Easton and McMahon r. New York and Long Branch R. R. Co. feet in length each, resting on stone piers; in the shallow water, it is to be made on piles. The plan provides for a pivot draw parallel to the channel and current, with two openings of one hundred feet each, resting on a stone pier. The total length of the draw over all, is to be about two hundred and seventy-two feet. The complainants insist that this bridge is being constructed in a location wholly unauthorized-over Raritan bay, not over Raritan river. They also insist that the supplements and the original act must be read together, and that by a just construction the defendants are under a double prohibition—are prohibited from building a bridge, if it will be less convenient to navigation than a ferry (as it undoubtedly will be), and from building a bridge at all, if it will materially obstruct navigation; that the plan of the bridge is such that, if its construction be permitted, it will prove a most serious, permanent obstruction to navigation, inflicting great injury upon most valuable and important public and private interests, the great magnitude of which is set forth in the bill and its accompanying affidavits; that if the defendants, for the purposes of their enterprise, prefer a bridge to a ferry, they should at least be required to build one in such manner as not to interfere with the peculiar navigation of the river; that they should be required to build it of such a height (forty feet or thereabouts) from the water as to allow a steam tug, with her tow of canal boats, to pass under it. On the other hand, the defendants insist that the bridge is authorized by their charter and its supplements; that its location is in the place designated for the purpose by the legislature, over the river; that its plan is free from objection, and that if the bridge be constructed according to the plan, no material injury will be done to navigation; that they have not only complied with the requirements of their charter, but in their effort to accommodate navigation, have exceeded the provision they were required by law to make in that behalf, the law requiring them to place in the bridge only one draw, of at least one hundred feet in width, and Easton and McMahon v. New York and Long Branch R. R. Co. they having provided for two draws, of one hundred feet each. They also insist that the complainants, by their delay in applying to this court in the premises, have forfeited all right to the relief they seek. The first question which presents itself for consideration is, whether the structure which is the subject of complaint is a public nuisance; for, if it be such, the court should not hesitate to put a stop to it, and in such case it is best for all parties that the prohibitory power of the court be exercised at once. That the company are authorized to build a bridge over the Raritan river, under certain circumstances, cannot be disputed. The complainants insist that the defendants have no authority to do so if the bridge will materially obstruct navigation, or if it will even be less convenient to navigation than a ferry. For the support of the first branch of this proposition, they adduce the provisions of the charter in respect to bridges, and the first supplement, which extends the restrictions of the original act to the extension of the road thereby authorized. The authority given to the defendants, in the charter, to bridge the streams their road might cross, is not on condition that they will not, in so doing, obstruct navigation at all, but on condition that their bridges shall have sufficient draws, so as not to obstruct navigation; and when, by the supplement of March 30th, 1869, power was given to the company to bridge the Raritan river, it was (applying the restriction of the charter) on the same condition, that the bridge should have a sufficient draw, so as not to obstruct navigation. Pennsylvania R. R. Co. v. N. Y. & L. B. R. R. Co., 8 C. E. Green 157. By the supplement of April 1st, 1869, the legislature declared what should be a sufficient draw for this bridge-a draw of not less than one hundred feet in width. In this legislation, the legislature, with the whole subject before them, and with full power over it, and aware of the peculiarity, as well as of the importance of the navigation interests to be affected, authorized, and manifestly intended to authorize, the defendants to build a Easton and McMahon v. New York and Long Branch R. R. Co. bridge (if that should be more convenient than a ferry) over the Raritan river, without direction or restriction as to its construction in the interests of navigation, except that it should have a draw of at least one hundred feet in width. This brings us to the consideration of the remaining branch of the proposition, that the company have no right to build a bridge at all, if it will be less convenient to navigation than a ferry. The counsel, on both sides, substantially agreed as to the meaning of the legislature in the use of the word "convenient" in this connection; that to a certain extent the convenience of both the navigation and the railroad enterprise is to be regarded. The query presents itself, who is to determine whether the one or the other, the bridge or the ferry, be most convenient? The company are to act. They are to build the one or establish the other, as may be most convenient. Who is to determine for them, which will be the most convenient? It is said to be unreasonable, if not absolutely absurd, to hold that the company should determine this question for themselves. But the courts have so held, nevertheless. Stephens & Condit Transportation Co. v. Central R. R. Co., 5 Vroom 281. The legislature created no commission, nor did they erect or indicate any tribunal for the purpose. They neither provided nor designated any means of determining the important question What then remains, but the conclusion that the company were left to exercise their discretion, and act at their peril? It may not be out of place to remark, that while the company could not have had recourse to the courts for the decision of the question, those whose interests were threatened might have exercised a control over this discretion. They were at liberty to challenge it, and to draw into controversy, in the courts, the plans and designs of the defendants, under the authority of the act and its supplements. Good faith, and reasonable diligence, and the necessary interest in the subject matter, are all the prerequisites that this court would have demanded of the complainants in such case, to insure a hearing. Easton and McMahon v. New York and Long Branch R. R. Co. Again, the legislature might have been appealed to, to modify their grant, if it had proved too extensive, or threatened to be injurious to interests that ought to be protected and fostered, or to impose new or further necessary or proper conditions or restraints upon its grantees. If such applications have been made, they have been unsuccessful. If, then, the work which the defendants are constructing, is a work authorized by the legislature, it cannot be adjudged to be a nuisance, provided it be executed in an authorized manner, in an authorized place. Rex v. Pease, 4 B. & Ad. 30. Are the defendants building the bridge in accordance with legislative authority? They are, if they are building it in the place and manner directed. As to the place: The evidence fails to satisfy me that the structure is located over Raritan bay, and not over the river. And, as already remarked, the plan proposes to provide all the accommodation for navigation required by the act of the legislature. The legislature imposed no condition upon the defendants, in respect to navigation, except in connection with the width of the draw. They did not require them to provide for the convenience of canal navigation in any other way. Before them were the navigation interests, with their great importance, and they were asked to grant a franchise to another, different and very important transportation interest. The claims of the former were not unregarded, nor were the demands of public travel disregarded. The legislature acted with a view to each, and each, as against the other, is entitled to all that a reasonable construction of the grant will justify. And though the one interest may thus be deprived of desirable facilities to which it has been accustomed, and even be subjected to much inconvenience, it has no redress, unless it be on the ground of an existing contract between the legislative authority and those whose interests are interfered with. It must not be forgotten, also, that the public, as such, are interested in both. Rex v. Pease, 4 B. & Ad. 30. The complainants allege, however, that the draws in this bridge will be built and placed obliquely, and not at right an Easton and McMahon v. New York and Long Branch R. R. Co. gles, across the current or channel, so that it will be extremely difficult and dangerous for vessels to pass through them. This is explicitly denied by the defendants, who allege that, on the contrary, they will be at right angles to the channel and current, and will afford every accommodation and relief to the shipping and transportation carried on, through and on the waters of the Raritan river and bay. If the consideration of the testimony on this head, left me in doubt, I should not hesitate to stay the progress of the work until the doubt should have been removed. But such has not been its effect. The complainants, admitting that the flood tide sets truly through the draws, allege that the ebb runs obliquely, and that currents are produced which will carry boats, while being towed out of the river on the ebb tide, against the piers of the bridge. This apprehension does not appear to me to be well founded. The evidence satisfies me that no considerable objection to the draws can be based, either on the velocity, or the strength, or direction of the current. The objections made by the complainants, are not new discoveries to the Delaware and Raritan Canal Company. They made them in their protest and notice served on one of the contractors for building the bridge, on the 5th of December, 1871; and yet, in the suit, brought in this court in April, 1872, against the defendants by the Pennsylvania Railroad Company, as lessees and representatives of the canal company, (the solicitor of the complainants in which was the attorney by whom the notice alluded to was signed on behalf of the company), although the object of that suit was to restrain the defendants from proceeding in the construction of this bridge, they set up none of these objections. It is worthy of remark, also, that the centre pier of the draw had been built, and the whole structure so far completed as that a few days work was all that was required to finish it, when the bill in this cause was filed. For many months, the defendants have been permitted to proceed with the construction of the bridge. The amount of |