The prohibition in the Constitution of the United States of the
taking of private property for public use without just compensation
has no application to the case of an owner of land bordering on a
public navigable river, whose access from his land to navigability
is permanently lost by reason of the construction, under authority
of Congress, of a pier resting on submerged lands away from, but in
front of his upland, and which pier was erected by the United
States, not with any intent to impair the right of riparian owners,
but for the purpose only of improving the navigation of such
river.
It was not intended, by that provision in the Constitution, that
the paramount authority of Congress to improve the navigation of
the public waters of the United States should be crippled by
compelling the government to make compensation for an injury to a
riparian owner's right of access to navigability that might
incidentally result from an improvement ordered by Congress.
The state courts of Michigan having recognized this action as a
proper one under the laws of that state for the relief sought by
the plaintiff, this Court has jurisdiction to consider the
questions of a federal nature decided herein.
This writ of error brings up for review a final judgment of the
Supreme Court of Michigan holding that the United States is not
required to compensate an owner of land fronting on a public
navigable river when his right of access from the shore to the
navigable part of such river is permanently obstructed by a pier
erected in the river under the authority of Congress for the
purpose only of improving navigation.
Omitting any reference to immaterial matters, the case as made
by the pleadings and evidence is as follows:
Page 179 U. S. 142
By an act of Congress approved September 26th, 1850, c. 71,
providing for the examination and settlement of claims for land at
the Sault Ste. Marie in Michigan, the local register and receiver
of the land office were authorized to report upon claims to lots at
that place under instructions to be given by the Commissioner of
the General Land Office. 9 Stat. 469.
In conformity with proceedings under that act, the heirs of
Franklin Newcomb and Samuel Peck were confirmed in their claim
jointly to premises known as Private Land Claim No. 3, and a patent
was issued to them by the United States on the 6th day of October,
1874. The premises were at the west or upper end of the St. Mary's
Falls Ship Canal, and one of the boundaries, as shown by the field
notes, was "along the right bank of the Ste. Marie River." By mesne
conveyances from the heirs of Franklin Newcomb the plaintiff,
Scranton, became the owner of an undivided half of the land in
question.
By an Act approved August 26th, 1852, c. 92, Congress granted to
the State of Michigan the right to locate a canal through the
public lands in that state known as the military reservation at the
falls of St. Mary's River, and four hundred feet of land in width
extending along the line of the canal was granted for the
construction and convenience of the canal and the appurtenances
thereto, the use being vested in the state for such purposes and no
other. The act provided that the canal should be located on the
line of the survey, made for that purpose, or on such other route
between the waters above and below the falls as might be selected
with the approval of the Secretary of War. In aid of the
construction and completion of the canal, Congress also granted to
the state seven hundred fifty thousand acres of public lands, and
it was provided that the canal should be and remain a public
highway for the use of the United States, free from toll or other
charge upon the vessels of the government engaged in the public
service, or upon vessels employed in the transportation of property
or troops of the United States. 10 Stat. 35.
The construction of the canal was begun by Michigan in 1853, and
completed in 1855. It was owned and operated by the state until the
year 1881, when it was transferred to the United
Page 179 U. S. 143
States in conformity with the River and Harbor Act of June 14,
1880, c. 211, by which $250,000 was appropriated for improving and
operating the river and the canal, and by which also the Secretary
of War was authorized to accept on behalf of the United States from
the State of Michigan the St. Mary's Canal and the public works
thereon -- the transfer to be so made as to leave the United States
free from all debts, claims, or liability of any character
whatsoever, and the canal after the transfer to be free for public
use. By the same act, the Secretary of War was authorized, such
transfer being made, to draw from time to time his warrant on the
Treasury to pay the actual expenses of operating and keeping the
canal in repair. 21 Stat. 180, 189.
Prior to the transfer, Congress had made large appropriations
for the repair, preservation, improvement, and completion of the
canal. 16 Stat. 224, c. 240; 16 Stat. 402, c. 34; 18 Stat. 238, c.
457; 18 Stat. 456, c. 134; 19 Stat. 136, c. 267; 20 Stat. 156, c.
264; 20 Stat. 369, c. 181; 21 Stat. 189, c. 211.
As originally constructed, a pier extended from the west end of
the canal into the water, curving to the north. This pier was
opposite to a part of Private Land Claim No. 3, but left at that
time a riparian frontage for those premises of from three to four
hundred feet.
In 1877, the United States commenced and in 1881 completed the
construction in the water of what is known as the new south pier,
which extended across the entire front of Private Land Claim No. 3,
and was within the riparian ownership of the plaintiff as projected
from the land towards the middle thread of the stream. The effect
of the construction of this new pier was to exclude the plaintiff
altogether from access from his land within the lateral lines of
his riparian ownership, projected as aforesaid, to the navigable
water or to the channel of the river that was navigable. On both
sides of the space included within such projected lines of the
plaintiff's riparian ownership, and between the new pier and the
bank of the river, the water was only five feet in depth, so that,
by reason of the construction and maintenance of the pier, the
plaintiff was prevented from reaching navigable water of greater
depth than five feet.
The plaintiff desired to land freight on the new south pier,
Page 179 U. S. 144
and thus convey it to the lot in question. But he was prevented
from doing so by the defendant, Wheeler, superintendent of the
property, who was in possession of and exercised exclusive control
over the canal and the pier as an officer or agent of the United
States, and not otherwise.
No part of the pier in question in front of Private Land Claim
No. 3 rests upon the fast land within that claim, but entirely upon
submerged lands in front of or opposite to the fast land. The water
between the pier and dry land is very shoal.
St. Mary's River forms a part of the boundary line between the
United States and Canada, and, where navigable, forms, with the
Great Lakes, a highway for interstate and international commerce.
Near the point in question, the river was not originally navigable,
owing to the falls, and the canal was built around the falls to
connect its navigable parts above and below, and was used in
connection therewith for the purposes of such commerce.
The present action was brought by Scranton against Wheeler in
the Circuit Court of Chippewa County, Michigan, the declaration
alleging that the plaintiff was the owner in fee, but was illegally
deprived by the defendant of the possession of his interest in
"Private Land Claim No. 3, Whelpley's Survey, in the Village of
Sault Ste. Marie, Michigan, including therein that portion of the
land beneath the water of St. Mary's River from the river bank on
said lot to the thread of the stream of said river, which forms a
part of said lot, and all riparian rights belonging and attaching
thereto and being a part thereof,"
which premises the plaintiff claimed in fee. The damages alleged
were $35,000.
Upon the petition of Wheeler, the action was removed for trial
into the circuit court of the United States on the ground that the
government of the United States was the real party in interest, and
that the defense depended upon the construction of the laws of the
United States. In that court, there was a judgment in his favor.
The case was then carried to the circuit court of appeals, where
the judgment was affirmed, an elaborate opinion being delivered by
Judge Lurton. 57 F. 803. That court held that an officer of the
Page 179 U. S. 145
United States could be sued in ejectment by one claiming the
title and the right of possession; that the case was properly
removed to the circuit court for trial; that the circuit court of
appeals had jurisdiction under the Act of March 3, 1891, c. 517, 26
Stat. 826, to review the judgment of the circuit court, and that,
as
"an incident to the ownership of land on the margins of
navigable streams, the law of Michigan attaches the legal title to
the submerged land under the stream comprehended within parallel
lines extending perpendicular to the general trend of the shore
along his [the owner's] land to the center of the stream."
After observing that, although the plaintiff, under the law of
Michigan, was seised of the legal title to the soil under the
water, yet, in the very nature of the property, such seizure was of
the bare technical title, the court proceeded:
"It must, from these constitutional principles, follow that the
State of Michigan held the soil beneath her navigable rivers under
a high public trust, to preserve them forever free as public
highways, subject only to the power of Congress to regulate
commerce among the states. The legal title, which under her law
becomes vested in such proprietors, must be subject to the same
public trust, and therefore subordinate to the rights of
navigation, and subordinate to the power of Congress to control and
use the soil under such streams whenever the necessities of
navigation and commerce should demand it. The right of Congress to
regulate commerce, and, as an incident, navigation, remains
unaffected by the question as to whether the title to the soil
submerged is in the state or is in the owner of the shore. A
distinction must be recognized between that which is
jus
privatum and that which is
jus publicum. This private
right is subordinate to the public right. The plaintiff holds the
naked legal title, and with it he takes such proprietary rights as
are consistent with the public right of navigation and the control
of Congress over that right. . . . The significance of that case
[
Willson
v. Marsh Co., 2 Pet. 245], as it affects this, was
the refusal to enjoin the erection of the bridge on the complaint
of those owning land on the shores above, whose access to and use
of the stream was thereby injured. Their property had not been
taken. The injury to them was consequential, and they were held to
be without remedy. Here, the
Page 179 U. S. 146
plaintiff has sustained an injury which is wholly a consequence
of the erection of a structure by Congress in aid of the general
and public right of navigation. If Congress may lawfully use the
soil as a support for such structures without acquiring the naked
title outstanding in the plaintiff, then, for such injuries as are
merely consequential, it is a case of damage without an actionable
injury. A distinction exists between those cases where, under
authority of the state, a structure has been placed in a navigable
stream, such as a bridge, or lock and dam, as an improvement to the
navigation of a stream wholly within its borders, and which is
sought to be removed under the authority of subsequent
congressional legislation, and such a case as the present. In the
cases first mentioned, the improvement, being by authority of law,
can only be taken for public uses upon just compensation. This is
the doctrine of the case of
Monongahela Navigation Co. v.
United States, 148 U. S. 312. In that case, it
was held that not only must the actual property of the owner in the
structure be paid for, but his franchise also. The plaintiff in the
case before us had made no improvements for either public or
private uses. No property of his had been invaded, none had been
taken. The title in him was subject to the public uses. He had the
soil under the river subservient to the purposes of navigation. The
right to regulate commerce involved the right to regulate
navigation, and this in turn involved the necessary use of the
submerged land insofar as such use was essential to the maintenance
of the public highway. . . . The conclusion we have reached is that
there is no error in the judgment of the circuit court. The
plaintiff has no such ownership of the
locus in quo as
makes its use for the purposes to which it has been devoted a
taking of private property within the meaning of the
Constitution."
Upon writ of error to this Court, the judgment of the circuit
court of appeals was reversed upon the joint motion of the parties,
with directions to remand the case to the state court for trial.
The parties concurred in the opinion that the case was not
removable from the state court --
Tennessee v. Union &
Planters' Bank, 152 U. S. 454, and
Chappell v. Waterworth, 155 U. S. 102,
being cited by them in support of that view.
Page 179 U. S. 147
At the trial in the state court, the plaintiff asked the court
to charge the jury:
That, under the law of Michigan applicable to the facts in this
case, the plaintiff was the owner of the submerged land in front of
his upland, bounded by lines extending from the lateral lines of
the upland to the center file of the stream, and running at right
angles with the course of the stream in front of the upland, and
therefore that the land and property described in the declaration
belonged to and was owned by the plaintiff in fee simple, and so
belonged to him when the action was brought;
That the pier or structure in question was constructed and was
maintained by the defendant across plaintiff's land without his
consent and against his rights in the premises;
That neither the defendant nor the United States had any lawful
right to construct the pier on and across the premises in question,
thus taking possession of the premises adversely to the plaintiff
and excluding him from enjoyment thereof and from all access from
his land and premises to the navigable water of the river in front
thereof, and from the navigable water of the river to his land;
That neither the government of the United States nor the
defendant had any lawful right to so construct the pier or to
maintain the same as was being done at the time suit was brought
and as they were now doing, without their first having acquired the
right to so construct and maintain the same from the owner of the
fee, or without obtaining the right therefor by proceedings under
the power of eminent domain on payment of due compensation to the
owner of the land therefor, and,
That, under Article V of the Amendments to the Constitution of
the United States, the property in question could not lawfully be
taken for the public use to which it was appropriated without just
compensation's having been made therefor to the owner, or without
due process of law.
The plaintiff also requested this instruction:
"The construction of this pier was in violation, and the
maintaining of the same was in violation, of said Article V of the
Amendments to the Constitution of the United States in this -- that
it appears
Page 179 U. S. 148
from the testimony in the case that the same was appropriated
without due process of law, and the same was taken and devoted to a
public use without the consent of the owner thereof, and without
just compensation therefor, and that the taking possession of the
land of the plaintiff, as appears by the record, was in violation
of said Article V, and that the taking possession of the land of
the plaintiff and the construction of the pier thereon, in the
manner shown in this case, the effect of which was to deprive him
of all egress from his said land to the navigable water, the
natural navigable water of the stream, and to prevent him using his
said property by passing over or across said pier, as shown in the
testimony of the case, was in violation of said Article V of
Amendments to the Constitution of the United States, and as
depriving the owner thereof of his property without due process of
law, and without just compensation, and without his consent."
These instructions were severally refused, and to that action of
the court the plaintiff excepted.
In charging the jury, the court stated that the United States
district attorney had suggested in writing that the property in
controversy, the title and possession of which were the subjects of
this litigation, was, and for many years had been, in the
possession of the United States through its officers and agents;
that it was held for public uses in connection with the commerce
and navigation of the Great Lakes; that the nominal defendant had
no personal interest in the matter; that his physical possession of
the premises was in his official capacity, and in law the
possession of the United States; that the United States had always
held title to the said land, and now holds possession under its
claim of title; that this action was in effect an action against
the United States government, which in its sovereign capacity could
not be sued, and for these reasons the district attorney asked that
all proceedings by stayed and the suit dismissed.
A verdict for the defendant was directed on the ground that, in
legal effect, the action was against the United States, and that a
judgment for the plaintiff would be one against the government and
its property.
Page 179 U. S. 149
In the supreme court of the state, the failure of the trial
court to charge the jury as requested by the plaintiff, and the
direction to the jury to return a verdict for the defendant, were
assigned for error. That court, all the justices concurring, held
that the action was not against the United States, but affirmed the
judgment upon other grounds. It said:
"When one in the actual possession of property defends his right
of possession upon the ground that the government, state or
national, has placed him in possession, he must show that the right
of the government is paramount to the right of the plaintiff, or
judgment will go against him. This point has been settled by the
decision of the Supreme Court of the United States rendered May 10,
1897.
Tindal v. Wesley, 167 U. S. 204. In that case, the
authorities upon this point are reviewed at length, including the
case of
Stanley v. Schwalby, 162 U. S.
255, upon which defendant mainly relies. The United
States government took possession of the submerged land of the
plaintiff for the purpose of erecting thereon piers in aid of the
immense navigation upon the Great Lakes and the rivers connecting
them. That the improvements made were necessary to aid and protect
this navigation is established beyond dispute. Had the government
the right to make these improvements upon the submerged land
without compensation to the adjoining owner? It is conceded that,
under the law of Michigan, the title to submerged lands is in the
adjoining owner to the thread of the stream. It is insisted in
behalf of the plaintiff that the government possesses no right to
so use his land, although submerged, and although necessary to so
use it in aid of navigation, as to cut off his access to the open
water. It is contended, on the other hand, that this title to
submerged lands along navigable waters, and the right of access
thereto, are subject to the paramount right of the United States to
use this land in such manner as it shall determine to be necessary
in aid of navigation. The court of appeals was unanimous in its
opinion against the plaintiff's claim. In a very able opinion
delivered by Judge Lurton, the facts are clearly stated, the
authorities cited, and we think the conclusion there reached is the
correct one. We therefore deem it unnecessary for us to enter into
a long discussion
Page 179 U. S. 150
of the law and the authorities. The case of
Hawkins Point
Lighthouse, 39 F. 77, appears to be exactly in point, and to
rule the present case. We think the conclusion reached by the court
below was a correct one, although it gave a wrong reason."
113 Mich. 565.
The
Hawkins Point Lighthouse case, referred to in the
opinion of the state court, was ejectment brought in a circuit
court of the United States against a government keeper of a
lighthouse to recover possession of such house, erected in the
Patapsco River, a public navigable water of the United States, by
the lighthouse board in pursuance of acts of Congress. There was no
condemnation for public use of the lands upon which the lighthouse
rested, nor was any compensation made to anyone for the site. The
plaintiff was the owner of the upland, but had not, in the exercise
of his riparian right, improved out into the water in front of his
land. The court, speaking by Judge Morris, held that the plaintiff
was not entitled to recover, saying:
"While the submerged land remains a part of the bed of the
river, it is not private property in the sense of the Fifth
Amendment to the federal Constitution. As was declared in
Gilman v. Philadelphia,
3 Wall. 725, the navigable waters 'are the public property of the
nation, and subject to all the requisite legislation by Congress.'
In the hands of the state or of the state's grantee, the bed of a
navigable river remains subject to an easement of navigation, which
the general government can lawfully enforce, improve, and protect.
It is by no means true that any dealing with a navigable stream
which impairs the value of the rights of riparian owners gives them
a claim for compensation. The contrary doctrine -- that, in order
to develop the greatest public utility of a waterway, private
convenience must often suffer without compensation -- has been
sanctioned by repeated decisions of the Supreme Court. The
following are cases all involving that proposition:
The
Black Bird Creek Case, 2 Pet. 245;
Gilman v.
Philadelphia, 3 Wall. 713;
Pound v. Turck,
95 U. S.
459;
Wisconsin v. Duluth, 96 U. S.
379;
South Carolina v. Georgia, 93 U. S. 4. If
it were made apparent to Congress that any extension of the
plaintiff's present shoreline into the river tended to impair the
navigability of
Page 179 U. S. 151
the stream or its use as a highway of commerce, Congress could
authorize the agents of the United States to establish the present
shore as the line beyond which no structures of any kind could be
extended, and the plaintiff would have no claim for compensation.
If the plaintiff could thus lawfully be prevented from
appropriating to his private use any part of the submerged land
lying in front of his shoreline, and the whole of it be kept
subservient to the easement of navigation, how can it be
successfully claimed that he must be paid for the small portion
covered by the lighthouse two hundred feet from the shore, which
has been taken for a use as strictly necessary to safe navigation
as the improved channel itself? The Court of Appeals of Maryland,
whenever called upon to declare the nature of the title of the
state and its grantees in the land at the bottom of navigable
streams, has uniformly held that the soil below high water mark was
as much a part of the
jus publicum as the stream
itself."
39 F. 77.
The plaintiff, Scranton, has assigned various grounds of error.
These grounds are substantially those embodied in his requests for
instructions in the trial court, and which were insisted upon in
the supreme court of the state.
MR. JUSTICE HARLAN delivered the opinion of the Court. After
stating the facts as above reported, he proceeded:
1. The government insists that ejectment is not the proper
remedy for a riparian owner to secure the removal of a structure
that interferes with access by him from his fast land to navigable
water. A sufficient answer to this objection is that the state
court recognized the present action as a proper one under the laws
of Michigan for the relief sought by the plaintiff. We have
therefore to consider only the controlling questions of a
Page 179 U. S. 152
federal nature presented by the record and decided by the state
court.
2. The supreme court of the state correctly held that the trial
court erred in directing a verdict for the defendant upon the
ground that a judgment against him would in legal effect be a
judgment against the United States. It is true the defendant,
Wheeler, insisted that the action of which the plaintiff complained
was taken by him under the authority of the United States. But this
fact was not sufficient to defeat the suit. If the plaintiff was
entitled to access from his land to navigable water, and if the
defendant stood in the way of his enjoying that right, then the
court was under a duty to inquire whether the defendant had or
could have any authority in law to do what he had done, and the
suit was not to be deemed one against the United States because, in
the consideration of that question, it would become necessary to
ascertain whether the defendant could constitutionally acquire from
the United States authority to obstruct the plaintiff's access to
navigable water in front of his land without making or securing
compensation to him. The issue, in point of law, was between the
individual plaintiff and the individual defendant, and, the United
States not being a party of record, a judgment against Wheeler will
not prevent it from instituting a suit for the direct determination
of its rights as against the plaintiff. This subject has been
examined by the court in numerous cases, the most recent one being
Tindal v. Wesley, 167 U. S. 204,
167 U. S.
222-223. In that case -- which was a suit to recover
real property in South Carolina held by the defendants, as they
insisted, in their capacities as officers of the state, and only
for the state -- it was said that
"the Eleventh Amendment gives no immunity to officers or agents
of a state in withholding the property of a citizen without
authority of law. And when such officers or agents assert that they
are in rightful possession, they must make good that assertion when
it is made to appear in a suit against them as individuals that the
legal title and right of possession is in the plaintiff."
Again:
"It is said that the judgment in this case may conclude the
state. Not so. It is a judgment to the effect only that, as between
the plaintiff and the defendants, the former is entitled to
Page 179 U. S. 153
possession of the property in question, the latter having shown
no valid authority to withhold possession from the plaintiff; that
the assertion by the defendants of a right to remain in possession
is without legal foundation. The state not being a party to the
suit, the judgment will not conclude it. Not having submitted its
rights to the determination of the court in this case, it will be
open to the state to bring any action that may be appropriate to
establish and protect whatever claim it has to the premises in
dispute. Its claim, if it means to assert one, will thus be brought
to the test of the law as administered by tribunals ordained to
determine controverted rights of property, and the record in this
case will not be evidence against it for any purpose touching the
merits of its claim."
These principles are applicable to the present case, and show
that it is not within the rule forbidding a suit against the United
States except with its consent.
3. The vital question, therefore, is the one heretofore
mentioned -- namely, whether the prohibition in the Constitution of
the United States of the taking of private property for public use
without just compensation has any application to the case of an
owner of land bordering on a public navigable river whose access
from his land to navigability is permanently lost by reason of the
construction of a pier resting on submerged lands away from, but in
front of, his upland, and which pier was erected by the United
States not with any intent to impair the rights of riparian owners,
but for the purpose only of improving the navigation of such
river.
Undoubtedly compensation must be made or secured to the owner
when that which is done is to be regarded as a taking of private
property for public use within the meaning of the Fifth Amendment
of the Constitution, and, of course, in its exercise of the power
to regulate commerce, Congress may not override the provision that
just compensation must be made when private property is taken for
public use. What is private property within the meaning of that
Amendment, or what is a taking of private property for public use,
is not always easy to determine. No decision of this Court has
announced a rule that will embrace every case. But what has been
said in some cases involving the
Page 179 U. S. 154
general question will assist us in determining whether the
present plaintiff has been denied the protection secured by the
constitutional provision in question.
In
Pumpelly v. Green Bay
Company, 13 Wall. 166,
80 U. S. 181,
the Court construed a provision of the Constitution of Wisconsin
declaring that "the property of no person shall be taken for public
use without just compensation therefor," observing that it was a
provision almost identical in language with the one relating to the
same subject in the federal Constitution. In that case, it appeared
that a public improvement in a navigable water was made under local
statutory authority, whereby the plaintiff's land was permanently
overflowed and its use for every purpose destroyed. Referring to
some adjudged cases which went, as the Court observed, beyond sound
principle, it was said that
"it remains true that where real estate is actually invaded by
superinduced additions of water, earth, sand, or other material, or
by having any artificial structure placed on it, so as to
effectually destroy or impair its usefulness, it is a taking within
the meaning of the Constitution, and that this proposition is not
in conflict with the weight of judicial authority in this country,
and certainly not with sound principle."
That case was relied upon in
Transportation Co. v.
Chicago, 99 U. S. 635,
99 U. S. 642,
as establishing the invalidity of certain municipal acts looking to
the improvement of a public highway. But this Court said that
"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."
It was observed in the same case that the extremest
qualification of the doctrine was that found in
Pumpelly's
case, and that case was referred to as holding nothing more than
that "the permanent flooding of private property may be regarded as
a
taking,'" because there would be in such case "a physical
invasion of the real estate of the private owner, and a practical
ouster of his possession."
Page 179 U. S.
155
In
Monongahela Navigation Co. v. United States,
148 U. S. 312,
148 U. S.
341-343, there was an actual taking of certain locks and
dams which had been constructed and maintained, under competent
authority, by a navigation company, and the question was whether
the franchise to take tolls for the use of the locks was to be
deemed a part of the property taken for which compensation must be
made. This Court held that it was, remarking:
"The franchise is a vested right. The state has power to grant
it. It may retake it, as it may take other private property, for
public uses, upon the payment of just compensation. A like, though
a superior, power exists in the national government. It may take it
for public purposes, and take it even against the will of the
state, but it can no more take the franchise which the state has
given than it can any private property belonging to an
individual."
Again, in the same case:
"It is also suggested that the government does not take this
franchise; that it does not need any authority from the state for
the exaction of tolls, if it desires to exact them; that it only
appropriates the tangible property, and then either makes the use
of it free to all, or exacts such tolls as it sees fit, or
transfers the property to a new corporation of its own creation,
with such a franchise to take tolls as it chooses to give. But this
franchise goes with the property, and the navigation company, which
owned it, is deprived of it. The government takes it away from the
company, whatever use it may make of it, and the question of just
compensation is not determined by the value to the government which
takes, but the value to the individual from whom the property is
taken, and when by the taking of the tangible property the owner is
actually deprived of the franchise to collect tolls, just
compensation requires payment not merely of the value of the
tangible property itself, but also of that of the franchise of
which he is deprived."
But the case most analogous to the present one is that of
Gibson v. United States, 166 U. S. 269,
166 U. S. 271,
166 U. S.
275-276. That was an action in the Court of Claims to
recover damages resulting from the construction of a dike by the
United States in the Ohio River, near the plaintiff's farm on
Neville Island, a short distance below Pittsburg.
Page 179 U. S. 156
From the finding of facts in that case, it appears that, at the
time the dike was constructed, Mrs. Gibson's farm was in a high
state of cultivation, with a frontage of 1,000 feet on the main
channel of the Ohio River, and had a landing that was used in
shipping products from and in bringing supplies to it, and that
there was no other landing on the farm which the owner could use in
shipping products and in receiving supplies; that the dike was
constructed under the authority of an act of Congress appropriating
money for improving the Ohio River; that the owner was unable to
use the landing for the shipment of products from and supplies to
the farm for the greater part of the gardening season on account of
the dike obstructing the passage of boats, and could only use the
landing at a high stage of water; that, after the dike was made,
she could not, during the ordinary stage of water, ship products
from or receive supplies for her farm without going over the farms
of her neighbors to reach another landing, and that, in consequence
of the construction and maintenance of the dike, the plaintiff's
farm had been reduced in value from $600 to $150 or $200 per acre.
It was further found that the plaintiff's access to the navigable
part of the river was not entirely cut off; that at a nine-foot
stage of water, which frequently occurred during November,
December, March, April, and May, she could get into her dock in any
manner, while from a three-foot stage of water she could
communicate with the navigable channel through a chute, and at any
time haul out to the channel by wagon; that no water was thrown
back on the land by the building of the dike, and that the dike
itself did not come into physical contact with the land, and was
constructed in the exercise of a claimed right to improve the
navigation of the river.
This Court held that the plaintiff had no cause of action
against the United States. It said:
"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 to navigation created in favor
of the federal government by the Constitution,"
citing
South Carolina v.
Georgia,
Page 179 U. S. 157
93 U. S. 4;
Shively v. Bowlby, 152 U. S. 1;
Eldridge v. Trezevant, 160 U. S. 452.
Again, in the same case:
"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."
"Moreover," the Court said,
"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 the light of these adjudications, can it be held that
Scranton, the plaintiff, is entitled, by reason of the construction
of the pier in question, to compensation for the destruction of his
right, as riparian owner, of access from his land to the navigable
part of the river immediately in front of it?
It is said that he is so entitled in virtue of the decision in
Yates v.
Milwaukee, 10 Wall. 497,
77 U. S.
504-505. The report of that case shows that Yates owned
a wharf on a navigable river within the limits of the City of
Milwaukee, and that the city, by an ordinance, declared the wharf
to be a nuisance, and ordered it to be abated. There was no proof
whatever in the record that the wharf was in fact an obstruction to
navigation or a nuisance except the declaration to that effect in
the city ordinance, and Yates brought suit to enjoin interference
with it by the city. This Court held that the mere declaration by
the city that Yates' wharf was a nuisance did not make it one,
saying:
"It is a doctrine not to be tolerated in this country that a
municipal corporation, without any general laws either of the city
or of the state within which a given structure can be shown to be a
nuisance, can, by its mere declaration that it
Page 179 U. S. 158
is one, subject it to removal by any person supposed to be
aggrieved, or even by the city itself."
This, as this Court said in
Shively v. Bowlby,
152 U. S. 1,
152 U. S. 40, was
quite sufficient to dispose of the case in Yates' favor, and
indicated the point adjudged. A proper disposition of the case
required nothing more to be said. But the opinion of the Court went
further, and after observing, upon the authority of
Dutton v.
Strong, 1 Black 25, and
Railroad
Co. v. Schurmeir, 7 Wall. 272, that a riparian
owner is entitled to access to the navigable part of the river from
the front of his lot, subject to such general rules and regulations
as the legislature might prescribe for the protection of the rights
of the public, said:
"This riparian right is property, and is valuable, and though it
must be enjoyed in due subjection to the rights of the public, it
cannot be arbitrarily or capriciously destroyed or impaired. It is
a right of which, when once vested, the owner can only be deprived
in accordance with established law, and, if necessary that it be
taken for the public good, upon due compensation."
The decision in
Yates v. Milwaukee cannot be regarded
as an adjudication upon the particular point involved in the
present case. That, as we have seen, was a case in which the
riparian owner had in conformity with law erected a wharf in front
of his upland in order to have access to navigable water. The City
of Milwaukee attempted arbitrarily and capriciously to destroy or
remove the wharf that had lawfully come into existence, and was not
shown, in any appropriate mode, to have been an obstruction to
navigation. It was a case in which a municipal corporation intended
the actual destruction of tangible property belonging to a riparian
owner and lawfully used by him in reaching navigable water, and
not, like this, a case of the exercise in a proper manner of an
admitted governmental power resulting indirectly or incidentally in
the loss of the citizen's right of access to navigation -- a right
never exercised by him in the construction of a wharf before the
improvement in question was made by the government.
While the present case differs in its facts from any case
heretofore decided by this Court, it is embraced by principles of
constitutional law that have become firmly established.
Page 179 U. S. 159
The Constitution invests Congress with the power to regulate
commerce with foreign nations and among the several states. This
power includes the power to prescribe "the rule by which commerce
is to be governed;" "is complete in itself, may be exercised to its
utmost extent, and acknowledges no limitations other than are
prescribed in the Constitution;" and
"comprehends navigation within the limits of every state in the
Union, so far as that navigation may be, in any manner, connected
with 'commerce with foreign nations, or among the several states,
or with the Indian tribes.'"
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S.
196-197.
In
Gilman v.
Philadelphia, 3 Wall. 713,
70 U. S. 724,
the Court said:
"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."
In
South Carolina v. Georgia, 93 U. S.
4,
93 U. S. 11-12,
the Court said that Congress
"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."
In
Mobile County v. Kimball, 102 U.
S. 691,
102 U. S. 696,
the court, observing that the power of Congress to regulate
commerce was without limitation, said:
"It authorizes Congress to prescribe the conditions upon which
commerce in all its forms shall be conducted between our citizens
and the citizens or subjects of other countries, and between the
citizens of the several states, and to adopt measures to promote
its growth and insure its safety. And as commerce embraces
navigation, the improvement of harbors and bays along our coast,
and of navigable rivers within the states connecting with them,
falls within the power."
In
Stockton v. Baltimore & N.Y. Railroad, 32 F. 9,
20, Mr. Justice Bradley, holding the circuit court, said:
"Such being the character of the state's ownership of the land
under water -- an ownership held not for the purpose of
emolument,
Page 179 U. S. 160
but for public use, especially the public use of navigation and
commerce -- the question arises whether it is a kind of property
susceptible of pecuniary compensation within the meaning of the
Constitution. The Fifth Amendment provides only that private
property shall not be taken without compensation, making no
reference to public property. But, if the phrase may have an
application broad enough to include all property and ownership, the
question would still arise whether the appropriation of a few
square feet of the river bottom to the foundation of a bridge which
is to be used for the transportation of an extensive commerce in
aid and relief of that afforded by the waterway is at all a
diversion of the property from its original public use. It is not
so considered when sea walls, piers, wing-dams, and other
structures are erected for the purpose of aiding commerce by
improving and preserving the navigation. Why should it be deemed
such when (without injury to the navigation) erections are made for
the purpose of aiding and enlarging commerce beyond the capacity of
the navigable stream itself, and of all the navigable waters of the
country? It is commerce, and not navigation, which is the great
object of constitutional care. The power to regulate commerce is
the basis of the power to regulate navigation and navigable waters
and streams, and these are so completely subject to the control of
Congress, as subsidiary to commerce, that it has become usual to
call the entire navigable waters of the country the navigable
waters of the United States. It matters little whether the United
States has or has not the theoretical ownership and dominion in the
waters, or the land under them; it has, what is more, the
regulation and control of them for the purposes of commerce. So
wide and extensive is the operation of this power that no state can
place any obstruction in or upon any navigable waters against the
will of Congress, and Congress may summarily remove such
obstructions at its pleasure. And all this power is derived from
the power 'to regulate commerce.' Is this power stayed when it
comes to the question of erecting a bridge for the purposes of
commerce across a navigable stream? We think not. We think that the
power to regulate commerce between the states extends not only to
the control of the navigable
Page 179 U. S. 161
waters of the country and the lands under them for the purposes
of navigation, but for the purpose of erecting piers, bridges, and
all other instrumentalities of commerce which, in the judgment of
Congress, may be necessary or expedient."
As much was said in argument about the decisions in New York, it
may be well here to refer to some of the rulings of the highest
court of that state. In
Rumsey v. New York and New England
Railroad Co., 133 N.Y. 79, 85, 89, the Court of Appeals of New
York, referring to the prior case of
Gould v. Hudson River
Railroad Co., 6 N.Y. 522, said:
"It was there held that the owner of lands on the Hudson River
has no private right or property in the waters or the shore between
high and low water mark, and therefore is not entitled to
compensation from a railroad company which, in pursuance of a grant
from the legislature, constructs a railroad along the shore,
between high and low water mark, so as to cut off all
communications between the land and the river otherwise than across
the railroad. It is believed that this proposition is not supported
by any other judicial decision in this state, and if we were
dealing with the question now as an original one, it would not be
difficult to show that the judgment in that case was a departure
from precedent and contrary to reason and justice."
Again, in the same case:
"It must now, we think, be regarded as the law in this state
that an owner of land on a public river is entitled to such damages
as he may have sustained against a railroad company that constructs
its road across his waterfront and deprives him of access to the
navigable part of the stream, unless the owner has granted the
right, or it has been obtained by the power of eminent domain. This
principle cannot, of course, be extended so as to interfere with
the right of the state to improve the navigation of the river, or
with the power of Congress to regulate commerce under the
provisions of the federal Constitution."
But in a later case in New York relating to this subject --
Sage v. The Mayor, 154 N.Y. 61, 69 -- the Court of
Appeals, after observing that the court in
Rumsey v. New York
and New England Railroad Co. had been careful to say that the
principle announced by it was not to be extended so as to
Page 179 U. S. 162
interfere with the right of the state to improve the navigation
of the river, or with the power of Congress to regulate commerce
under the provisions of the federal Constitution, said:
"While we think it is a logical deduction from the decisions in
this state that, as against the general public, through their
official representatives, riparian owners have no right to prevent
important public improvements upon tidewater for the benefit of
commerce, the principle upon which the rule rests, although
sometimes foreshadowed, has not been clearly set forth. Although,
as against individuals or the unorganized public, riparian owners
have special rights to the tideway that are recognized and
protected by law, as against the general public, as organized and
represented by government, they have no rights that do not yield to
commercial necessities, except the right of preemption, when
conferred by statute, and the right to wharfage, when protected by
a grant and covenant on the part of the state, as in the
Langdon [93 N.Y. 129] and
Williams [105 N.Y. 419]
cases. I think that the rule rests upon the principle of implied
reservation, and that in every grant of lands bounded by navigable
waters where the tide ebbs and flows, made by the Crown or the
state as trustee for the public, there is reserved by implication
the right to so improve the waterfront as to aid navigation for the
benefit of the general public, without compensation to the riparian
owner. The implication springs from the title to the tideway, the
nature of the subject of the grant, and its relation to navigable
tidewater, which has been aptly called the highway of the world.
The common law recognizes navigation as an interest of paramount
importance to the public."
All the cases concur in holding that the power of Congress to
regulate commerce, and therefore navigation, is paramount, and is
unrestricted except by the limitations upon its authority by the
Constitution. Of course, every part of the Constitution is as
binding upon Congress as upon the people. The guaranties prescribed
by it for the security of private property must be respected by
all. But whether navigation upon waters over which Congress may
exert its authority requires improvement at all, or improvement in
a particular way, are matters wholly
Page 179 U. S. 163
within its discretion, and the judiciary is without power to
control or defeat the will of Congress so long as that branch of
the government does not transcend the limits established by the
supreme law of the land. Is the broad power with which Congress is
invested burdened with the condition that a riparian owner whose
land borders upon a navigable water of the United States shall be
compensated for his right of access to navigability whenever such
right ceases to be of value solely in consequence of the
improvement of navigation by means of piers resting upon submerged
lands away from the shoreline? We think not. The question before us
does not depend upon the inquiry whether the title to the submerged
lands on which the new south pier rests is in the state or in the
riparian owner. It is the settled rule in Michigan that "the title
of the riparian owner extends to the middle line of the lake or
stream of the inland waters."
Webber v. Pere Marquette Boom
Co., 62 Mich. 636, and authorities there cited. But it is
equally well settled in that state that the rights of the riparian
owner are subject to the public easement or servitude of
navigation.
Lorman v. Benson, 8 Mich. 18, 32;
Ryan v.
Brown, 18 Mich.195, 207. So that whether the title to the
submerged lands of navigable waters is in the state or in the
riparian owners, it was acquired subject to the rights which the
public have in the navigation of such waters. 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 navigation. In
Lorman v. Benson, above cited, the Supreme Court of
Michigan, speaking by Justice Campbell, declared the right of
navigation to be one
Page 179 U. S. 164
to which all others were subservient. The learned counsel for
the plaintiff frankly states that compensation cannot be demanded
for the
appropriation of the submerged lands in question,
and that the United States, under the power to regulate commerce,
has an unquestioned right to
occupy them for a lawful
purpose and in a lawful manner. This must be so -- certainly in
every case where the use of the submerged lands is necessary or
appropriate in improving navigation. But the contention is that
compensation must be made for the loss of the plaintiff's access
from his upland to navigability, incidentally resulting from the
occupancy of the submerged lands, even if the construction and
maintenance of a pier resting upon them be necessary or valuable in
the proper improvement of navigation. We cannot assent to this
view. If the riparian owner cannot enjoy access to navigability
because of the improvement of navigation by the construction away
from the shoreline of works in a public navigable river or water,
and if such right of access ceases alone for that reason to be of
value, there is not, within the meaning of the Constitution, a
taking of
private property for public use, but
only a consequential injury to a right which must be enjoyed, as
was said in the
Yates case, "in due subjection to the
rights of the public" -- an injury resulting incidentally from the
exercise of a governmental power for the benefit of the general
public, and from which no duty arises to make or secure
compensation to the riparian owner. The riparian owner acquired the
right of access to navigability subject to the contingency that
such right might become valueless in consequence of the erection,
under competent authority, of structures on the submerged lands in
front of his property for the purpose of improving navigation. When
erecting the pier in question, the government had no object in view
except, in the interest of the public, to improve navigation. It
was not designed arbitrarily or capriciously to destroy rights
belonging to any riparian owner. What was done was manifestly
necessary to meet the demands of international and interstate
commerce. In our opinion, it was not intended that the paramount
authority of Congress to improve the navigation of the public
navigable waters of the United States should be crippled by
Page 179 U. S. 165
compelling the government to make compensation for the injury to
a riparian owner's right of access to navigability, that might
incidentally result from an improvement ordered by Congress. The
subject with which Congress dealt was navigation. That which was
sought to be accomplished was simply to improve navigation on the
waters in question so as to meet the wants of the vast commerce
passing and to pass over them. Consequently the agents designated
to perform the work ordered or authorized by Congress had the right
to proceed in all proper ways without taking into account the
injury that might possibly or indirectly result from such work to
the right of access by riparian owners to navigability.
It follows from what has been said that the pier in question was
the property of the United States, and that, when the defendant
refused to plaintiff the privilege of using it as a wharf or
landing place, he violated no right secured to the latter by the
Constitution.
We are of opinion that the court below correctly held that the
plaintiff had no such right of property in the submerged lands on
which the pier in question rests as entitles him, under the
Constitution, to be compensated for any loss of access from his
upland to navigability resulting from the erection and maintenance
of such pier by the United States in order to improve, and which
manifestly did improve, the navigation of a public navigable
water.
The judgment of the Supreme Court of Michigan is therefore
Affirmed.
MR. JUSTICE Brewer concurred in the result.
MR. JUSTICE SHIRAS, dissenting:
Gilmore G. Scranton, the plaintiff in error, derived his title
to a tract of land, known as Private Land Claim No. 3, and fronting
on the St. Mary's River, a stream naturally navigable, under a
patent of the United States granted on October 6, 1874.
It must be regarded as the settled law of this Court that
grants
Page 179 U. S. 166
by Congress of portions of the public lands bordering on or
bounded by navigable waters convey, of their own force, no title or
right below high water mark, but leave the question of the use of
the shores by the owners of uplands to the sovereign control of
each state, subject only to the rights vested by the Constitution
of the United States.
In
Shively v. Bowlby, 152 U. S. 1, there
was a controversy between parties claiming under a patent of the
United States for a donation land claim bounded by the Columbia
River, and parties claiming under deeds from the State of Oregon
for lands between the lines of low and ordinary high tide of the
Columbia River. It was held by the Supreme Court of Oregon, 22 Or.
427, that the lands in question, lying between the uplands and the
navigable channel of the Columbia River, belonged to the State of
Oregon, and that its deed to such lands conveyed a valid title.
The case was brought to this Court, where the judgment of the
Supreme Court of Oregon was affirmed. The opinion of this Court
contains an elaborate review of the English authorities expounding
the common law, of decisions of the several states, and of the
previous decisions of this Court. The conclusion reached was that
the title and rights of riparian or littoral proprietors in the
soil below high water mark are governed by the local laws of the
several states, subject, of course, to the rights granted to the
United States by the Constitution. The theory on which Congress has
acted in this matter was thus stated by the court:
"The Congress of the United States, in disposing of the public
lands, has constantly acted upon the theory that those lands,
whether in the interior or on the coast, above high water mark may
be taken up by actual occupants in order to encourage the
settlement of the country, but that the navigable waters and the
soils under them, whether within or above the ebb and flow of the
tide, shall be and remain public highways, and, being chiefly
valuable for the public purposes of commerce, navigation, and
fishery and for the improvements necessary to secure and promote
those purposes, shall not be granted away during the period of
territorial government, but, unless in case
Page 179 U. S. 167
of some international duty or public exigency, shall be held by
the United States in trust for the future states, and shall vest in
the several states, when organized and admitted into the Union,
with all the powers and prerogatives appertaining to the older
states in regard to such waters and soils within their respective
jurisdictions -- in short, shall not be disposed of piecemeal to
individuals as private property, but shall be held as a whole for
the purpose of being ultimately administered and dealt with for the
public benefit by the state after it shall have become a completely
organized community."
The reasoning and conclusions of this case were followed and
applied in the subsequent cases of
Mann v. Tacoma Land
Co., 153 U. S. 273;
St. Anthony Falls Water Power Co. v. St. Paul Water
Commissioners, 168 U. S. 349, and
Morris v. United States, 174 U. S. 196.
It cannot be said that any title to the submerged land became
vested in the plaintiff in error, as against the state or its
grantees, by reason of the fact that it is the law in Michigan, in
the case of lands abutting on navigable streams, titles to which
are derived from the state, that such titles extend to and embrace
submerged lands as far as the thread of the stream. It has never
been held in Michigan that that doctrine applied to the case of
titles derived from the United States.
Shively v. Bowlby and
Mann v. Tacoma Land Co.,
above cited, were both cases in which it was held that titles
derived under grants by the United States to lands abutting on
navigable waters did not avail as against the state and subsequent
grantees.
It is not pretended that the State of Michigan ever made any
grant of these submerged lands to the plaintiff in error, but, on
the contrary, the state, in 1881, transferred all its rights in the
St. Mary's Canal and the public works thereon, with all its
appurtenances, to the United States. Howell's Stat. sec. 5502.
This would seem to dispose of the claim to the land occupied by
the pier in the river in front of Private Land Claim No. 3. And
indeed the counsel for the plaintiff in error, in their briefs
filed of record in this Court, conceded that, under the facts of
this case, compensation could not be demanded for the
appropriation
Page 179 U. S. 168
of the submerged lands, and restricted their argument to the
question of the plaintiff's right of access to the navigable stream
bounding his property. But the opinion in this case, while
correctly stating that the question before us is as to the right of
the plaintiff in error to be indemnified for the total destruction
of his access to the river, does not confine the discussion to that
question. Not regarding the fact that the plaintiff in error has
failed to show any title to the submerged land, and that no such
claim is urged on his behalf in this Court, it is said in the
opinion that --
"The question before us does not depend upon the inquiry whether
the title to the submerged lands on which the new south pier rests
is in the state or in the riparian owner. It is the settled rule in
Michigan that 'the title of the riparian owner extends to the
middle line of the lake or stream of the inland waters.'
Webber
v. Pere Marquette Boom Co., 62 Mich. 636, and authorities
there cited. But it is equally well settled in that state that the
rights of the riparian owner are subject to the public easement or
servitude of navigation.
Lorman v. Benson, 8 Mich. 18;
Ryan v. Brown, 18 Mich.195."
"So that whether the title to the submerged lands of navigable
waters is in the state or in the riparian owners, such title was
taken subject to the rights which the public have in the navigation
of the waters in question. 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 strictly
consistent with such use, and infringes no right of the riparian
owner. Whatever the interest of a riparian owner in the submerged
lands in front of his upland, his title is not as full and complete
as his title acquired to fast land which has no direct connection
with the navigation of the river or water on which it borders. It
is not a title at his absolute disposal, but is to be held at all
times subordinate to such use of the submerged lands and of the
waters flowing over them as is consistent with or demanded by the
public right of navigation. The learned counsel for the plaintiff
frankly states that compensation cannot be demanded for the
appropriation of the submerged lands in question, and that the
United States, under the
Page 179 U. S. 169
power to regulate commerce, has an unquestioned right to occupy
them for a lawful purpose and in a lawful manner. This must be so
-- certainly in every case where the use of the submerged lands is
necessary for the improvement of navigation."
It is, I think, impossible to read this language, particularly
when read in connection with other passages in the opinion, without
understanding it to assert that where the riparian owner has a
title to lands under navigable waters adjacent to his upland, such
land may be taken into the exclusive possession of the government
by the erection of a public work without compensation, and that,
even if the state court should hold that the riparian owner had a
title to the submerged lands, and was entitled to be compensated
for their appropriation for a public purpose connected with
navigation, it would be the duty of this Court to overrule such a
decision.
As, for the reasons already mentioned, no such question is now
before us, and therefore those portions of the opinion of the
majority cannot justly be hereafter regarded as furnishing a rule
of decision in such a case, yet I must be permitted to disavow such
a proposition. When the case does arise, I incline to think it can
be shown upon principle and authority that private property in
submerged lands cannot be taken and exclusively occupied for a
public purpose without just compensation. At all events, I submit
that it will be in time to decide so important a question when it
necessarily arises, and when the rights of the owner of the
property have been asserted and defended in argument.
The real question, then, in this case is whether an owner of
land abutting on a public navigable river, but whose title does not
extend beyond the high water line, is entitled to compensation
"because of the permanent and total obstruction of his right of
access to navigability resulting from the maintenance of a pier
constructed by the United States in the river opposite such land
for the purpose of improving navigation."
To answer such a question, the nature of the riparian right of
access must be first determined. That he has such a right all must
admit. But does his right constitute "private property" within the
meaning of the Constitution, or is it in the
Page 179 U. S. 170
nature of a license, or prescription, of which he can be
deprived for the benefit of the public without being entitled to
compensation?
The term "property," standing alone, includes everything that is
the subject of ownership. It is a
nomen generalissimum,
extending to every species of valuable right and interest,
including things real and personal, easements, franchises, and
other incorporeal hereditaments.
Boston R. Co. v. Salem, 2
Gray 35; Shaw, C.J.
"The term 'property,' as applied to lands, comprehends every
species of title, inchoate or complete. It is supposed to embrace
those rights which lie in contract, those which are executory as
well as those which are executed."
Soulard v. United
States, 4 Pet. 511; Marshall, C.J.
Private property is that which is one's own; something that
belongs or inheres exclusively in an individual person.
The right which a riparian owner has in a navigable stream when
traveling upon it or using it for the purpose of navigation must be
distinguished from his right to reach navigable water from his
land, and to reach his land from the water. The former right is one
which belongs to him as one of the public, and its protection is
found in indictments at the suit of the public -- sometimes, in
special circumstances, in proceedings in equity for the use of all
concerned. Being a public right, compensation cannot be had by
private parties for any injury affecting it. The latter right is a
private one, incident to the ownership of the abutting property, in
the enjoyment of which such owner is entitled to the protection of
private remedies afforded by the law against wrongdoers, and for
which, if it is taken from him for the benefit of the public, he is
entitled to compensation.
This distinction has always been recognized by the English
courts.
Rose v. Groves, 5 M. & G. 613, was a case where an
innkeeper was held entitled to recover damages against a defendant
for wrongfully preventing the access of guests to his home,
situated on the River Thames, by placing timbers in the river
opposite the inn, and wherein, meeting the contention that the
plaintiff had no private right of action, but that his remedy was
by proceedings
Page 179 U. S. 171
for a public nuisance, Maule, J., said: "This is not an action
for obstructing the river, but for obstructing the access to the
plaintiff's house" on the river.
In
Lyon v. Fishmongers' Co., 1 App.Cas. 662, Lord
Cairns said:
"As I understand the judgment in
Rose v. Groves, it
went not upon the ground of public nuisance, accompanied by
particular damage to the plaintiff, but upon the principle that a
private right of the plaintiff had been interfered with. The
plaintiff, an innkeeper on the banks of a navigable river,
complained that the access of the public to his house was
obstructed by timber which the defendant had placed in the river,
and it would be the height of absurdity to say that a private right
was not interfered with when a man who has been accustomed to enter
his house from a highway finds his door made impassable, so that he
no longer has access to his house from the public highway. This
would equally be a private injury to him whether the right of the
public to pass and repass along the highway were or were not at the
same time interfered with. In
Rose v. Groves, Chief
Justice Tindal put the case distinctly upon the footing of an
infringement of a private right. He says: 'A private right is set
up on the part of the plaintiff, and to that he complains that an
injury has been done,' and then, after stating the facts, adds: 'It
appears to me therefore that the plaintiff is not complaining of a
public injury.'"
Elsewhere in the same case, Lord Cairns said:
"Independently of the authorities, it appears to me quite clear
that the right of a man to step from his own land onto a highway is
something quite different from the public right of using the
highway."
"Unquestionably the owner of a wharf on the river bank has, like
every other subject of the realm, the right of navigating the river
as one of the public. This, however, is not a right coming to him
qua owner or occupier of any lands on the bank; nor is it
a right which
per se he enjoys in a manner different from
any other member of the public."
"But when this right of navigation is connected with an
exclusive access to and from a particular wharf, it assumes a
very
Page 179 U. S. 172
different character. It ceases to be a right held in common with
the rest of the public, for other members of the public have no
access to or from the river at the particular place, and it becomes
a form of enjoyment of the land, and of the river in connection
with the land, the disturbance of which may be vindicated in
damages by an action or restrained by an injunction. It is, as was
decided by this House in the cases to which I have referred, a
portion of the valuable enjoyment of the land, and any work which
takes it away is held to be an 'injurious affecting' of the land --
that is to say, the occasioning to the land of an
injuria
or an infringement of right. The taking away of river frontage of a
wharf, or the raising of an impediment along the frontage,
interrupting the access between the wharf and the river, may be an
injury to the public right of navigation, but it is not the less an
injury to the owner of the wharf which, in the absence of any
parliamentary authority, would be compensated by damages or
altogether prevented."
1 App.Cas. 671.
This distinction between the right of immediate access from the
abutter's property to and from a highway, whether a street or a
navigable stream, and an injury arising after he reaches it and
which is common to him and the rest of the public, is recognized by
the courts of the states, and the former right is held to be a
valuable one which cannot be destroyed without compensation.
Thus, in
Haskell v. New Bedford, 108 Mass. 208, it was
held that, where a sewer constructed by the City of New Bedford
discharged filth into the dock of the plaintiff, obstructing his
use of it, it created a private nuisance to the plaintiff upon his
own land for which he could maintain an action for the special
damages thereby occasioned to him, without regard to the question
whether it was also a nuisance to the public, MR. JUSTICE GRAY, now
a justice of this Court, saying:
"The plaintiff's title extended, by virtue of the statute of
1806, to the channel of the river, the filling up of the dock
impaired his use and enjoyment of it for the purpose for which it
had been constructed and actually used, and the injury thus done to
him differed not only in degree but in kind from the injury to the
public by interference with navigation. Neither this special injury
to him nor that occasioned to his premises by making them
offensive
Page 179 U. S. 173
and unhealthy was merged in the common nuisance,"
and citing, among other cases,
Rose v. Groves, one of
the English cases above mentioned.
And in
Brayton v. Fall River, 113 Mass. 218, it was
held that, while the owner of a wharf upon a tidewater creek cannot
maintain an action for an illegal obstruction to the creek, that
being a common damage to all who use it, yet for an obstruction
adjoining the wharf, which prevents vessels from lying in it in the
accustomed manner, this being a particular damage, he can maintain
an action.
In
Delaplaine v. Chicago & N.W. Railway, 42 Wis.
214, the Supreme Court of Wisconsin held that --
"While the riparian proprietor only takes to the waterline, it
by no means follows, nor are we willing to admit, that he can be
deprived of his riparian rights without compensation. As proprietor
of the adjoining land, and as connected with it, he has the right
of exclusive access to and from the waters of the lake at that
particular place; he has the right to build piers and wharves in
front of his land out to navigable waters, in aid of navigation,
not interfering with the public use. These are private rights
incident to the ownership of the shore, which he possesses distinct
from the rest of the public. . . ."
"It is evident from the nature of the case that these rights of
user and of exclusion are connected with the land itself, grow out
of its location, and cannot be materially abridged or destroyed
without inflicting an injury upon the owner which the law should
redress. It seems unnecessary to add the remark that these riparian
rights are not common to the citizens at large, but exist as
incidents to the right of the soil itself adjacent to the water. In
other words, according to the uniform doctrine of the best
authorities, the foundation of riparian rights,
ex vi
termini, is the ownership of the bank or shore. . . . These
riparian rights are undoubted elements in the value of property
thus situated. If destroyed, can anyone seriously claim that the
plaintiffs have not suffered a special damage in respect to their
property, different both in degree and kind from that sustained by
the general public? It seems to us not."
In
Brisbine v. St. Paul &c. Railroad, 23 Minn. 114,
it
Page 179 U. S. 174
was held by the Supreme Court of Minnesota that the state could
not give a railroad company the right to occupy a riparian front
without making compensation for the injury to riparian rights. The
court, after citing cases in this Court, said:
"According to the doctrine of these decisions, the plaintiff
possessed the right to enjoy free communication between his
abutting premises and the navigable channel of the river, to build
and maintain, for his own and the public use, suitable landing
places, wharves, etc. . . . The rights which thus belonged to him
as riparian owner of the abutting premises were valuable property
rights, of which he could not be divested without consent, except
by due process of law, and, if for public purposes, upon just
compensation."
In
Indiana &c. Railway Co. v. Eberle, 110 Ind. 545,
the Supreme Court of Indiana said:
"Whatever may be the rule of decision elsewhere, nothing is
better settled in this state than that the owners of lots abutting
on a street may have a peculiar and distinct interest in the
easement in the street in front of their lots. This interest
includes the right to have the street kept open and free from any
obstruction which prevents or materially interferes with the
ordinary means of ingress to and egress from the lots. It is
distinguished from the interest of the general public in that it
becomes a right appendant, and legally adhering, to the contiguous
grounds and the improvements thereon as the owner may have adapted
them to the street. To the extent that the street is a necessary
and convenient means of access to the lot, it is as much a valuable
property right as the lot itself. It cannot, therefore, be
perverted from the uses to which it was originally dedicated, nor
devoted to uses inconsistent with street purposes, without the
abutting lot owner's consent, until due compensation be first made
according to law for any injury and damage which may directly
result from such interference."
This right of the owner of a lot abutting on a street to free
access to and from the street, which right is analogous to the one
we are here considering, has been frequently considered by the
state courts, and some of the conclusions reached are thus stated
in Dillon's Municipal Corporations, vol. 2, sec. 656 (4th ed.):
Page 179 U. S. 175
"The full conception of the true nature of a public street in a
city, as respects the rights of the public on the one hand, and the
rights of the adjoining owner, on the other, has been slowly
evolved from experience. It has been only at a recent period . . .
that these two distinct rights have, separately and in their
relations to each other, come to be understood and defined with
precision. The injustice to the abutting owner arising from the
exercise of unrestrained legislative power over streets in cities
was such that the abutter necessarily sought legal redress, and the
discussion thence ensuing led to a more careful ascertainment of
the nature of streets, and of the rights of the adjoining owner in
respect thereof. It was seen that he had, in common with the rest
of the public, a right of passage. But it was further seen that he
had rights not shared by the public at large, special and peculiar
to himself, and which arose out of the very relation of his lot to
the street in front of it, and that these rights, whether the bare
fee of the streets was in the lot owner or in the city, were rights
of property, and as such ought to be, and were, as sacred from
legislative invasion as his right to the lot itself. In cities, the
abutting owner's property is essentially dependent upon sewer, gas,
and water connections; for these, such owner has to pay or
contribute out of his own purse. He had also to pay or contribute
towards the cost of sidewalks and pavements. These expenditures, as
well as the relations of his lot to the street, give him a special
interest in the street in front of him distinct from that of the
public at large. He may make, as of right, all proper uses of the
street, subject to the paramount right of the public for all street
uses proper, and subject also to reasonable and proper municipal
and police regulation. Such rights, being property rights, are,
like other property rights, under the protection of the
Constitution."
The courts of New York, which formerly took another view, now
hold that right of access is a valuable property right, and
entitled to constitutional protection as such.
Steers v.
Brooklyn, 101 N.Y. 51;
Langdon v. New York, 93 N.Y.
129.
It is true that, in the later case of
Sage v. New York,
154 N.Y. 62, it was held that the riparian rights of the owner of
lots abutting on the Harlem River, a tidewater stream, are
Page 179 U. S. 176
subordinate to the right of the City of New York, under its
ancient charters supplemented by constitutional legislation and
state grants, to fill in and make improvements, such as an exterior
street, docks, and bulkheads, from the high water mark in front of
his upland to and below low water mark, essential to navigation and
commerce, without compensation. But the opinion shows that the
decision was put wholly upon the law of the State of New York as
declared in the authorities cited. Thus, the language of Gerard in
his work on Titles to Real Estate is adopted:
"It has been established in this state -- New York -- by
judicial decision that the legislature of the state has an inherent
right to control and regulate the navigable waters within the
state. . . . The individual right of the riparian owner was
considered . . . as subject to the right of the state to abridge or
destroy it at pleasure by a construction or filling in beyond his
outer line, and that, too, without compensation made."
And again, the court says:
"In other states, some of the authorities are in accord, while
others are opposed to the rule adopted in this state. . . . The
want of harmony is probably owing to the difference in the rule as
to the ownership of the tideway, which is held in some
jurisdictions to belong to the state and in others to the riparian
proprietors. This also accounts for the want of harmony in the
federal courts, as they follow the courts of the state where the
case arose unless some question arises under an act of
Congress."
This case therefore must be regarded as an adjudication that, in
the State of New York, the nature and extent of riparian rights are
to be determined by the law of the state, and that the federal
courts, in passing upon such rights, follow that law.
In
Backus v. Detroit, 49 Mich. 110, it was held by the
Supreme Court of Michigan, per Cooley, J., that the better and more
sensible doctrine is that the land under the water in front of a
riparian proprietor, though beyond the line of private ownership,
cannot be taken and appropriated to a public use by a railway
company under its right of eminent domain without making
compensation to the riparian proprietor.
Page 179 U. S. 177
Leaving the decisions of the state courts, let us turn to those
of this Court -- and I shall not consider it necessary to advert to
the earlier decisions, because they are referred to and considered
in the later ones.
Railroad Company v.
Schurmeir, 7 Wall. 272, was a case involving the
right of the complainant, Schurmeir, to enjoin the St. Paul &c.
R. Company from taking possession and building its railroad upon
certain ground in the City of St. Paul, Minnesota, bordering on the
Mississippi River, and lying between lots of the complainant and
that river. The railroad company claimed to own the land in fee
under a congressional land grant of May 22, 1857. The Supreme Court
of Minnesota held that the complainant was entitled to a decree as
prayed for, and this Court, on appeal, affirmed the judgment of the
Supreme Court of Minnesota, holding that, under the case of
Dutton v.
Shirey, 1 Black 23, although riparian owners are
limited to the stream, still they also have the same right to
construct suitable landings and wharves, for the convenience of
commerce and navigation, as is accorded riparian properties
bordering on navigable waters affected by the ebb and flow of the
tide; and, speaking of the contention on behalf of the railroad
company that the complainant had dedicated the premises to the
public as a street, and had thus parted with his title to the same,
this Court said:
"Suppose the construction of that provision, as assumed by the
respondents, is correct -- it is no defense to the suit, because it
is nevertheless true that the municipal corporation took the title
in trust, impliedly, if not expressly, designated by the acts of
the party making the dedication. They could not, nor could the
state, convey to the respondents any right to disregard the trust,
or to appropriate the premises to any purpose which would render
valueless the adjoining real estate of the complainant."
In
Yates v.
Milwaukee, 10 Wall. 497, on appeal from the Circuit
Court of the District of Wisconsin, it was held that the owner of
land bounded by a navigable river has certain riparian rights
whether his title extend to the middle of the stream
Page 179 U. S. 178
or not; that among these are free access to the navigable part
of the stream, and the right to make a landing, wharf, or pier, for
his own use, or for the use of the public; that those rights are
valuable, and are property, and can be taken for the public good
only when due compensation is made. In the opinion, per Miller, J.,
it was said:
"Whether the title of the owner of such a lot extends beyond the
dry land or not, he is certainly entitled to the rights of a
riparian proprietor whose land is bounded by a navigable stream,
and among those rights are access to the navigable part of the
river from the front of his lot, the right to make a landing,
wharf, or pier for his own use or for the use of the public,
subject to such general rules and regulations as the legislature
may see proper to impose for the protection of the rights of the
public, whatever those may be. . . . This riparian right is
property, and is valuable, and, though it must be enjoyed in due
subjection to the rights of the public, it cannot be arbitrarily or
capriciously destroyed or impaired. It is a right of which, when
once vested, the owner can only be deprived in accordance with
established law, and, if necessary that it be taken for the public
good, upon due compensation."
Accordingly, this Court reversed the decree of the circuit court
and instructed it
"to enter a decree enjoining the City of Milwaukee the
defendants below from interfering with plaintiff's wharf,
reserving, however, the right of the city to remove or change it so
far as may be necessary in the actual improvement of the
navigability of the river, and upon due compensation made."
The opinion in
Yates v. Milwaukee, like that of the
majority in the present case, may be liable to the criticism made
upon it in
Shively v. Bowlby, 152 U. S.
1,
152 U. S. 36, as
having gone too far in saying that the owner of land adjoining any
navigable water, whether within or above the ebb and flow of the
tide, has, independently of local law, a right of property in the
soil below high water mark, and the right to build out wharves so
far at least, as to reach water really navigable. But, so
corrected, it is a direct authority for the proposition we are now
considering -- namely, that riparian rights, when recognized as
existing by
Page 179 U. S. 179
the law of the state, are a valuable property, and the subject
of compensation when taken for public use.
In the case of
Weber v. Harbor
Commissioners, 18 Wall. 64, it is said:
"It is unnecessary for the disposition of this case to question
the doctrine that a riparian proprietor whose land is bounded by a
navigable stream has the right of access to the navigable part of
the stream in front of his land, and to construct a wharf or pier
projecting into the stream for his own use, or the use of others,
subject to such general rules and regulations as the legislature
may prescribe for the protection of the public, as was held in
Yates v. Milwaukee. On the contrary, we recognize the
correctness of the doctrine as stated and affirmed in that
case."
In
Potomac Steamboat Co. v. Upper Potomac Steamboat
Co., 109 U. S. 682,
Mr. Justice Matthews, delivering the opinion of this Court, quoted
with approval the definition of a riparian owner and of his right
of access to a navigable river in front of his lot, given by Mr.
Justice Miller in
Yates v. Milwaukee.
In
Illinois Central Railroad v. Illinois, 146
U. S. 445, this Court said:
"The riparian proprietor is entitled, among other rights, as
held in
Yates v. Milwaukee, 10 Wall.
497, to access to the navigable part of the water on the front of
which lies his land, and for that purpose to make a landing, wharf,
or pier for his own use or for the use of the public, subject to
such general rules and regulations as the legislature may prescribe
for the protection of the rights of the public. In the case cited
the Court held that this riparian right was property and valuable,
and, though it must be enjoyed in due subjection to the rights of
the public, it could not be arbitrarily or capriciously
impaired."
In
Eldridge v. Trezevant, 160 U.
S. 452, it was again held by this Court, following
Hardin v. Jordan, 140 U. S. 384,
and
Shively v. Bowlby, 152 U. S. 1,
152 U. S. 58,
that the nature and legal incidents of land abutting on navigable
streams were declared by the law of the state wherein the land was
situated. A bill was filed in the Circuit Court of the United
States for the Western District of Louisiana by Eldridge, a citizen
of Mississippi, against the Board of Engineers of the State of
Louisiana
Page 179 U. S. 180
and one Trezevant, who had been employed by that board to
construct a public levee through a plantation belonging to the
complainant and situated in Carroll Township, State of Louisiana,
in pursuance of an act of the general assembly of the state. The
circuit court dismissed the bill, and an appeal was taken to this
Court. It appeared, and indeed was conceded by the appellant, that,
under the law and constitution of the state and under French law
existing before the transfer of the territory to the United States,
land for the construction of a public levee on the Mississippi
River could be taken, without compensation, by reason of a
servitude on such lands for such a purpose. But it was contended on
behalf of the appellant that, because he was a citizen of another
state, and because he derived his title through a patent of the
United States, that whatever may have been the condition of the
ancient grants, no such condition attached to his ownership, and
that the lands bordering on a navigable stream were as much within
the protection of the constitutional principle awarding
compensation as other property.
After reviewing the provisions of the Constitution and laws of
the state and the decisions of the state court construing them, and
citing the federal decisions, this Court said:
"These decisions not only dispose of the proposition that lands
situated within a state, but whose title is derived from the United
States, are entitled to be exempted from local regulations admitted
to be applicable to lands held by grant from the state, but also of
the other proposition that the provisions of the Fourteenth
Amendment extend to and override public rights existing in the form
of servitudes or easements, held by the courts of a state to be
valid under the Constitution and laws of such state."
"The subject matter of such rights and regulations falls within
the control of the states, and the provisions of the Fourteenth
Amendment of the Constitution of the United States are satisfied
if, in cases like the present one, the state law, with its benefits
and its obligations, is impartially administered.
Walker v.
Sauvinet, 92 U. S. 90;
Davidson v. New
Orleans, 96 U. S. 97;
Missouri v.
Lewis, 101 U. S. 22;
Hallinger v.
Davis, 146 U.S.
Page 179 U. S. 181
314. The plaintiff in error is indeed not a citizen of
Louisiana, but he concedes that, as respects his property in that
state, he has received the same measure of right as that awarded to
its citizens, and we are unable to see, in the light of the federal
Constitution, that he has been deprived of his property without due
process of law, or been denied the equal protection of the
laws."
The case of
Gibson v. United States, 166 U.
S. 269, is cited and relied on in the majority opinion.
In that case, the owner of a farm fronting on the Ohio River filed
a petition in the Court of Claims complaining of the construction
by the United States of a dyke in the bed of the river, and which
the plaintiff alleged to interfere with her landing. The principal
finding of the Court of Claims was as follows:
"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."
The only injury suffered, therefore, by the plaintiff was the
inconvenience of having to haul her produce by wagon over and
across the dike in such portions of the year when the water was
below a 3-foot stage, and when, at that part of the Ohio River,
navigation was almost wholly suspended. At other times, and when
the stage of the water permitted navigation, the plaintiff had the
use of her dock. The Court of Claims dismissed the petition, and
its decree was affirmed by this Court. There was no pretense that
the dike in question touched the plaintiff's land at any point.
THE CHIEF JUSTICE, in the opinion, put the judgment chiefly on
the decisions of the state court. He said:
"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
Page 179 U. S. 182
regulate his use of it."
And, after citing several Pennsylvania cases, THE CHIEF JUSTICE
concluded his opinion by saying:
"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 the appellant's property, and was merely
incidental to the exercise of a servitude to which her property had
always been subject."
It is obvious, therefore, that in this case, the Court applied
the doctrine of
Eldridge v. Trezevant, which was cited in
the opinion, and that the servitude to which the plaintiff's lands
were said to be subject was a servitude existing under the state
law, and not a servitude created by federal law.
In the states which originally formed this Union or in those
admitted since, it has never been held that the United States,
through any of their departments, could impose servitudes upon the
lands owned by the states or by their grantees. The cases are all
the other way.
New Orleans v. United
States, 10 Pet. 736;
Pollard v.
Hagan, 3 How. 212;
Barney v. Keokuk,
94 U. S. 324;
Van Brocklin v. Tennessee, 117 U.
S. 151,
117 U. S. 168;
Shively v. Bowlby, 152 U. S. 1.
In the recent case of
Morris v. United States,
174 U. S. 196, the
question of the nature and extent of riparian rights on the Potomac
River in front of the City of Washington was involved. The majority
of the Court held that, under the evidence, the titles of the
owners of lots in the city plans were bounded by Water Street, and
that therefore such owners possessed no riparian rights entitled to
compensation by the United States in carrying our a scheme of
improvement of the waters of the river.
The opinion of the Court proceeded on the assumption, as matter
of law, that owners of land abutting on the river would be
possessed of riparian rights, and entitled therefore to
compensation if such rights were impaired paired or destroyed by
the improvements proposed by the government, but held, as a
conclusion from the evidence, that, as matter of fact, the owners
of lots under the city plans did not have titles extending to the
river, but that their lots were bounded by Water Street, the title
to which was in the city, and therefore no compensation for
Page 179 U. S. 183
exclusion from the river could be enforced. The case therefore
may be properly regarded as an authority for the proposition that
the owners of lots abutting on a navigable river are entitled to
compensation if their riparian right of access is taken from them
by improvements made by the government to promote the navigability
of the Potomac River. The long investigation by court and counsel
was, indeed, labor in vain if at last riparian rights possessed by
the low owners should be decided not to be private property within
the protection of the Constitution.
If, then, by the law of the state in which the land is situated,
the right of access to navigable streams is one of the incidents of
abutting land, if such rights are held to be property and valuable
as such, can the United States, under the incidental power arising
out of their jurisdiction over interstate commerce, destroy such
right of access without making compensation? I think that this
question may well be answered in the words of Gould in his work on
Waters (2d ed) sec. 151: "When it is conceded that riparian rights
are property, the question as to the right to take them without
compensation would appear to be at an end."
The argument against the right of compensation in such a case
seems to be based upon an assumption that, because the government
has the power to make improvements in navigable waters, it follows
that it can do so without making compensation to the owners of
private property destroyed by the improvements. But this assumption
is, as I think, entirely without foundation, and, if permitted by
the courts to be made practically applicable, would amount to a
disregard of the express mandate of the Constitution that private
property shall not be taken for public uses without just
compensation.
"The power to establish post offices and to create courts within
the states was conferred upon the federal government; included in
it was authority to obtain sites for such offices and for
courthouses, and to obtain them by such means as were known and
appropriate. The right of eminent domain was one of those means
well known when the Constitution was adopted, and employed to
obtain land for public uses. Its existence,
Page 179 U. S. 184
therefore, in the grantee of that power ought not to be
questioned. The Constitution itself contains an implied recognition
of it beyond what may justly be implied from the express grants.
The Fifth Amendment contains a provision that private property
shall not be taken for public use without just compensation. What
is that but an implied assertion that, on making just compensation,
it may be taken?"
Kohl v. United States, 91 U.
S. 374.
Accordingly, in that case, a proceeding instituted by the United
States to appropriate a parcel of land in the City of Cincinnati as
a site for a post office and other public uses was upheld, but
those proceedings contemplated compensation, and Congress, in the
act authorizing the proceedings, appropriated money for the
purpose.
Now if, in order to render valid an appropriation of private
property for the use of the government in the erection of post
offices and courthouses, compensation must be made, what is the
difference in principle if the government is appropriating private
property for the purpose of improving the navigation of a navigable
stream? This question has been already put and answered by this
Court in
Monongahela Navigation Company v. United States,
148 U. S. 312,
where it was said:
"It cannot be doubted . . . that Congress has the power, in its
discretion, to compel the removal of this lock and dam as
obstructions to the navigation of the river, or to condemn and take
them for the purpose of promoting its navigability. In other words,
it is within the competency of Congress to make such provision
respecting the improvement of the Monongahela River as in its
judgment the public interests demand. Its dominion is supreme."
"But, like other powers granted to Congress by the Constitution,
the power to regulate commerce is subject to all the limitations
imposed by such instrument, and among them is that of the Fifth
Amendment we have heretofore quoted. Congress has supreme control
over the regulation of commerce, but if, in exercising that supreme
control, it deems it necessary to take private property, then it
must proceed subject to the limitations
Page 179 U. S. 185
imposed by this Fifth Amendment, and can take only on payment of
just compensation."
"The power to regulate commerce is not given in any broader
terms than that to establish post offices and post roads, but if
Congress wishes to take private property upon which to build a post
office, it must either agree upon the price with the owner, or in
condemnation pay just compensation therefor. . . . And that which
is true in respect to a condemnation of property for a post office
is equally true when condemnation is sought for the purpose of
improving a natural highway."
As already remarked, the power of the government to control and
regulate navigable streams and to carry into effect schemes for
their improvement is not directly given by the Constitution, but is
only recognized by the courts as an incident to the power expressly
given to regulate commerce between the states and with foreign
nations.
Now if it be held that Congress has power to take or destroy
private property lying under or adjacent to navigable streams,
without compensating their owners, because it is done in the
exercise of the power to regulate commerce, then it must follow
that the same unlimited power can be exercised with respect to
private property not in nor bounded by water. The power of Congress
to regulate commerce is not restricted to commerce carried on in
lakes and rivers, but equally extends to commerce carried on by
land. If Congress, yielding to a loud and increasing popular demand
that it should take possession and control of the railroads of the
country, or should undertake the construction of new railroads as
arteries of commerce, this novel notion -- that the existence of
the right to regulate commerce creates, of itself and independently
of the law of the state, a federal servitude on all property to be
affected by the exercise of that right -- would apply to all kinds
of private property wherever situated.
But it may be asked why, if the question as to riparian rights
is one of state law, the decision of the Supreme Court of Michigan
in the present case, denying the claim of the abutting owner for
compensation for the loss of his access to the river is not
conclusive?
Page 179 U. S. 186
The answer to this question will be found in the opinion of that
court. Instead of ascertaining and applying, or professing to
apply, the law of the state in respect to riparian rights, the
Supreme Court of Michigan treated the question as one under federal
law, and, following what it understood to be the doctrine laid down
by several federal circuit court decisions as obligatory, held that
it was competent for the government of the United States, in the
exercise of its power to regulate commerce between the states, to
deprive abutting owners of their right of access to navigable
streams without compensating them for their loss. The cases so
relied on were
Stockton v. Baltimore & N.Y. R. Co., 32
F. 9;
Hawkins Point Lighthouse Case, 39 F. 77, and
Scranton v. Wheeler, 57 F. 803.
The first of these cases arose on a bill filed in the Circuit
Court of the United States for the District of New Jersey by the
Attorney General of New Jersey, seeking to restrain the Baltimore
& New York Railroad Company, acting under congressional
authority, from occupying without compensation land belonging to
the State of New Jersey, lying under tidewaters, by the pier of a
bridge. Mr. Justice Bradley, refusing the injunction, said:
"The character of the state's ownership of the land under water
-- an ownership held not for the purpose of emolument, but for
public use, especially the public use of navigation and commerce --
the question arises whether it is a kind of property susceptible of
pecuniary compensation within the meaning of the Constitution. The
Fifth Amendment provides only that private property shall not be
taken without compensation, making no reference to public property.
But if the phrase may have an application broad enough to include
all property and ownership, the question would still arise whether
the appropriation of a few square feet of the river bottom to the
foundation of a bridge which is to be used for the transportation
of an extensive commerce in aid and relief of that afforded by the
waterway is at all a diversion of the property from its original
public use."
Mr. Justice Bradley was himself a New Jersey lawyer, and
Page 179 U. S. 187
availed himself in that case of the law of that state, which has
always been to the effect that the land underlying the tidewaters
belonged to the state, and was held for a public use. His view was
that as, under the law of New Jersey, the land beneath tidewaters
was held by the state for public uses, such land was not private
property within the meaning of the Constitution, or that at all
events, its occupation, to a limited extent, by the pier of a
bridge intended to promote commerce, was not a diversion of the
property from its original use.
It needs no argument to show that such a decision is not
applicable to the present case. Indeed, it is plain that, if the
case had been one involving the right of an abutter to access to
the tidewater, the same being, under the laws of the state, private
property, the decision of that learned justice would have been very
different. He was the organ of this Court in pronouncing the
opinion in
Barney v. Keokuk, 94 U. S.
324, where the question was whether the title of
riparian proprietors on the banks of the Mississippi extended to
ordinary high water mark or to the shore between high and low water
mark, and said:
"In our view of the subject, the correct principles were laid
down in
Martin v. Waddell, 16 Pet.
367;
Pollard's Lessee v. Hagan, 3
How. 212, and
Goodtitle v. Kibbe, 9 How.
471. These cases related to tidewater, it is true, but they
enunciate principles which are equally applicable to all navigable
waters. And since this Court, in the case of
The Genesee
Chief, 12 How. 443, has declared that the Great
Lakes and other navigable waters of the country, above as well as
below the flow of the tide, are, in the strictest sense, entitled
to the denomination of navigable waters, and amenable to the
admiralty jurisdiction, there seems to be no sound reason for
adhering to the old rule as to the proprietorship of the beds and
shores of such waters. It properly belongs to the states by their
inherent sovereignty, and the United States has wisely abstained
from extending (if it could extend) its survey and grants beyond
the limits of high water. The cases in which this Court has seemed
to hold a contrary view depended, as most cases must depend, on the
local laws of the states in which the lands are situated. In Iowa,
as
Page 179 U. S. 188
before stated, the more correct rule seems to have been adopted
after a most elaborate investigation of the subject."
Whether the distinction suggested by Mr. Justice Bradley between
property held by the state for public purposes and private property
be or be not sound, the doctrine has no application to the present
case, and, as the circuit court case was not brought for review to
this Court, the suggestion remains unadjudged.
The so-called
Hawkins Point Lighthouse case was an
ejectment brought in the Circuit Court of the United States for the
District of Maryland to recover possession of the land covered by a
lighthouse erected on land lying under the waters of a tidewater
navigable river by the lighthouse board in pursuance of acts of
Congress. The plaintiff claimed to be the owner of the submerged
land, and the action did not involve the question of access to the
river. Judge Morris held that the plaintiff was not entitled to
recover; and, although stating that
"the Court of Appeals of Maryland, whenever called upon to
declare the nature of the title of the state and its grantees in
the land at the bottom of navigable streams, has uniformly held
that the soil below high water mark was as much a part of the
jus publicum as the stream itself,"
extended Mr. Justice Bradley's suggestion in the New Jersey
case, and declared that the plaintiff, as grantee of the state, had
no private property in the submerged land entitled to
constitutional protection. As the structure was a lighthouse, the
case might have been governed by peculiar considerations, but the
learned judge of the circuit court seems to have gone further, and
to have that, as a matter of federal law,
"in the hands of the state or of the state's grantees, the bed
of a navigable river remains subject to an easement of navigation
which the general government can lawfully enforce, improve, and
protect, and that it is by no means true that any dealing with a
navigable stream which impairs the value of the rights of riparian
owners gives them a claim for compensation."
If by this is meant that riparian owners may be deprived,
without compensation, of access to navigable streams abutting on
their land, by reason of a supposed servitude or easement imposed
by the power granted
Page 179 U. S. 189
to Congress by the Constitution to regulate commerce, then, for
the reasons heretofore given and under the authorities cited, such
a view cannot be sustained. The case, under the name of
Hill v.
United States, was brought to this Court, but the writ of
error was dismissed on an independent ground, which rendered it
unnecessary for this Court to pass upon the questions ruled in the
court below. There, the question of the right of the plaintiff to
be compensated for deprivation of his riparian rights was not
considered, and indeed could not be, as it was held that neither
the circuit court nor this Court had jurisdiction.
Hill v.
United States, 149 U. S. 593.
Yet this was the case which the Supreme Court of Michigan said
in their opinion "appeared to be exactly in point and to rule the
present case."
The only other case relied on by the Supreme Court of Michigan
was
Scranton v. Wheeler, 57 F. 803, being this identical
case, which had been removed from the state to the federal court.
It was subsequently brought to this Court, but was dismissed
because the record did not show that a federal question had been
raised or presented in the plaintiff's statement of his case in the
state court. Accordingly, the cause was remanded to the state
court, and subsequently reached this Court by a writ of error to
the Supreme Court of Michigan. While the case was in the circuit
court of appeals, an opinion was filed by Circuit Judge Lurton in
which, without adverting to the law of the State of Michigan or
citing any decisions of the supreme court of that state in respect
to riparian rights, he held that the right of the plaintiff of
access to the navigable water was subordinate to the power of the
federal government to control the stream for the purposes of
commerce, and that the plaintiff was therefore not entitled to
compensation for the extinction of his right.
The proposition frequently made that the power of Congress to
regulate interstate commerce, and therefore navigation, is
paramount can properly be understood to mean only that, as between
the authority of the states in such matters and that of the general
government, the latter is superior. It has no just reference to
questions concerning private property lying
Page 179 U. S. 190
within the states. Much less can it be rightly used to signify
that such power can be exercised by Congress without regard to the
right of just compensation when private property is taken for
public use.
The suggestion that
"the riparian owner acquired the right of access to
navigability, subject to the possibility that such right might
become valueless in consequence of the erection, under competent
authority, of structures on the submerged lands in front of his
property for the purpose of improving navigation"
would seem to be irrelevant, because the liability that his
private property may at all times be taken for public uses is known
to everyone. But hitherto it has not been supposed that the
knowledge of such liability deprives the owner of the right of
compensation when his property is actually so taken.
Nor can the statement that, in the opinion of this Court,
"it was not intended by the framers of the Constitution that the
paramount authority of Congress to improve the navigation of the
public navigable waters of the United States should be crippled by
compelling the government to make compensation for the injury to a
riparian owner's right of access to navigability that might
incidentally result from an improvement"
be admitted. The intention of the framers is seen in the
provisions of the Constitution, and in them the right to take
private property for public uses is indissolubly connected with the
duty to make just compensation. It cannot be supposed that a
recognition of such a duty would cripple the government in the just
exercise of the power it incidentally possesses to regulate
interstate navigation.
As, then, the Supreme Court of Michigan considered the question
solely as a federal one, in which it supposed it was controlled by
the federal cases cited, this Court has jurisdiction to review its
judgment, and as by that judgment the plaintiff in error has been
refused the protection of the Constitution of the United States
claimed by him, I think the judgment should be reversed and the
cause remanded to be proceeded in according to law.
MR. JUSTICE GRAY and MR. JUSTICE PECKHAM concur in this
dissent.