Riparian ownership on navigable waters is subject to the
obligation to
suffer the consequences of an improvement of the navigation
under an act of Congress passed in the exercise of the dominant
right of the government in that regard, and damages resulting from
the prosecution of such an improvement cannot be recovered in the
Court of Claims.
This was a petition to recover damages because of the
construction of a dike by the United States in the Ohio River at a
point off Neville Island, about nine miles west of the City of
Pittsburgh. The Court of Claims made the following findings of
fact:
"I. In the year 1885, and before, the claimant was the owner in
her own right and in possession of a tract of land containing about
20 acres, situate on Neville Island, in the Ohio River, 9 miles
below the City of Pittsburgh, in the County of Allegheny and State
of Pennsylvania."
"II. The claimant's land at the time of the alleged grievance,
was in a high State of cultivation, well improved, with a good
dwelling house, barn, and other outbuildings. The claimant was in
the year 1885, and is now, engaged in market gardening,
cultivating, and shipping strawberries, raspberries, potatoes,
melons, apples, peaches, etc., to the Cities of Pittsburgh and
Allegheny, Pennsylvania, for sale."
"III. The claimant's farm has a frontage of 1,000 feet on the
north, or main navigable, channel of the Ohio River, where the
claimant has a landing, which was used in shipping the products
from, and the supplies to, her said farm; that the said farm
extends across the said Neville Island in a southwesterly direction
to the south channel of said Ohio River, which is not navigable;
that the said landing is the only one on claimant's farm from which
she can ship the products from and supplies to, her farm. "
Page 166 U. S. 270
"IV. Congress, by the River and Harbor Acts of July 5, 1884, 23
Stat. 133, 147, and August 5, 1886, 24 Stat. 310, 327, authorized
and directed the improvement of the said Ohio River as
follows:"
" Improving the Ohio River: continuing improvement, six hundred
thousand dollars."
"(Act 1884.)"
" Improving the Ohio River: Continuing improvement, three
hundred and seventy-five thousand ($375,000) dollars."
"(Act 1886.)"
"Under said authority, Lieut. Col. William E. Merrill, of the
Engineer Corps of the U.S. Army, by the direction of the Chief of
Engineers of the U.S. Army and the Secretary of War, commenced June
17, 1885, the construction of a dike 2,200 feet in length to
concentrate the water flow in the main channel of the Ohio River
beginning at a point on said Neville Island 400 feet east of the
claimant's farm, and running in a northwesterly direction with the
main or navigable channel of the said Ohio River to the outer point
of a bar in said river known as 'Merriman's Bar,' contiguous to and
extending into the said river from the northwest point of
claimant's farm; that the said dike has been completed to, and
beyond, the northeastern point of said Merriman's Bar."
"V. The construction of said dike by the United States for the
purposes aforesaid has substantially destroyed the landing of the
claimant by preventing the free egress and ingress to and from said
landing on and in front of the claimant's farm to the main or
navigable channel of said river."
"The claimant is unable to use her landing for the shipment of
products from and supplies to her farm for the greater part of the
gardening season on account of said dike's obstructing the passage
of the boats; that she can only use the said landing at a high
stage of water; that, during the ordinary stage of water, the
claimant cannot get the products off or the supplies to her farm
without going over the farms of her neighbors to reach another
landing."
"VI. The claimant's land was worth $600 per acre before the
construction of the said dike; that it is now greatly reduced in
value (from $150 to $200 per acre) by the obstruction caused
Page 166 U. S. 271
by said dike; that the damage to the claimant's farm exceeds the
sum of $3,000."
"VII. Claimant's access to the navigable portion of the stream
was not entirely cut off; at a 9-foot stage of the water, which
frequently occurs during November, December, March, April, and May,
she could get into her dock in any manner; that from a 3-foot stage
she could communicate with the navigable channel through the chute;
that at any time she could haul out to the channel by wagon."
"VIII. There was no water thrown back on claimant's land by the
building of said dike, and that said dike has not itself come into
physical contact with claimant's land, and has not been the cause
of any such physical contact in any other way. In making the
improvement, the defendants did not recognize any right of property
in the claimant in and to the right alleged to be affected, did not
attempt or assume to take private property in and by the
construction of the dike, but proceeded in the exercise of a
claimed right to improve the navigation of the river."
And upon these findings, the court held as a conclusion of law
that the claimant was not entitled to recover, and dismissed the
petition.
The opinion of the court, by Weldon, J., discusses the case at
length, citing many decisions, and maintains the conclusion on the
grounds that the court had no jurisdiction, and that, if it had,
there still could be no recovery, because the United States were
not responsible to claimant for injuries suffered in the use and
occupation of her property in consequence of the construction of
the works. 29 Ct.Cl. 18.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
All navigable waters are under the control of the United
Page 166 U. S. 272
States for the purpose of regulating and improving navigation,
and although the title to the shore and submerged soil is in the
various states, and individual owners under them, it is always
subject to the servitude in respect of navigation created in favor
of the federal government by the Constitution.
South Carolina
v. Georgia, 93 U. S. 4;
Shively v. Bowlby, 152 U. S. 1;
Trezevant v. Eldridge, 160 U. S. 452.
In
South Carolina v. Georgia, a proposed improvement of
the Savannah River consisted of the practical closing of one
channel around an island and the throwing of water into other
channels, to the substantial improvement of the harbor of Savannah.
This Court held that, in view of the general rule, although
structures deemed by Congress to be in aid of navigation might in
fact be in obstruction of certain methods of navigation of the
particular stream, their construction was nevertheless within the
federal power, and Mr. Justice Strong, delivering the opinion of
the Court, said:
"It is not, however, to be conceded that Congress has no power
to order obstructions to be placed in the navigable waters of the
United States, either to assist navigation or to change its
direction by forcing it into one channel of a river, rather than
the other. It may build lighthouses in the bed of the stream. It
may construct jetties. It may require all navigators to pass along
a prescribed channel, and may close any other channel to their
passage. If, as we have said, the United States have succeeded to
the power and rights of the several states so far as control over
interstate and foreign commerce is concerned, this is not to be
doubted. . . . Upon this subject, the case of
Pennsylvania v. Wheeling
& Belmont Bridge Co., 18 How. 421, is
instructive. There, it was ruled that the power of Congress to
regulate commerce includes the regulation of intercourse and
navigation, and consequently the power to determine what shall or
shall not be deemed, in the judgment of law, an obstruction of
navigation. The case of
The Clinton Bridge, 10 Wall.
454, is in full accord with this decision. It asserts plainly the
power of Congress to declare what is and what is not an illegal
obstruction in a navigable stream. "
Page 166 U. S. 273
In
Shively v. Bowlby, the leading authorities of the
courts of the United States and of most of the states and of Great
Britain as to the character of the title to submerged land are
considered, and the conclusion announced that the title is in each
state, with full power in the state legislature to confer it on
individuals, subject at all times to the servitude of the federal
government for regulation and improvement of navigation.
In
Trezevant v. Eldridge, the doctrine existing in the
State of Louisiana that lands abutting on the rivers and bayous
were subject to a servitude in favor of the public whereby such
portions thereof as were necessary for the purpose of making and
repairing public levees might be taken in pursuance of law, without
compensation, was fully recognized as enforceable notwithstanding
the Fourteenth Amendment.
By the established law of Pennsylvania, as observed by MR.
JUSTICE GRAY in
Shively v. Bowlby,
"the owner of lands bounded by navigable water has the title in
the soil between high and low water mark, subject to the public
right of navigation, and to the authority of the legislature to
make public improvements upon it, and to regulate his use of
it."
The Constitution of that state, prior to 1873, provided that no
man's property could "be taken or applied to public use without the
consent of his representatives and without just compensation's
being made."
In
Monongahela Navigation Co. v. Coons, 6 Watts &
Searg. 101, plaintiff's mill site was destroyed by the backing up
of water by a dam built by a canal company under authority of law
for the improvement of navigation, and the Supreme Court of
Pennsylvania held this to be a mere consequential damage resulting
from the exercise of the public right to improve navigation, that
it was
damnum absque injuria, and that such flooding and
injury did not amount to a taking, under the Constitution.
In the opinion of the court, it was stated by Chief Justice
Gibson.
"It cannot be said that the plaintiff's mill was taken or
applied, in any legitimate sense, by the state, or by the
company
Page 166 U. S. 274
invested with its power; nor can it be said that he was deprived
of it. In the case of
Philadelphia & Trenton Railroad,
6 Whart. 25, the words in the first paragraph were allowed to have
their obvious and popular meaning, so as to be restrained to
property taken away, and not extended to property injured by an act
which did not amount to an assumption of the possession. . . ."
"Still, it is only to a case of taking that the obligation
extends, and when a corporation acts by virtue of a constitutional
law, it is subject to no other responsibility for acts of
consequential damage than is specially provided for. . . ."
"It is not therefore enough to set before us a case of moral
wrong, without showing us that we have legal power to redress it.
Beyond constitutional restraint or legislative power, there is none
but the legislative will, tempered by its sense of justice, which
has happily been sufficient in most cases to protect the citizen.
Compensation has been provided for every injury which could be
foreseen, whether within the constitutional injunction or not, in
all laws for public works by the state or a corporation; though
cases of damage have occurred which could neither be anticipated
nor brought within the benefit of the provision by the most
strained construction. In one instance, a profitable ferry on the
Susquehanna at its confluence with the Juniata was destroyed by the
Pennsylvania Canal and, in another, an invaluable spring of water
at the margin of the river, near Selinsgrove, was drowned. These
losses, like casualties in the prosecution of every public work,
are accidental, but unavoidable, and they are but samples of a
multitude of others."
Numerous subsequent cases sustain the rule thus laid down, which
is, indeed, the general rule upon the subject.
The Pennsylvania Constitution of 1873 contained this additional
provision:
"Municipal and other corporations and individuals, invested with
the privilege of taking private property for public use, shall make
just compensation for property taken, injured, or destroyed, by the
construction or enlargement of their works, highways, or
improvements, which compensation shall be paid or secured before
such
Page 166 U. S. 275
taking, injury, or destruction,"
and in
Pennsylvania Co. v. Marchant, 119 Penn.St. 541,
it was ruled that this had relation to such injuries to one's
property as were the natural and necessary results of the original
construction or enlargement of its works by a corporation, and not
of their subsequent operation.
S.C., 153 U. S. 153 U.S.
380.
The Fifth Amendment to the Constitution of the United States
provides that private property shall not "be taken for public use
without just compensation." Here, however, the damage of which Mrs.
Gibson complained was not the result of the taking of any part of
her property, whether upland or submerged, or a direct invasion
thereof, but the incidental consequence of the lawful and proper
exercise of a governmental power.
The applicable principle is expounded in
Transportation Co.
v. Chicago, 99 U. S. 635. In
that case, plaintiff, being an owner of lands situated at the
intersection of La Salle Street, in Chicago, with the Chicago
River, upon which it had valuable dock and warehouse
accommodations, with a numerous line of steamers accustomed to land
at that dock, was interrupted in its use thereof by the building of
a tunnel under the Chicago river by authority of the state
legislature, in accomplishing which work it was necessary to tear
up La Salle Street, which precluded plaintiff from access to its
property for a considerable time; also to build a cofferdam in the
Chicago River, which excluded its vessels from access to its docks,
and such an injury was held to be
damnum absque injuria.
This Court said, again speaking through Mr. Justice Strong:
"But acts done in the proper exercise of governmental powers,
and not directly encroaching upon private property, though their
consequences may impair its use, are universally held not to be a
taking within the meaning of the constitutional provision. They do
not entitle the owner of such property to compensation from the
state or its agents, or give him any right of action. This is
supported by an immense weight of authority. Those who are curious
to see the decisions will find them collected in Cooley on
Constitutional Limitations, page 542, and notes. The extremest
qualification
Page 166 U. S. 276
of the doctrine is to be found, perhaps, in
Pumpelly v. Green Bay
Company, 13 Wall. 166, and in
Eaton v. Boston,
Concorc &c. Railroad, 51 N.H. 504. In those cases, it was
held that permanent flooding of private property may be regarded as
a 'taking.' In those cases, there was a physical invasion of the
real estate of the private owner, and a practical ouster of his
possession. But in the present case, there was no such invasion. No
entry was made upon the plaintiff's lot. All that was done was to
render for a time its use more inconvenient."
Moreover, riparian ownership is subject to the obligation to
suffer the consequences of the improvement of navigation in the
exercise of the dominant right of the government in that regard.
The legislative authority for these works consisted simply in an
appropriation for their construction, but this was an assertion of
a right belonging to the government, to which riparian property was
subject, and not of a right to appropriate private property, not
burdened with such servitude, to public purposes.
In short, the damage resulting from the prosecution of this
improvement of a navigable highway for the public good was not the
result of a taking of appellant's property, and was merely
incidental to the exercise of a servitude to which her property had
always been subject.
Judgment affirmed.
