A private business corporation, licensed by the federal Power
Commission to use, for development of electric power, the surplus
water from a dam in the Hudson River, constructed under acts of
Congress,
Page 280 U. S. 370
placed flashboards on the crest of the dam, as the license
permitted but did not require it to do, and thus raised the level
of the water pool to such an extent as to diminish the head and
impair the value of a dam and water power belonging to riparian
proprietors above on the Mohawk River, a navigable tributary of the
Hudson. The parties so injured sued the licensee in the New York
courts and were awarded damage and an injunction restraining it
from maintaining the flashboards.
Held:
1. That the interest of the plaintiffs in the use of the water,
even though subject to destruction under the power of the United
States to control navigation, was, so far as the state laws were
concerned, a vested right acquired under those laws, and, as such
was, by § 27 of the federal Water Power Act, expressly saved from
destruction or appropriation without compensation by licensees of
the Commission, and that the licensee, by acceptance of the license
under § 6 of that Act, must be deemed to have agreed to recognize
and protect such interests. Pp.
280 U. S. 375,
280 U. S.
377.
2. Whether § 21 of the federal Water Power Act, giving to
licensees the power of eminent domain, confers on them the power to
condemn rights such as those of the plaintiffs, and whether it
might have been invoked by the licensee in this case, were
questions not before the Court. P.
280 U. S. 379.
249 N.Y. 495 affirmed.
Certiorari, 279 U.S. 829, to review a judgment entered in the
Supreme Court of New York on remittitur from the court of appeals,
restraining the above-named petitioner from maintaining flashboards
on a dam in the Hudson River, and awarding damages.
Page 280 U. S. 374
MR. JUSTICE STONE delivered the opinion of the Court.
This case comes here on writ of certiorari to review a
determination of the Court of Appeals of New York, 249 N.Y. 495,
upon which a judgment was entered in the state supreme court
awarding damages and an injunction restraining petitioner from
maintaining flashboards on the crest of the "federal Dam,"
constructed in the Hudson River near Troy, New York, under acts of
Congress. Act of June 25, 1910, c. 382, 36 Stat. 630; Act March 4,
1913, c. 144, 37 Stat. 801,
Respondents, it is stipulated, are riparian owners on the Mohawk
River, above its confluence with the Hudson, where, at a point
about three miles above the federal dam, they own a dam and water
power which they maintain for the development of power for use in
their factories on adjacent land. The petitioner, a private
business corporation, has procured from the federal Power
Commission a license for a hydroelectric power project, purporting
to be granted under the federal Water Power Act of June 10, 1920,
41 Stat. 1063 (U.S.C., Title 16, c. 12). The license granted
permission to use surplus water from the federal dam for the
development of power at a plant to be constructed and maintained by
petitioner for that purpose on government land. As the license also
permits,
Page 280 U. S. 375
but does not require, petitioner has placed flashboards on the
crest of the dam which, under normal conditions, raise the level of
the water in the pool above the dam approximately two feet.
Electric power developed by the project is used in the business of
an affiliated private manufacturing corporation. The maintenance of
the water at the new level has resulted in materially raising the
water at the tailraces of respondents' power plants, with a
corresponding reduction of the head of water and of the power
developed at their dam.
As the court below held, the acts complained of constitute,
under local law, an actionable wrong, entitling respondents to an
injunction and to damages.
Hammond v. Fuller, 1 Paige
(N.Y.) 197;
Brown v. Bowen, 30 N.Y. 519;
Hall v.
Augsbury, 46 N.Y. 622, 625, 626;
Rothery v. New York
Rubber Co., 24 Hun, 172,
aff'd, 90 N.Y. 30;
American Woolen Co. v. State, 195 App.Div. (N.Y.) 698,
705. To avoid this liability, petitioner relies on the federal
right or immunity specially set up by its answer, that the Hudson
and Mohawk are navigable rivers; that all of the acts complained of
were done under the license and authority of the federal Power
Commission and under regulations of the Secretary of War,
authorized by the Water Power Act; that the license and the acts of
petitioner authorized by it were found by the Commission to be
desirable and justified in the public interest for the purpose of
improving and developing the Hudson River for the benefit of
interstate commerce, and that the petitioner, acting under the
license, is an agency of the federal government, in the exercise of
its power to regulate commerce and navigation.
It is contended that the navigable capacity of the Hudson and
the Mohawk is subject to the regulation and control of Congress,
under Clause 3 of § 8, Art. I, of the Constitution,
Gibbons v.
Ogden, 9 Wheat. 1;
Gilman v.
Philadelphia, 3 Wall. 713,
70 U. S. 724;
United States v. Chandler
Page 280 U. S. 376
Dunbar Co., 229 U. S. 53,
229 U. S. 63;
New Jersey v. Sargent, 269 U. S. 328,
269 U. S. 337,
which may constitutionally be delegated to the Power Commission,
cf. Wisconsin v. Illinois, 278 U.
S. 367,
278 U. S. 415;
that, even if the finding of the Commission that the licensed
project is in aid of commerce and navigation is not conclusive, as
petitioner asserts it is, and even though some of the power
developed by petitioner is used for private purposes, the raising
of the level of the water by the use of flashboards is shown by the
evidence to be beneficial to navigation, and it was therefore
within the competency of the Commission to determine whether the
project should be authorized. It appears that the petitioner is
required by the license and its acceptance of it to supply from the
licensed project power in specified amounts for the lighting and
operation of the existing government lock and a second projected
lock at the federal dam, which are instrumentalities of
navigation.
It is argued that Congress, by the federal Water Power Act, has
authorized the Commission to develop navigation and for that
purpose to establish obstructions in navigable waters, and, subject
only to the constitutional requirement of compensation for property
taken, its power when so exercised is supreme; that the present
exercise of that power does not amount to a taking of the
respondents' property, for the reason that it does not appear that
the obstruction has so raised the water as to flood the
respondents' land, and any right of theirs, recognized by the state
and asserted here, to have the river flow in its natural manner
without obstruction is subordinate to the power of the national
government exerted by the Commission through its licensee, whose
action, so far as it affects respondents' water power, is
damnum absque injuria. United States v.
Chandler-Dunbar Co., 229 U. S. 53;
Gibson v. United States, 166 U. S. 269,
166 U. S. 271;
Scranton v. Wheeler, 179 U. S. 141,
179 U. S.
162-163;
Lewis Blue Point Oyster Co. v. Briggs,
229 U. S. 82;
See Fox River
Page 280 U. S. 377
Paper Co. v. Railway Commission, 274 U.
S. 651;
Chase-Hibbard Co. v. City of Elmira,
207 N.Y. 460;
compare United States v. Cress, 243 U.
S. 316.
The respondents insist, as the court below found, that the
federal dam was designed to be sufficient for purposes of
navigation without the flashboards and it was unnecessary to use
them for purposes of navigation; that the petitioner had installed
them for the development of power for its own private use; that the
effect upon navigation of the power plant and flashboards is
negligible, hence the licensed project was not one authorized under
the federal Water Power Act. In any case, it is urged that the
injury and damage complained of amount to a taking of respondents'
property without compensation, and, further, that the federal Water
Power Act, by its terms, does not authorize the granting of
licenses which would enable the licensee to destroy or affect the
rights of riparian owners.
But, in the view we take of the application of the federal Water
Power Act to the present case, it is unnecessary to decide all the
issues thus sharply raised. Whether the Commission acted within or
without its jurisdiction in granting the license, and even though
the rights which the respondents here assert be deemed subordinate
to the power of the national government to control navigation, the
present legislation does not purport to authorize a licensee of the
Commission to impair such rights recognized by state law without
compensation. Even though not immune from such destruction, they
are, nevertheless, an appropriate subject for legislative
protection.
See {2}United States v. Realty Co.,
163 U. S. 427;
Guthrie National Bank v. Guthrie, 173 U.
S. 528,
173 U. S. 535;
Joslin Co. v. Providence, 262 U.
S. 668,
262 U. S.
675-676;
Otis Co. v. Ludlow Co., 201 U.
S. 140,
201 U. S. 152;
Oswego & Syracuse R. Co. v. State, 226 N.Y. 351, 356.
Especially is there reason for such protection where, as here,
their sacrifice may be involved
Page 280 U. S. 378
in the grant of a valuable privilege to a licensee. We think
that the provisions of the act are quite sufficient in themselves
to save respondents from any such appropriation of their water
power.
Section 10(c) (U.S.C., Title 16, § 803(c)), provides that
licensees "shall be liable for all damages occasioned to the
property of others by the construction, maintenance, or operation"
of the licensed project, and, by § 27 (U.S.C., Title 16, § 821 (16
U.S.C.A § 821)) it is provided:
"Nothing contained in this chapter shall be construed as
affecting or intending to affect or in any way to interfere with
the laws of the respective states relating to the control,
appropriation, . . . or distribution of water used in irrigation or
for municipal or other uses, or any vested right acquired
therein."
By § 21 (U.S.C., Title 16, § 814), licensees are given the power
of eminent domain and authorized to conduct condemnation
proceedings in district or state courts for the acquisition
"or the right to use or damage the lands or property of others
necessary to the construction, maintenance, or operation of any dam
. . . [or] . . . diversion structure . . ."
in connection with an authorized project which they are unable
to acquire by contract. By § 6 (U.S.C., Title 16, § 799), all
licenses are required to be "conditioned upon acceptance by the
licensee of all the terms and conditions of this Act."
While these sections are consistent with the recognition that
state laws affecting the distribution or use of water in navigable
waters and the rights derived from those laws may be subordinate to
the power of the national government to regulate commerce upon
them, they nevertheless so restrict the operation of the entire act
that the powers conferred by it on the Commission do not extend to
the impairment of the operation of those laws or to the
extinguishment of rights acquired under them without remuneration.
We think the interest here asserted by
Page 280 U. S. 379
the respondents, so far as the laws of the state are concerned,
is a vested right acquired under those laws, and so is one
expressly saved by § 27 from destruction or appropriation by
licensees without compensation, and that it is one which
petitioner, by acceptance of the license under the provisions of §
6, must be deemed to have agreed to recognize and protect. Whether
§ 21, giving to licensees the power of eminent domain, confers on
them power to condemn rights such as those of respondents, and
whether it might have been invoked by the petitioner in the present
situation, are questions not before us.
Affirmed.