venience caused by a bridge with draws would be much less seriously felt by the public, and be a much lighter burden upon trade . and travel than a break in a line of railroad communication necessitating the employment of a ferry. In general terms it may be said that the State may authorize such constructions, provided they do not constitute material obstructions to navigation; but whether they are to be regarded as material obstructions or not is to be determined in each case upon its own circumstances. The character of the structure, the facility afforded for vessels to pass it, the relative amount of traffic likely to be done upon the stream and over the bridge, and whether the traffic by rail would be likely to be more incommoded by the want of the bridge than the traffic by water with it, are all circumstances to be taken into account in determining this question. It is quite evident that the same structure might constitute a material obstruction on the Ohio or the Mississippi, where vessels are constantly passing, which would be unobjectionable on a stream which a boat only enters at intervals of weeks or months. The decision of the State legislature that the erection is not an obstruction is not conclusive; but the final determination will rest with the Federal courts, who have jurisdiction to cause the structure to be abated, if it be found to obstruct unnecessarily the traffic upon the water. Parties constructing the bridge must be prepared to show, not only the State authority, and that the plan and construction are proper, but also that it accommodates more than it impedes the general commerce.1

4. The States may lawfully establish ferries over navigable waters, and grant licenses for keeping the same, and forbid unlicensed persons from running boats or ferries without such license. This also is only the establishment of a public way, and it can make no difference whether or not the water is entirely within the State, or, on the other hand, is a highway for inter-State or foreign commerce.2 5. The State may also authorize the construction of dams across

1 See this subject fully considered in the Wheeling Bridge Case, 13 How. 518. See also Columbus Insurance Co. v. Peoria Bridge Co., 6 McLean, 72; Same v. Curtenius, Ibid. 209; Jolly v. Terre Haute Draw-Bridge Co., Ibid. 237; U. S. v. New Bedford Bridge, 1 W. & M. 401; Commissioners of St. Joseph Co. v. Pidge, 5 Ind. 8.

2 Conway v. Taylor's Exr., 1 Black, 603; Chilvers v. People, 11 Mich. 43. In both these cases the State license law was sustained as against a vessel enrolled and licensed under the laws of Congress. And see Fanning v. Gregorie, 16 How. 534. Ferry rights may be so regulated as to rates of ferriage, and ferry franchises

navigable waters; and where no question of Federal authority is involved, the legislative permission to erect a dam will exempt the structure from being considered a nuisance,1 and it would seem also that it must exempt the party constructing it from liability to any private action for injury to navigation, so long as he keeps within the authority granted, and is guilty of no negligence.2

6. To the foregoing it may be added that the State has the same power of regulating the speed and general conduct of ships or other vessels navigating its water highways, that it has to regulate the speed and conduct of persons and vehicles upon the ordinary highway; subject always to the restriction that its regulations must not come in conflict with any regulations established by Congress for the foreign commerce or that between the States.3

It would be quite impossible to enumerate all the instances in which this power is or may be exercised, because the various cases in which the exercise by one individual of his rights may conflict with a similar exercise by others, or may be detrimental to the public order or safety, are infinite in number and in variety. And there are other cases where it becomes necessary for the public authorities to interfere with the control by individuals of their property, and even to destroy it, where the owners themselves have fully observed all their duties to their fellows and to the State, but where, nevertheless, some controlling public necessity demands the interference or destruction. A strong instance of this description is where it becomes necessary to take, use, or destroy the private property of individuals to prevent the spreading of a fire, the ravages of a pestilence, the advance of a hostile army, or any other great public calamity. Here the individual is in no degree in and privileges so controlled in the hands of grantees and lessees, that they shall not be abused to the serious detriment or inconvenience of the public. Where this power is given to a municipality, it may be recalled at any time. People v. Mayor, &c. of N. Y., 32 Barb. 102.

1 Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245; Brown v. Commonwealth, 3 S. &. R. 273; Bacon v. Arthur, 4 Watts, 437; Hogg v. Zanesville Co., 5 Ohio, 410. And see Flanagan v. Philadelphia, 42 Penn. St. 219; Depew v. Trustees of W. & E. Canal, 5 Ind. 8.

2 See Bailey v. Philadelphia, &c. R. R. Co., 4 Harr. 389; Roush v. Walter, 10 Watts, 86; Parker v. Cutler Mill Dam Co., 7 Shep. 353; Zimmerman v. Union Canal Co., 1 W. & S. 346; Depew v. Trustees of W. & E. Canal, 5 Ind. 8. People v. Jenkins, 1 Hill, 469; People v. Roe, 1 Hill, 470.

Mayor, &c. of New York v. Lord, 18 Wend. 129; Russell v. Mayor, &c. of New York, 2 Denio, 461; Sorocco v. Geary, 3 Cal. 69; Hale v. Lawrence, 1 Zab.

fault, but his interest must yield to that "necessity" which "knows no law." The establishment of limits within the denser portions of cities and villages, within which buildings constructed of inflammable materials shall not be erected or repaired, may also, in some cases, be equivalent to a destruction of private property; but regulations for this purpose have been sustained notwithstanding this result.1 Wharf lines may also be established for the general good, even though they prevent the owners of water-fronts from building out on that which constitutes private property.2 And, whenever the legislature deem it necessary to the protection of a harbor to forbid the removal of stones, gravel, or sand from the beach, they may establish regulations to that effect under penalties, and make them applicable to the owners of the soil equally with other persons. Such regulations are only "a just restraint of an injurious use of property, which the legislature have authority" to impose.3

So a particular use of property may sometimes be forbidden, where, by a change of circumstances, and without the fault of the owner, that which was once lawful, proper, and unobjectionable has now become a public nuisance, endangering the public health or the public safety. Mill dams are sometimes destroyed upon this ground; and churchyards which, found, by the advance of urban population, to be detrimental to the public health, or in danger of becoming so, are liable to be closed against further use for cemetery purposes.5 The keeping of gunpowder in unsafe quantities in cities or villages; the sale of poisonous drugs, unless labelled; allowing unmuzzled dogs to be at large when danger of hydrophobia is apprehended; or the keeping for sale unwholesome 714; American Print Works v. Lawrence, Ibid. 248; Meeker v. Van Rensselaer, 15 Wend. 397.

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1 Respublica v. Duquet, 2 Yeates, 493; Wadleigh v. Gilman, 3 Fairf. 403; Brady v. Northwestern Ins. Co., 11 Mich. 425; Vanderbilt v. Adams, 7 Cow. 352, per Woodworth, J.

2 Commonwealth v. Alger, 7 Cush. 53. See Hart v. Mayor, &c. of Albany, 9 Wend. 571.

Commonwealth v. Tewksbury, 11 Met. 55.

Miller v. Craig, 3 Stockt. 175.

5 Brick Presbyterian Church v. Mayor, &c. of New York, 5 Cow. 538; Coates v. Mayor, &c. of New York, 7 Cow. 604.

Foote v. Fire Department, 5 Hill, 99. And see License Cases, 5 How. 589, per McLean, J.; Fisher v. McGirr, 1 Gray, 27, per Shaw, Ch. J.

T Morey v. Brown, 42 N. H. 373.

provisions, or other deleterious substances, are all subject to be forbidden under this power. And, generally, it may be said that each State has complete authority to provide for the abatement of nuisances, whether they exist by the parties' fault or not.1

The preservation of the public morals is peculiarly subject to legislative supervision, which may forbid the keeping, exhibition, or sale of indecent books or pictures, and cause their destruction if seized; or prohibit or regulate the places of amusement that may be resorted to for the purpose of gaming; 2 or forbid altogether the keeping of implements of gaming for unlawful games; or prevent the keeping and exhibition of stallions in public places. And the power to provide for the compulsory observance of the first day of the week is also to be referred to the same authority.4

So the markets are regulated, and particular articles allowed to be sold in particular places only, or after license; 5 weights and measures are established, and dealers compelled to conform to the fixed standards under penalty, and the like. These instances are more than sufficient to illustrate the pervading nature of this power, and we need not weary the reader with further enumeration. Many of them have been previously referred to under the head of municipal by-laws.

Whether the prohibited act or omission shall be made a criminal offence, punishable under the general laws, or subject to punishment under municipal by-laws, or, on the other hand, the party be deprived of any remedy for any right which, but for the regu

1 See Miller v. Craig, 3 Stockt. 175; Weeks v. Milwaukee, 10 Wis. 242. But under this power it would not be competent for a city to tax a lot owner for the expense of abating a nuisance on his lot which the city itself had created. Weeks v. Milwaukee, Ibid.

488

2 Tanner v. Trustees of Albion, 5 Hill, 121; Commonwealth v. Colton, 8 Gray,

Nolin v. Mayor of Franklin, 4 Yerg. 163.

Specht v. Commonwealth, 8 Penn. St. 312; State v. Ambs, 20 Mo. 214; Adams v. Hamel, 2 Doug. (Mich.) 73; Vogelsong v. State, 9 Ind. 112; Shover v. State, 5 Eng. 259; Bloom v. Richards, 2 Ohio, N. S. 387; Lindenmuller v. People, 33 Barb. 548; Ex parte Andrews, 18 Cal. 678; Ex parte Bird, 19 Cal. 130. Nightingale's Case, 11 Pick. 168; Buffalo v. Webster, 10 Wend. 99; Bush v. Seabury, 8 Johns. 418; Ash v. People, 11 Mich. 347; State v. Leiber, 11 Iowa, 407; Le Claire v. Davenport, 13 Iowa, 210; White v. Kent, 11 Ohio, N. S. 550.

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Guillotte v. New Orleans, 12 La. An. 432; Page v. Fazackerly, 36 Barb. 392; Mayor, &c. of Mobile v. Yuille, 3 Ala. 139.

lation, he might have had against other persons, are questions which the legislature must decide. It is sufficient for us to have pointed out that, in addition to the power to punish misdemeanors and felonies, the State has also the authority to make extensive and varied regulations as to the time, mode, and circumstances in and under which parties shall assert, enjoy, or exercise their rights, without coming in conflict with any of those constitutional principles which are established for the protection of private rights or private property.