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BRIDGE OVER WEYMOUTH BACK RIVER, MASS.
August 4, 1911.-Committed to the Committee of the Whole House on the state of the
Union and ordered to be printed.
Mr. RICHARDSON, from the Committee on Interstate and Foreign
Commerce, submitted the following
[To accompany S. 3024.)
The Committee on Interstate and Foreign Commerce, to whom was referred the bill (S. 3024) to provide for the reconstruction, alteration, and repair of a bridge across the Weymouth Back River, in the State of Massachusetts, having considered the same, report thereon with amendments and as so amended recommend that it pass.
Amend the bill as follows:
On page 2, line 3 strike out the word "one-half," and insert in lieu thereof the word "one-third."
On line 4, page 2, after the word “bridge,” strike out the period and add the following: “as may be ascertained by the Secretary of War."
The following is the report of the Senate Committee on Commerce: The Committee on Commerce, to whom was referred the bill (S. 3024) to provide for the reconstruction, alteration, and repair of a bridge across the Weymouth Back River, in the State of Massachusetts, having considered the same, report thereon with a recommendation that it pass without amendment.
The bill is identical in terms with House bill 30273, Sixty-first Congress, third session, which was favorably reported from this committee in the closing days of the Sixtyfirst Congress and passed the Senate, but failed to receive the approval of the President.
Following is the report of the House committee on the above-mentioned bill, which sufficiently states the facts:
“The Committee on Interstate and Foreign Commerce, to whom was referred the bill (H. R. 30273) for the relief of the city of Quincy, the towns of Weymouth and Hingham, and the Old Colony Street Railway Co., all of Massachusetts, having considered the same, report thereon with amendment and as so amended recommend that
*Amend the bill as follows: “Strike out all after the enacting clause and insert in lieu thereof the following:
"Whenever there shall be fixed by the Legislature of the State of Massachusetts the proportion of the total expense toward the reconstruction, alteration, and repair of a bridge across the Weymouth Back River, on Lincoln Street, in the town of Hingham in said State, made necessary because of the erection of a naval magazine, and for
other governmental purposes, to be paid by the Old Colony Street Railway Company, a corporation organized and existing under the laws of the State of Massachusetti, che town of Ilingham, in Plymouth County, in said State, and the town of Weymouth and the city of Quincy, both in Norfolk County in said State, there is hereby author ized to be appropriated, out of any money in the Treasury not otherwise appropriated, an amount not exceeding fifty thousand dollars, and not, in any case, to exceed onehalf of the sum necessary to reconstruct, alter, and repair said bridge, to be determined by the Chief of Engineers.
“"Said work shall proceed under the provisions of an act entitled “An act to regulate the construction of bridges over navigable waters," approved March twenty-third, nineteen hundred and six.'
"The Weymouth Back River is a small stream not over 4 miles in length, not having at this time, and never having had, any material commerce, but being used, as far as it has been used at all, for pleasure boats. It is spanned by a wooden bridge, built and maintained by the town of Hingham, in Plymouth County, Mass., the town of Weyinouth, and the city of Quincy, in Norfolk County, Mass. There is attached to this bridge, but in other respects a separate structure, another bridge, constructed and used by the Old Colony Street Railway Co., a corporation organized under the laws of Massachusetts. In order to provide a suitable passage for such craft as hare used this river, a draw 25 feet in width was included the construction of the bridges, and this draw has been sufficient for the requirements of the river traffit up to this time.
“The Navy Department, desiring to construct a naval magazine, has purchased the land on both banks of the river from a point 90 feet above the bridges to substantially the source of the river, and is constructing the necessary buildings for magazine purposes, a railroad to connect them with the New York, New Haven & Hartford Railroad, and making other improvements incident and necessary to the completion of its plant and for the purpose above stated.
“As the Navy Department owns all of the abutting land on the river, and it being necessary to prevent any trespassing on the magazine grounds, it is the purpose of the Government to prevent in future any navigation above the bridge other than that made necessary by the occupation of the shores for the magazine purposes, and oniy for those purposes, but in order to provide a sufficient passage for the tugs and lighters which will necessarily pass through the bridge in connection with this service it has been found necessary to widen the draws of both bridges from 25 to 30 feet, necessitating the reconstruction of the bridges, which are about 100 feet in width, at an estimain cost of $100,000. As the bridges as now constructed are suitable for all present purposes of navigation and travel, it is believed that an unreasonable burden is pui on the towns and street-railway company by the Government in requiring the rebuilding of the bridges and the widening of the draws, especially as the sole purpose for so doing is to promote the business of the Government. In order that this improvement may be made it becomes necessary for the Massachusetts Legislature, which is now in session, to authorize the rebuilding of the bridges and to apportion the expense for so doing among the local parties at interest. Therefore it is especially desirable that action on this bill be taken at this session of Congress, as otherwise the improvement may not be undertaken until the Massachusetts Legislature of 1912 has acted.
"In the case of the Union Bridge Co. against the United States the Supreme Court in its decision clearly recognizes the propriety of Congress contributing in such a recudstruction as this, for it said:
“Some stress was laid in argument upon the fact that compliance with the order of the Secretary of War will compel the bridge company to make a very large expenditure in money. But that consideration can not affect the decision of the questions of constitutional law involved. It is one to be addressed to the legislative branch of the Government. It is for Congress to determine whether, under the circumstances of a particular case, justice requires that compensation be made to a person or or poration incidentally suffering from the exercise by the National Government of its constitutional powers.'
“We believe that an equitable division of the expense would be one-half to be paid by the General Government and one-half by the other parties in interest. The line mittee has given very careful consideration to this matter and has had the benefit of the testimony of ex-Secretary of the Navy John D. Long, a resident of the town of
“Washington, February 11, 1911. "Sir: I have the honor to return herewith a letter dated December 22, 1910, from the Committee on Interstate and Foreign Commerce of the House of Representatives, inclosing for the views of the War Department thereon H. R. 30273, Sixty-first Congress, third session, A bill for the relief of the city of Quincy, the towns of Weymouth and Hingham, and the Old Colony Street Railway Co., all of Massachusetts.'
“By letter of December 22, 1909, the Navy Department called the attention of the Secretary of War to the obstructive character of the bridge crossing the Weymouth Back River, at Lincoln Street, Hingham, Mass., and asked that action be taken to have the draw of the structure widened to permit the passage of vessels and enable them to reach the site of the naval magazine above.
“While the bridge mentioned is practically one structure, there are in reality two bridges, one being a highway bridge owned jointly by the city of Quincy and the towns of Weymouth and Hingham, and the other a railroad bridge owned by the Old Colony Street Railway Co.
“In pursuance of the provisions of section 18 of the river and harbor act of March 3, 1899, and in accordance with the practice of the War Department, an examination of the bridges was made, a public hearing was held at which all the parties concerned were given full opportunity to be heard, and all phases of the subject were carefully investigated and considered. As a result, the Secretary of War reached the conclusion that the bridges were unreasonable obstructions to the free navigation of the waterway by reason of insufficient width of draw opening (which is only 25 feet), and that to render navigation through the structures reasonably free, easy, and unobstructed the width of the draw opening should be increased to 50 feet in the clear, and the draw span should be equipped with efficient mechanism to insure its prompt opening and with suitable fenders and draw rests to insure the safe passage of vessels through the openings. He accordingly, as provided by the statute, caused orders, dated May 20, 1910, to be served on the respective owners of the structures, requiring the aforesaid alterations to be made and completed on or before June 30, 1911. Certified copies of the papers showing the action of the War Department in the premises are submitted herewith.
“The object of the bill is to appropriate the sum of $50,000 out of the Federal Treasury, which, with a like sum to be furnished by the bridge owners, is to be expended, under the direction of the Secretary of War, in the reconstruction, alteration, and repair of the bridges as ordered by him. The existing law contemplates that the cost of making alterations in obstructive bridges when thus ordered shall be borne by the parties responsible for the maintenance of the structures. The proposition embraced
in the bill is therefore distinctly at variance with the intent of the statute as inter· preted by the department and by the courts and should not be adopted unless some good reason exists therefor. I know of no such tason; but I understand that the reason advanced by the proponents of the measure is that the only complainant against the bridges is the Navy Department; that the changes ordered are needed to facilitate the ingress and egress of vessels of that department; and that, being required for governmental purposes only, the cost of the alterations should be paid by the Government.
"In my judgment the proposition is not a commendable one and the consideration upon which it is based is not sound. Weymouth Back River is a natural highway capable of a useful navigation, and for many years its navigable capacity has been obstructed and diminished by the existence of these bridges. The Federal Government has always had a right of way through the structures, and their owners have maintained them subject to the exercise and assertion of this right. As the widening of the draw openings is necessary to provide for the navigation of which the river is capable, it is within the power of the Secretary of War, as the instrument of Congress, to require such widening at any time.
". The fact that the Navy Department is the chief complainant against the bridges and will benefit immediately by the action of the Secretary of War in ordering changes in the structure is immaterial. Such fact is not essential to his action, nor can it affect the duties and obligations of the bridge on The latter are simply required to abate an obstruction created by themselves and to partially restore the ancient navigable capacity of a public highway. That they should bear the entire cost of such restoration is believed to be fair and reasonable, and favorable consideration of the bill is not recommended.
“If Congress should relieve the bridge interests of this burden and place it upon the public, the amount appropriated should certainly not be more than one-half of that which is actually required to effect the changes required by the Secretary of War.
“It is believed that the amount named in the bill ($100,000) is exorbitant, and that the cost of placing new 50-foot steel draw spans, as required in the said order, would not greatly exced the sum of $8,000 for the railroad and $12,000 for the highway bridge, or a total of $20,000. Furthermore, if an appropriation is made the bill should show plainly that it is simply a contribution by the United States to the owners of the bridges to assist the said owners in rebuilding the structures, and so much oi the measure as provides that the funds shall be expended under the direction of the Sectetary of War should be eliminated. The Government has no interest in the construction and maintenance of the structures, and there is no reason in any case for imposing upon it any responsibility whatever with respect to the work. “Very respectfully,
“W. H. Bixby,
'Chief of Engineers, United States Army. “The SECRETARY OF WAR."
IN RE WEYMOUTH BACK RIVER BRIDGE.
The bridge over Weymouth Back River is a wooden structure connecting the town of Hingham, in the county of Plymouth, with the town of Weymouth, in the county of Norfolk, both in Massachusetts. It was built about 1812 by the Hingham & Quincy Bridge & Turnpike Corporation, which was established by a special act of the Massachusetts Legislature (chap. 92 of the acts of 1807) for the purpose of laying out, making, and keeping in repair a turnpike from a certain point in Hingham to a certain point in Quincy, with bridges, draws, tollgates, etc., along the line which constitutes a part of the main thoroughfare between Boston and Plymouth.
The turnpike company managed and operated the turnpike and bridge (a toll bridge) until July 4, 1862. The same company built the Weymouth Fore River Bridge.
In 1862 (chap. 177 of the acts of that year) .the Massachusetts Legislature passed an act relative to this turnpike and bridge of which sections 1 and 2 are as follows:
SECTION 1. The turnpike, way, bridges, draws, and piers belonging to the Hingham & Quincy Bridge & Turnpike Corporation, and lying in the towns of Quinev, Weymouth, and Hingham, are hereby laid out as, and shall become, a public highway on the 4th day of July next.
SEC. 2. So much of said turnpike and way, excluding abutments, bridges, draws, and piers, as lies in each of the several towns of Quincy, Weymouth, and Hingham, shall, on and after said 4th day of July next, be maintained by them, respectively.
Said act further provided for the appointment by the Supreme Court of a commission to determine what sum of money should be paid to the turnpike company for the property thus acquired, and also determine what part of such sum should be paid by the county of Norfolk and what part by the county of Plymouth.
Such a commission was appointed on August 3, 1862, and subsequently returned an award fixing the amount of damages to be paidto the turnpike company for the laying out of the turnpike as a highway, and determined that of this amount so fixed the county of Norfolk should pay three-fourths and the county of Plymouth onefourth.
The above had to do simply with the value of the property taken, but the same commission also had as a part of its duty to assess the cost of the care and maintenance of these two bridges (the one orer Weymouth Back River and the one over Weymouth Fore River), and owns found by said commission to be specially benefited. On this part of its duties the commission reported in substance as follows:
Expenses borne by Quincy, five-fortieths; Weymouth, twelvefortieths; Cobasset, four-fortieths; Hingham, seven-fortieths; Scituate, five-fortieths; South Scituate, four-fortieths, and Marshfield, three-fortieths.
And the chairman of the selectmen of Quincy, Weymouth, and Hingham to be a board of trustees and care for the bridge.
This award was considered and excepted by the Supreme Court as appears in 6 Allen, 353.
These bridges were thereafter maintained by said towns under the oversight of the chairmen of the selectmen of the towns of Hingham, Weymouth, and Quincy, as trustees, so called, until in 1870 by chapter 265 of the acts of that year it was provided for the appointment of another commission.
A commission was duly appointed under this act and which after due hearing decreed as follows:
That Weymouth shall pay twelve twenty-fourths, Hingham seven twenty-fourths, Quincy five twenty-fourths.
Thereafter the bridges over Weymouth Fore River and Weymouth Back River were maintained by said three towns in the aforesaid proportions namely, Weymouth twelvo twenty-fourths, Hingham seven twenty-fourths, Quincy, five twenty-fourths; and the trustees, so called, of the two bridges, were the chairmen of the board of the selectmen of Weymouth, Hingham, and Quincy, respectively, until Quincy became a city, when thereafter the mayor represented Quincy.
This condition continued until under chapter 456 of the acts of 1900 the bridge over Weymouth Fore River was replaced by a new bridge.
Under this last-mentioned act a commission was appointed to determine what cities and towns and public quasi corporations were especially benefited by the new bridge over Weymouth Fore River; upon the confirmation of the report of this commission the two bridges parted company with respect to the municipalities charged with their care and maintenance.
The Weymouth Back River Bridge continued and still remains in charge of a board of trustees constituted as above stated and is still maintained at the expense of Weymouth, Hingham, and Quincy in the proportions determined by the commission of 1870.
It is to be noted that there does not appear to have been any express reference in any of the legislation or reports of commissions as to where the title in said bridge is vested.
THE PRESENT SITUATION.
(a) Under date of March 16, 1910, the towns of Weymouth and Hingham and the city of Quincy were served with a notice to the effect that the Secretary of War, acting under the river and harbor act of March 3, 1899, had good reason to believe that the bridge over Weymouth Back River was an unreasonable obstruction to the free navigation of that river on account of insufficient width of the present opening and that it was proposed to require the draw opening to be widened to a clear width of not less than 50 feet and suitable fenders