially, great works of public improvement, in which a great portion of the community may be interested, than in those merely affecting individuals, litigating on their own account. ”

“ They also state, that the bridge crosses the stream at an angle with the current, whereby vessels would be incommoded and endangered in passing through a draw, and express an opinion, that the striking of the masts is much less inconvenience than passing the draw. These statements and opinions, tend strongly to prove, that the powers of the company have not been so exercised as to evince either a want of discretion, or a design to deviate from their authority, by perverting it, so as unnecessarily to impair the rights of navigation. ”

“ Hence, the complainant must show in himself an apparent prima facie right of property or action, to the subject-matter of the injunction, as well as an injury intended or threatened by the defendant, which, if done, cannot be compensated by damages or adequate legal remedies, and can be effectually averted only by the protecting preventive power of a court of equity. ”

“ Compensation shall be made for all damages from immediate injury to property, but not for any damage where there is no legal injury, which is called damnum sine injuria-as, the loss of a fishery, by the erection of a dam in the Schuylkill, whereby the passage of fish is prevented. "For not only may the owners of land contiguous to the river, complain of the obstruction, but all others near it, who have been accustomed to receive fish thence, or to fish with an angle or hoop-net. ”

“ The remedy of injunction is individual, applicable only to special injuries in violation of private right, as to which the grievances of one man can have no bearing on those of another, nor can any alleged grievances of the pyblic authorize any one to redress it at his own suit, either in a court of law or equity. ”

“ If the act complained of is done under color of an authority conferred by law, the court will not interfere, if there is any ground of doubt, as to the authority, until the doubt has been removed, and the matter finally determined at law. ”

“ To restrict the defendants to the case made out by the bill and affidavits of the complainants would mainly deprive the former of the benefits of notice of the motion, as well as confine our inquiries within limits much too narrow for a case so interesting to all concerned as this; in the development of which, we are fully satisfied, that a less expanded view of the subject as to the localities and facts would bot have enables us to come to a conclusion satisfactory to our minds, as to the justice and equity of the application. ”

“ There are other kinds of injury, too, sustained particularly by the owners of land on the river, between the Fairmount dam and the lower falls. All those persons have lost the benefit of navigation free from toll, in batteaux, flats, &c., which was very useful, as it served for carrying produce to market, and bringing up manure for their lands, yet it has not been congended, that for such injury, compensation is to be made. ”

“ That the act of incorporation gives no authority to erect such a bridge as is contemplated, which the defendants have begun to construct, or any bridge which shall, in any way, impede the full and free navigation of said river. The prayer of the bill is for an injunction to restrain the said president and directors, their agents, workmen, laborers, and all other person employed about said railroad, from constructing any bridge whatever over and across said river ”

“ On the other hand, as the erroneous exercise of this power may operate to the irretrievable injury of the party enjoined, and for which, as it is the act of the court, he can have no legal redress in damages, while the complainant may have his remedy at law, though the relief in equity is refused. Too much caution cannot be used by the court in satisfying themselves that the case presented for their summary action is one which admits of neither doubt nor delay. ”

“ The consequences of arresting the progress and completion of canals, bridges or artificial roads, are too serious, and the responsibilities of doing it are too great, to be assumed, unless in a plain case of the violation of rights which are under the peculiar protection of courts of equity. ”

“ If a public nuisance is also a specific injru to the property of an individual, he has his remedy in equity, not because the act complained of is a nuisance, but on account of the irremediable injury to his private right of property. 6 Johns. Ch. 439-40.
No case has yet occurred, in which an injunction has been granted, in favor of an individual, who claims only a common right, on a common highway, in which he can have no private property; nor can we conceive one, in which it could be justified, unless it was accompanied with an obstruction, or destruction of a private right. ”

“ The spirit of this requisition is not merely to give the notice in face; the party is entitled to all the benefits resulting from notice; to be heard by his counsel, on all matters appearing in the bill, or disclosed in the affidavits of the complainant, not as amici curiae, but as representing the party in interest, who may be affected by the motion, as to whom it becomes an adversary suit, even before demurrer, plea or answer. ”

“ In this case, it was of special importance to be well informed as to the kind of navigation upon the Neshaminy, the kind of bridge proposed to be constructed, the extent of the inconvenience to which vessels would be subjected in consequence of its erection, on the plan contemplated by the defendants, and the nature of the injury which might be done to the complainants by its completion. ”

“ Though this remedy will not be withheld, merely because the title of the complainant may admit of a doubt, or be open to litigation, there must be a clear case made out of impending danger, requiring prompt action to save an apparent right from destruction. ”