A state, in the absence of any statute by Congress, has plenary
power in regard to navigable streams wholly within its boundaries,
and obstructions in such streams, in the absence of statute,
constitute no offense against the United States, and whether
obstructions are unlawful under state law is not a federal
question.
Willamette Iron Bridge Co. v. Hatch,
125 U. S. 1.
Where a federal law is applicable requiring consent of the
federal government, there is concurrent or joint jurisdiction of
the state and national governments over the erection of structures
obstructing navigation of a navigable stream wholly within a state.
Cummings v. Chicago, 188 U. S. 410;
Montgomery v. Portland, 190 U. S. 89.
Section 10 of the River and Harbor Act of March 3, 1899, c. 425,
30 Stat. 1151, alters § 7 of the River and Harbor Act of September
19, 1890, c. 907, 26 Stat. 454, and prohibits obstructions in
navigable waters of the United States not affirmatively authorized
by Congress, and whether the state has assented to such
obstructions remains with the state alone, and is not a federal
question reviewable by this Court under § 709, Rev.Stat.
Writ of error to review 40 Wash. 315 dismissed.
The Nicomen Boom Company, hereinafter called the plaintiff,
commenced an action against the North Shore Boom & Driving
Company, hereinafter called the defendant, in the Superior Court of
the State of Washington, Pacific County, to enjoin the defendant
from building a boom in the North River (a river wholly within the
boundary of the State of Washington), within the locality
designated in the plaintiff's plat and survey for its boom.
The action was founded upon the allegations that the plaintiff
was the first to file its plat, and that it commenced to build its
boom under the statutes of the State of Washington, and
Page 212 U. S. 407
that the defendant was threatening to build its boom within the
locality marked out and designated by the plaintiff in its plat or
survey filed with the Secretary of State, although its boom had not
actually been completed the whole distance indicated in such plat
or survey.
The defendant denied the various allegations of the plaintiff,
and the parties went to trial, which resulted in a judgment for the
defendant, dismissing the plaintiff's complaint. The plaintiff
appealed to the supreme court of the state, where the judgment was
reversed and the cause remanded to the superior court with
directions to enter judgment enjoining the defendant from building
the boom within the location marked on the plat or survey for the
plaintiff's boom.
See the opinion of the state court, 40
Wash. 315, showing plainly and in full the grounds of the
decision.
The defendant has sued out a writ of error from this Court, and
brings the judgment here for review.
Page 212 U. S. 410
MR. JUSTICE PECKHAM, after making the foregoing statement,
delivered the opinion of the Court.
This is a contest between two boom companies incorporated under
the laws of the State of Washington, authorizing the organization
of corporations of this kind.
In April, 1900, the plaintiff, after its organization, filed in
the office of the Secretary of State of Washington its plat or
survey, showing so much of the shorelines and waters of the North
River and lands contiguous thereto as it proposed to appropriate
under the laws of the state. Before beginning its boom, it
submitted to the Secretary of War of the United States the plan of
its proposed improvement and a plat of the territory to be occupied
thereby, and was granted permission by the War Department to
construct a boom within the limits of the river covered by the
plat. The plaintiff proceeded to erect its boom along the left side
of the river, but stopped short of the upper end of the territory
covered by its plat of location. The boom was substantially
constructed at a cost of about $16,000, and has been operated from
the time of its erection as originally constructed, and plaintiff
has always expected to extend the boom within the limits of the
plat of location as the demands of business might require. Some
days before the commencement of the actual work of extending the
plaintiff's boom, the defendant commenced to construct its boom
within the limits of the original plat of the plaintiff.
Page 212 U. S. 411
The defendant was organized in 1903, and filed its plat and
survey in the office of the Secretary of State of the State of
Washington, and it alleges that, before commencing to construct its
boom, it secured from the War Department of the United States
permission to construct the boom within its location. The boom of
the defendant, if constructed according to its plans, would cause
logs coming down the river, intended to reach the plaintiff's boom,
to enter the main boom of the defendant. The booms, as proposed by
the plaintiff and defendant, cannot both be constructed. If the
boom of the plaintiff should be extended up the river, within the
limits of its plat and survey, the passage between its line of
dolphins and the dolphins of the defendant on the other side of the
stream would be so narrow as to block navigation. Moreover, it
would be impracticable to operate both booms under such
circumstances. If the defendant is permitted to operate its boom as
intended, the boom of the plaintiff will receive only such timber
from up the river as may escape from the boom of the defendant, and
such as may be transmitted through that boom to the plaintiff.
These facts are practically undisputed, and are found in the record
and findings of the court.
The federal government has taken no part in the dispute between
the two corporations. The laws of the state provide for proceedings
to build booms, and the defendant contends that it complied with
those statutes, and had also obtained from the chief clerk of the
War Department a written statement, dated March 23, 1903, stating
that the War Department would not interpose any objection to the
construction and maintenance of the boom in the manner proposed by
the defendant, so long as it did not unreasonably interfere with
navigation.
Several laws have been passed by Congress, contained in the
River and Harbor Appropriation Acts, prohibiting obstructions in
the waters of the United States and also providing for getting the
consent of the government, through the Secretary of War, to the
building of booms, bridges, etc.
See
Page 212 U. S. 412
Act of 1890, 26 Stat. 454, c. 907, §§ 7, 10. Also Act of March
3, 1899, 30 Stat. 1151, c. 425, § 10.
The state court did not find it necessary to decide the question
whether the defendant had complied with the federal statute in
regard to the building of its boom, but held that it had not
complied with the statutes of the State of Washington in regard to
the building of such proposed boom, and it therefore had no right
to build it, and it enjoined the defendant from so doing, and
directed judgment to be entered to that effect.
Before discussing the merits of the case, the defendant in error
made a motion to dismiss the writ of error for the want of
jurisdiction, there being, as it asserts, no federal question
reviewable under § 709 of the Revised Statutes.
The river in question is a navigable stream, entirely within the
State of Washington, and, in the absence of any statute by
Congress, a state has plenary power in regard to such waters.
Obstructions in those waters may be offenses against the laws of
the state, but constitute no offense against the United States in
the absence of a statute.
Willamette Iron Bridge Co. v.
Hatch, 125 U. S. 1. The
question whether the acts complained of, such as obstructions,
etc., in the river, are lawful or unlawful under the state law, is,
as was said in the above cited case (page
125 U. S. 9), a
state question, not a federal one. Where there is a federal law
which it is claimed also applies to the subject and requires the
consent of the federal government, then there is a concurrent or
joint jurisdiction of the state and national governments over the
erection of a structure which obstructs navigation.
Cummings v.
Chicago, 188 U. S. 410;
Montgomery v. Portland, 190 U. S. 89.
It is contended, however, on the part of the counsel for the
defendant, that whether the assent of the state has been given to
the erection of the structure is, in and of itself, a federal
question, and he cites
United States v. Bellingham Bay Boom
Co., 176 U. S. 211,
176 U. S. 218,
as authority for the proposition. That case was commenced in the
Circuit Court of the United States for the State of Washington,
Northern Division, and was
Page 212 U. S. 413
brought by the United States under the direction of the Attorney
General, pursuant to the provisions of § 10 of the River and Harbor
Bill of 1890, 26 Stat.,
supra. It was brought to enforce
the right of the government to prevent the erection of a structure
that obstructed the navigation of the river. It was held in that
case that the words in the tenth section, "not affirmatively
authorized by law," referred to the state as well as to the federal
law, and that the question then arose as to whether the structure
was permitted by that (state) law, and as the law of Congress
provided that it might be permitted if affirmatively authorized by
a state law, the question whether it was so authorized became, in
effect, a question whether the federal law did or did not permit
it. If it were authorized by the state law, then the federal law
provided that it might continue, and whether it was or not became a
federal question.
This is not such a case, and it is not brought by the government
under the section above mentioned, but the suit concerns private
parties only, and the statute does not, in the section applicable,
refer to any state law, as in the case cited. Section 7, River and
Harbor Act of 1890, 26 Stat. 454, c. 907. And § 10 of c. 425 of the
Laws of 1899, 30 Stat. 1151,
supra, alters the tenth
section of the statute of 1890 by providing
"that the creation of any obstruction not affirmatively
authorized by Congress to the navigable capacity of any of the
waters of the United States is hereby prohibited."
It leaves out the words "not affirmatively authorized by law,"
and substitutes "not affirmatively authorized by Congress." There
is therefore no reference to state action or state law. Obstruction
not affirmatively authorized by Congress is prohibited, but the
case of the state assent remains with the state for its sole
adjudication.
The construction of the boom of defendant in this case, the
state court has decided, was not authorized by the state. Whether
it was or not is not a federal question. The writ of error is
therefore
Dismissed.
