Exemption of the United States from suit does not protect its
officers from personal liability to persons whose rights of
property they have wrongfully invaded.
In case of injury threatened by illegal action, an officer of
the United states cannot claim immunity from injunctive
Where complainant does not ask the court to interfere with an
Page 223 U. S. 606
of the United states acting within his official discretion, but
challenges his authority to do the act complained of, the suit is
not against the United States.
While the general rule is that equity has no jurisdiction over
the prosecution of crimes, it may, when it is essential to the
protection of property rights, as to which the protection of a
court of equity has already been invoked, enjoin the institution of
criminal actions involving the same legal questions.
An officer transcending the limits of his authority under a
constitutional statute may inflict similar injuries on property or
individuals as though he were proceeding under an unconstitutional
statute, and, in either event, equity may intervene to restrain
A court of equity having control of the person of defendant has
jurisdiction of an action to restrain him from violating the rights
of the complainant in regard to property not within its
jurisdiction, and may compel obedience to its decree. Phelps v.
McDonald, 99 U. S. 298
While the establishment of a general system of harbor lines for
the protection of navigation is not of itself an injury to property
and cannot be restrained, equity may enjoin an officer from taking
measures to maintain the limits against an individual proprietor
and so prevent him from enjoying what he asserts to be a lawful use
of his own property.
A riparian proprietor of land bounded by a stream continues to
hold to the stream as a boundary where the banks are changed by
accretion or erosion, but if the banks are changed by avulsion, the
title is not changed, but remains at the former line. This rule
applies alike to all streams and rivers, no matter how strong and
swift they may be.
To bring a sudden change of channel within the rule that it will
not affect the boundary line, it must be perceptible when it takes
place. Nebraska v. Iowa, 143 U. S. 359
In this case, held
that the changes in the line of
complainant's property were due to gradual erosion, and not to
sudden change of channel, and that the stream remained the boundary
The title to the soil under navigable waters within their
territorial limits, and the extent of riparian rights, are governed
by the law of the several states subject to the paramount authority
of Congress, and under the authority of Congress, the Secretary of
War may fix harbor lines superseding those fixed by the state.
Commerce include navigation; Gilman v.
3 Wall. 713,
Page 223 U. S. 607
and the power of Congress over navigation has no limit except
those prescribed in the Constitution. Gibbons v.
9 Wheat. 1, 22 U. S. 196
The authority of Congress is not limited to water as it flowed
at any preceding time. Alteration in the course of a stream does
not affect the power of Congress.
The public rights of navigation follow the course of the
It is for Congress to decide what shall or shall not be deemed
in judgment of law an obstruction to navigation. Pennsylvania v. Wheeling
18 How. 421.
Authority given by Congress to the Secretary of War to establish
harbor lines is not exhausted in laying the lines once; the
Secretary may change them at subsequent times in order to protect
navigation from obstruction.
33 App.D.C. 338 affirmed.
The facts, which involve the construction and constitutionality
of acts of Congress giving the Secretary of War power to establish
harbor lines in navigable waters of the United States, and the
validity and effect of the action of the Secretary of War
thereunder in regard to harbor lines established by him in the
harbor of Pittsburgh, Pennsylvania, are stated in the opinion.
Page 223 U. S. 613
MR. JUSTICE HUGHES delivered the opinion of the Court.
This suit was brought in the Supreme Court of the District of
Columbia to set aside certain harbor lines in the harbor of
Pittsburgh, Pennsylvania, so far as they encroached upon land owned
by the complainant, and to restrain the Secretary of War from
causing criminal proceedings to be instituted against the
complainant because of the reclamation and occupation of its land
outside the prescribed limits. The Court of Appeals of the District
affirmed a decree sustaining a demurrer to the bill, and the
The allegations of the bill, in substance, are as follows:
The complainant, a corporation of the Commonwealth of
Pennsylvania, is the owner in fee of "Brunot's Island," formerly
Chartier's or Hamilton's island, in the Ohio River, in Allegheny
County, Pennsylvania. In 1858, a statute was enacted in
Pennsylvania, providing for the appointment of commissioners to
ascertain and mark the
Page 223 U. S. 614
lines of ordinary high and low water in the Allegheny,
Monongahela, and Ohio Rivers in the vicinity of Pittsburgh. The act
recited that the lines of land along the shores of the rivers had
not been clearly ascertained, and it was important to all persons
interested that their several rights and privileges should be
defined. After the commissioners' surveys had been completed and
the lines located, opportunity was to be afforded in the court by
which they were appointed, for any needed corrections, and the map
or plan finally determined upon was to be recorded. The statute
declared that "the lines so approved shall forever after be deemed,
adjudged, and taken firm and stable for the purposes aforesaid."
Proceedings were had accordingly and the high and low water lines
along the shore of Brunot's Island were definitely fixed. In
consequence, the bill asserts that all the land, whether or not
under water, inside of the commissioners' lines, became the
property of the owners of Brunot's Island, and that, by virtue of
the statute and the action of the commissioners under it in fixing
the high water line as a permanent boundary, the right of the
owners of the island to accretions beyond that line was taken away,
while at the same time they were no longer subject to loss or
diminution of their land by reason of its submergence "through the
avulsion of floods or freshets or through gradual erosion."
Subsequent to the establishment, in 1865, of the state
commissioners' line, a considerable portion of the shore of the
island, "on the so-called back channel, within the said high water
mark," was washed away from time to time by heavy floods and
freshets, so that a large part of the upland was slightly
submerged, but not to an extent sufficient to permit of navigation.
Some years ago, the United States government, in order to increase
the depth of water in the harbor of Pittsburgh, caused a dam to be
constructed across the Ohio River a short distance below Brunot's
Island, known as the Davis Island dam. And
Page 223 U. S. 615
the effect of this dam, says the bill, by the increase of the
depth of water in the channel, was to submerge Brunot's Island to a
far greater extent, and to make the water over the complainant's
land navigable "at certain times, and for certain purposes" where
it was not navigable before.
In 1895, the Secretary of War, claiming to act under the
authority of § 12 of the Act of Congress of September 19, 1890, and
knowing that the shore of Brunot's Island had been washed away by
floods and freshets, established a harbor line which ran across the
complainant's land within the line of the state commissioners. It
is further alleged that, although the submerged land was generally
covered by water, "it was not ordinarily navigable water," and "has
never constituted, nor does it now constitute, a part of the public
navigable waters of the United States;" that no authority was
conferred by the Act of Congress upon the Secretary of War to
regulate or interfere with the use of the complainant's land by the
establishment of harbor lines upon the same, and that, even if the
water over this land was in fact part of the public navigable
waters of the United States, without being rendered thus navigable
by the construction of the dam, still the Secretary of War had no
right so to run the harbor line over the land in question as to
deprive the complainant of its use and enjoyment. It was the right
of the complainant, the bill avers, to repair the damage caused by
floods and freshets, and to reclaim the submerged portion by
filling in or wharfing, "keeping at all times within the lines of
the part that had been torn away by the violence of the
In 1907, the Secretary of War, claiming authority under § 11 of
the Act of Congress of March 3, 1899, against the complainant's
protest, changed the harbor line. The report of the United States
engineer at Pittsburgh stated that the conditions of high and low
water had not changed since 1895, but as, along a part of the shore
of the island,
Page 223 U. S. 616
the harbor line of 1895 ran several hundred feet outside high
water mark as it then existed, it seemed advisable to change it so
as to coincide with the actual high water mark. A copy of the
report with the order of the Secretary of War, dated February 23,
1907, was annexed to the bill and made a part of it. In this it is
stated that the location of the proposed harbor lines was within
the bed of the stream as it existed as a physical fact.
The bill further shows that, to facilitate the delivery of coal
for the operation of its power house on the island, the complainant
desired to reclaim a part of it which had been submerged by
establishing a coal wharf on the back channel, where both the
harbor line of 1895 and that of 1907 "ran some distance landward of
the said state commissioners' high water line." According to the
proposed plans, the wharf or pier was to extend over the
complainant's land and to cross both of the harbor lines to the
state commissioners' line. While these plans were being perfected,
the Secretary of War, through his representative, the United States
engineer officer at Pittsburgh, declared to the complainant that it
had no right to build upon its land across either of the harbor
lines, and he refused to permit the complainant to reclaim its land
or to build its wharf thereon outside the harbor line of 1907. He
threatened that, if it undertook to do so, he would prevent it and
cause the complainant and its employees "to be prosecuted and fined
by the authorities of the federal government" for violations of the
Acts of Congress of September 19, 1890, and March 3, 1899. It was
further charged that, if the Secretary of War had authority to fix
the original harbor line of 1895, that his power was exhausted by
what was then done, and that the harbor line of 1907 was wholly
In consequence of the severe penalties prescribed by the Acts of
Congress for the construction of buildings,
Page 223 U. S. 617
piers, or wharves outside any harbor line established by the
Secretary of War, and by reason of the defendant's threats of
prosecution in case the complainant carried out its plan of
reclamation and the construction of its wharf, the bill avers that
the complainant is prevented from making use of its property; that
the defendant's action constitutes a taking of its property for
public use without just compensation; that it is subjected in its
endeavor, so long as the harbor line remains unmodified, to a
multiplicity of criminal prosecutions, and that the harbor line is
a cloud upon its title.
The provisions of the Acts of Congress, referred to in the bill,
are set forth in the margin.*
Page 223 U. S. 618
In demurring to the bill, the defendant asserted that it was bad
in substance, and also specially assigned the following
"1. This proceeding is virtually a suit against the United
"2. This Court has no jurisdiction to restrain the enforcement
of a penalty or prosecution for violation of law."
"3. This Court has no jurisdiction to restrain the defendant
from instituting criminal proceedings against complainant."
"4. This Court has no jurisdiction to declare or define harbor
lines or boundary lines of land outside the District of Columbia
and in the State of Pennsylvania. "
Page 223 U. S. 619
"5. There is no jurisdiction in this Court to base any decree
removing cloud upon an alleged title of complainants in realty in
the State of Pennsylvania, nor to accomplish the same by declaring
the harbor lines referred to in the bill null and void."
First. If the conduct of the defendant constitutes an
unwarrantable interference with property of the complainant, its
resort to equity for protection is not to be defeated upon the
ground that the suit is one against the United States. The
exemption of the United States from suit does not protect its
officers from personal liability to persons whose rights of
property they have wrongfully
Page 223 U. S. 620
invaded. Little v.
2 Cranch 170; United States v.
Lee, 106 U. S. 196
106 U. S.
-221; Belknap v. Schild, 161 U. S.
, 161 U. S. 18
Tindal v. Wesley, 167 U. S. 204
167 U. S. 42
ed. 137; Scranton v. Wheeler, 179 U.
, 179 U. S. 152
And in case of an injury threatened by his illegal action, the
officer cannot claim immunity from injunction process. The
principle has frequently been applied with respect to state
officers seeking to enforce unconstitutional enactments.
Osborn v. Bank of United
9 Wheat. 738, 22 U. S. 843
22 U. S. 868
Davis v. Gray,
16 Wall. 203; Pennoyer v. McConnaughy, 140 U. S.
, 140 U. S. 10
Scott v. Donald, 165 U. S. 107
165 U. S. 112
Smyth v. Ames, 169 U. S. 466
Ex Parte Young, 209 U. S. 123
209 U. S.
-160; Ludwig v. Western Union Telegraph Co.,
216 U. S. 146
Herndon v. C., R.I. & P. Ry. Co., 218 U.
, 218 U. S. 155
Hopkins v. Clemson College, 221 U.
, 221 U. S.
-645. And it is equally applicable to a federal
officer acting in excess of his authority or under an authority not
validly conferred. Noble v. Union River Logging R. Co.,
147 U. S. 165
147 U. S.
-172; School of Magnetic Healing v.
McAnnulty, 187 U. S. 94
The complainant did not ask the court to interfere with the
official discretion of the Secretary of War, but challenged his
authority to do the things of which complaint was made. The suit
rests upon the charge of abuse of power, and its merits must be
determined accordingly; it is not a suit against the United
Second. The second and third grounds of demurrer, specially
stated, raise the question as to the jurisdiction of the court to
restrain the defendant from instituting criminal proceedings.
A court of equity, said this Court in In re Sawyer,
124 U. S. 200
124 U. S.
"has no jurisdiction over the prosecution, the punishment, or
the pardon of crimes or misdemeanors. . . . To assume such a
jurisdiction, or to sustain a bill in equity to restrain or relieve
against proceedings for the punishment of offenses, . . . is to
Page 223 U. S. 621
the domain of the courts of common law, or of the executive and
administrative department of the government."
Harkrader v. Wadley, 172 U. S. 148
172 U. S. 170
Fitts v. McGhee, 172 U. S. 516
172 U. S. 531
2 Story's Eq. Jur. § 893. But a distinction obtains when it is
found to be essential to the protection of the property rights, as
to which the jurisdiction of a court of equity has been invoked,
that it should restrain the defendant from instituting criminal
actions involving the same legal questions. This is illustrated in
the decisions of this Court in which officers have been enjoined
from bringing criminal proceedings to compel obedience to
unconstitutional requirements. Davis & Farnum Mfg. Co. v.
Los Angeles, 189 U. S. 207
189 U. S.
-218; Dobbins v. Los Angeles, 195 U.
, 195 U. S. 241
Ex Parte Young, 209 U. S. 123
209 U. S.
-162; Western Union Telegraph Co. v.
Andrews, 216 U. S. 165
this there is no attempt to restrain a court from trying persons
charged with crime, or the grand jury from the exercise of its
functions, but the injunction binds the defendant not to resort to
criminal procedure to enforce illegal demands.
It is urged that the statute authorizing the Secretary of War to
prevent encroachments upon navigable streams is a valid one, and
that the decisions cited do not apply. The validity of the statute
is not attacked, because of the assumption that it is not to be
construed to contemplate or authorize the alleged deprivation of
property. Where the officer is proceeding under an unconstitutional
act, its invalidity suffices to show that he is without authority,
and it is this absence of lawful power and his abuse of authority
in imposing or enforcing, in the name of the state, unwarrantable
exactions or restrictions, to the irreparable loss of the
complainant, which is the basis of the decree. Ex Parte
209 U.S. p. 209 U. S. 159
And a similar injury may be inflicted, and there may exist ground
for equitable relief, when an officer, insisting that he has the
warrant of the statute, is transcending its bounds, and thus
Page 223 U. S. 622
assuming to exercise the power of government against the
individual owner, is guilty of an invasion of private property.
By § 12 of the Act of March 3, 1899, it was provided that every
person and every corporation which should violate any provision of
§ 11, relating to the observance of harbor lines, or any rule or
regulation made by the Secretary of War in pursuance of that
section, should be guilty of a misdemeanor and punished by fine or
imprisonment. By § 17, it was made the duty of district attorneys
of the United States to prosecute all offenders whenever requested
by the Secretary of War. If the complainant's rights as against the
defendant were as claimed, it was entitled to adequate protection.
And in such case, the remedy might properly embrace the restraining
of unfounded prosecutions.
Third. The fourth and fifth special grounds of demurrer assert
that the Supreme Court of the District of Columbia had no
jurisdiction to define boundaries in the State of Pennsylvania or
to remove a cloud upon title to land in that state.
In dealing with these objections, it is important to observe the
precise nature of the suit. It was not to determine a controversy
as between conflicting claimants under the local law. It was not to
restrain trespass. Northern Indiana R. Co. v.
Michigan Central R. Co.,
15 How. 233; Ellenwood
v. Marietta Chair Co., 158 U. S. 105
was not brought to try the naked question of the title to the land.
6 Cranch 148, 10 U. S. 158
While the complainant's title lay at the foundation of the suit,
and it would be necessary for the complainant to prove it, if
denied, still, if its title to the land under water were
established or admitted to be as alleged, the question would remain
whether the defendant, in imposing restrictions upon the use of the
property, was acting by virtue of authority validly conferred by a
general act of
Page 223 U. S. 623
Congress. This was the principal question which the complainant
sought to have determined. The defendant is within the District,
amenable to the process of the court. There is no ground upon which
it may be denied jurisdiction to decide whether he should be
restrained from continuing his opposition to the complainant's plan
of improvement. Rather should it be said that the case falls within
the general rule sustaining the jurisdiction of a court of equity
which has control of the person of the defendant and may compel
obedience to its decree. Phelps v. McDonald, 99 U. S.
, 99 U. S.
Fourth. Assuming that the court had jurisdiction, we are brought
to a consideration of the equity of the bill.
It has been held that the establishment of a general system of
harbor lines for the protection of commerce and navigation is not
of itself an injury to property, and cannot be restrained.
Yesler v. Washington Harbor Line Commissioners,
146 U. S. 646
146 U. S. 656
Prosser v. Northern Pacific R. Co., 152 U. S.
, 152 U. S. 64
But it has also been recognized that a different question arises
when active measures are taken against an individual proprietor to
maintain a location of limits in alleged violation of his private
rights, and thus to prevent him from enjoying what is asserted to
be the lawful use of his property. Prosser v. Northern Pacific
R. Co. supra.
The complainant starts with the lines as laid down, in 1865, by
the state commissioners. These lines are averred to be "exactly in
accordance with the then-existing actual ordinary high and low
water marks." The argument is (1) that, independently of the effect
of the statute of Pennsylvania, the washing away of the banks, and
the submergence of a portion of the island, during the subsequent
years worked no loss of title, but that it remained absolute,
including the right of reclamation and improvement of the submerged
land inside the former line of high water, and (2) that, by virtue
of the statute, the
Page 223 U. S. 624
boundary was permanently fixed by the state commissioners' high
water line, and no subsequent encroachment of the water could
affect the rights of the owner.
(1) It is the established rule that a riparian proprietor of
land bounded by a stream, the banks of which are changed by the
gradual and imperceptible process of accretion or erosion,
continues to hold to the stream as his boundary; if his land is
increased, he is not accountable for the gain, and if it is
diminished, he has no recourse for the loss. But where a stream
suddenly and perceptibly abandons its old channel, the title is not
affected, and the boundary remains at the former line. Rex v.
3 B. & C. 91; s.c.,
2 Bligh, N.S.
147; Gifford v. Yarborough,
5 Bing. 163; New
Orleans v. United States,
10 Pet. 662, 35 U. S. 717
Banks v. Ogden,
2 Wall. 57; St. Clair County v.
23 Wall. 46, 90 U. S. 67
Jefferis v. East Omaha Land Co., 134 U.
, 134 U. S.
-193; St. Louis v. Rutz, 138 U.
, 138 U. S. 245
Nebraska v. Iowa, 143 U. S. 359
Shively v. Bowlby, 152 U. S. 1
152 U. S. 35
Hale, De Jure Maris, Ch. 1, 4, 6; Hargrave's Law Tracts; Mulry
100 N.Y. 424. The doctrine that the owner takes the
risk of the increase or diminution of his land by the action of the
water applies as well to rivers that are strong and swift, to those
that overflow their banks, and whether or not dykes and other
defenses are necessary to keep the water within its proper limits.
It is when the change in the stream is sudden or violent and
visible that the title remains the same. It is not enough that the
change may be discerned by comparison at two distinct points of
time. It must be perceptible when it takes place.
"The test as to what is gradual and imperceptible in the sense
of the rule is that, though the witnesses may see from time to time
that progress has been made, they could not perceive it while the
process was going on."
St. Clair County v.
23 Wall. 46, 90 U. S.
We are confined to the allegations of the bill. We have
Page 223 U. S. 625
not the advantage of proof and findings, or even of a
particularized description in the bill itself, as to the precise
character of the alterations in the banks of Brunot's Island which
took place during the long period to which the bill refers. It is
"that subsequent to the establishment in 1865 by said
commissioners of the line of high water mark, as aforesaid, a
considerable amount of the soil of the shore of said Brunot's
Island on the so-called back channel, within the said high water
mark, was washed away from time to time by heavy floods and
freshets, so that a large part of the upland of the island, that
is, the land above high water mark, became and was overflowed and
slightly submerged by water, but said land was not submerged to an
extent sufficient to permit of navigation of any kind
There is no other statement on the point save that the bill
asserts that the complainant was entitled to reclaim, "keeping at
all times within the lines of the part that had been torn away by
the violence of the waters."
It is manifest that these allegations are inadequate to support
the complainant's contention. The determining words are that the
land was "washed away from time to time by heavy floods and
freshets," and the reference is to what occurred in many years.
This is far from a statement that at any particular time there was
such a sudden, violent, and visible change as to justify a
departure from the ordinary rule which governs accretion and
diminution, albeit the stream suffer wide fluctuations in volume,
the current be swift, and the banks afford slight resistance to
For example, the general principle of accretion, which has that
of diminution as its correlative, applies to such rivers as the
Mississippi and the Missouri, notwithstanding the extent and
rapidity of the changes constantly effected. Jefferis v. East
Omaha Land Co., 134 U. S. 178
134 U. S.
-193; Jones v.
24 How. 41; Saulet v.
4 Wall. 502;
Page 223 U. S. 626
St. Clair County v. Lovingston, supra; St. Louis v. Rutz,
In Nebraska v. Iowa, 143 U.
, the question concerned the boundary between the
two states, which, by the Acts of admission, was the middle of the
main channel of the Missouri River. Between 1851 and 1877, in the
vicinity of Omaha, there were marked changes in the course of this
channel, so that in the latter year it occupied a very different
bed from that through which it flowed in the former year. The
opinion of the Court describes in detail the physical conditions
along the river. The Court said (pp. 143 U. S.
"The current is rapid, far above the average of ordinary rivers,
and by reason of the snows in the mountains there are two well
known rises in the volume of its waters, known as the April and
June rises. The large volume of water pouring down at the time of
these rises, with the rapidity of its current, has great and rapid
action upon the loose soil of its banks. . . . The only thing which
distinguishes this river from other streams in the matter of
accretion is in the rapidity of the change caused by the velocity
of the current, and this in itself, in the very nature of things,
works no change in the principle underlying the rule of law in
respect thereto. Our conclusions are that, notwithstanding the
rapidity of the changes in the course of the channel, and the
washing from the one side and onto the other, the law of accretion
controls on the Missouri River, as elsewhere, and that not only in
respect to the rights of individual landowners, but also in respect
to the boundary lines between states. The boundary therefore
between Iowa and Nebraska is a varying line so far as affected by
these changes of diminution and accretion in the mere washing of
the waters of the stream."
And, in the same case, the decision clearly points the
distinction between the losses and gains thus described and an
abrupt visible change where, at one place at a particular time, the
river having "pursued a course in the nature of an ox-bow,
Page 223 U. S. 627
cut through the neck of the bow, and made for itself a new
P. 143 U. S.
The present case falls within the category first mentioned, and
according to general principles of law the owner would bear the
losses caused by the washings of the river.
The bill also alleges that
"some years ago, the United States government, in the interest
of navigation, and in order to increase the depth of water in the
harbor of Pittsburgh, caused a dam to be constructed across the
Ohio River a short distance below said Brunot's Island, known as
the Davis Island dam. The effect of this dam was to very decidedly
increase the depth of the water in the channel back of Brunot's
Island, and to cause the water of the river to flow higher upon the
land of your orator, and to submerge same to a far greater extent,
and in fact to make said water which submerged your orator's land
navigable at certain times, and for certain purposes, which was not
navigable before the construction of said dam."
It will be observed that it is said that the United States
caused the erection of the dam in the interest of navigation. The
complainant purchased the island subsequently, in the year 1896.
And we are not concerned here with the question whether there was
any appropriation of land of the former owner by the United States,
and a cause of action arose to recover its value. Gibson v.
United States, 166 U. S. 269
United States v. Lynah, 188 U. S. 445
Bedford v. United States, 192 U.
; Manigault v. Springs, 199 U.
; C, B. & Q. R. Co. v. Drainage
Commissioners, 200 U. S. 561
200 U. S.
-584. So far as the bill shows, the dam was lawfully
built, and the allegations with respect to it wholly fail to state
any case entitling the complainant to relief by reason of its
(2) The complainant, however, insists that the effect of the
Pennsylvania statute was to fix the boundary of the island
permanently at the state commissioners' high water
Page 223 U. S. 628
line, and hence that within that line it was entitled to make
the desired reclamation and improvement.
This statute (Act of sixteenth April, 1858) provided that the
commissioners' lines approved by the court should "forever after be
deemed, adjudged, and taken firm and stable for the purposes
aforesaid." The Supreme Court of Pennsylvania has held that the
purpose of the act was to regulate the rights of the public in
respect to navigation, and to prevent private rights from being
exercised to the prejudice of the public interest. Wainwright
63 Pa. 66; Zug v. Commonwealth,
138, 142; Poor v. McClure,
77 Pa. 214, 219; Allegheny
City v. Moorehead,
80 Pa. 118, 139-140. In Wainwright v.
that court, holding that the
statute was not applicable to disputed boundaries between private
owners, considered the navigable character of the rivers to which
it related, the extent of riparian rights under the law of the
state, and the meaning of the act in the light of the mischief
which it was intended to correct. The court said:
"In order to arrive at the legal effect of the lines established
by the commissioners under that act, we must ascertain its true
purpose, and to reach this, it becomes necessary to examine the
navigable character of the Rivers Allegheny, Monongahela, and Ohio,
and the rights of the riparian proprietors upon their banks. These
rivers are among the largest in the state; larger than the
Schuylkill and Lehigh, recognized as navigable in the early history
of the province, and have been repeatedly held by name to be rivers
naturally navigable, and therefore classed with the Delaware and
Susquehanna. Carson v. Blazer,
2 Binn. 478; Shrunk v.
Schuylkill Nav. Co.,
14 S. & R. 79, 80; Hunter v.
10 S. & R. 244. Many acts have been passed
declaring tributaries of these rivers navigable. But an act perhaps
most pertinent to this controversy is that of 8th April, 1785, 2
Page 223 U. S. 629
regulating the taking up of lands within the new purchase, of
which the 13th section expressly excepts islands in the Ohio,
Allegheny, and Delaware."
"* * * *"
"This being the navigable character of the stream, the rights of
the riparian owners are settled by numerous decisions, a few of
which may be referred to: Carson v. Blazer, supra; Shrunk v.
Schuylkill Nav. Co., supra; Ball v. Slack,
2 Whart. 508;
Zimmerman v. Union Canal Co.,
1 W. & S. 346;
Bailey v. Miltenberger,
31 Pa. 37; McKeen v. Delaware
Div. Canal Co.,
49 Pa. 424; Tinicum Fishing Co. v.
61 Pa. 21, opinion by Sharswood, J., decided last
winter at Philadelphia. From these and other cases, it will appear
that the absolute title of the riparian proprietor extends to high
water mark only, and that, between ordinary high and ordinary low
water mark, his title to the soil is qualified, it being subject to
the public rights of navigation over it, and of improvement of the
stream as a highway. He cannot occupy to the prejudice of
navigation, or cause obstructions to be placed upon the shore
between these lines, without express authority of the state."
"The case of Bailey v. Miltenberger,
31 Pa. 37, decided
in 1856, doubtless had something to do in turning public attention
to the shores of the streams surrounding the City of Pittsburgh,
which led to the passage of the Act of 1858, for the purpose of
defining the low and high water lines. It referred to the mistaken
idea entertained by some proprietors of making ground for their
mills by depositing cinders on the shore between low and high water
"The Allegheny and many other navigable rivers [says the
opinion] do not at the time of low water occupy over one-third of
their bed, and it would be most disastrous to allow every owner to
fill out his land to low water mark."
"This state of affairs, for these rivers had been seriously
encroached upon at and opposite Pittsburgh,
Page 223 U. S. 630
no doubt led to the Act of 16th April, 1858, Pamph.L. 326. It
begins by a recital:"
" Whereas, the lines of lands on and along the shores at the
rivers at and near the City of Pittsburgh, in the County of
Allegheny, have never yet been clearly ascertained, and as it is
important to the owners of such lands, the persons navigating the
waters of, and the corporations adjacent to, such rivers, and to
all parties interested, to know and to have their several rights
and privileges in extension and limitation ascertained and defined;
"etc. The first impression arising from this language might seem
to be that the law was intended to ascertain and fix these high and
low water lines to end all controversies, private
as public. But a careful consideration of its purpose and
provisions shows that it is not applicable to disputed boundaries
between private owners, but was intended to regulate the respective
rights of the public and the landowners over whose property the
right of navigation extends between high and low water lines."
"* * * *"
"The effect of the lines as established is thus stated: 'The
lines so approved shall forever after be deemed, adjudged, and
taken, firm and stable for purposes aforesaid.' If we seek for the
'aforesaid' purposes, the act discloses none but those relating to
the public interest and that of the riparian owner. Then if we
advert to the power of the state over navigable streams, as stated
in the authorities cited, we discover that it is plenary over the
subject of navigation and the improvement of these natural channels
of commerce, while the ownership of the riparian proprietor is
qualified between the lines of low and high water. The legislature
may therefore with great propriety define the bounds of high and
low water by means of a suitable commission for the purpose of
regulating the public right so as not to conflict with private
interests and to prevent private rights from being exercised
Page 223 U. S. 631
to the prejudice of public interests; for example, to prevent
the shores from being filled up with great banks of cinders."
In Allegheny City v. Moorehead
the question was presented whether, by the fixing of water lines
under the Act of 1858, title had been vested in the City of
Allegheny or lot owners, so as to defeat the claim of the plaintiff
Moorehead under a subsequent patent from the state. The court said
"Nor can the operation of the Act of 1858 be extended by the Act
of the commissioners in running out the low water line of the
northern shore of the river to include a part of what was Killbuck
Island. It was not the purpose of the commissioners to transfer
titles, but to mark the boundaries of riparian rights, so as to
make them certain and permanent in their extent. So it was not the
intention of the framers of the Act of 1858 to pass titles to
lands, or to ascertain boundaries between individuals; but it was
their purpose to regulate the right of navigation along the shores
of these rivers by establishing high and low water lines, which
would definitely ascertain and fix the extent to which the right
could be exercised, and the extent to which the owners of the land
could exercise their own rights under the law of the state."
It is contended for the complainant that the effect of the
statute was to secure to riparian owners complete protection
against any loss of their land, or of the right to build upon it,
by reason of the gradual washing away of the banks of the river;
that the state chose to resign to the riparian proprietors its
right to such additions from the moving landward of the low water
mark, and required the owner at the same time to surrender, in the
interest of navigation, his right to alluvion. In support, the
complainant cites the opinion of the Court of Common Pleas No. 2 of
Allegheny County in Briggs v. Pheil
(1894), 42 Pittsburgh
Legal Journal, p. 18, in which it is said with respect to the same
"At the passage of this act,
Page 223 U. S. 632
the riparian owner owned absolutely to high water mark, and had
a qualified property to low water mark, and outside of the low
water mark the title to the soil was in the state. It seems to us
there can be no doubt that the state had power to enact that
thereafter the legal limits of the property should remain
unchanged, either by gradual accretions or by gradual cutting away.
This, in our opinion, was intended to be done and was done by the
act of assembly and the proceedings thereunder. . . . It seems to
us that the establishing of these lines at least, as between the
state and riparian owners, fixed the lines for the future. If the
river washes in beyond the high water line the owner may fill up
and reclaim the lost land, and, on the other hand, accretions
belong to the state or the municipalities."
The established doctrine is invoked that the title to the soil
under navigable waters within their territorial limits, and the
extent of riparian rights, are governed by the laws of the several
states, subject to the authority of Congress under the Constitution
of the United States. Martin v.
16 Pet. 367; Pollard v.
3 How. 212; Weber v.
18 Wall. 57; Barney v.
Keokuk, 94 U. S. 324
94 U. S. 338
Packer v. Bird, 137 U. S. 661
137 U. S. 669
St. Louis v. Rutz, 138 U. S. 226
138 U. S. 242
Hardin v. Jordan, 140 U. S. 371
140 U. S. 382
140 U. S. 402
Illinois Central R. Co. v. Illinois, 146 U.
, 146 U. S. 435
146 U. S. 452
Shively v. Bowlby, 152 U. S. 40
152 U. S. 47
Water Power Co. v. Water Commissioners, 168 U.
, 168 U. S. 365
Let it be assumed that the Pennsylvania statute, in its regulation
of rights, established the commissioners' high water line as the
permanent boundary of the island, and conferred upon the riparian
owner, so far as it was within the competency of the state to
confer it, the right to fill in and to erect structures to the
limit of this line, regardless of subsequent changes in the actual
high water line caused by the washing away of the banks of the
river. What, then, was the power of Congress with
Page 223 U. S. 633
respect to the river, and what was the extent of the authority
conferred upon the Secretary of War?
When the Secretary of War, in 1895, fixed harbor lines, he dealt
with the stream as it then existed. Whatever right the owner of the
island may have had under the state law to reclaim the submerged
land within the former line of high water had not been exercised.
The bill, in alleging that the new harbor line ran across the
complainant's land, must be taken to refer to the submerged land
already described. This is the import of its allegations, and is
shown by the record of the War Department annexed to the bill. In
establishing this line, the Secretary of War followed quite closely
the actual line of high water as it existed in 1895, except in the
back channel of Brunot's Island, where it ran several hundred feet
outside the then high water mark. The change of the harbor line at
this point in 1907 was for the purpose of making the line coincide
with the actual high water mark, and in the report of the United
States engineer who advised the change, it was said that the lines
as previously established had "not been filled out to, and the
river bed on the Brunot Island side, and in the bend referred to,"
was in "essentially the same condition" as at the time the harbor
lines of 1895 were fixed. He added:
"Pittsburgh suffers annually from floods, and in my opinion any
material contraction of the channel immediately below the city
would result in general injury and would produce conditions
detrimental to navigation and to harborage, and it is respectfully
recommended that the changes in the established harbor lines shown
and described on the map enclosed herewith be made, such changes
being necessary in preserving and protecting the harbor of
"The location of the proposed harbor lines recommended in this
communication is within the bed of the stream as it exists as a
physical fact. "
Page 223 U. S. 634
To this stream, as a highway of commerce, the power of Congress
extended -- a power which "acknowledges no limitations other than
are prescribed in the Constitution." Gibbons v.
9 Wheat. 1, 22 U. S. 196
exercise of this power could not be fettered by any grant made by
the state of the soil which formed the bed of the river, or by any
authority conferred by the state for the creation of obstructions
to its navigation.
"Commerce includes navigation. The power to regulate commerce
comprehends the control for that purpose, and to the extent
necessary, of all the navigable waters of the United States which
are accessible from a state other than those in which they lie. For
this purpose, they are the public property of the nation, and
subject to all the requisite legislation by Congress. This
necessarily includes the power to keep them open and free from any
obstructions to their navigation, interposed by the states or
otherwise; to remove such obstructions when they exist, and to
provide, by such sanctions as they may deem proper, against the
occurrence of the evil and for the punishment of offenders. For
these purposes, Congress possesses all the powers which existed in
the states before the adoption of the national Constitution, and
which have always existed in the Parliament in England."
3 Wall. 713, 70 U. S.
Nor is the authority of Congress limited to so much of the water
of the river as flows over the bed of forty years ago. The
alterations produced in the course of years by the action of the
water do not restrict the exercise of federal control in the
regulation of commerce. Its bed may vary and its banks may change,
but the federal power remains paramount over the stream, and this
control may not be defeated by the action of the state in
restricting the public right of navigation within the river's
ancient lines. The public right of navigation follows the stream
(Rolle's Abr. 390; Carlisle v. Graham,
L.R. 4 Exch.
Page 223 U. S. 635
361, 367-368), and the authority of Congress goes with it. When
the State of Pennsylvania established harbor lines and thus
undertook to regulate the rights of navigation, its action, however
effective as between the state and the riparian proprietors, was
necessarily subject to the paramount power of Congress. The state
lines can be conceded no permanent force as against the will of
Congress without substituting for its constitutional authority the
supremacy of the state with respect to navigable waters.
It is for Congress to decide what shall or shall not be deemed
in judgment of law an obstruction of navigation. Pennsylvania v. Wheeling and
Belmont Bridge Co.,
18 How. 421. And, in its
regulation of commerce, it may establish harbor lines or limits
beyond which deposits shall not be made or structures built in the
navigable waters. The principles applicable to this case have been
repeatedly stated in recent decisions of this Court. Gibson v.
United States, 166 U. S. 269
Scranton v. Wheeler, 179 U. S. 141
C., B. & Q. Ry. Co. v. Illinois, 200 U.
; West Chicago R. Co. v. Illinois,
201 U. S. 506
Union Bridge Co. v. United States, 204 U.
; Monongahela Bridge Co. v. United
States, 216 U. S. 177
Hannibal Bridge Co. v. United States, 221 U.
In Gibson v. United States, supra,
the construction of
a dyke in the Ohio River under the authority of the Secretary of
War had substantially destroyed the landing on and in front of a
farm owned by Mrs. Gibson "by preventing the free egress and
ingress to and from said landing" to "the main or navigable
channel" of the river. The Court said (pp. 166 U. S.
-272, 166 U. S.
"All navigable waters are under the control of the United 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.
Page 223 U. S. 636
South Carolina v. Georgia, 93 U. S. 4
Shively v. Bowlby, 152 U. S. 1
; Eldridge v.
Trezevant, 160 U. S. 452
. . . . 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."
Again, in Scranton v. Wheeler, 179 U.
, the question arose with respect to the riparian
owner whose access from his land to navigability was permanently
lost by reason of the construction by the United States of a pier
resting on submerged lands in front of his upland. The Court said
in its opinion (p. 179 U. S.
"The primary use of the waters and the lands under them is for
purposes of navigation, and the erection of piers in them to
improve navigation for the public is entirely consistent with such
use, and infringes no right of the riparian owner. Whatever the
nature of the interest of a riparian owner in the submerged lands
in front of his upland bordering on a public navigable water, his
title is not as full and complete as his title to fast land which
has no direct connection with the navigation of such water. It is a
qualified title, a bare technical title, not at his absolute
disposal, as is his upland, but to be held at all times subordinate
to such use of the submerged lands and of the waters flowing over
them as may be consistent with or demanded by the public right of
In Union Bridge Co. v. United States, supra,
Secretary of War found a bridge to be an unreasonable obstruction
to the free navigation of the Allegheny River, and required the
bridge company to make certain changes which it was insisted it
could not be compelled to make without compensation. The Court,
after reviewing the
Page 223 U. S. 637
authorities, said (pp. 204 U. S.
"Although the bridge, when erected under the authority of a
Pennsylvania charter, may have been a lawful structure, and
although it may not have been an unreasonable obstruction to
commerce and navigation as then carried on, it must be taken, under
the cases cited and upon principle, not only that the company, when
exerting the power conferred upon it by the state, did so with
knowledge of the paramount authority of Congress to regulate
commerce among the states, but that it erected the bridge subject
to the possibility that Congress might at some future time, when
the public interest demanded, exert its power by appropriate
legislation to protect navigation against unreasonable
obstructions. Even if the bridge, in its original form, was an
unreasonable obstruction to navigation, the mere failure of the
United States at the time to intervene by its officers or by
legislation and prevent its erection could not create an obligation
on the part of the government to make compensation to the company
if, at a subsequent time and for public reasons, Congress should
forbid the maintenance of bridges that had become unreasonable
obstructions to navigation. It is for Congress to determine when it
will exert its power to regulate interstate commerce. Its mere
silence or inaction when individuals or corporations, under the
authority of a state, place unreasonable obstructions in the
waterways of the United States cannot have the effect to cast upon
the government an obligation not to exert its constitutional power
to regulate interstate commerce except subject to the condition
that compensation be made or secured to the individuals or
corporation who may be incidentally affected by the exercise of
such power. The principle for which the bridge company contends
would seriously impair the exercise of the beneficent power of the
government to secure the free and unobstructed navigation of the
water ways of the United States. We cannot give our
Page 223 U. S. 638
assent to that principle. In conformity with the adjudged cases,
and in order that the constitutional power of Congress may have
full operation, we must adjudge that Congress has power to protect
navigation on all waterways of the United States against
unreasonable obstructions, even those created under the sanction of
a state, and that an order to so alter a bridge over a waterway of
the United States that it will cease to be an unreasonable
obstruction to navigation will not amount to a taking of a private
property for public use for which compensation need be made."
It must be concluded, therefore, that it was competent for
Congress to provide for the establishment of the harbor lines in
question for the protection of the harbor of Pittsburgh. It acted
within its constitutional power in authorizing the Secretary of War
to fix the lines. Union Bridge Co. v. United States,
(pp. 204 U. S.
-388); Monongahela Bridge Co. v. United States,
(p. 216 U. S.
). That officer did not exhaust his authority in
laying the lines first established in 1895, but was entitled to
change them, as he did change them in 1907, in order more fully to
preserve the river from obstruction. And, in none of the acts
complained of did he exceed the power which had been conferred.
The bill failed to show any ground upon which the complainant
was entitled to relief, and it was properly dismissed.
* This case was originally commenced against William H. Taft as
Secretary of War; by subsequent orders of the court the successive
incumbents of that office, Luke E. Wright, Jacob M. Dickinson and
Henry L. Stimson, were substituted as defendants and appellees.
** Section 12 of the Act of September 19, 1890 (Chap. 907, 26
Stat. 426, 455), provided:
"SEC. 12. That section twelve of the River and Harbor Act of
August eleventh, eighteen hundred and eighty-eight be amended and
reenacted so as to read as follows:"
"Where it is made manifest to the Secretary of War that the
establishment of harbor lines is essential to the preservation and
protection of harbors, he may, and is hereby authorized to, cause
such lines to be established, beyond which no piers, wharves,
bulkheads, or other works shall be extended or deposits made,
except under such regulations as may be prescribed from time to
time by him, and any person who shall willfully violate the
provisions of this section, or any rule or regulation made by the
Secretary of War in pursuance of this section, shall be deemed
guilty of a misdemeanor, and, on conviction thereof, shall be
punished by a fine not exceeding one thousand dollars, or
imprisonment not exceeding one year at the discretion of the court,
for each offense."
Sections 11, 12, and 17 of the Act of March 3, 1899 (Chap. 425,
30 Stat. 1121, 1151-1153), are as follows:
"SEC. 11. That where it is made manifest to the Secretary of War
that the establishment of harbor lines is essential to the
preservation and protection of harbors, he may, and is hereby
authorized to, cause such lines to be established beyond which no
piers, wharves, bulkheads, or other works shall be extended or
deposits made except under such regulations as may be prescribed
from time to time by him; Provided,
That whenever the
Secretary of War grants to any person or persons permission to
extend piers, wharves, bulkheads, or other works, or to make
deposits in any tidal harbor or river of the United States beyond
any harbor lines established under authority of the United States,
he shall cause to be ascertained the amount of tide water displaced
by any such structure or by any such deposits, and he shall, if he
deem it necessary, require the parties to whom the permission is
given to make compensation for such displacement, either by
excavating in some part of the harbor, including tide-water
channels between high and low water mark, to such an extent as to
create a basin for as much tidewater as may be displaced by such
structure or by such deposits, or in any other mode that may be
satisfactory to him."
"SEC. 12. That every person and every corporation that shall
violate any of the provisions of sections nine, ten, and eleven of
this Act, or any rule or regulation made by the Secretary of War in
pursuance of the provisions of the said section fourteen, shall be
deemed guilty of a misdemeanor, and on conviction thereof shall be
punished by a fine not exceeding twenty-five hundred dollars nor
less than five hundred dollars, or by imprisonment (in the case of
a natural person) not exceeding one year, or by both such
punishments, in the discretion of the court. And further, the
removal of any structures or parts of structures erected in
violation of the provisions of the said sections may be enforced by
the injunction of any circuit court exercising jurisdiction in any
district in which such structures may exist, and proper proceedings
to this end may be instituted under the direction of the Attorney
General of the United States."
"SEC. 17. That the Department of Justice shall conduct the legal
proceedings necessary to enforce the foregoing provisions of
sections nine to sixteen, inclusive, of this Act, and it shall be
the duty of the district attorneys of the United States to
vigorously prosecute all offenders against the same whenever
requested to do so by the Secretary of War or by any of the
officials hereinafter designated, and it shall furthermore be the
duty of said district attorneys to report to the Attorney General
of the United States the action taken by him against offenders so
reported, and a transcript of such reports shall be transmitted to
the Secretary of War by the Attorney General, and for the better
enforcement of the said provisions and to facilitate the detection
and bringing to punishment of such offenders, the officers and
agents of the United States in charge of river and harbor
improvements, and the assistant engineers and inspectors employed
under them by authority of the Secretary of War, and the United
States collectors of customs and other revenue officers, shall have
power and authority to swear out process, and to arrest and take
into custody, with or without process, any person or persons who
may commit any of the acts or offenses prohibited by the aforesaid
sections of this Act, or who may violate any of the provisions of
the same: Provided,
That no person shall be arrested
without process for any offense not committed in the presence of
some one of the aforesaid officials: And provided further,
That whenever any arrest is made under the provisions of this Act,
the person so arrested shall be brought forthwith before a
commissioner, judge, or court of the United States for examination
of the offenses alleged against him, and such commissioner, judge,
or court shall proceed in respect thereto as authorized by law in
case of crimes against the United States."