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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 reason; 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 owners. 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 of the measure as provides that the funds shall be expended under the direction of the Secretary 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 Quincy, 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 over Weymouth Back River and the one over Weymouth Fore River), which were thus to be paid for by the said counties, upon the cities
and cowns 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; Cohasset, 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 twelve 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 provided for the safe and easy passage of vessels, all in accordance with plans to be submitted to and approved by the Chief of Engineers and the Secretary of War, and that these changes would be required by the 31st day of December, 1910.
After a hearing before Lieut. Col. Burr, of the Corps of Engineers, the time within which the above changes were required to be made was extended to June 1, 1911. At this hearing it was pointed out by said towns and city that they possessed no authority to make any expenditure beyond that necessary for care and maintenance.
(6) Within a few years the United States Government have acquired, by purchase and by eminent domain, title to the land on both sides of the said Weymouth Back River from a point about at or just above the bridge to a point about 8,300 feet above the bridge as a site for a naval magazine.
The Government has begun the development of this property by building about 16,000 feet of railroad track to connect the New York, New Haven & Hartford Railroad with the buildings within the grounds and the proposed wharf to be constructed about 400 feet above the drawbridge and by beginning the erection of buildings, etc. It is said to be the purpose of the United States Government to supply with ammunition from this magazine vessels lying in the Boston Navy Yard and in Nantasket Roads.
It is claimed by the Government that it will be impossible to accomplish this purpose in an expeditious, efficient, economical manner with the present draw, as the lighters of the type used with beam narrow enough to pass the draw can not be built of sufficient carrying capacity for the work.
It is said the Government proposed to use lighters on this work of a carrying capacity of about 350 tons and an extreme beam of about 34 feet. These lighters are to be towed to and fro by tugs. It is further claimed by the Government that the draw is too narrow even to admit most of the tugs of the Navy, and with any tide running would be practically impossible for all of them; that this draw has already proven a source of expense to the Government, causing the bids on dredging for its wharf and basin to run 25 per cent higher than they would have run had the draw been wide enough to allow deeper dredges of sufficient size to do the work in the most economical manner to pass through and that if will continue to unnecessarily increase the cost of all the Government water-front improvements and dredging until it is widened.
The construction of the present bridge is such that to increase the width of the draw from 24 feet to not less than 50 feet would be such a substantial alteration that good engineering would require the construction of an entirely new bridge in place of the present one.
As now existing, the bridge is adequate and convenient for all highway purposes, and the draw is of sufficient width to accommodate all navigation locally required except that of the United States Government.
Heretofore the draw has been very little used for commercial purposes. The river is a shallow, crooked, tide-water stream which rapidly narrows a short distance above the bridge and is only navigable for a matter of perhaps 2 miles. For many years at least there has been practically no navigation. Above the bridge there are no structures whatever on the river excepting the Government buildings and no wharves of any kind. Below the bridge for a distance of about one-half a mile there are summer camps but no wharves and no business structures.
The Bradley Fertilizing Works at a distance of 14 miles below the bridge is the only business structure upon the river. Some 500 feet above the bridge there was formerly a sand bank, from which sand was available for cement making. For some years this sand was sold, and about twice a week a small sloop, about 15 feet beam, was used in transporting it and went through the draw for this purpose. This has been the only navigation with the exception of small pleasure craft that passed through this draw up to the time of the taking of land above the bridge by the Government for the purpose of con structing a magazine.
The Government now owns the same bank and is devoting that section of the shore to the general purposes of its proposed magazine. For a period of two years no sand has been sold, and as a result the semiweekly visits of the above-mentioned sloop have been discontinued.
The present situation as to navigation and the situation for the past two years is that the only traffic through the draw of this bridge is that of the Government in connection with the building of its magazine and occasionally a small pleasure boat which has not required the opening of the draw.
The taking by the Government of so large a tract of territory upon both sides of the river, lying partly in Hingham and partly in Weymouth, has deprived these towns for the public use of taxes, amounting annually to about $700, and has rendered impossible for future development of the land for business or residential purposes.
Presumably the Government, having established a naval magazine there, will take the entire control of the river.
CONGRESS ASKED TO AID.
Encouraged by a dictum in the closing paragraph of the opinion in the case of Union Bridge Co. v. United States (204 U. S., 364), which was as follows:
The petitioners have caused a bill to be introduced into Congress through Congressman Weeks, having for its object the securing of an appropriation sufficient to pay for the additional width of draw required by the Government.
We desire to call attention to what seems to be a great difference in the situation presented in the Union Bridge Co. case above referred to and ours.
It appears that the alterations in the bridge over the Allegheny River were asked for by the whole commercial community.
Very many petitions for it coming in from business houses in and about Pittsburg, representing that the river commerce was of very great magnitude for importance (equal to that in New York Harbor), rapidly increasing in volume, and that the bridge deprived the community of a resonable use of the river in connection with the river business' of a great harbor, the Secretary of War was appealed to by the local interests to exercise the powers of his office to abate, or at least mitigate, what was termed a great public nuisance.”
On the contrary, in our case the community do not want the draw widened. It is satisfactory as it is. No business interests will be