Opinion of the Court-Deady, J. [March, libellant to maintain this cable in the river, where and as it was, when caught on the keel of the vessel. In my judgment the cable was not slack enough—was held too near the surface of the water. At 18 feet from the end of the boat in water over 30 feet deep, and in the line of the approach to public docks, it was held within 11 feet of the surface when it ought to have been at least 20 feet below the same. Eighteen feet from the end of the boat is 36 feet from the point where the cable passes through the hanger, and commences to descend into the water. It ought to descend at an angle of not less than 45 degrees, so that in 30 feet or less of water it would be on the ground in 36 feet from the hanger, or 18 feet from the boat, in a horizontal line. In such case it would be safe for any vessel drawing not more than 20 feet of water to pass within 20 feet of the ferry-boat, at least when lying in or at her slip, without any special strain on her cable. may It be admitted that it is not so convenient to run a boat on a slack line as a taut one. But it must be borne in mind that there is no authority for obstructing the navigation of the river with this cable, and therefore it must be managed, even to the inconvenience of the ferry owners, so as not to constitute a material obstruction to navigation. This question has been before this court before. In The Vancouver, 2 Sawy. 381, it was considered and dismissed, with the suggestion that whether a ferry cable is an obstruction or not, must depend on the circumstances of the particular case. In Ladd v. Foster, 31 Fed. Rep. 827, the court said: "It is not claimed that there is any legislative authority for stretching this cable across the river, and using it as is done by the defendant, the Albina Ferry Company. A cable lying on the bottom of the river is not an obstruction to navigation, while if stretched across at or near the surface of the water it would be. Between these extremes it may depend on circumstances. When a ferryboat running on a cable, stretched loosely across the river in comparatively still water, only takes the wire off the ground a few feet in the front and rear of it, as it passes along, no material obstruction to navigation may result." In Atlee v. Packet Co. 21 Wall. 395, the supreme court held 1889.] Opinion of the Court-Deady, J. that a pier built in one side of the channel of the Mississippi River, as part of a boom for holding saw-logs adjacent to a mill, without legislative authority, was unlawful, and the person who erected and maintained it there, held liable in damages for a collision between it and a barge descending the river, although there was ample space for passage of the vessel farther out in the stream. But although the cable at the point where crossed by the Imperial was an unlawful obstruction to navigation, that fact would not justify the pilot of the Imperial, in wantonly or negligently running his vessel afoul of it. In such case, the Imperial would be held liable for half the damages sustained by the libellant. (Atlee v. Packet Co. 21 Wall. 395.) But there is no evidence tending to show that the pilot knew this cable was so near the surface of the water, or that he was negligent in not ascertaining the fact. Indeed, he states in his testimony that he had previously passed safely over the cable of this ferry, in the same vicinity, at a less distance from the boat, with a vessel drawing 20 feet of water. The use of cables in the maintenance of ferries on the Wallamet River appears to be a great convenience, if not a necessity. This being so, it may be said that ships, and other means of navigation should be required, as in the case of bridges, to yield some portion of their abstract right to move at pleasure on or through the water, for the benefit of the ferries. But the legislature is the only authority that can be invoked for this purpose. So long as the cable is used without the sanction of the legislature, and the court finds, as a matter of fact, that in the instance before it the cable is a material obstruction to navigation, it must give judgment accordingly. The libel is dismissed, and the claimants must have a decree for costs. |